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Green v. Vidlak

The fact that the defendant's name remained in the style of the amended petition did not alter the effect of the omission of her name as a defendant in the body of the amended pleading.

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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, *fn1 Green contends (1) 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 as to Vidlak. *fn2 After hearing argument from both counsel and reviewing authorities, on February 12, 2001, the trial court signed the following order.

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