Hampden Corp. v. Remark, Inc., 331 S.W.3d 489

Hampden and Fantasy design, manufacture, and sell jewelry and watches; Remark and Kramer previously formed a life-time/long-tail representation collaboration with JCPenney via Hampden/Fantasy‑related agreements.
Remark and Kramer alleged Hampden/Fantasy breached a 1996 written representation agreement after purportedly modifying commissions; later changes (2002, 2004) and a decoupled retainer arrangement affected payments.
In 2002, Hampden/Fantasy reduced Remark/Kramer’s commission to 2.5% and began paying a retainer in 2004, with the 1996 agreement allegedly remaining in effect.
In 2005–2005, Joseph Wein signaled the end of Remark’s retainer, while later communications referenced residuals; Kramer’s testimony suggested a lifetime or extended payment arrangement, which Hampden/Fantasy disputed.
Remark and Kramer pursued breach theories across multiple amended petitions; the live pleadings at trial alleged breach of the 2002 Agreement; after trial, Remark and Kramer sought to amend to assert breach of the 1996 Agreement; the trial court granted the post‑trial amendment, prompting this appeal.
The court vacated the trial court’s judgment and remanded to reconsider evidence in light of the live pleading, holding the post‑trial amendment asserting breach of the 1996 Agreement was improper and not tried by consent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the post-trial amendment to plead breach of the 1996 Agreement proper?	Remark/Kramer argue amendment corrected pleading and avoided surprise.	Hampden/Fantasy contend amendment was improper, prejudicial, and a new matter.	Amendment improper; prejudicial and not within pleadings; reversal and remand.
Was there trial by consent on the unpleaded breach of the 1996 Agreement?	Remark/Kramer rely on trial evidence to show implied consent.	No clear consent; evidence largely relates to pleaded claims.	No trial by consent; breach of 1996 not tried by consent.
Did trial court abuse its discretion in allowing the amendment after trial?	Amendment merely clarified, not new; allowed by Rule 63/66.	Amendment introduced new substantive matter and prejudiced Hampden/Fantasy.	Trial court abused discretion; amendment improper.
Does the live pleadings require vacating judgment not supported by pleading?	Judgment supported by live pleading; post-trial amendment tainted.	Judgment based on evidence; live pleading adequate.	Judgment vacated; remand to consider evidence under the sixth amended petition.
Should the case be remanded to consider evidence in light of the live pleading?	Remand to align with pleaded theory of breach.	Remand unnecessary if not properly pleaded.	Remand ordered to evaluate evidence consistent with live pleading.

Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760 (Tex.App.-Dallas 2005) (trial-by-consent standard; liberal but not automatic)
Moore v. Altra Energy Technologies, Inc., 321 S.W.3d 727 (Tex.App.-Houston [14th Dist.] 2010) (evidence developed at trial without objection can cure pleadings)
Ingram v. Deere, 288 S.W.3d 886 (Tex. 2009) (unpleaded issue tried by consent when record shows intent)
Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990) (amendments not mandatory if new substantive matter; prejudice assessment)
Kilpatrick v. State Bar of Texas, 874 S.W.2d 656 (Tex. 1994) (amendment discretion; surprise/prejudice analysis)
Stephenson v. LeBoeuf, 16 S.W.3d 829 (Tex. 2000) (amendment standards; substantive reshaping factors)
Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743 (Tex.App.-Dallas 1996) (new matter must be prejudicial on face; context matters)
Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex.1983) (pleadings require consent for unpleaded issues)
Elliott v. Hollingshead, 327 S.W.3d 824 (Tex.App.-Eastland 2010) (issues not pleaded require consent or pleading support)
Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374 (Tex.App.-Dallas 2009) (void judgment not supported by pleadings)