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Moritz v. Preiss6/12/2003
ate," we relied on several factors, including John's not moving for separate trials, proceeding to trial against certain defendants only, and failing to move for an agreed judgment or a dismissal of his claims against the defendants with whom he was settling. Moreover, we determined "there is nothing to indicate that the trial court did not intend the judgment to finally dispose of the entire case." Id. at 740; see also Aldridge, 400 S.W.2d at 897-98.
Here, as in John, there is nothing to indicate that the trial court did not intend to finally dispose of the entire case. See John, 58 S.W.3d at 740. Preiss did not request, and the trial court did not enter, any orders for a separate trial against CTKA. See id. at 740; Aldridge, 400 S.W.2d at 897. 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. Therefore, we likewise conclude the finality presumption is "entirely appropriate" here. John, 58 S.W.3d at 740. Accordingly, we conclude that the trial court's original judgment, rendered on August 29, 2000, was final.
B. Amended Motion for New Trial
We now consider whether Preiss's amended new trial motion, filed more than thirty days after the trial court signed the August 29, 2000 judgment, was timely. Preiss argues that, even if we conclude the August 29, 2000 judgment was final, the amended motion for new trial was rendered timely when the trial court granted Preiss leave to file the motion, heard arguments, and ruled on the amended new trial motion. Thus, according to Preiss, the court of appeals properly considered whether the trial court abused its discretion by denying the amended motion. We disagree.
A party may file an amended motion for new trial without leave of court before any earlier motion for new trial is overruled and within thirty days after the judgment. Tex. R. Civ. P. 329b(b). The court may not enlarge the period for taking any action under the rules relating to new trials except as the rules allow. Tex. R. Civ. P. 5.
Nothing in the express language of Rule 329b or Rule 5 suggests that a party receives appellate review of a trial court's decision to deny an untimely amended motion for new trial simply because the trial court grants a party leave to file the untimely amended motion. Rather, Rule 329b(b) merely allows a party to file an amended motion without the trial court's permission so long as the trial court has not yet ruled on an earlier new trial motion, and the party files the amended motion within thirty days after the trial court signs the judgment. Tex. R. Civ. P. 329b(b). If a party timely files a motion for new trial, the trial court's plenary power extends an additional thirty days after the motion is overruled. During that time, the court may grant a new trial, or vacate, modify, correct or reform the judgment. Tex. R. Civ. P. 329b(e). And Rule 5 prohibits a trial court from enlarging the period for taking any action under the rules relating to new trials. Tex. R. Civ. P. 5.
Read together, Rules 5, 329b(b) and 329b(e) demonstrate that an amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely. The trial court's inherent power does not allow a trial court to disregard the plain language of Rule 5 and enlarge the time for filing new trial motions. A.F. Jones & Sons v. Republic Supply Co., 246 S.W.2d 853, 854 (Tex. 1952). A trial court's order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period. Thomas v
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