Court of Appeals of Texas,

Dallas.

Linda JOHNSON, Appellant

v.

MINYARD FOOD STORES, INC., Appellee.

No. 05-04-00869-CV.

|

Feb. 25, 2005.

Attorneys & Firms

Wayne B. Ames, for Linda Johnson.

Jerry Fazio and Jonathan L. Davenport, for Minyard Food Stores, Inc.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.

MEMORANDUM OPINION

Opinion by Justice WHITTINGTON.

*1 Linda Johnson appeals a summary judgment granted in favor of her former employer, Minyard Food Stores, Inc. In eight points of error, Johnson contends the trial judge erred in granting Minyard summary judgment because fact issues exist regarding whether (i) she was advised that Minyard was a nonsubscriber to workers compensation insurance, (ii) she elected in writing to participate in Minyard’s medical and disability plan, (iii) her claims were preempted by the Employee Retirement Income Security Act of 1974 (ERISA), and (iv) her cause of action was filed within the limitations period. We affirm the trial court’s summary judgment.

Background

Johnson began working for Minyard in September 1999. On February 15, 2001, Johnson injured her lower back while lifting boxes and gathering shopping carts from the parking lot. She discovered Minyard had opted out of the State’s workers compensation insurance program and maintained its own medical and disability plan. Between February and April 2001, Minyard paid Johnson approximately $3000 in lost wages and medical expenses under its plan. On April 19, 2001, Johnson received a letter from Minyard terminating her eligibility for benefits under the plan. Minyard later terminated Johnson.

On February 14, 2003, Johnson sued Minyard. Four days later, Johnson filed her third amended original petition, alleging Minyard did not comply with section 406.005 of the Texas Labor Code by failing to inform her she was not covered by worker’s compensation insurance. Minyard filed its motion for traditional and no-evidence summary judgment, asserting the affirmative defenses of preemption by ERISA and the statute of limitations. On April 15, 2004, seven days before the hearing on Minyard’s motion, Johnson filed her fourth amended original petition, alleging common law negligence and seeking over $230,000 in lost wages, medical treatment, disability, and attorney’s fees. The trial judge granted Minyard’s motion for summary judgment without specifying the grounds for his decision and dismissed Johnson’s claims with prejudice.

Standard of Review

This Court reviews a traditional summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standards for reviewing motions for summary judgment are well established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Thompson v. Curtis, 127 S.W.3d 446, 449 (Tex.App.Dallas 2004, no pet.). The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam); Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 840 (Tex.App.-Dallas 2003, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in her favor. Nixon, 690 S.W.2d at 549.

*2 When a defendant moves for summary judgment on the affirmative defense of limitations, the defendant has the burden of conclusively establishing that defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Gibson v. Ellis, 126 S.W.3d 324, 331 (Tex.App.Dallas 2004, no pet.). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Centeq Realty Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Mitchell, 109 S.W.3d at 840.

In her seventh point of error, Johnson argues the trial judge erred in granting Minyard’s summary judgment motion because her cause of action was properly filed within the limitations period. Minyard responds Johnson’s negligence claim is barred by limitations because Johnson filed her common law negligence claim more than fourteen months after the statute had run.

Johnson’s alleged injury occurred on February 15, 2001. Thus, Johnson had two years in which to file her negligence claim. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 2002). In her brief, Johnson states she filed her original petition seeking damages under common law negligence on “February 13, 2003”. However, the appellate record does not contain an original petition filed by Johnson.¹ In Johnson’s third amended original petition, filed February 18, 2004, she alleges only that Minyard violated Texas Labor Code provisions by failing to inform her she was not covered by worker’s compensation insurance when she was hired. An amended pleading supercedes and supplants all previous pleadings. Lone Star Caliper Co. v. Talty Water Supply Corp., 102 S.W.3d 198, 204 (Tex.App.-Dallas 2003, pet. denied) (supplemental opinion on motion for rehearing). Johnson asserted her common law negligence claim fourteen months after the statute of limitations had run when she filed a fourth amended original petition on April 15, 2004. Thus, the trial judge did not err in granting Minyard’s summary judgment on the ground of limitations. In light of our disposition of Johnson’s seventh point, we need not address her remaining points of error. See Tex.R.App. P. 47.1.

We affirm the trial court’s summary judgment.

	Footnotes
1		Regardless, Johnson does not claim that the relation-back doctrine is applicable in this case. See Tex. Corps. & Ass’ns Code Ann. § 16.068 (Vernon 1986)