Northwest Park Homeowners Ass'n, Inc. v. Brundrett

ON MOTION FOR REHEARING

REAVIS, Justice.

Appellee Warner M. Brundrett filed a motion for rehearing contending that this Court erred by failing to address every issue raised and necessary to the final disposition of this appeal, as required by Rule 47.1 of the Texas Rules of Appellate Procedure (former Rule 90(a)),1 by not responding to his cross points. Remaining convinced that our disposition of the appeal obviated the necessity for discussion of Brundrett’s cross points, Brundrett’s *705motion for rehearing will be overruled with these additional comments regarding his counterclaim.

In his motion for rehearing, Brundrett raises two issues alleging error. By his first issue, he asserts this Court erred in failing to dispose of the cross points raised in his cross appeal. By his second issue, Brundrett contends this Court erroneously failed to reverse that portion of the judgment dismissing his counterclaim and failing to remand the counterclaim to the trial court for further proceedings. We do not agree.

Proceeding pro se, notwithstanding article 1896-7.01 of the Texas Non-Profit Corporation Act,2 which authorizes a designated district court to entertain an action seeking involuntary dissolution of a non-profit corporation when filed by the attorney general, Brundrett filed a counterclaim seeking dissolution of Northwest. By order signed April 8, 1996, the trial court denied Northwest’s special exception to the counterclaim for failure to state a cause of action, but dismissed Brundrett’s counterclaim seeking judicial dissolution for lack of subject matter jurisdiction. Thereafter, being represented by counsel, Brundrett filed an amended counterclaim seeking judicial dissolution of Northwest and the appointment of a receiver for Northwest.

Brundrett’s two cross points assert error regarding the April 8, 1996 order dismissing his original counterclaim. However, the cross points do not present any error regarding Brundrett’s amended counterclaim which was filed subsequent to the April 8, 1996 order. Although Brundrett’s brief makes reference to the record where the error complained of is to be found, that reference is to the April 8, 1996 order. The brief does not make reference to any order or ruling of the trial court regarding his amended counterclaim as required by Rule 74(d), nor does his brief make reference to the record where he preserved his complaint of any trial court ruling regarding his amended counterclaim. See Tex.R.App. P. 52(a).

In order to complain on appeal of part of a judgment by cross point, Brundrett was required to except to the judgment, file a motion for new trial, or in some other appropriate manner indicate to the trial court any dissatisfaction he had with the judgment as rendered. Hart v. Berko, Inc., 881 S.W.2d 502, 512 (Tex.App.—El Paso 1994, writ denied). The judgment signed on March 27, 1997, makes reference to the order of April 8, 1996, but does not contain a ruling regarding the amended counterclaim, which was filed after April 8, 1996. Further, Brundrett’s Notice of Limitation of Appeal and his Amended Notice of Limitation of Appeal address only the April 8, 1996 order dismissing his original counterclaim but do not give notice of limitation of appeal regarding any ruling by the trial court on his amended counterclaim as required by Rule 40(a)(4).

Moreover, because an amended pleading supersedes the original pleading, Jauregui v. Jones, 695 S.W.2d 258, 261 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.), when Brun-drett filed his amended counterclaim he abandoned his original counterclaim. See also Gage v. Langford, 615 S.W.2d 934, 940 (Tex.Civ.App.—Eastland 1981, writ ref'd n.r.e.). Also, when Brundrett filed his amended counterclaim after the trial court denied his original counterclaim by the April 8,1996 order, he thereby waived any error in the trial court’s ruling as to his former pleading. Dodson v. Citizens State Bank of Dalhart, 701 S.W.2d 89, 95 (Tex.App.—Amarillo 1986, writ ref'd n.r.e.); Town of Port Acres v. City of Port Arthur, 340 S.W.2d 325 (Tex.Civ.App.—Beaumont 1960, writ ref'd n.r.e.). Because both cross points raised by Brun-drett present nothing for review, they are overruled. Accordingly, Brundrett’s First Motion for Rehearing is overruled.

. Because this appeal was perfected before September 1, 1997, all references to the Texas Rules of Appellate Procedure are to the rules as they existed prior to that date.

. Tex.Rev.Civ. Stat. Ann. art. 1396-7.01 (Vernon 1997).