dissenting.
I respectfully dissent. I would affirm the trial court’s judgment. The court complied with the rules as written, and the majority is simply saying that the court should have been more lenient and relaxed with its rules. In saying that the court abused its discretion by not granting the continuance, the majority is in effect substituting its judgment for that of the trial court.
In appellant’s sole point of error, he argues: 1) the trial court abused its discretion in refusing to grant his motion for continuance; 2) it abused its discretion in denying him leave to file an amended answer and original counter-claim; and 3) the affidavits and pleadings raise a fact issue.
Appellant first argues that the trial court abused its discretion in refusing to grant his motion for continuance. This motion asserts that he had insufficient time for discovery because he retained new attorneys on May 17, 1988, and because the motion for summary judgment was filed only 20 days after he filed his original answer. The motion requested a continuance until August 31, 1988.
The granting or denial of a motion for continuance is within the trial court’s sound discretion, and will not be disturbed except for clear abuse. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).
A plaintiff may move for summary judgment “at any time after the adverse party has appeared or answered....” We note that the hearing on the motion for summary judgment was set 28 days after the motion was filed, in compliance with Tex.R. Civ.P. 166a(c), which requires that such motions be filed and served at least 21 days before the time specified for hearing. Where a party receives notice of the date of the summary judgment hearing in excess of the 21 days required by rule 166a, denial of a motion for continuance based on lack of time to prepare is generally not an abuse of discretion. Cronen v. Nix, 611 S.W.2d 651, 653 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 112 (1981). Here, appellant presumably received the motion for summary judgment within three days of its mailing, or by May 8, 1988. See Tex.R.Civ.P. 21a. He waited 23 days, until May 31, two days before the hearing, to move for continuance.
In the usual case, rule 166a requires that the response to the motion for summary judgment be filed seven days before the hearing on the motion, thereby giving the non-movant at least 14 days to respond to the motion. Here, the trial court granted appellant’s motion to file a late response to the motion. Appellant’s new counsel, substituted in on May 20, thus had 13 days to respond, only one day less than that provided in the rule. Moreover, appellant’s former counsel could have begun discovery prior to retaining new counsel. Appellant was responsible for his former counsel’s actions, and should have made certain that his former counsel used diligence in responding to the motion for summary judgment. See Thomson v. Norton, 604 S.W.2d 473, 478 (Tex.Civ.App.—Dallas 1980, no writ).
Rule 166a(f) provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rule 251 provides:
No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.
None of the affidavits state grounds compelling a continuance. The motion asserted that appellant needed time to obtain responses to his discovery requests and to depose persons with relevant knowledge. However, no discovery requests or deposition notices are in the appellate record.
*98Rule 252 provides that, if the ground for an application for continuance be the want of testimony, “the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence .... ” Appellant did not make such proof. In fact, no potential witnesses are named in the motion, nor does it contain the contents of any expected testimony. Regarding the needed discovery, the motion stated only:
Defendant is only seeking sufficient time to obtain responses to its discovery requests, and after receiving those responses, to depose the persons identified by Plaintiff as being persons with relevant knowledge, as well as a couple of non-party witnesses who will be relied upon by Defendant at the time of trial.
Because appellant did not comply with rules 166a(f), 251, or 252, the trial court did not abuse its discretion in denying the motion. See Smith v. Erhard, 715 S.W.2d 707, 710-11 (Tex.App.—Austin 1986, writ ref'd n.r.e.).
In his second sub-point, appellant argues that the trial court abused its discretion in denying him leave to file a counterclaim. He asserts that the trial court granted his motion to file an amended answer, and therefore, should have also allowed his counterclaim. The counterclaim was filed only one day before the hearing on the motion for summary judgment.
Counterclaims are pleadings under Tex. R.Civ.P. 63. Brown Lex Real Est. Dev. Corp. v. American Nat’l Bank-South, 736 S.W.2d 205, 206 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.). Amendments offered for filing within seven days of trial can be granted only with leave of the trial judge, and should not be allowed if they operate as a surprise to the opposing party. Tex.R.Civ.P. 63. The decision to allow amendment of pleadings within seven days of trial is within the discretion of the trial court, and absent abuse of discretion, an order permitting or refusing a trial amendment will not be disturbed. Smith v. Smith, 720 S.W.2d 586, 604 (Tex.App.—Houston [1st Dist.] 1986, no writ). “When amendments which introduce new substantive matter have been refused by the trial court under rule 63, the burden of showing an abuse of discretion is on the complaining party, rather than on the opposite party to show surprise.” Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980).
The trial court can consider “all matters relevant to an appropriate exercise of its discretion” in determining whether to allow an amendment. Hardin, 597 S.W.2d at 349. The showing of surprise can be “based on the trial court’s conclusion that the amendment on its face is calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.” Id. Appellant’s counterclaim alleged completely new • causes of action. In such circumstances, “there may be a surprise as a matter of law...”. Forest Lane Porsche Audi v. G & K Serv., 717 S.W.2d 470, 473 (Tex.App.—Fort Worth 1986, no writ). Because appellant’s counterclaim raised new causes of action not previously pleaded, it was not an abuse of discretion to deny appellant’s motion to file the counterclaim.
In his final sub-point, appellant argues that his pleadings on file, particularly his first amended original answer, raised material issues of fact precluding summary judgment for appellees. The trial court allowed late filing of the amended answer and considered it before ruling.
Appellant’s amended answer contains a general denial, and asserts the affirmative defenses of payment, fraud, and partial failure of consideration. The nonmovant must present summary judgment evidence raising a fact issue on each element of his affirmative defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). Merely pleading an affirmative defense will not bar summary judgment where the movant has conclusively established the elements of its claim, as appellee did. Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 749 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). Appellant did not dispute ap-pellee’s summary judgment proof. There*99fore, we must determine whether he raised, by summary judgment proof, a fact issue on every element of his affirmative defenses. Brownlee, 665 S.W.2d at 112.
The only summary judgment proof appellant submitted was his affidavit. It stated that he was seeking space for his real estate business, that he was interested in another project, that appellee’s agents told him it could meet the competing property’s proposal and, that if appellant leased from appellee, they would refer real estate business to him. It stated he would not have signed the lease without these promises. Finally, it states the representations were false because appellee did not refer “all of the real estate business to me that they represented that they would refer.”
The three defenses raised by appellant’s opposition to the motion for summary judgment were: 1) fraud; 2) partial failure of consideration; and 3) payments made not credited by appellee.
Appellant’s affidavit discussed only the alleged misrepresentations. It said nothing about payments not credited. Therefore, no fact issue concerning the payment defense was raised.
In order to prove fraud, appellant had to prove not only that appellee made a false representation to induce him into entering into the lease, but also that appellee knew the representation was false when made, or made it recklessly without any knowledge of its truth or falsity. Roland v. McCullough, 561 S.W.2d 207, 210 (Tex.Civ.App.—San Antonio 1978, writ ref’d n.r.e.). Appellant’s affidavit does not allege that appel-lee knew the representations were false when made. Therefore, appellant’s affirmative defense of fraud could not defeat appellee’s motion for summary judgment.
Appellant’s defense of partial failure of consideration also could not defeat appel-lee’s motion. Appellee’s summary judgment proof included a copy of the lease, which recites the consideration given. It says nothing about referring business to appellant. The lease constitutes a valid integrated agreement that appellant sought to contradict by his affidavit.
It is settled that when contracting parties have concluded a valid integrated agreement, whether written or oral, dealing with the particular subject matter they have between them, the parole evidence rule will prevent enforcement of prior or contemporaneous agreements which are inconsistent with the integrated agreement.... Absent pleading and proof of ambiguity, fraud, accident or mistake, a written instrument presumes that all prior agreements of the parties relating to the transaction have been merged into the written instrument. Its provisions will be enforced as written and cannot be added to, varied, or contradicted by parole testimony.
Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex.App.—Dallas 1984, no writ).
Appellant did not raise a fact issue regarding fraud. He did not allege ambiguity, accident, or mistake in the terms of the lease. Thus, in view of the parole evidence rule, there was no admissible evidence to raise the defense of partial failure of consideration. See Conte v. Greater Houston Bank, 641 S.W.2d 411, 414 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). To prevent the granting of summary judgment, appellant was required to establish failure of consideration by evidence that would be admissible upon the trial of the case. Tex.R.Civ.P. 166a(e); Brownlee, 665 S.W.2d at 112. This he failed to do.
I would affirm.
COHEN and O’CONNOR, JJ., also sitting.