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Radelow-Gittens v. Pamex Foods
Citation: 735 S.W.2d 558Docket: 05-86-01136-CV
Court: Court of Appeals of Texas; July 14, 1987; Texas; State Appellate Court
Radelow-Gittens Real Property Management appealed a partial summary judgment favoring Pamex Foods in a lawsuit concerning fire damage to leased property. Initially, the suit was brought by Glenn Grant Company and Sleep Shop, which also suffered damage, and Radelow-Gittens later intervened as a plaintiff. Pamex filed for partial summary judgment, asserting that the lease required Radelow-Gittens to cover repair costs. The trial court ruled in favor of Pamex, concluding that Radelow-Gittens’ claims against Pamex were barred by the lease. Radelow-Gittens subsequently filed two amended petitions that did not include claims against Pamex, leading the court to rule that all prior issues were resolved, thereby finalizing the trial court's orders. Radelow-Gittens claimed that the trial court erred in granting Pamex’s motion for several reasons: (1) Pamex was not a co-insured under the fire insurance policy, (2) if it were an insured, it was limited to its leasehold and personal property interests, and (3) the lease agreement attached to the motion was not properly certified. The third point was abandoned during oral argument since the lease was stipulated as accurate by both parties. Pamex countered that Radelow-Gittens had effectively abandoned its claims against it by filing the amended pleadings. The court agreed, noting that amended pleadings supersede earlier ones, and concluded that Radelow-Gittens had abandoned its claims by omitting Pamex from the subsequent filings. Consequently, the appeal was dismissed. A doctor filed a slander lawsuit against a hospital, seeking injunctive relief and damages. The hospital successfully moved for partial summary judgment, denying the injunctive relief claim, and the doctor subsequently amended his pleadings twice before trial. In his third amended petition, he did not request injunctive relief or provide grounds for it. At trial, he lost the slander claim and appealed both the injunctive relief and damages decisions. The Fort Worth Court of Appeals determined that by proceeding to trial on his third amended petition, the doctor abandoned his claim for injunctive relief. The court cited that an amended pleading replaces the original, rendering the previous claims no longer part of the trial record. Consequently, the doctor could not contest the trial court's ruling on his original injunction plea. Similarly, in the case of Radelow-Gittens, the amendment of the petition effectively dismissed claims against Pamex, waiving any errors related to the summary judgment granted to Pamex. The final judgment focused solely on Texas Fire and Safety, Inc., confirming Pamex was no longer a party. The court stated that interlocutory judgments merge into final judgments for appeal purposes, and thus, the summary judgment in favor of Pamex became final and appealable. Radelow-Gittens' abandonment of claims against Pamex precluded any appeal related to those claims and established a res judicata barrier against future litigation on the same claims. The court concluded that Radelow-Gittens waived its right to appeal the summary judgment due to its failure to preserve the claims against Pamex, leading to the dismissal of the appeal.