Opinion
No. C-5680.
February 18, 1987. Rehearing Denied March 25, 1987.
Appeal from the 97th District Court, Montague County, Clyde Whiteside, J.
Ronald H. Clark, Henderson, Bryant Wolfe, Sherman, for petitioners.
Joseph W. Stewart, Martin T. Bode and Steven R. Pierret, Joseph W. Stewart, P.C., Arlington, for respondent.
OPINIONThis cause arises under the Deceptive Trade Practices-Consumer Protection Act as amended in 1973 and 1975. The Bells originally brought suit against Meeks seeking recovery on theories of negligence and express and implied warranties. On the last day of the jury trial, and after all the evidence was in, the Bells sought to amend their pleadings to include a claim for damages under the D.T.P.A. on the theory of misrepresentation. After the jury answered special issues the Bells reurged their trial amendment and this time the trial court allowed it and rendered judgment in favor of the Bells. The court of appeals reversed the trial court's judgment and rendered a take nothing judgment against the Bells. 710 S.W.2d 789. The Bells complain that the court of appeals erred in holding that the trial court abused its discretion in granting a trial amendment alleging misrepresentation under the D.T.P.A., when Plaintiffs had previously pleaded a breach of warranty under the D.T.P.A. arising out of the same transaction. We agree.
The amendment was properly granted under Tex.R.Civ.P. 67 because the issue of misrepresentation was tried by consent. Meeks did not object to the admission of evidence supporting the trial amendment and we fail to see how the issue of misrepresentation would have been tried differently from the warranty issues. Defendant's reliance on the limitations defense is not persuasive and he has failed to show that the trial court abused its discretion in granting the trial amendment. The complaint that no issue of misrepresentation was submitted to the jury is without merit. The evidence of misrepresentation was uncontroverted and Meeks failed to object, on the ground of lack of pleadings, to the remaining special issues supporting judgment on the issue of misrepresentation. Therefore, the trial court did not abuse its discretion. Since the trial amendment and the evidence support the judgment of the trial court, we need not address the Bells' remaining points. We reverse the judgment of the court of appeals and affirm that of the trial court.