law-trial-amendment | trial of unpleaded issue by consent |

(05-07-00428-CV, ___ SW3d ___, 03-17-09, pet denied Oct 2009)(
disbarment affirmed, affirmative
defense of limitations waived by failure to plead it, trial amendment denied as prejudicial)
Appellant next asserts the trial court abused its discretion in denying his motion to amend his answer
because he had asserted rule 15.06's statute of limitations in his response to the investigatory panel, so the
Commission could not have suffered any surprise or prejudice. The trial court has no discretion to deny a
trial amendment unless (1) the party opposing the amendment 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. Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990); G.R.A.V.I.T.Y. Enters., Inc., 177 S.W.3d at 542. In these two situations, the decision to allow or deny
the amendment rests with the sound discretion of the trial court, and the trial court's decision will not be
overturned unless it constitutes a clear abuse of discretion. State Bar v. Kilpatrick, 874 S.W.2d 656, 658
(Tex. 1994); G.R.A.V.I.T.Y. Enters., Inc., 177 S.W.3d at 542. In this case, appellant's requested amendment
would have asserted new affirmative defenses, limitations and laches, making it prejudicial on its face. The
Commission objected to the amendment. Although appellant asserted to the trial court that the Commission
was not surprised, the attorney for the Commission stated, “That's not the case.” Appellant did not proffer to
the trial court his response to the investigatory panel before the trial court denied the request to amend,   
See Footnote 2  counsel for the Commission did not concede that appellant raised rule 15.06 before the
investigatory committee, and the record does not show the response was before the trial court at the time it
ruled on appellant request to amend his answer. “It is axiomatic that an appellate court reviews actions of a
trial court based on the materials before the trial court at the time it acted.” Methodist Hosps. v. Tall, 972 S.
W.2d 894, 898 (Tex. App.-Corpus Christi 1998, no pet.). Under these facts, we cannot conclude the trial
court abused its discretion in denying appellant's request to amend his answer to assert affirmative
defenses. We overrule appellant's first issue.