Court of Appeals of Texas, Amarillo.

Ronald JOHANSON, Appellant,

v.

WESTERN WASTE INDUSTRIES OF TEXAS D/B/A Western Waste Industries, Inc., Appellee.

No. 07-96-0363-CV.

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Feb. 9, 1998.

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Rehearing Overruled April 2, 1998.

Before DODSON and QUINN and REAVIS, JJ.

OPINION

DON H. REAVIS Justice.

*1 Appellant Ronald Johanson, a former employee of appellee Western Waste Industries of Texas, brings this appeal from a summary judgment rendered upon the motion of Western that Johanson take nothing on his action for alleged wrongful discharge brought under former article 8307c of the Texas Revised Civil Statutes Annotated.¹ Johanson also contends that the 10th Judicial District Court of Galveston County erred in granting Western’s motion to transfer venue of his action to Harris County. Based upon the rationale expressed herein, we affirm in part and reverse in part.

Johanson commenced working for Western in October 1986 and continued his employment until he was terminated on December 27, 1990. On December 1, 1987, Johanson and Western entered into an employment contract in which Western agreed to continue Johanson’s employment for an additional year and providing for automatic renewal. In relevant part, the contract provided that (1) Johanson did not have any authority to make contracts or create obligations on behalf of Western and described his duties as a “sales representative,” (2) Johanson would not disclose any confidential information, (3) Western had the right to terminate the agreement in the event Johanson was prevented from rendering his duties due to illness or injury for a period of twenty-six (26) or more continuous weeks, and (4) Johanson could not become associated with Western’s competitors during his employment or for a period of two years following termination.²

On October 18, 1989, while moving office furniture at the direction of his division manager, Johanson suffered an on-the-job back injury, and after taking one day off work, returned to work on October 20, 1989, at which time he reported the injury to his manager.³ Following another back injury on December 16, 1989, unrelated to his employment, Johanson was taken to an emergency room and treated for a strained muscle. He returned to work in the latter part of December after taking accrued vacation. Johanson later developed numbness in his leg in addition to the back pain and was again taken to an emergency room on January 22, 1990. He was released to return to work later that month with restrictions, until February 1990, when his supervisor placed him on a medical leave of absence. Johanson contacted his manager to make arrangements to be examined by a company doctor and, in March 1990, he was released to return to work. However, in April 1990, instead of permitting Johanson to return to work, his manager placed him on a four month medical leave of absence. Johanson understood that at the end of the medical leave, he would be reexamined by a company doctor, and that if he was unable to return to work, he would be terminated.

In April 1990 Johanson was referred to a different company doctor who, without examining Johanson, refused to release him to return to work. In July or August 1990, Johanson met with company representatives regarding his employment status. He was informed that his status would be reviewed, but despite repeated phone calls by Johanson, the situation remained unresolved. Finally, by letter dated December 27, 1990, citing poor performance and failure to disclose a pre-existing back injury, Johanson’s employment was terminated.

*2 Johanson filed a workers’ compensation claim in September 1991, and later filed suit on that claim in the 234th District Court of Harris County. While that claim was pending, Johanson filed this action in Galveston County alleging wrongful termination and seeking damages under former article 8307c.⁴ This action was transferred from Galveston County to Harris County on Western’s motion to transfer venue. After a bench trial of the workers’ compensation suit concluding that Johanson take nothing by way of his claim, Western filed its motion for summary judgment. The trial court granted Western’s motion and signed a final judgment that Johanson take nothing on his wrongful discharge claim on July 31, 1995.

By his first point of error, Johanson contends that the 10th Judicial District Court of Galveston County erred in granting Western’s motion to transfer venue to Harris County. We disagree.

VENUE

After the case was transferred to Harris County, Johanson filed his first amended petition. In relevant part, Johanson alleged that “[v]enue is proper in Harris County pursuant to Tex. Civ. P. and Remedies Code Section 15.037 and Section 15.001.” As pertinent here, an amended pleading serves to perfect an otherwise deficient pleading or to correct that which has been incorrectly stated in a previous pleading. Tex.R. Civ. P. 62. Furthermore, an amended pleading supersedes the instrument amended. Gage v. Langford, 615 S.W.2d 934 (Tex.Civ.App.-Eastland 1981, writ ref’d n.r.e.). Because Johanson is bound by the unrestricted averment in his amended pleading that venue was proper in Harris County, Houston First American Sav. v. Musik, 650 S.W.2d 764, 769 (Tex.1983), he abandoned his former pleading thereby waiving any error on appeal regarding venue. See Town of Port Acres v. City of Port Arthur, 340 S.W.2d 325, 329 (Tex.Civ.App.-Beaumont 1960, writ ref’d n.r.e.).

Moreover, when a venue question is properly presented for our review, we must consider the entire record, including the trial on the merits. Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 1986). Western’s motion for change of venue asserted that Galveston County was not a county of proper venue, and contended that venue was proper in Harris County under section 15.037 of the Texas Civil Practice and Remedies Code Annotated (Vernon 1986), because the cause of action arose in Harris County, its agents or representatives were in Harris County, and its principal office was located in Harris County.

In opposition to Western’s motion, Johanson asserted that venue was proper in Galveston County under section 15.037 because he resided in Galveston County and that while employed by Western, he was Western’s agent in Galveston County. Western replied to Johanson’s response contending that Johanson did not have supervisory or corporate authority sufficient to act as an agent or representative of Western.

*3 The entire record contains the written contract of employment entered into by Western and Johanson. The contract identified Western as being “of 1902 Rankin Road, Houston, Texas.” Further, it identified Johanson’s duties as a “sales representative” on behalf of Western and specifically provided that Johanson did not have any authority to make contracts or create any obligations on behalf of Western except such as specifically allowed by corporate authority. Because Johanson did not possess broad powers and discretion to act for Western, he was not an agent or representative for venue purposes. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 759 (Tex.1993).

Johanson also contended in his opposition to Western’s motion that venue was proper in Galveston County because he asserted that all or part of the cause of action arose in Galveston County. Johanson asserts on appeal that Western did not properly negate such contention. However, as plaintiff, Johanson had the burden to make a prima facie showing that his suit was maintainable in Galveston County. A.H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622 (1939); Lewis v. Exxon Co., U.S.A., 786 S.W.2d 724, 727 (Tex.App.-El Paso 1989, writ denied). Johanson was alleging a wrongful discharge claim by an employer whose principal office was not located in Galveston County. The employment contract listed the corporate address as being in Houston.

In his brief, Johanson does not refer this Court to any portion of the record, nor have we found any such evidence in the record, which would either support his contention that he was an “agent” or “representative” of Western as contemplated by section 15.037 or establishing that his cause of action arose in Galveston County. See Tex.R.App. P. 38.1(h). For the above reasons, point of error one is overruled.

RETALIATORY DISCHARGE

By point of error two Johanson contends that the trial court erred in granting summary judgment for Western. By point of error three, he specifically asserts that the trial court erred in granting summary judgment for Western because material fact issues existed regarding a causal connection between Johanson’s institution of a workers’ compensation claim and his termination. We agree.

SUMMARY JUDGMENT STANDARD OF REVIEW

In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

*4 For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex.1986), or negate at least one essential element of the non-movant’s cause of action. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

Because a summary judgment by default is not proper, we must determine whether Western established its entitlement to summary judgment on the grounds expressly presented to the trial court. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). When a summary judgment does not specify the grounds relied on, the judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Western presented two grounds in its motion for summary judgment. First, it asserted that Johanson’s termination was not in retaliation to his filing of a workers’ compensation claim. Second, Western contended that Johanson had waived and/or was estopped from asserting a wrongful discharge claim because he breached the non-competition clause of his employment contract by working for Western’s competitor. However, on appeal Western asserts that the only substantive issue for determination is whether Johanson was estopped from asserting a wrongful discharge claim because he breached his employment contract. Therefore, we will first address what Western contends is the sole contention on appeal.

Before summary judgment was granted for Western, our sister court decided Jordan v. Johnson Controls, Inc., 881 S.W.2d 363, 366 (Tex.App.-Dallas 1994, writ denied), in which the court adopted and applied the after-acquired evidence doctrine as a bar to an employee’s wrongful discharge claim where the employer either would not have hired the employee or would have fired the employee had the employer discovered the employee’s misconduct. After Jordan, two cases dealt with the application of the after-acquired evidence doctrine in wrongful discharge cases. In Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex.App.-Beaumont 1996, no writ), the court, in reversing a summary judgment, declined to adopt the after-acquired evidence doctrine as a defense to a wrongful discharge claim. However, in Johnson v. Bethesda Lutheran Homes, 935 S.W.2d 235, 237 (Tex.App.-Houston [1st Dist.] 1996, writ denied), the court reversed a summary judgment holding that the after-acquired evidence doctrine applied only to damages.

The conflict concerning application of the after-acquired evidence doctrine was finally resolved by the Supreme Court in Trico Technologies Corporation v. Montiel, 949 S.W.2d 308 (Tex.1997) (per curiam). The Court affirmed the reversal of a summary judgment and held that evidence of an employee’s misconduct acquired after an employee’s wrongful discharge is not a complete bar to recovery, but may be considered in determining the amount of damages. In other words, after-acquired evidence of an employee’s misconduct bars reinstatement and recovery of damages for the period after the employer discovers the reason for termination and only entitles the employee to back pay from the date of the wrongful discharge to the date that the employer discovered evidence of the employee’s misconduct. Id. at 312.

*5 A summary judgment must stand on its own merits and Western was required to establish its entitlement to judgment on the grounds expressly presented to the trial court in its motion for summary judgment. Clear Creek Basin Authority, 589 S.W.2d at 678. Because Western’s second ground in its motion for summary judgment asserted that Johanson’s breach of the employment contract operated as a complete bar to recovery, and not only as a limitation on damages, Western failed to establish its entitlement to summary judgment as a matter of law, therefore, we sustain point of error two.

By point of error three, Johanson asserts that genuine issues of material fact existed regarding a causal connection between his termination and the commencement of his workers’ compensation claim. Although Western does not seek affirmance on the ground that it did not terminate Johanson in retaliation for asserting his workers’ compensation claim, where a summary judgment does not specify the ground relied on, we must review all grounds presented to the trial court and determine if any are meritorious. Carr, 776 S.W.2d at 569.

Western contended in its motion for summary judgment that because Johanson did not file his compensation claim until nine months after he was terminated that the discharge was not retaliatory as matter of law. However, when an employee is discharged before he files a formal claim, he may nevertheless maintain an action for wrongful discharge, Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex.App.-El Paso 1992, no writ), as long as the evidence shows that the employee had taken steps toward instituting a claim. Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied). Merely informing the employer of an injury is sufficient to institute a compensation proceeding and when this action is shown, a fact question arises as to whether there is a causal connection between the workers’ compensation proceeding and the employee’s termination. Id. at 61.

The summary judgment evidence shows that Johanson did report the back injury to his manager and that discussions took place concerning workers compensation benefits. This raised a fact issue on whether there was a causal connection between Johanson’s institution of a compensation proceeding and his termination, despite the fact that his termination preceded his filing of a formal claim. Therefore, because Western did not establish its entitlement to summary judgment on the ground that Johanson’s termination was not retaliatory, the summary judgment cannot be affirmed on this ground. We sustain point of error three.

Our sustention of points of error two and three pretermits a discussion of Johanson’s fourth point that summary judgment was erroneous because material fact issues existed regarding whether he breached his employment contract and was estopped from asserting a wrongful discharge claim.

*6 Accordingly, we affirm the order of the 10th Judicial District Court of Galveston County granting Western’s motion to transfer venue to Harris County. The judgment of the 113th Judicial District Court of Harris County that Johanson take nothing is reversed, and the cause is remanded to the trial court for further proceedings.

	Footnotes
1		Act of April 20, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884, repealed by, Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(1), 1993 Tex. Gen. Laws 1273.
2		The summary judgment evidence does not show whether Johanson’s previous employment with Western was at will or covered by an employment contract.
3		Johanson asserts that during his treatment he had numerous conversations with his manager regarding medical bills, workers’ compensation benefits, and completing a report of injury. However, Johanson claims that his manager informed him not to file a workers’ compensation claim and that he should instead contact his personal health insurance carrier regarding his medical expenses.
4		Johanson did not seek any recovery under the written contract of employment but based his claim solely on wrongful discharge in violation of former article 8307c.