Retzlaff v. Texas Dept. of Criminal Justice
| Decision Date | 18 December 2003 |
| Docket Number | No. 01-02-00437-CV.,01-02-00437-CV. |
| Citation | 135 S.W.3d 731 |
| Parties | Thomas RETZLAFF, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee. |
| Court | Texas Court of Appeals |
Thomas C. Retzlaff, Beeville, pro se.
David Harris, Assistant Attorney General, Austin, for appellee.
Panel consists of Justices NUCHIA, HIGLEY and HEDGES*.
OPINION ON MOTION FOR REHEARING
Appellant, Thomas Retzlaff, has filed a motion for rehearing and motion for rehearing en banc. We deny rehearing, but withdraw our opinion and judgment of October 23, 2003, and issue this new opinion in its stead. Accordingly, we deny the motion for rehearing en banc as moot.1
Appellant, an inmate in the custody of Texas Department of Criminal Justice Institutional Division (TDCJ), appellee, sued TDCJ for personal injuries, conversion, unlawful takings, civil rights violations under 42 U.S.C. section 1983, breach of fiduciary duty, theft by a public servant, negligence, and gross negligence. Appellant also named Mack DeSha, Jr. and John and/or Jane Doe, Unknown Defendant(s), as co-defendants, asserting similar claims. The trial court granted summary judgment for TDCJ and severed the other defendants, making the judgment final. In four points of error, appellant asserts that the trial court erred in (1) granting summary judgment on all appellant's claims; (2) granting more summary judgment relief than was requested; (3) failing to rule on appellant's summary judgment objections; and (4) denying appellant's motion to continue the summary judgment hearing.
We affirm.
Appellant is an inmate in the custody of TDCJ. On July 20, 2001, appellant sued TDCJ for damages arising from two unrelated occurrences.
On July 17, 1999, appellant was injured while playing "ragball" in TDCJ's prison recreation yard ("rec yard"). While engaged in this prison derivative of baseball, appellant ran and fell into a section of the prison's perimeter security fence that was constructed of razor wire. TDCJ had intentionally installed razor wire on the portion of the fence into which appellant fell, because that portion had been identified as a potential area of escape. The razor wire was used to enhance security by adding an additional deterrent.
Generally, inmates were given verbal and written warnings that they were proscribed from coming into contact with the perimeter fence. However, appellant was not specifically warned about the presence of razor wire at the location where he incurred the injuries. Relatedly, TDCJ did not post a barrier or sign warning inmates that the perimeter fence was constructed of razor wire at that location.
Appellant claims that a series of unauthorized withdrawals totaling approximately $700 were made from his inmate account between April 1998 and May 31, 2001. Appellant asserts that these withdrawals were made by Mack DeSha, Jr. or John and/or Jane Doe, Unknown Defendants, employees of TDCJ.
Appellant concedes that withdrawals were regularly made from his account in repayment of indigent supplies received by appellant from the prison library. Appellant further acknowledges that he received indigent supplies and that TDCJ had the right to debit his inmate account for such supplies. However, appellant asserts that the amounts withdrawn from his account were disproportionate to the value of the supplies received. Therefore, appellant claims that TDCJ, through either Mack DeSha, Jr. or another, unknown employee, either stole or lost funds from the account.
On August 15, 2001, TDCJ requested summary judgment by filing a pleading designated "Defendant Texas Department of Criminal Justice's Motion for Summary Judgment, Objections to Plaintiff's Discovery, and Motion for Protective Order" (hereinafter "original MSJ"). In its original MSJ, TDCJ asserted that all appellant's claims were barred by the applicable statutes of limitations. Later, on August 29, 2001, TDCJ filed a pleading designated "Defendant Texas Department of Criminal Justice's Supplement to It's Motion for Summary Judgment" (hereinafter "first supplemental MSJ"), which added sovereign immunity as a ground for summary judgment.
On September 21, 2001, the trial court held a pre-trial hearing at which it intended to hear arguments concerning, inter alia, TDCJ's request for summary judgment. Prior to appearing for the hearing, TDCJ was under the mistaken belief that appellant had filed suit as an indigent. Therefore, before TDCJ's motion for summary judgment was addressed, TDCJ asked the court to postpone the hearing to give TDCJ additional time to "submit [its] motion one more time and address the facts as they are now as opposed to what [it] perceived them to be." The court granted TDCJ 14 days to resubmit its motion. The court also gave appellant an additional 14 days to respond. The court then stated that it would decide the matter on submission.
On October 10, 2001, TDCJ filed a pleading designated "Defendant Texas Department of Criminal Justice's Second Supplement to Its Motion for Summary Judgment" (hereinafter "second supplemental MSJ"). TDCJ's second supplemental MSJ was, in fact, a completely rewritten pleading that reasserted TDCJ's prior defenses and added as grounds the assertion that TDCJ owed no duty to appellant in relation to his tort claims, and that the trial court lacked jurisdiction over appellant's section 1983 claim. Appellant filed his response to TDCJ's second supplemental MSJ on October 23, 2001. In appellant's response, he made a number of objections concerning TDCJ's second supplemental MSJ; however, he never excepted to the title used for that pleading. The trial court did not rule on any of the objections in appellant's response, and appellant failed to obtain a refusal to rule from the court.
On December 7, 2001, the trial court held a proceeding wherein it anticipated entering summary judgment for TDCJ. Appellant appeared at this proceeding and again made a number of objections concerning TDCJ's second supplemental MSJ. Again, appellant failed to except to the title used for TDCJ's second supplemental MSJ; and again, he failed to obtain a ruling on his objections. However, the trial court did take additional time to consider appellant's objections before entering judgment. In entering judgment, the trial court stated that it considered, "the argument and pleadings of the parties filed herein."
On January 2, 2002, without stating the grounds upon which it reached its decision, the trial court granted summary judgment in favor of TDCJ on all appellant's claims.
In his second point of error, appellant claims that the trial court committed error in granting summary judgment for TDCJ on those claims not addressed in TDCJ's original MSJ. Appellant's argument is as follows: "the trial court's summary judgment order specifically stated that it was only granting appellee's original motion for summary judgment-not appellee's original and supplemental motions for summary judgment!!" (emphasis in original). We interpret this argument to mean that, because the trial court's judgment only referred to TDCJ's original MSJ, it did not consider either of TDCJ's "supplemental" motions for summary judgment. We also take this argument to mean that the trial court's failure to consider TDCJ's "supplemental" motions limited the possible grounds upon which summary judgment could be based to those expressly presented in the motion considered by the court (i.e., TDCJ's original MSJ). Thus, according to appellant's argument, the scope of the summary judgment is limited to the personal injury and conversion claims addressed in TDCJ's original MSJ.
We disagree with appellant's reasoning.
A supplemental pleading may only be used to respond to the last preceding pleading filed by another party; it may not be used to amend one's own pleading.2 TEX.R. CIV. P. 69. Consequently, a supplemental pleading is not an appropriate method of stating a new cause of action or an additional affirmative defense. See Wegener v. Erdman, 154 S.W.2d 969, 970 (Tex.Civ.App.-Fort Worth 1941, no writ). The appropriate method by which to add a cause of action or affirmative defense is to amend the deficient pleading. TEX.R. CIV. P. 62.
Relatedly, when justice requires, the court must treat an improperly designated pleading as if it had been properly designated. TEX.R. CIV. P. 71. Therefore, when a party seeks to amend its pleading but mistakenly designates the new pleading a supplemental pleading, the mistitled pleading will be considered an amendment to the original pleading. Id.; Glenn v. Dallas County Bois D'Arc Island Levee Dist., 114 Tex. 325, 268 S.W. 452, 453 (1925); Hawkins v. Anderson, 672 S.W.2d 293, 295 (Tex.App.-Dallas 1984, no writ). Further, any objection to a mistitled or otherwise defective pleading must be made in writing before the judgment is signed or the objection is deemed waived. TEX.R. CIV. P. 90.
In the instant case, it is obvious from TDCJ's second supplemental MSJ that TDCJ meant, by that pleading, to amend its original MSJ. TDCJ's original MSJ merely asserted that appellant's claims were barred by the applicable statutes of limitations; the second supplemental MSJ was an entirely rewritten pleading that restated the statute of limitations defense while asserting additional defenses and jurisdictional claims.
Because TDCJ merely mistitled its second supplemental MSJ and because appellant did not except to the misnomer, it is proper to consider TDCJ's second supplemental MSJ as an amendment to its original MSJ.
When a party files an entirely rewritten pleading in amendment of a prior pleading, the latter pleading supersedes the original, making the original a nullity unless the latter...
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