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Robbins v. Payne

Under Texas Rule of Civil Procedure 63, the relevant issue in deciding whether a trial amendment will be permitted is whether the amendment was a surprise and, under Rule 66, whether the amendment will prejudice the non-movant.

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This appeal arises from a dispute between the founders of a business who dissolved their relationship less than a year after establishing the business. Both parties filed suit against each other, alleging breach of agreements and other duties arising from their relationship. At the conclusion of a jury trial, the court directed a verdict for appellees on each of the causes of action, thus prompting this appeal. Finding no error in the judgment below, we affirm.

Proper consideration of the issues raised in this appeal necessitates a brief review of the factual and procedural history of the parties’ dispute. In 1996, appellant Robbins was a student at Texas Tech University. He performed computer support and related services for appellee, Thomas K. Payne (Payne). The parties discussed establishing a business to provide internet access services to the public in the Lubbock area. These discussions culminated in a short written agreement signed on October 18, 1996. *fn1 As described in the agreement, the business name was “the Door,” sometimes referred to as “the Door to the Internet.”

Shortly after the agreement was signed the business began operating, with Robbins handling the technical aspects and some other daily operational decisions and Payne participating in financial, advertising and other business development activities. The record shows the business was successful in obtaining customers and providing service to those customers. However, even after several months of operation, the business was not producing a profit. Consequently, Robbins did not receive any financial benefit from the business during this time. Disagreements developed between Payne and Robbins about certain aspects of the business and, in the summer of 1997, Robbins explored the possibility of obtaining financing to “buy-out” Payne or establishing another business to compete in the same markets. Robbins ceased participating in the business about August 1, 1997.

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