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Moritz v. Preiss6/12/2003
The trial court rendered a judgment against petitioner that did not name one of the defendants. We must decide whether the trial court's original judgment was final. If it was, then the petitioner's amended motion for new trial filed more than thirty days after the trial court signed the judgment was untimely. Concerned that the original judgment was not final, the court of appeals abated the appeal and remanded to the trial court to enter a final judgment that expressly disposed of all parties. 60 S.W.3d at 287. The trial court then signed a new judgment that included the originally unnamed defendant. The court of appeals then reversed the trial court's judgment based on the amended new trial motion's merits. Id. at 295. We disagree that the trial court's original judgment was not final. Therefore, the amended new trial motion was untimely, and the court of appeals should not have considered it. Accordingly, we reverse the court of appeals' judgment and render judgment that petitioner take nothing.
I. BACKGROUND
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 August 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 non-suit for CTKA. Preiss delivered the document to CTKA's attorney; however, the non-suit was never filed with the court.
Preiss filed a timely motion for new trial and alleged juror misconduct. Then, more than thirty 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. See Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.-Austin 1992, no writ) (stating that an untimely motion's only purpose is to guide the trial court in the exercise of its inherent plenary power). The trial court granted the motion for leave, and after the hearing, denied both the motion for new trial and the amended motion for new trial.
Later, Preiss discovered the non-suit 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 err
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