concurring.
I concur in the result but disagree with the majority’s resolution of point of error 12. First, it was not necessary for the majority to reach the issue of whether the trial court properly refused to permit a late amendment to the plaintiffs pleadings, because we are reversing the summary judgment for other reasons. Once the case is remanded to the trial court, the plaintiff will be able to amend her pleadings.
Second, the trial court should almost always allow a party to file amendments to its pleadings, particularly when the party is faced with a motion for summary judgment. Under our rules of procedure, the burden is on the party opposing an amendment to show surprise and prejudice. The purpose of the summary judgment procedure is to permit the trial court to promptly dispose of cases that involve unmeritorious claims or untenable defenses. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979). The purpose is not to deprive litigants of their right to a trial by jury. Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 795 (Tex.App.—Beaumont 1988, writ denied). If a party files an amendment to its pleadings less than seven days before a summary judgment hearing, the trial court’s remedy is to grant the summary judgment and sever it from the late-added pleadings.
I would not reach point of error 12.