                                                                                13/^
                             (!l0urt of Appeals
                     3RfHj listrtct 0f Okxas at lallas
                                        JUDGMENT

DON H. HANVEY, Appellant                       Appeal from the 101st Judicial District
                                               Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-95-00390-CV                 V.          92-04481-E).
                                               Opinion delivered by Justice Kinkeade,
JEAN RAYMOND BOULLE, MARIE                     Justices James and Wright participating.
JOSEPH FRANCO BOULLE, AND
THE BOULLE GROUP, Appellees


       In accordance with this Court's opinion of this date, we AFFIRM the trial court's
judgment. It is ORDERED that appellees Jean Raymond Boulle, Marie Joseph Franco
Boulle, and The Boulle Group recover their costs of this appeal from appellant Don H.
Hanvey and from Old Republic Surety Company as surety on appellant's appeal bond.


Judgment entered August 7, 1996.




       '•)                                     ED KINKEADE
                                               JUSTICE
Affirmed and Opinion Filed August 7, 1996




                                         In The

                             (dtturt of Appeals
                     WxitJ| Itstrtrt 0f Ofrxas at lallas
                                  No. 05-95-00390-CV



                             DON H. HANVEY, Appellant

                                           V.


       JEAN RAYMOND BOULLE, MARIE JOSEPH FRANCO BOULLE, AND
                    THE BOULLE GROUP, Appellees


                    On Appeal from the 101st Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. 92-04481-E



                                    OPINION

                      Before Justices Kinkeade, James, and Wright
                              Opinion By Justice Kinkeade

       Don H. Hanvey individually sued Jean Raymond Boulle (Jean Boulle), Marie Joseph

Franco Boulle (Franco Boulle), and The Boulle Group because they failed to share a

profitable business opportunity with Hanvey's corporations. In a summary judgment, the

trial court ordered Hanvey take nothing. In seven points of error, Hanvey argues the trial

court erred because: (1) genuine issues of material fact precluded summary judgment; (2)
he properly objected to appellees' summary judgment evidence; (3) appellees did not prove

theiraffirmative defenses; (4) he presented competent summary judgment evidence showing

fraud; (5) his causes of action against Franco Boulle were valid; (6) he had not released his

individual claims; and (7) he filed timely his amended petition. We conclude the causes of

action, if any, do not belong to Hanvey individually and the trial court did not abuse its

discretion in striking Hanvey's amended petition. We accordingly affirm. Appellees filed

one cross-point of error that we deny as moot.

                                      BACKGROUND


       In his petition, Don H. Hanvey alleged in 1980, he and two of his companies set up

International Diamond Investors Consultancy, Inc. (IDIC) for the purpose of bringing Jean

Raymond Boulle (Jean Boulle), Denny Boulle, and Max Boulle to the United States to

conduct business in the diamond market worldwide. Initially Jean, Denny, and Max Boulle

worked for IDIC, but later they and Hanvey formed European Diamond Importers and

Cutters, Inc. (EDIC), which was later replaced by Boulle, Inc. Still later, in 1986, they

formed a corporation known as EXDIAM. EXDIAM's purpose was to invest in diamond

mining exploration.

       At an unspecified time, Jean Boulle, Marie Joseph Franco Boulle (Franco Boulle),
and The Boulle Group entered a joint venture agreement and partnership with Sunshine

Mining Company (Sunshine) for the purpose of producing and developing diamonds and

diamond mines in Sierra Leone, Africa (the Sierra Leone project). Hanvey's petition does

not specify the nature or composition of The Boulle Group. We refer to Jean Boulle,
Franco Boulle, and The Boulle Group, as "the Boulles." The Boulles did not tell Hanvey
about the Sierra Leone project.

       In 1990, Sunshine sued the Boulles, and the Boulles countersued. In January 1992,

the trial court signed a judgment awarding the Boulles a judgment in excess of $24 million.

On April 2, 1992, Sunshine and the Boulles entered an agreement in which Sunshine

assigned its interest in another joint venture to the Boulles and agreed to pay the Boulles

a total of $5 million.


       Coincidentally, Hanvey first learned of the Sierra Leone project in April 1992. On

April 6, 1992, he filed suit against the Boulles in his individual capacity. Hanvey alleged the

Boulles should have shared the Sierra Leone project with his corporations. He asserted

causes of action for (1) fraud, (2) common law negligence, (3) breach of the duty of good

faith and fair dealing, (4) breach of fiduciary duty, (5) unjust enrichment, (6) violation of

the corporate duty doctrine, and (7) civil conspiracy. He also sought a permanent injunction

and attorney's fees.

       In the trial court, Franco Boulle proceeded pro se. Jean Boulle and The Boulle

Group were represented by the same counsel. Franco Boulle's motions mirrored the

motions of Jean Boulle and The Boulle Group. For purposes of this opinion, when referring

to "the Boulles' motion," we are referring to both (a) Jean Boulle and The Boulle Group's

motion and (b) Franco Boulle's motion. When referring to the date of a motion, we are

referring to the date of JeanBoulle and The Boulle Group's motion. Franco Boulle did not

necessarily file his motions on the same date as Jean Boulle and The Boulle Group, but he


                                              -3-
normally filed his motion within a few days thereof.

       On September 21, 1994, the Boulles filed a motion todismiss and argued Hanvey did

not have standing to maintain the suit individually. On September 22, 1994, the Boulles

filed a motion for summary judgment. The record shows the trial court heard the BouUes'

motion to dismiss on September 28, 1994, and deferred its ruling. The parties do not

dispute the trial court set the Boulles' motion for summary judgment for October 14, 1994.

       On October 7, 1994, Hanvey filed his amended petition. Hanvey brought the suit

individually and, in the alternative, as a shareholder derivative suit on behalf of EXDIAM

and EDIC. For Hanvey individually, Hanvey alleged causes of action for (1) breach of

contract, (2) fraud, (3) common law negligence, (4) breach of the duty of good faith and

fair dealing, (5) breach of fiduciary duty, (6) unjust enrichment, and (7) civil conspiracy.

In his derivative suits on behalf of EXDIAM and EDIC, he alleged causes of action for (1)

breach of fiduciary duty, (2) violation of the corporate opportunity doctrine, (3) breach of

the duty of good faith and fair dealing, (4) unjust enrichment, and (5) civil conspiracy.

       On October 13, 1994, the Boulles filed a motion to strike Hanvey's amended petition.

They alleged Hanvey's amended petition was untimely and complained Hanvey had not first

obtained leave. They also argued the amended petition operated as a surprise and was

prejudicial. On October 14, 1994, Hanvey filed a motion for leave to file his amended

petition. On December 15, 1994, the trial judge signed an order granting the BouUes'

motion to strike and ordered Hanvey's amended petition stricken, and on January 24, 1995,

the trial judge signed an order granting the BouUes' motion for summary judgment and
ordered Hanvey take nothing.

                            HANVEY'S AMENDED PETITION


       Since Hanvey's seventh point of error defines the scope of his pleadings, we address

it first. In point of error seven, Hanvey argues the trial court erred in striking his amended

petition because he filed it timely. Tex. R. Civ. P. 63. Hanvey argues rule 63 prohibits the

trial court from striking any timely amended pleading.

       Parties may amend their pleadings at such time as not to operate as a surprise to the

opposite party. Tex. R. Civ. P. 63. If, however, a party wants to file a pleading within

seven days of the date of trial or thereafter, or after such time as designated in a pretrial

order under rule 166, the party must first obtain leave. Tex. R. Civ. P. 63. A hearing on

a motion for summary judgment is a trial within the meaning of rule 63. Goswami v.

Metropolitan Sav. & LoanAss'n, 751 S.W.2d 487, 490 (Tex. 1988).

       The trial court may specify the time within which the parties may file amended

pleadings in a pretrial order. Tex. R. Civ. P. 63, 166; Texas Commerce Bank Reagan v.

Lebco Constructors, Inc., 865 S.W.2d 68, 78-79 (Tex. App.--Corpus Christi 1993, writ

denied). Hanvey's amended petition violated the trial court's written May 12, 1992 and oral

August 13, 1993 pretrial orders and was, therefore, untimely. Tex. R. Civ. P. 63, 166; Texas

Commerce Bank Reagan, 865 S.W.2d at 78-79; Valdez v. Lyman-Roberts Hosp., Inc., 638

S.W.2d 111, 117 (Tex. App.-Corpus Christi 1982, writ refd n.r.e.); see Susanoil, Inc. v.

Continental Oil Co., 516 S.W.2d 260, 264 (Tex. Civ. App.-San Antonio 1973, no writ) (oral

order); Dunn v. County ofDallas, 794 S.W.2d 560, 562 (Tex. App.-Dallas 1990, no writ)


                                             -5-
(oral order).

       In his post-submission brief, Hanvey argues that when the trial court reset the trial

dates, it nullified the pretrial orders. See HB. Zachry Co. v. Gonzalez, 847 S.W.2d 246, 246

(Tex. 1993) (orig. proceeding) (per curiam); J.G. v. Murray, 915 S.W.2d 548, 550 (Tex.

App.--Corpus Christi 1995, orig. proceeding); Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391,

395-96 (Tex. App.--El Paso 1994, orig. proceeding); Pope v. Davidson, 849 S.W.2d 916,

917-18 (Tex. App.--Houston [14th Dist.] 1993, orig. proceeding). Hanvey does not show

he raised this issue in the trial court. Tex. R. App. P. 74(f). Our own review of the record

does not show Hanvey ever contested the validity of the trial court's pretrial orders in

conjunction with his motion for leave or the BouUes' motion to strike. Hanvey waived this

issue by not raising it in the trial court. McCain v. NME Hosps. Inc., 856 S.W.2d 751, 755

(Tex. App.-Dallas 1993, no writ); Opperman v. Anderson, 782 S.W.2d 8, 11 (Tex. App.-

San Antonio 1989, writ denied). Hanvey also recognized the validity of the pretrial orders

in his March 30, 1994 motion to set them aside. Assuming Hanvey questioned those orders

in his March 30, 1994 motion, he never procured a ruling on those objections. Absent a

ruling on the motion, Hanvey preserved no error for review. Tex. R. App. P. 52(a); Dallas
County v. Sweitzer, 881 S.W.2d 757, 770 (Tex. App.-Dallas 1994, writ denied).
       On September 28, 1994, the trial court heard the BouUes' motion to dismiss based
upon Hanvey's filing his suit individually and not as derivative suits. Hanvey argues that at
this hearing the trial judge gave him until October 8, 1994, to file an amended pleading.
Hanvey concludes his October 7, 1994 amended petition was timely pursuant to this oral


                                             -6-
pretrial order.

       After reviewing the entire statement of facts of the September 28, 1994 hearing, we

conclude Hanvey misinterprets the trial judge's comments. Although the Boulles filed a

motion to dismiss, the trial judge questioned whether procedurally the Boulles should have

presented special exceptions instead.     The trial court then asked Hanvey's counsel

"hypothetically" how he would replead to cure the defects "if the Boulles filed special

exceptions based on the reasons presented in the motion to dismiss and the trial court

sustained them and then ordered Hanvey to replead within ten days. The trial judge then

declined to rule on the Boulles' motion to dismiss. When Hanvey's counsel thereafter asked

specifically whether he had leave to file an amended petition, the trial judge answered that

he would rule upona motion to amend the pleadings when Hanvey filed a motion requesting

that relief. We conclude the trial court did not grant Hanvey leave to amend his petition

within tendays ofSeptember 28, 1994. At most, the trial judge indicated he would entertain

a motion for leave.


       Hanvey also argues the trial court relied on a local rule of procedure that was
inconsistent with the Texas Rules of Civil Procedure. Hanvey maintains that local rules

cannot alter the time periods provided by the Texas Rules ofCivil Procedure. Tex. R. Civ.
P. 3a(2). Nothing in the record shows Hanvey raised this issue in the trial court, and

therefore Hanvey waived this argument. McCain, 856 S.W.2d at 755; Opperman, 782
S.W.2d at 11. Nothing in the record reflects the trial court relied upon any local rule.

Hanvey's contention has no merit.


                                            -7-
       If a party seeks leave to file an amended pleading after the time specified in a

pretrial order, the trial judge shall grant leave unless: (1) the opposing party presents

evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or

defense, and thus is prejudicial on its face, and the opposing party objects to the

amendment. Tex. R. App. P. 63; Chapin <&. Chapin, Inc. v. Texas Sand & Gravel Co., 844

S.W.2d 664, 665 (Tex. 1992) (per curiam); Greenhalgh v. Service Lloyds Ins. Co., 787

S.W.2d 938, 940 (Tex. 1990); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980); Texas

Commerce Bank Reagan, 865 S.W.2d at 79. If the trial court concludes the amendment, on

its face, is calculated to surprise or would reshape the cause of action, thereby prejudicing

the opposing party and unnecessarily delaying the trial, the trial court may refuse the

amendment. See Greenhalgh, 787 S.W.2d at 940; Hardin, 597 S.W.2d at 349. If a party

attempts to add new matter about which, by exercising reasonable diligence, the party
should have known earlier and should have added in a former pleading, the trial court

should deny the amendment. See Valdez, 638 S.W.2d at 117. Appellate courts will not
disturb the trial court's ruling unless the complaining party on appeal can show a clear abuse

of discretion. Hardin, 597 S.W.2d at 349-50; Valdez, 638 S.W.2d at 117.

       The trial court could have concluded that Hanvey faUed to exercise reasonable

diligence. Hanvey's counsel admitted the reason he had not filed suit on behalf of
EXDIAM earlier was because he assumed EXDIAM was no longer active. He also

admitted making no effort to verify his assumption. See Valdez, 638 S.W.2d at 117.
       The trial court could have also concluded Hanvey's amended petition was prejudicial


                                              -8-
on its face and constituted a surprise because it added new parties and a new cause of

action. Individually, Hanvey added a cause of action for breach of contract. The derivative

suits added two new parties, EXDIAM and EDIC.

       Hanvey stresses EXDIAM and EDIC were added in the alternative only. Having

intervened, for whatever purpose, EXDIAM and EDIC were parties until stricken. Tex.

R. Civ. P. 60. The trial court could properly consider them when determining surprise.

       Because Hanvey filed his amended petition after more than two years of litigation,

ostensibly in response to the BouUes' motion for summary judgment, and only one week
before trial, the trial court could have determined Hanvey's amendment was an attempt to

reshape the cause of action, would unnecessarily delay the trial, and was, on its face,
calculated to prejudice and surprise the Boulles. See Greenhalgh, 787 S.W.2d at 940 n.3;
Hardin, 597 S.W.2d at 349. Hanvey has not shown an abuse of discretion. Hardin, 597
S.W.2d at 349-50; Valdez, 638 S.W.2d at 117. We overrule Hanvey's seventh point of error.
We review his remaining points of error based upon his original petition.
                               AFFIRMATIVE DEFENSES

        In point of error three, Hanvey argues the trial court erred in granting summary
judgment because the Boulles did not carry their burden of proving their affirmative
 defenses. Under this point of error, Hanvey addresses only whether he lacked standing to
 sue. The issue is whether the causes of action asserted by Hanvey belonged to him
 individually or belonged to one of his corporations. The Boulles argued the causes of
 action, if any, did not belong to Hanvey individually; Hanvey argued they did. We review

                                             -9-
the summary judgment evidence.

      The summary judgment evidence showed Jean Boulle's alleged promise went to

Hanvey's companies, not to Hanvey individually. In response to an interrogatory asking

Hanvey to identify all oral and non-oral assurances upon which he based his claims, Hanvey

answered Jean Boulle assured him his activities were on behalf of Hanvey's companies.

During Hanvey's September 12, 1994 deposition, he denied Jean Boulle's assurances were

to him individually. Hanvey said Jean Boulle's assurances went to Hanvey's companies.

       Hanvey contends his October 7, 1994 affidavit shows Jean Boulle made his promise

to Hanvey individually, thereby creating an issue of material fact. Hanvey's affidavit does
not support this contention. It shows Jean Boulle communicated his alleged promise to
Hanvey personally. The parties do not dispute Jean Boulle communicated his promise, if
any, to Hanvey. The parties dispute the substance of that communication. Hanvey's
affidavit is silent on the substance of Jean Boulle's alleged promise. It provides simply:
"The agreement and our conversations concerning it, [sic] were specific as to what we both
intended that to mean." It proceeds to discuss Hanvey's percentage of ownership in
EXDIAM and faults Jean Boulle for not sharing the Sierra Leone project with EXDIAM
and EDIC. This discussion is irrelevant ifthe alleged promise was to Hanvey individually.
        In the face of the BouUes' summary judgment evidence showing Hanvey admitting

Jean Boulle's assurances, if any, were to Hanvey's companies, not Hanvey individuaUy,
 Hanvey's affidavit curiously avoids stating Jean BouUe promised all the business
 opportunities he encountered to Hanvey individually. We note Hanvey filed his affidavit and

                                             •10-
response to the Boulles' motion for summary judgment on October 7, 1994, the same date

he filed his amended petition asserting derivative suits on behalf of EXDIAM and EDIC.

Hanvey's response assumes his amended petition was his live pleading. If Hanvey admitted

Jean Boulle's promise went to EXDIAM and EDIC, Hanvey lost his individual claims. If

Hanvey admitted the promise went to himself individually, he lost his derivative suits.

Hanvey's affidavit studiously avoids this conflict by never stating to whom Jean Boulle made

his alleged promises. His efforts to balance this problem caused him to never rebut the

other evidence showing the alleged promises went to Hanvey's companies.

       Hanvey's answer to the interrogatory and his answers to deposition questions

unequivocally show Jean Boulle's alleged promise went to EXDIAM and possibly other

corporations, but not to Hanvey individually. Hanvey's affidavit shows Jean Boulle
communicated his alleged promise to Hanvey but does nothing to rebut the BouUes'

evidence Jean Boulle's alleged promise went to Hanvey's companies. We conclude the

Boulles met their burden of showing there was no genuine issue of material fact and that

they were entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex. 1985); see Edlund v. Bounds, 842 S.W.2d 719, 728-29 (Tex.
App.-Dallas 1992, writ denied); Kasparv. Thome, 755 S.W.2d 151, 154-56 (Tex. App.-
Dallas 1988, no writ). We overrule Hanvey's third point of error.

                     HANVEY'S REMAINING POINTS OF ERROR

       Because we determined, in point of error three, the causes of action, if any, did not
belong to Hanvey individually, we overrule Hanvey's remaining points of error as moot.

                                            -11-
     JEAN BOULLE AND THE BOULLE GROUP'S CROSS-POINT OF ERROR

       In one cross-point of error, Jean Boulle and The Boulle Group contend the trial

court erred in denying their motion to strike Hanvey's response to their motion for summary

judgment and Hanvey's affidavit attached thereto. Our disposition of Hanvey's points of

error renders this cross-point of error moot.

       We affirm the trial court's judgment.




                                                       ED KINKEADE
                                                       JUSTICE
Do Not Publish
Tex. R. App. P. 90
950390F.U05




                                                •12-
