in Re Hector L. Rodriguez, 13-16-00411-CV

Background

Divorce decree named Hector and Tamara joint managing conservators; Tamara had exclusive right to designate children’s primary residence in Hidalgo County.
Tamara filed a suit to modify (Mar 2015) alleging material and substantial change and seeking increased child support, custody modifications, and attorney’s fees.
Tamara amended her petition twice; Hector filed a general denial and then, 12 days before trial, a counterpetition seeking (if change found) restrictions on Tamara’s association with a third party and designation rights (exclusive right to designate residence with Hidalgo County geographic restriction).
Tamara moved to strike Hector’s late counterpetition as surprise; the trial court orally granted the motion at the start of trial, struck Hector’s counterclaims, refused consolidation with a later separate suit Hector filed, and denied continuance/mistrial requests; the court later abated the case for a social study.
Hector petitioned for mandamus claiming the court abused its discretion by striking his amended pleadings and by denying a jury trial on reasonableness of attorney’s fees; he sought relief to reinstate his amendments and a jury trial.

Issues

Issue	Hector’s Argument	Tamara’s Argument	Held
Trial court struck Hector’s counterpetition/denied amendment	Amendment was timely (filed >7 days before trial), not surprising or prejudicial; trial court abused discretion by striking it	The counterpetition asserted new causes of action, prejudicial surprise, and insufficient discovery; strike justified	Court: Abuse of discretion in striking — Hector may amend; mandamus granted in part to require allowance of amendments
Continuance/mistrial/consolidation after strike and social study	Trial court should have granted continuance, mistrial, or consolidation to cure any surprise and allow discovery	Refused — claimed surprise justified immediate strike; consolidation not warranted	Court found strike improper and that mandamus appropriate; other relief (mistrial/consolidation) denied in mandamus opinion
Right to jury trial on reasonableness of attorney’s fees	Entitled to jury determination of fee reasonableness	Family Code does not include attorney’s fees among binding jury issues; fees at best advisory	Court: No right to a binding jury verdict on attorney’s fees in modification suit; jury issues on fees are advisory only; Hector not entitled to jury trial on fees
Adequacy of appellate remedy; availability of mandamus	Appeal inadequate because striking pleadings vitiated ability to present case and child custody cases warrant prompt resolution; mandamus appropriate	Appeal adequate; mandamus not necessary; trial court’s docket control and discretion justified	Court: Appeal inadequate under circumstances; mandamus relief granted limited to ordering allowance of Hector’s amendments

Key Cases Cited

In re Lee, 411 S.W.3d 445 (Tex. 2013) (standards for mandamus in family-law context)
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standard and denial of jury review principles)
In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379 (Tex. 2005) (definition of clear abuse of discretion)
In re City of Dallas, 445 S.W.3d 456 (Tex. App.—Dallas 2014) (when mandamus is appropriate for denying amended pleadings)
In re McAllen Med. Ctr., 275 S.W.3d 458 (Tex. 2008) (consideration of judicial economy in interlocutory mandamus)
Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990) (trial court has no discretion to refuse amendment absent surprise or prejudice)
State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994) (same rule on refusal to permit amendments)
Chapin & Chapin, Inc. v. Tex. Sand & Gravel Co., Inc., 844 S.W.2d 664 (Tex. 1992) (procedural amendments ordinarily allowed)
Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) (distinguishing binding vs advisory jury verdicts in family law)
Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987) (speedy resolution of child custody/support matters emphasized)