Woodruff v. Wright

• Decision Date: 22 June 2001
• Docket Number: No. 06-00-00119-CV,06-00-00119-CV
• Parties: (Tex.App.-Texarkana 2001) RONNY DEWEY WOODRUFF, ET AL., Appellants v. JAMES O. WRIGHT, III, M.D., ET AL., Appellees
• Court: Texas Court of Appeals

Page 727

51 S.W.3d 727 (Tex.App.-Texarkana 2001)

RONNY DEWEY WOODRUFF, ET AL., Appellants v. JAMES O. WRIGHT, III, M.D., ET AL., Appellees

No. 06-00-00119-CV

Court of Appeals of Texas, Texarkana

Submitted June 12, 2001

Decided June 22, 2001

On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 96-C-1613-005

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Ross, Justice

This is an appeal from two take-nothing summary judgments. The appellants are: Ronny Woodruff and Deronda Woodruff; Cecil Pat Davis, individually and as next friend of Jennie Mae Davis, deceased, and Clarence Gene Davis, individually and as executor of the estate of Jennie Mae Davis, deceased; Ollie Ruth Lindsey; Ella Wilkerson, individually and as executrix of the estate of Rovis Leon Wilkerson, deceased, and Michael Wilkerson, individually and as next friend of Rovis Leon Wilkerson, deceased; and Jessie Ivey and Julia Ivey. They were plaintiffs who brought a medical malpractice suit against three surgeons: James O. Wright, III, M.D., Fred S. Stockinger, M.D., and Gregory R. Hodson, M.D. At the request of the defendants, the case was divided for multiple trials on the separate claims of the various plaintiffs. The trial court dismissed the case based on limitations as to all plaintiffs and also based on a no-evidence motion for summary judgment against the Davis plaintiffs.

Appellants contend the trial court erred by: 1) rendering summary judgment based on limitations; 2) granting a no-evidence summary judgment against the Davis plaintiffs; and 3) overruling their motions to recuse the trial judge.

The plaintiffs alleged that the doctors, as part of a surgical group, failed to take basic precautions against a particular type of antibiotic-resistant infection and that as a result of that failure, their patients suffered injuries or death. Some plaintiffs were patients; others are the survivors of patients who died.

On January 24, 2000, shortly before beginning the trial involving only the Woodruff plaintiffs, a "Twenty-First Amended Original Petition" was filed which specified only the Woodruffs as plaintiffs and specifically set out only their claims against the defendants. There is no "et al." designation for the other plaintiffs, and they are not referred to directly or indirectly in this amended petition. The trial on the claims of the Woodruff plaintiffs began February 7, 2000, and ended in a mistrial, with sanctions assessed against plaintiffs' counsel.¹ After the mistrial, the plaintiffs then, on March 10, 2000, filed another "Twenty-First Amended Original Petition," which named only the Davis plaintiffs and only alleged their particular claims against the defendants. Again, there is no "et al." designation and there is no reference, direct or indirect, to any of the other plaintiffs or their related claims. On March 23, 2000, the plaintiffs filed a "Twenty-Second Amended Original Petition," in which all the plaintiffs and all their claims against the respective defendants were once again named.

All defendants filed motions for summary judgment based on (1) the nonsuit of the claims against them by the removal of their names and their respective claims from the amended pleadings, and (2) the tolling of limitations against any attempt to bring the claims by the date of the filing of the twenty-second amended petition.

Hodson also sought summary judgment on the claims asserted against him by the Davis plaintiffs because he contended there was no evidence to support the Davis plaintiffs' assertions that he had violated a duty to provide information, and because there was no evidence on which a finding could have been made that he was vicariously liable for the conduct of Stockinger, the surgeon in that case.

The trial court granted the motions for summary judgment and rendered a take-nothing judgment against all plaintiffs.

The plaintiffs' two twenty-first amended petitions created most of the mischief in this case. The first twenty-first amended petition dropped all but two (the Woodruffs) of the former plaintiffs from the case, and the second twenty-first amended petition dropped those two, but renamed another group (the Davis plaintiffs), who had been dropped in the first twenty-first amended petition.

The law setting out the effect of amended petitions is clear. An amended petition supplants the earlier ones. As the Texas Supreme Court set out in Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972), the omission of claims against a party in a petition operates as a voluntary dismissal of the party from the lawsuit. See Tex. R. Civ. P. 65; Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 778 (Tex. App.-Houston [14th Dist.] 1998, pet. denied); CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.-Austin 1995, no writ).

For obvious reasons, most of the cases involving this concept refer to defendants whom the plaintiffs omitted from amended petitions. The language of the opinions, however, universally refer not to omitted plaintiffs or defendants, but instead to omitted parties. We have found one published case in which a plaintiff was omitted from an amended petition and in which the court held that when a plaintiff intentionally omits its name from an amended pleading, the party is effectively dismissed from the suit. Mercure Co. v. Rowland, 715 S.W.2d 677, 679 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.). And even though the appellants had earlier obtained formal orders from the trial court for the nonsuit of other parties to the suit, it is clear that such orders are not necessary. Parties to a suit are dismissed as effectively by omitting their names from an amended pleading as by entry of a formal order of dismissal. Ludwig v. Enserch Corp., 845 S.W.2d 338, 339 (Tex. App.-Houston [1st Dist.] 1992, no writ) (omission of previously included defendant); Mercure Co., 715 S.W.2d at 679.

Appellants contend that the Texas Supreme Court has distinguished this situation in American Petrofina, Inc. v. Allen, 887 S.W.2d 829 (Tex. 1994). In that case, a plaintiff was omitted from a lawsuit, but the Texas Supreme Court held that the omission and renaming of a plaintiff in a later pleading did not prevent that plaintiff's claims from relating back to the time of the original pleading for the purpose of limitations. In that case, however, 985 plaintiffs were listed (an asbestosis lawsuit), and one was omitted from one petition but added back in a later petition. Further, since all of their claims were identical, the factual claims made in the petition were not affected by the omission of the particular plaintiff.

The circumstances are somewhat different in this case, where seven of the nine plaintiffs were dropped, and all of their particular factual assertions of injury were likewise removed from the petitions filed. As of January 24, 2000, only two plaintiffs were named, and no attempt was made to alter matters until March 10, 2000, when the second version of the petition was filed which omitted those two plaintiffs and named a group of former plaintiffs who had been omitted in the January 24 pleading.

A dismissal is not an adjudication of the rights of the parties and merely places the parties in the position they were in before the court's jurisdiction was invoked, just as if the suit had not been brought. Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); Valdez v. Gill, 537 S.W.2d 477, 480 (Tex. Civ. App.-San Antonio 1976, writ ref'd n.r.e.).

In this case, because of the deletion of the plaintiffs from the petitions, they were no longer part of the lawsuit. After all plaintiffs had been dropped in either the first or the second twenty-first amended petition, the defendants filed motions for summary judgment, pointing out that no plaintiffs remained viable in the case. The plaintiffs filed a response to the motion, supported by an affidavit and other documents, and also filed a twenty-second amended petition that renamed all the original plaintiffs.

The defendants argued that (1) there were no plaintiffs left in the present suit because of the intentional acts of the plaintiffs, and (2) the attempted refiling of the suit was past the two-year limitations period, as shown by the pleadings themselves.² The trial court granted the motions. This result is correct unless we conclude that the American Petrofina reasoning should be extended to cover this situation.

Rockne Onstad, counsel for plaintiffs, stated by affidavit in his response to the motion for summary judgment that he did not intend to remove the other plaintiffs from the entirety of the lawsuit and that he actually intended to file a sort of "supplemental" petition directed solely at the case preparing to go to trial. This petition, however, does not appear to be a "supplemental" petition. It does not supplement or provide additional detail or additional claims to an existing petition. Instead, it provides the complete claims raised by those plaintiffs, along with the deletion of all claims referring to the other plaintiffs. By definition, it is therefore an amended petition which has the effect of replacing the preceding pleading.

Appellants also argue that even if the parties were indeed nonsuited, limitations should not apply because the defendants did not show they were "prejudiced, misled or placed at a disadvantage by any omission . . . ." They have cited several cases, including one from this Court, in support of this position.³ Those cases, however, involved pleading changes of the claims asserted by the plaintiffs and stated, in accordance with Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997), that an amendment to a pleading that: "changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different...