Court of Appeals of Texas, Dallas.

Mari PILGRIM, Appellant,

v.

McKinley, Dubner, Schutza, and Warner, P.C. and Robert M. Warner, Individually, Appellees.

No. 05-94-01393-CV.

|

July 26, 1995.

Before KINKEADE, MORRIS and WRIGHT, JJ.

Opinion

KINKEADE.

*1 Mari Pilgrim appeals a summary judgment entered in favor of McKinley, Dubner, Schutza, and Warner, P.C. (the “law firm”) and Robert M. Warner, individually, in this retaliatory discharge case. In one point of error, Pilgrim contends that the trial court erred in granting summary judgment in favor of Warner and the law firm. Because we conclude Pilgrim did not voluntarily dismiss Warner from this lawsuit and Pilgrim’s summary judgment evidence raises material fact issues, we hold that the trial court erred in granting summary judgment in favor of Warner and the law firm. We reverse the trial court’s judgment and remand the cause for further proceedings.

Pilgrim was terminated by Warner from her employment as a legal secretary with the law firm. Pilgrim sued the law firm and Warner individually for retaliatory discharge alleging that she was terminated because she acted to receive workers’ compensation benefits allowed under the law.

In July 1992, Warner filed a motion for summary judgment stating the decision to terminate Pilgrim was made prior to, and independently of, Pilgrim’s injury. In November 1992, the trial court granted Warner summary judgment as to all of Pilgrim’s claims. Following the entry of the judgment as to Warner, Pilgrim filed her third amended petition. In this third amended petition, Pilgrim included Warner in the caption. However, Pilgrim asserted allegations of retaliatory discharge only against the law firm.

In March 1993, the law firm filed a motion for summary judgment stating that the decision to terminate Pilgrim was made by Warner prior to and independently of her injury. The trial court granted the law firm a partial summary judgment stating that fact issues remained as to when Pilgrim was terminated.

In March 1994, Pilgrim filed her fourth amended petition. This fourth amended petition includes Warner in the caption and contains allegations as to both Warner and the law firm. In July 1994, the law firm filed a motion for reconsideration of the partial summary judgment already granted by the court. The trial court granted the motion and entered final summary judgment in favor of the law firm as to all of Pilgrim’s claims. Upon motion by all the parties, the trial court granted a judgment nunc pro tunc, combining the prior summary judgment for Warner individually and the summary judgment for the law firm.

VOLUNTARY DISMISSAL

Warner contends summary judgment was proper as to him because Pilgrim voluntarily dismissed him as a party by omitting his name from the text of her third amended petition as not asserting any causes of action against him in that pleading. When an amended petition is filed, it supplants all former petitions, which are no longer regarded as part of the pleadings. Tex.R. Civ. P. 65. Moreover, it is well established that an amended petition that omits a defendant operates as a voluntary dismissal as to that defendant. See Webb v. Jornes, 488 S.W.2d 407, 409 (Tex.1972); see also Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558, 560 (Tex.App.-Dallas 1987, writ ref’d n.r.e.). Although we agree the omission of a defendant acts as a voluntary dismissal, we find this rule inapplicable here. Notwithstanding Pilgrim’s third amended petition, Warner participated in the motion for judgment nunc pro tunc. The trial court relied on Pilgrim’s fourth amended petition as the operative pleading, which pleading included allegations against Warner, in granting the final judgment nunc pro tunc. Therefore, Pilgrim may complain on appeal of the trial court’s action in granting the motion for summary judgment in favor of Warner, individually, as well as, the law firm. See American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830-31 (Tex.1994) (inadvertent omission from a pleading, followed by renaming in a subsequent amended pleading, did not prejudice the defendant, and, thus, did not prevent a claim from relating back to the time of the original pleading); see also CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 435 (Tex.App.-Austin 1995, no writ) (appellant by filing a motion to reconsider a partial summary judgment was a party to the lawsuit despite its apparent dismissal in the fourth amended petition).

FACT ISSUES

*2 In Pilgrim’s first point of error, she contends that material fact issues exist to preclude summary judgment. The standard for review in a summary judgment case is well established. See Tex.R. Civ. P. § 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). When an appellant claims material fact issues exist precluding summary judgment, we must simply review the summary judgment evidence to determine whether the summary judgment proof establishes as a matter of law that there is no genuine issues of material fact. See Olguin v. Metzger Dairies, Inc., 884 S.W.2d 518, 519 (Tex.App.-Dallas 1994, writ dism’d by agr.).

We have reviewed the summary judgment evidence in light of the applicable standard of review and conclude that summary judgment was not proper as a matter of law because Pilgrim’s summary judgment evidence, including the controverting affidavits, was sufficient to raise fact issues about whether the decision to terminate her was made prior to, and independently of, her alleged on-the-job injury and subsequent claim for benefits. We sustain Pilgrim’s first point of error.

We reverse the trial court’s judgment and remand the cause for further proceedings.