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Marathon Corp. v. Pitzner8/2/2001
refusing to allow cross-examination concerning an OSHA citation and penalty issued against Pitzner's employer;
Issue 8: Whether the trial court abused its discretion by allowing appellee to present evidence of improvements made over a year after the incident;
Issue 9: Whether the trial court erred in granting a judgment for lost wages because such an award was not supported by the pleadings;
Issue 10: Whether the trial court abused its discretion by refusing to allow an offset for settlement credits; and
Issue 11: Whether the trial court erred in calculating prejudgment interest.
B. Jurisdiction and Preservation of Issues
Appellee has filed a motion to dismiss, asserting that this Court has no subject matter jurisdiction to hear this appeal because Marathon failed to timely pay the filing fee for its motion for new trial. In the alternative, appellee argues that Marathon has failed to preserve error as to those issues which must be preserved by filing a motion for new trial.
According to the record, the judgment was signed on January 23, 1998, and Marathon timely filed its motion for new trial on February 23, 1998. However, Marathon did not pay the required $15 filing fee. See Tex. Gov't Code Ann. ยง 51.317(a)(2) (Vernon 1998). The motion for new trial was not acted on by the trial court and was, therefore, overruled by operation of law seventy-five days later. Tex. R. Civ. P. 329b(c). Marathon eventually paid the filing fee for the motion for new trial on August 3, 1999, long after the trial court lost jurisdiction over the case and just four days after appellee filed his motion to dismiss. We must now determine the effect of the late payment of that filing fee.
The Texas Supreme Court has held that the timely filing of a motion for new trial, even with late payment of the correct filing fee, is sufficient to extend the appellate timetables. Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83, 84 (Tex. 1996); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993). However, the timeliness of this appeal is not at issue in this case because Marathon did not rely on the motion for new trial to extend the appellate timetable; it timely filed its notice of appeal on February 23, 1998.
More troublesome is the effect of Marathon's late payment of the filing fee on the preservation of some of its appellate issues. A motion for new trial is a prerequisite to a complaint on appeal: (1) of factual insufficiency; (2) that a jury finding is against the overwhelming weight of the evidence; and (3) of excessiveness of damages found by the jury. Tex. R. Civ. P. 324(b). These complaints have been raised by Marathon in issues one, two, three, four, five and nine. We must now determine whether Marathon has preserved these complaints for appellate review.
In Jamar, the Supreme Court "acknowledg two effects to filing a motion for new trial: (1) presenting the motion to the trial court in order to secure a ruling; and (2) extending the appellate timetable." Spellman v. Hoang, 887 S.W.2d 480, 482 (Tex. App.-San Antonio 1994, no writ) (citing Jamar, 868 S.W.2d at 319). The appellant in Jamar "tendered" his motion to the district clerk, who did not "accept" it because the filing fee was not paid. Jamar, 868 S.W.2d at 318. The motion was not stamped "filed" by the clerk until the appellant returned with the filing fee eighteen days later. Id. The Supreme Court held that a motion for new trial is "conditionally filed" when tendered to the clerk. Id. at 319. However, in a footnote, the court stated, " he filing is not completed until the fee is paid, and absent emergency or other rare circumstances, the cour
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Texas Personal Injury Attorneys
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