X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Litigation No. 01-1270, 6/12/2003. Click here for the full text of this decision FACTS: Traci Preiss died three weeks after a kidney biopsy. Her husband, Duane Preiss (individually, and on behalf of his children and his wife’s estate) sued the healthcare providers – Dr. Charles Moritz, Central Texas Kidney Associates P.A. (CTKA), Wilbert Polson and Austin Radiological Association P.A. – for medical malpractice. Traci Preiss’s mother, Shirley Rasmussen, also sued. Preiss claimed the doctors negligently performed the kidney biopsy, and their negligence caused Traci’s death. The claim against CTKA was limited to vicarious liability for Moritz’s acts. The jury failed to find that Moritz, Polson or Austin Radiological Association proximately caused Traci’s death. The jury charge did not include a question about CTKA’s liability. On Aug. 29, 2000, the trial court rendered judgment based on the jury’s verdict that Preiss take nothing from defendants Moritz, Polson and Austin Radiological Association. The judgment named all the defendants except CTKA. Afterward, at the request of CTKA’s attorney, Preiss prepared and executed a notice of nonsuit for CTKA. Preiss delivered the document to CTKA’s attorney; however, the nonsuit was never filed with the court. Preiss filed a timely motion for new trial and alleged juror misconduct. Then, more than 30 days after the trial court signed the judgment, Preiss filed an amended motion for new trial and alleged another juror was disqualified. Preiss simultaneously filed a motion for leave to file the amended new trial motion. At the hearing on the new trial motions, the trial court questioned Preiss regarding the propriety of granting leave for an untimely motion. Preiss conceded that the amended new trial motion preserved no error for appeal. But, relying on Kalteyer v. Sneed, Preiss argued that the trial court could consider the arguments and facts in the untimely motion to determine whether it should exercise its inherent power and grant a new trial. Kalteyer v. Sneed, 837 S.W.2d 848 (Tex. App. – Austin 1992, no writ). The trial court granted the motion for leave, and after the hearing, denied the motion for new trial and the amended motion for new trial. Later, Preiss discovered the nonsuit of CTKA was never filed with the trial court and filed a “Motion to Vacate Interlocutory Order and Enter Final Judgment.” Preiss asserted that the trial court’s original judgment was interlocutory because it did not expressly dispose of CTKA. The trial court denied the motion. Preiss appealed and argued, among other things, that the trial court erred in denying its motion to vacate. Expressing concern that it did not have jurisdiction absent a final judgment from the trial court, the court of appeals abated Preiss’s appeal and remanded to the trial court to enter a final judgment disposing of all parties. In response, the trial court rendered a new judgment that included CTKA as a party. Preiss then filed a motion for the trial court to reconsider the amended motion for new trial, and the trial court denied the motion. Back before the court of appeals, Moritz and the other healthcare providers (Moritz) argued that the trial court’s original judgment rendered Aug. 29, 2000, was final, and therefore, the court of appeals could not consider whether the trial court abused its discretion in denying Preiss’s untimely amended motion for new trial. The court of appeals concluded in a footnote that the trial court’s signing the amended final judgment and overruling Preiss’ subsequent motion for new trial rendered this argument moot. Then, based on the juror disqualification issue raised in Preiss’s amended new trial motion, the court of appeals reversed and remanded for a new trial. Moritz petitions this court for review. Moritz contends the trial court’s original judgment was final, and therefore, the court of appeals erred in reviewing the trial court’s denial of Preiss’s untimely amended motion for new trial. Alternatively, Moritz argues that, because the juror in question was not disqualified, the court of appeals erred in holding the trial court abused its discretion in denying the amended motion for new trial. HOLDING: Reversed and rendered that Preiss take nothing. Because the trial court’s original judgment followed a trial on the merits and was not intrinsically interlocutory in character, it is presumed final. Consequently, Preiss’s amended motion for new trial filed more than 30 days after the trial court signed the judgment is untimely, and the court of appeals should not have considered whether the trial court abused its discretion in denying it. Here, as in John v. Marshall Health Serv. Inc., 58 S.W.3d 738 (Tex. 2001), there is nothing to indicate that the trial court did not intend to finally dispose of the entire case. Preiss did not request, and the trial court did not enter, any orders for a separate trial against CTKA. Moreover, the trial court did not submit CTKA’s liability to the jury. In fact, Preiss did not request the trial court to submit a jury question on CTKA’s liability. And Preiss did not object to the charge submitted. The court likewise concludes the finality presumption is “entirely appropriate” here. The court concludes that the trial court’s original judgment, rendered on Aug. 29, 2000, was final. Preiss filed the amended motion for new trial 35 days after the trial court signed the original judgment. This judgment was final for purposes of appeal. Accordingly, Preiss’s amended motion for new trial was untimely. Texas Rule of Civil Procedure 329b(b). The untimely motion’s only purpose was to guide the trial court in the exercise of its inherent authority, and it is a nullity for purposes of preserving issues for appellate review. The court of appeals, therefore, erred in reviewing Preiss’ contention that the trial court abused its discretion in denying the amended motion for new trial and reversing the trial court’s judgment based on the juror disqualification issue raised for the first time in that motion. The court acknowledges that in Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), decided under the prior version of Rule 329b, the court allowed appellate review of issues raised in an untimely motion and amended motion for new trial after the trial court considered the merits of the untimely motions and denied the motions before its plenary power expired. However, to give full effect to procedural rules that limit the time to file new trial motions, the court holds that an untimely amended motion for new trial does not preserve issues for appellate review, even if the trial court considers and denies the untimely motion within its plenary power period. The court overrules Jackson only to the extent that it allows appellate review of a trial court’s decision to deny an untimely new trial motion. OPINION: Schneider, J., delivered the opinion of the court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.