






Agnes Williams et al. v. Nazrie Walker et al.















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-00303-CV

     AGNES ABRAM WILLIAMS, ET AL.,
                                                                              Appellants
     v.

     NAZRIE WALKER
     AND GEORGE ABRAM, ET AL.,
                                                                              Appellees
 

From the 87th District Court
Freestone County, Texas
Trial Court # 95-320B
                                                                                                                

DISSENTING OPINION
                                                                                                                

      Because I find the trial court did not abuse its discretion when it refused to grant a trial
amendment, I would affirm the judgment.  
      The majority indicates that the appellees should have anticipated that the appellant would
raise two affirmative defenses, statute of frauds and forgery, to the partition agreements and
will.  The appellants learned of the partition agreement sufficiently in advance of trial, 50 days
according to the majority opinion, to have considered and pled these defenses as a matter of
right if they so chose.  They did not.
      Appellants had ample time prior to trial to raise the defenses.  It would seem obvious that
even if the Appellee should have anticipated the defenses because the issue was raised 50 days
before trial, based upon the requirement that affirmative defenses must be pled and these were
not, the appellees would justifiably be surprised if then called upon to counter these defenses
when no attempt was made to amend the pleadings until well after trial had commenced.  It
seems we are holding that if the opposing party could have anticipated the defense, there is no
need to plead it.  This seems backwards to me.
      The appellants had the time to plead these defenses before trial.  They did not.  They
proceeded to trial, apparently prepared to present evidence in support of these defenses, rather
than ask for a continuance to allow for additional discovery or for time to amend their
pleadings.
      Under these circumstances, the trial court did not abuse its discretion by refusing the trial
amendments to add these defenses.  I would affirm the judgment.  Because the majority does
not, I respectfully dissent.
 
                                                                   TOM GRAY
                                                                   Chief Justice

Dissenting opinion delivered and filed March 31, 2004
