14-99-00744-Cv ______

Affirmed and Opinion filed September 14, 2000. In The Fourteenth Court of Appeals ____________ NO. 14-99-00744-CV ____________ CYNTHIA EVERETT RANDOLPH and LLOYD E. KELLEY, Appellants V. JACKSON WALKER L.L.P., and N. DAVID BLEISCH, Appellees On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 97-45492A O P I N I O N This is a defamation case which was resolved in the trial court by Rule 13 death penalty sanctions. Appellants, Cynthia Randolph and Lloyd Kelley, challenge the trial court’s order striking that portion of their pleadings containing claims against Jackson Walker L.L.P. and David Bleisch, attorneys for the appellees.1 On appeal, appellants claim the trial court erred 1 In the trial court, Randolph and Kelley sued the appellees reflected in the style of this case, and Wayne Dolcefino, KTRK Television. Inc., C C Texas Holding Co., Inc., Capital Cities/ABC, Inc., Henry (continued...) when it granted appellees’ motion for sanctions because: (1) section 10.001 of the Texas Civil Practices & Remedies Code does not support the sanctions issued; (2) the court improperly made factual determinations of contested issues in a Rule 13 proceeding; (3) the claims against the attorney defendants are not groundless because the defamatory statements were published; and (4) appellees’ attorneys cannot claim absolute privilege. We affirm. I. Factual and Procedural Background The facts underlying this case are that Wayne Dolcefino, an investigative reporter with KTRK Television, conducted an investigation of Lloyd Kelley, who at the time was Houston’s City Controller, uncovering Kelley’s questionable business practices. Because Kelley refused to give Dolcefino access to city property and an on-camera interview, Dolcefino requested that his attorney, David Bleisch of Jackson Walker L.L.P., contact Kelley. When the news story developed by Dolcefino and detailing Kelley’s business and personal activities aired, Randolph2 filed suit accusing Dolcefino of defamation. Kelley joined in the suit, and both subsequently joined appellees Jackson Walker and Bleisch as defendants, 1 (...continued) Florsheim, and David Gwizdowski. The trial court granted the appellees’ motion in this case for Rule 13 sanctions and struck appellants’ claims in their Third, Fourth, and Fifth Amended Petitions against Jackson Walker and Bleisch, and dismissed those claims with prejudice. Thereafter, the trial court severed appellants’ claims against Jackson Walker and Bleisch into the “A” trial court cause number reflected above. That severance made the interlocutory judgment granting sanctions and dismissing claims final and appealable. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (holding trial court may make a judgment final for purposes of appeal by severing the causes and parties disposed of by the judgment into a different cause). In addition, on the same day as the severance, a “final judgment” was signed in the “A” cause number disposing of all claims as to all parties in the severed proceeding. It is from this final judgment that appeal is brought in our cause number 14-99-00744-CV. The defendants remaining after the severance, Dolcefino, et al., as well as the plaintiffs Randolph and Kelley, are also before this court on appeal in another proceeding. An opinion on rehearing was issued by this Court on June 8, 2000 in cause number 14-99-00026- CV, reversing and rendering judgment for the media defendants on the plaintiffs’ defamation and other claims. 2 Cynthia Randolph, an executive assistant of Kelley’s, was videotaped sunbathing at Splashtown with Kelley during normal business hours. Although Randolph originally claimed the time spent at Splashtown as compensable working hours, after the broadcast she changed her timesheet to show this time as vacation. 2 proceeding on defamation and conspiracy to defame claims stemming from Bleisch’s contact with Kelley. Procedurally, after appellants joined Jackson Walker and Bleisch, appellees filed a motion under Texas Civil Procedure Rule 13 requesting that the trial court strike a portion of appellants’ pleadings, claiming the attorneys were included in the suit only for purposes of harassment. The trial court agreed and struck the pleadings relating to any claims against either Jackson Walker or David Bleisch. After the sanctions were granted, appellants moved to sever the claims against Jackson Walker and Bleisch from those against the other defendants. The trial court granted that motion, severing the causes of action, and the appellants bring this appeal challenging the trial court’s sanctions. II. Waiver Appellees argue that appellants waived any error related to the trial court’s order striking portions of their pleadings because appellants filed amended pleadings that did not include any claims against Jackson Walker or David Bleisch. We agree with appellees’ position and address the waiver issue first. However, we will also address, in Part III below, the merits of appellants’ appeal in the interest of justice. See Price v. Short, 931 S.W.2d 677, 682 (Tex. App.—Dallas 1996, no writ) (addressing merits of waived Batson error in interest of justice). An amended pleading supercedes and supplants all previous pleadings. See TEX. R. CIV. P. 65; see also Johnson v. Coca-Cola Company, 727 S.W.2d 756, 758 (Tex. App.—Dallas 1987, no writ). When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered. See Jauregui v. Jones, 695 S.W.2d 258, 261 (Tex. App.—San Antonio 1985, writ ref'd n.r.e.); see also Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558 (Tex. App.—Dallas 1987, writ ref’d, n.r.e.). 3 In Radelow, the Dallas court of appeals held that Radelow-Gittens waived any error in the trial court’s grant of an adverse summary judgment by its subsequent amendment of its petition which dropped claims against Pamex from the action. The court noted that when Radelow proceeded to trial on its third amended petition, at that point in time it had abandoned all of its prior claims against Pamex under the first petition. See 735 S.W.2d at 560. The appellate court held that Radelow was therefore precluded from complaining on appeal of the trial court’s action in granting the summary judgment in favor of Pamex, and dismissed the appeal. See id. The court based its holding on Dolenz v. All Saints Episcopal Hosp., 638 S.W.2d 141, 142 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.). In Dolenz, a doctor sued a hospital for slander, and sought an injunction restraining hospital personnel from rescinding his staff privileges, and money damages for the slanderous remarks. The hospital moved for partial summary judgment on the claim for injunctive relief. The trial court granted the hospital’s motion, and entered judgment against the doctor denying his claim for injunctive relief. After this order, the doctor twice amended his pleadings. The doctor then proceeded to trial on his third amended original petition. In that petition, he dropped all claims related to injunctive relief. At trial, the doctor also lost on his slander claim. The doctor then appealed on both the injunctive relief and the slander claim. The Fort Worth Court of Appeals held that the doctor had abandoned his claim for injunctive relief when he proceeded to trial on his third amended original petition. The Dolenz court stated: "[i]n a situation such as presented, an amended pleading supplants the instrument amended and that which it amends is no longer proper to be considered part of the trial record." Id. at 142. Therefore, on appeal, the doctor could not complain of the trial court's action upon his original plea for injunction because that cause of action was abandoned when he went to trial on his third amended original petition. See id. at 142. Both Dolenz and Radelow address waiver of the right to complain on appeal about a summary judgment where claims denied by the summary judgment were dropped from later amended pleadings. The rule underlying these cases is that a viable complaint on appeal is lost when, following an allegedly erroneous ruling by the trial court on a claim, the plaintiff files 4 an amended pleading abandoning the claim upon which the trial court ruled. The vehicle by which the trial court rules is of no moment — summary judgment, or as here, Rule 13. The key to the appellate waiver is the de jure abandonment of the claim by excluding it from amended pleadings following the adverse ruling. Thus, the analysis in Dolenz and Radelow is equally applicable here.3 Here, as in Radelow, the trial court granted an adverse, interlocutory judgment against appellants when it struck their claims against Jackson Walker and Bleisch. Also here, as in Radelow, following the trial court’s dismissal with prejudice of the claims against the appellees, appellants amended their petition by dropping the claims against the attorneys. Finally here, as in Radelow, appellants appealed the trial court’s judgment, claiming the trial court erred in dismissing the attorneys from the case. Therefore, here, as in Radelow, appellants waived any error the trial court may have committed by filing amended petitions that excluded the attorneys.4 Waiver is a harsh result, but its application is mandated by our Civil Procedure Rule 65 and established case law. However, appellants’ selection of amended pleadings rather than supplementation dictates the result. To this end, the Dallas court of appeals in Radelow recognized that Radelow could have pursued its appeal if it had not abandoned its claims against Pamex. If Radelow had filed a supplemental rather than an amended pleading, its claims against Pamex would have been preserved.

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