                                    NO. 07-01-0119-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                     MARCH 20, 2002

                           ______________________________


                               KELLY GREEN, APPELLANT

                                             V.

                              ESTELLA VIDLAK, APPELLEE


                         _________________________________

          FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

               NO. 97-584,871; HONORABLE PAULA LANEHART, JUDGE

                          _______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellant Kelly Green challenges the trial court’s order that she effectively non-

suited her claims for personal injuries against appellee Estella Vidlak when she amended

her petition and did not name Vidlak as a defendant. By six issues,1 Green contends (1)



      1
          Green does not challenge the trial court’s order on abuse of discretion grounds.
a court-ordered amendment should not equate to a voluntary amendment, (2) the statute

of limitations should not apply, (3) Vidlak resubmitted herself to the trial court’s jurisdiction,

(4) Vidlak was given fair notice, thus serving the purpose of Rule 65 of the Texas Rules

of Civil Procedure, (5) the pleadings taken as a whole clearly identified Vidlak, and (6) the

end result in a single defendant case results in an immediate dismissal which violates the

Texas Rules of Civil Procedure. Based upon the rationale expressed herein, we reverse

and render the judgment the trial court should have rendered; in all other respects the

judgment is affirmed.


       On July 13, 1995, while Vidlak was driving a car that had been owned by Reuben

Stewart, deceased, she was involved in an accident with a car driven by Green. On May

22, 1997, Green filed suit against Vidlak for personal injuries sustained in the accident.

The case was set for trial on February 12, 2001, and during a pre-trial conference on

January 19, 2001, the trial court sustained Vidlak’s special exceptions. On January 22,

2001, Green filed her first amended petition omitting Vidlak as a named defendant and

naming Stewart as the only defendant.


        When the case was called for trial on February 12, 2001, after counsel for Green

announced ready, counsel for Vidlak, without making any announcement of ready or

otherwise, called the court’s attention to Green’s amended pleading naming Stewart as a

defendant and omitting Vidlak as a defendant. Without filing a motion to dismiss or other

motion, counsel for Vidlak argued that Green’s amended petition operated as a non-suit

                                                2
as to Vidlak. 2 After hearing argument from both counsel and reviewing authorities, on

February 12, 2001, the trial court signed the following order.


               ON THE 12 TH DAY OF FEBRUARY, 2001, came on for trial the above styled and
      numbered cause of action. Plaintiff appeared in person and by and through her attorney of
      record and announced ready for trial. Thereupon, counsel for Defendant informed the Court
      of the contents of Plaintiff’s First Amended Petition, which was filed on January 22, 2001,
      and which omits any factual pleading against Defendant, ESTELLA VIDLAK, but rather
      makes factual allegations against Reuben Stewart, an individual not previously a party
      hereto, and who has not been served with process, who is deceased and as to whom the
      statute of limitations has run.


                The Court therefore finds that, pursuant to Rule 65, TEX. R. CIV. P., and pursuant
       to applicable case law provided to the Court and identified by the Court on the record, as
       of January 22, 2001, Plaintiff effectively filed a non-suit as to Defendant, ESTELLA VIDLAK,
       by omitting any factual pleading against ESTELLA VIDLAK from Plaintiff’s First Amended
       Petition.


                 IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff’s
       claims against Defendant, ESTELLA VIDLAK, were dismissed, without prejudice, on
       January 22, 2001, by the filing of Plaintiff’s First Amended Petition. However, the Court
       further finds that, because of the expiration of the applicable statute of limitations, Plaintiff’s
       claims against Defendant, ESTELLA VIDLAK, are not subject to being refiled.


       Costs are adjudged against the parties by whom incurred.


       All relief prayed for, and not expressly granted herein, is hereby DENIED.


       Signed this 13th day of February 2001.


Green’s motion for new trial was filed on February 27, 2001, and was overruled by order

signed March 22, 2001, and her notice of appeal was filed March 28, 2001.




      2
       Although Green suggests that the omission of Vidlak as a defendant was
inadvertent, the order is not challenged on that ground.

                                                       3
                                     Motion to Dismiss


       Pending before this Court is Vidlak’s motion to dismiss for want of jurisdiction. By

her motion, Vidlak contends that Green’s appellate timetable commenced on January 22,

2001, and because Green did not file her notice of appeal within 30 days of that date, the

notice of appeal filed on March 28, 2001, was not timely. Tex. R. App. P. 26.1(a). We

disagree.


       In considering a similar issue, in Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496

(Tex. 1995), the Court held that an appellate timetable does not commence to run “other

than by signed, written order, even when the signing of such an order is purely ministerial.”

In Farmer, after the trial court granted a summary judgment as to Farmer’s contract claim,

Farmer filed a supplemental petition in which she abandoned her negligence claim but

continued to assert the contract claim. The Court held that Farmer’s appeal should not

have been dismissed. Accordingly, Vidlak’s motion to dismiss is overruled.


       We next address Green’s contentions in a logical rather than sequential order.

Green contends (1) Rule 65 of the Texas Rules of Civil Procedure regarding substituted

instruments should not apply to an amendment required by the court, (4) the amended

pleading gave fair notice, (5) the amended pleading clearly identified Vidlak, and 6) Rule

65 applies only where multiple defendants are parties. Because these issues are negated

by controlling case law, we will consider them together. In Webb v. Jorns, 488 S.W.2d 407


                                             4
(Tex. 1972), similar questions were presented to the Court. The father, individually and

on behalf of his minor children, filed a malpractice suit on March 21, 1968, against three

physicians and a hospital upon a cause of action that arose on October 7, 1966. Id. at

409. On February 9, 1970, by amended petition Webb named the three physicians, but

omitted the hospital as a defendant. Id. As a result of the omission, the amended pleading

asserted no cause of action against the hospital. After Webb filed an amended petition

on April 3, 1970, restoring the hospital as a defendant, the hospital filed a motion to

dismiss, which was granted by the trial court. In addressing the question, the court held:


       [t]he court, by its order dismissing the hospital, correctly followed the rule
       that the amended petition, by omitting a defendant, operated as a voluntary
       dismissal as to that party. [Citations omitted]. The trial court erred, however,
       in dismissing the cause ‘with prejudice.’ The voluntary dismissal of the
       hospital did not prevent plaintiffs from refiling an action against the hospital,
       and the phrase, ‘with prejudice,’ improperly barred such an action. [Citations
       omitted]. Some of the plaintiffs were minors against whom the statute of
       limitations may not have run, and the dismissal ‘with prejudice’ as to them
       was in error. . . .


Id. The court concluded its discussion by noting that the question of limitations could be

considered upon remand. Id.


       Citing Webb, in State v. Tamminga, 928 S.W.2d 737, 740 (Tex.App.--Waco 1996,

no writ), the court held that when a plaintiff files an amended petition that excludes a

defendant named in a previously filed petition, that defendant is no longer a party to the

plaintiff’s lawsuit. The fact that Vidlak’s name remained in the style of the petition did not


                                              5
alter the effect of the omission of her name as a defendant in the body of the amended

pleading. See Radelow-Gittens v. Pamex Foods, 735 S.W.2d 558, 560 (Tex.App.--Dallas

1987, writ ref’d n.r.e). Further, the rule applies to amendment of pleadings necessary to

respond to special exceptions and to cases that include only one defendant. See Little-

Tex Insulation v. Gen. Ser. Com’n, 997 S.W.2d 358, 361 (Tex.App.--Austin 1999), rev’d

on other grounds, 39 S.W.3d 591 (Tex. 2001). Issues one, four, five, and six are

overruled.


       By issue three, Green contends that Vidlak resubmitted herself to the jurisdiction

of the court. We disagree. Although Green acknowledges that Strawder v. Thomas, 846

S.W.2d 51 (Tex.App.--Corpus Christi 1992, no writ), holds contrary to her contention

because counsel in Strawder appeared solely as a friend of the court to request a

dismissal, she argues that Strawder should not apply because Vidlak “clearly made an

appearance” by actively seeking the trial court’s adjudication on the question of dismissal.

However, as noted in Webb, the rule operated even though the hospital filed a formal

motion to dismiss. Moreover, because this case had been set for trial on the merits on

February 12, 2001, the trial court expected counsel for both parties to appear and

announce ready for trial. If we adopt Green’s position, counsel for a defendant in this

situation would be compelled to ignore the trial setting with knowledge that the trial court

expected defendant’s counsel to make an appearance, thereby running the risk that a

default judgment may be rendered requiring a motion for new trial and appeal to correct


                                             6
an erroneous judgment.       The rule suggested by Green would not promote judicial

economy; thus, we decline to depart from the decision in Strawder and follow the result of

the decision in Webb. Issue three is overruled.


       Finally, we consider Green’s second issue by which she contends the statute of

limitations should not apply. We agree in part. Although the order mentioned Reuben

Stewart by name and noted that he had not been served, it also recited that the statute of

limitations had expired. Because Green does not present any issue as to the effect of the

order as to Stewart, the limitations question as to him is moot.


       In Webb, 488 S.W.2d at 409, the Court held that the effect of the amended petition

that omitted the hospital as a defendant operated “as a voluntary dismissal as to that

party,” without prejudice. Here, the order correctly provides that Green’s claims against

Vidlak were dismissed, without prejudice. However, although it appears from the record

that Green was not a minor as in Webb, and because limitations is an affirmative defense

that must be plead,3 see Tex. R. Civ. P. 94, that portion of the order providing the following

is erroneous:


       [h]owever, the Court further finds that, because of the expiration of the
       applicable statute of limitations, Plaintiff’s claims against Defendant,
       ESTELLA VIDLAK, are not subject to being refiled.


       3
       Application of the statute of limitations is subject to determination in the event that
Green seeks to commence another proceeding based upon the events of July 13, 1995.


                                              7
Issue three is sustained in part.


       Accordingly, pursuant to Rule 43.2(c) of the Texas Rules of Appellate Procedure,

we reverse and render the judgment the trial court should have rendered by omitting that

portion of the judgment reciting that Kelly Green’s claims against Estella Vidlak are not

subject to being refiled; in all other respects the judgment is affirmed.


                                                 Don H. Reavis
                                                   Justice


Publish.




                                             8
