Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). · Go Syfert
Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). Cases Citing This Book View Copy Cite
403 citation events (402 in the last 25 years) across 5 distinct courts.
Strongest positive: State v. Arizmendi (texcrimapp, 2017-05-17)
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Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Concurrence State v. Arizmendi (2017)
“Id. at 717 . .”
Dissent In Re Brookshire Grocery Co. (2008)
“See Moritz v. Preiss, 121 S.W.3d 715, 720-721 (Tex.2003) (holding that an amended motion for new trial filed before the first motion was overruled but more than thirty days after judgment was signed does not preserve complaints for appeal). .”
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State v. Arizmendi (2×) also: Cited "see"
Tex. Crim. App. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power.
discussed Cited as authority (verbatim quote) Melissa Fuentes, Individually, and as Next Friend of Victor Robert Fuentes and Isabella Elaine Fuentes, Minor v. Texas Mutual Insurance Co.
Tex. App. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
an amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely.
discussed Cited as authority (verbatim quote) George Michael Henderson v. Roberta Lee Henderson
Tex. App. · 2011 · quote attribution · 1 verbatim quote · confidence high
amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely
discussed Cited as authority (verbatim quote) George Michael Henderson v. Roberta Lee Henderson
Tex. App. · 2011 · quote attribution · 1 verbatim quote · confidence high
amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely
examined Cited as authority (quoted) Shihab Diais and Odessa Dental Solutions, P.A. v. Land Rover Dallas, L.P. and Snell Motor Company Operations GP, LLC, General Partner
Tex. App. · 2015 · quote attribution · 1 verbatim quote · confidence low
in passing on a motion for new trial on the ground of newly discovered evidence, the court will take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial.
examined Cited as authority (quoted) Vaughn v. Drennon (3×) also: Cited as authority (rule), Cited "see"
Tex. · 2010 · quote attribution · 1 verbatim quote · confidence low
there is nothing to indicate that the trial court did not intend to finally dispose of the entire case.
cited Cited as authority (rule) Mohammad Reza Assadi v. Amir Batoei, Family AB Austin Feb 5, LP; And Lee AB Land, LLC
txctapp3 · 2026 · confidence medium
Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
cited Cited as authority (rule) In Re Michael Wayne Lowman v. the State of Texas
Tex. App. · 2025 · confidence medium
Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
cited Cited as authority (rule) Michael Mitchell v. USAA General Indemnity Company
Tex. App. · 2025 · confidence medium
Moritz v. Preiss therefore controls our disposition of this issue. 121 S.W.3d 715, 720 (Tex. 2003).
discussed Cited as authority (rule) T. Edward Williams and William LLP v. Kaboomracks, Inc., RWVK, LLC and Robert Van Kirk
Tex. App. · 2024 · confidence medium
And because it was untimely, the Williams Parties’ motion for new trial was a “nullity for purposes of preserving issues for appellate review.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see also Boyd v. Kobierowski, 283 S.W.3d 19, 24 (Tex. App.—San Antonio 2009, no pet.) (“[A]n untimely motion can be a legal nullity.”). 8 B.
discussed Cited as authority (rule) Thomas Manley and Savannah Manley v. A&B Custon Homes, LLC
Tex. App. · 2024 · confidence medium
Although their notice of appeal also challenges the August 29 order denying their motion for new trial, an “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.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see Williams v. Finn, No. 01-17-00476-CV, 2018 WL 5071196 , at *3 (Tex. App.— Houston [1st Dist.] Oct. 18, 2018, pet. denied) (mem. op. on reh’g) (because agreement was not presented timely as a motion for new trial, purported motion was not overruled by operation of law or otherwis…
cited Cited as authority (rule) Wells Fargo Bank, N.A. v. Robert D. Rubalcaba
Tex. App. · 2024 · confidence medium
P. 329b(a); Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003).
discussed Cited as authority (rule) Ovation Services, LLC v. Jerri Lynn Bowen
Tex. App. · 2023 · confidence medium
And an “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.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see Williams v. Finn, No. 01-17-00476-CV, 2018 WL 5071196 , at *3 (Tex. App.—Houston [1st Dist.] Oct. 18, 2018, pet. denied) (mem. op. on reh’g) (because agreement was not presented timely as a motion for new trial, purported motion was not overruled by operation of law or otherwise).
discussed Cited as authority (rule) in the Matter of the Marriage of Michelle Mapuana Mann and Jason R. Mann, and in the Interest of M.K.M. and M.M.M., Children
Tex. App. · 2023 · confidence medium
P. 329(b); Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003) (holding 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”).
discussed Cited as authority (rule) David Rice v. Melinda Rice
Tex. App. · 2023 · confidence medium
“Every reasonable presumption will be made on review in favor of orders of the trial court refusing new trials.” Jackson v. Van Winkle, 660 S.W.2d 807 , 809–10 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003); Hinkle v. Hinkle, 223 S.W.3d 773, 783 (Tex. App.—Dallas 2007, no pet.).
discussed Cited as authority (rule) in the Matter of the Marriage of Rogelio Guerra and Susan Rabel Guerra
Tex. App. · 2022 · confidence medium
We need not address whether either objection should have been sustained, however, as “the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
discussed Cited as authority (rule) in the Matter of the Marriage of Rogelio Guerra and Susan Rabel Guerra
Tex. App. · 2022 · confidence medium
We need not address whether either objection should have been sustained, however, as “the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
cited Cited as authority (rule) Ex Parte: T.P.R.
Tex. App. · 2022 · confidence medium
Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
discussed Cited as authority (rule) Fela B. Olivarez v. Cristo Rey Garza
Tex. App. · 2021 · confidence medium
I’m going to dissolve the appointment of the receiver.” See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (noting that a trial court can always “vacate, modify, correct or reform the judgment” during its plenary power).
discussed Cited as authority (rule) SignAd, Ltd. v. the City of Hudson
Tex. App. · 2021 · confidence medium
And an “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.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see Williams v. Finn, No. 01-17-00476-CV, 2018 WL 5071196 , at *3 (Tex. App.—Houston [1st Dist.] Oct. 18, 2018, pet. denied) (mem. op. on reh’g) (because agreement was not presented timely as a motion for new trial, purported motion was not overruled by operation of law or otherwise).
cited Cited as authority (rule) Lubbock County v. Oscar Reyna
Tex. App. · 2021 · confidence medium
Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003).
cited Cited as authority (rule) Barrera, Sanchez & Associates, P.C. v. Lizette Rodriguez
Tex. App. · 2020 · confidence medium
R. 329b(e); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
cited Cited as authority (rule) Exxon Mobil Corporation v. Trade Exploration Corp., Bryan C. Wagner, and Duer Wagner, III
Tex. App. · 2020 · confidence medium
Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966); see also Vaughn v. Drennon, 324 S.W.3d 560, 562-63 (Tex. 2010) (per curiam); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003).
discussed Cited as authority (rule) James McCoy v. Dale Wainwright, Chairman of the Texas Board of Criminal Justice, and Kenneth Green, Disciplinary Captain of the Michael Unit
Tex. App. · 2019 · confidence medium
R. 329b(a), and a trial court may not enlarge the time for filing such a motion, Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); Texas MRG, Inc. v. Schunicht, No. 10-04-00029-CV, 2005 WL 1703617 , at *1 (Tex. App.—Waco July 20, 2005, no pet.) (mem. op.).
examined Cited as authority (rule) One Thousand Four Hundred Thirty-Seven Dollars ($1,437.00) in United States Currency and a 2016 Toyota Corolla VIN 2T1BURHE0GC627119 v. State (3×) also: Cited "see"
Tex. App. · 2019 · confidence medium
“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.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
discussed Cited as authority (rule) in the Interest of R.F. and S.F., Children
Tex. App. · 2019 · confidence medium
Conclusion Having overruled both of Father’s issues, we affirm the trial court’s judgment. /s/ Mark Pittman Mark Pittman Justice Delivered: June 13, 2019 9 Father contends in his brief that he subsequently paid Mother’s attorney the attorney’s fees assessed in the 2013 sanction, but we are confined to the record before us. 10 The supreme court has recited that while a court may look to an untimely motion or amended motion for new trial for guidance in the exercise of its inherent power, “‘if the court denies a new trial, the belated motion is a nullity and supplies no basis for con…
cited Cited as authority (rule) Richard Speirs v. Union Pacific Railroad Company
Tex. App. · 2019 · confidence medium
Similarly, “an amended [or second] motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
examined Cited as authority (rule) Brian A. Williams v. Devinah Finn (3×) also: Cited "see"
Tex. App. · 2018 · confidence medium
P. 329b(b)–(c), (e); Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003) (holding amended motion for new trial must be filed within 30 days of judgment and before trial court overrules earlier 6 motion).
discussed Cited as authority (rule) LMMM Houston 41, Ltd., LMMM Houston 41, Ltd, Dba La Michoacana Meat Market 41 v. Jesus Santibanez
Tex. App. · 2018 · confidence medium
P. 329b(b); Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). “[A]n untimely amended motion for new trial does not preserve issues for appellate review.” Moritz, 121 S.W.3d at 720– 21; see also Thomas v. Ginter, No. 01-13-00143-CV, 2014 WL 3738054 , at *4 (Tex. App.—Houston [1st Dist.] July 29, 2014, no pet.) (mem. op.).
discussed Cited as authority (rule) Yamil Luciano v. Faith Alanna Luciano
Tex. App. · 2017 · confidence medium
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003); see Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (citing Dir., State Employees Workers’ Comp.
discussed Cited as authority (rule) in the Interest of K.V.K., a Child
Tex. App. · 2017 · confidence medium
Because they were untimely filed, they are “a nullity for purposes of preserving issues for appellate review.” See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). –3– “Motion for Continuation of Appointment of Guardian ad Litem for K.V.K., A Child” (“motion for continuation”).
cited Cited as authority (rule) Lake Livingston Properties, Inc. and Lynne Patricia Heddins v. Stephens Hills Property Owner's Association, Inc.
Tex. App. · 2016 · confidence medium
In Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003), the Texas Supreme Court considered whether an untimely amended motion for new trial preserved error.
discussed Cited as authority (rule) Samuel Ferreira and Luciene De Castro v. First Preference Mortgage, Corp., CitiMortgage, Inc., & Mortgage Electronic Registration Systems, Inc.
Tex. App. · 2016 · confidence medium
Appellants responded to our letter, but their response did not show grounds for continuing the appeal. 2 The trial court had previously signed a judgment dismissing appellants’ claims against the other appellees listed in the caption above. 3 A trial court’s “order overruling an untimely new trial motion cannot be the basis of appellate review.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). 2 A motion seeking a new trial or the modification of a final judgment must be filed within thirty days of the trial court’s signing of the judgment.4 See Tex. R.
cited Cited as authority (rule) San Sebastion Realty Co., Inc. v. Roel Huerta and Rosa M. Huerta
Tex. · 2015 · confidence medium
P. 329b(d); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477 , 486 n.9 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
discussed Cited as authority (rule) Mary Flentge McAuley, Willie O. Flentge, Jr., and Charles Ray Flentge v. Carl Dean Flentge, Independent of the Estate of Laverna Flentge, Carl Dean Flentge, David Flentge and Daniel Junek, Independent of the Estate of Willie Otto Flentge, Sr., Individually, and as Shareholders and on Behalf of W.L. Ranch, Inc (2×)
Tex. Crim. App. · 2015 · confidence medium
Scholnick, 709 S.W. 2d 358, 363 (Tex. App.- Tyler 1986, writ ref’d r.r.e.) .............................................................................................................18 In re Essex Inc., 450 S.W. 3d 524, 525-26 (Tex. 2014). ..........................................15 In re TDFPS, 210 S.W. 3d 609, 612 (Tex. 2006) . ..................................................15 International Bankers Life Ins. v. Holloway, 368 S.W. 2d at 577 ..................... 17,18 Keck, Mahin & Cate v. National Union Fire Insurance Company of Pittsburg, 20 S.W. 3d 692, 699 (Tex. 2000) ............…
discussed Cited as authority (rule) Susan England v. Janice Kolbe, as Guardian of the Estate of Edna Moon
Tex. App. · 2015 · confidence medium
Jackson v. Van Winkle, 660 Jared Kerney and Sheila Kerney, Appellees S.W.2d 807, 810 (Tex. 1983) , overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. No. 10-05-00300-CV 2003).
examined Cited as authority (rule) Jack Rettig v. Ronald E. Bruno, Christopher Garcia, Sergio Lopez, Patrick G. Mendoza, and Troy J. Williams (3×) also: Cited "see"
Tex. App. · 2015 · confidence medium
App. – Dallas 1984, no writ) ..................................................................................19 Karstetter v. Voss, 184 S.W.3d 396, 401 (Tex. App. – Dallas 2006, no pet.) ............. .............................................................................................. 17, 18, 26, 27, 28 Lee v. Dykes, 312 S.W.3d 191, 198 (Tex. App. – Houston [14th Dist.] 2010, no pet.) ................................................................................................................29 Lee v. State, 29 S.W.3d 570, 578 (Tex. App. – Dallas 2000, no pet.) .........…
cited Cited as authority (rule) Aaron Chevalier v. W.M. Roberson
Tex. App. · 2015 · confidence medium
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by Moritz v. Priess, 121 S.W.3d 715, 721 (Tex. 2003).
discussed Cited as authority (rule) Suzanna Eckchum A/K/A Susan Eckhert v. State
Tex. App. · 2015 · confidence medium
Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003) (“to give full effect to our procedural rules that limit the time to file new trial motions, today we hold 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”).
discussed Cited as authority (rule) Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas L.P. v. Alfredo De La Garza, Individually and as Next Friend for I. D. L. G. and K. D. L. G., Minors, and John Paul Adame, Individually and A/N/F for C.A.A., J.P.A., Jr., and J.N.A.
Tex. App. · 2015 · confidence medium
Sen1ices Inc. v. Romero, 27 S.W.3d 1, 5 (Tex.App.-San Antonio, 2000). 25 Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983), overruled in part on other grounds by 1\1oritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003). 26 Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 27 In reAmericanHomestaro.fLancaster, Inc., 50 S.W.3d480, 483 (Tex. 2001). 28 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). 29 Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388 (Tex. App.- Houston [14th Dist.] 1998, pet. dism'd w.o.j.); City ofAlamo v. Garcia, 878 S.W.2d 664, 665 (Tex. App.- Corpus Chris…
discussed Cited as authority (rule) E. T. and T. T. v. Texas Department of Family and Protective Services (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
P. 329b(b) (limiting time for filing amended motion for new trial); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); Henderson, 2011 Tex. App. LEXIS 5457 , at *11–12.
discussed Cited as authority (rule) R.E. Cardenas AKA Ricardo Evaristo Cardenas AKA Rick Cardenas v. Nancy Crockett (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
Moritz, 121 S.W.3d at 720 (explaining that a court’s denial of an untimely supplemental or amended motion makes the motion “ineffectual for any purpose” and “a nullity for purposes of preserving issues for appellate review”).
cited Cited as authority (rule) in Re Robert Walker and Water Removal and Drying of Houston, L.L.C.
Tex. App. · 2015 · confidence medium
“If a judgment actually disposes of every issue in a case, then it is not interlocutory simply because it does not include one of the parties.” Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003).
discussed Cited as authority (rule) Eric Drake v. Consumers County Mutual Insurance, and Travelers Indemnity Company
Tex. App. · 2015 · confidence medium
The only purpose of such an amended motion for new trial is “to guide the trial court in the exercise of its inherent authority, and it is a nullity for purposes of preserving issues for –12– appellate review.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
discussed Cited as authority (rule) Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran (2×)
Tex. App. · 2015 · confidence medium
Miss. 1977) 10 Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 444 (Tex. App.--Fort Worth 1997, writ denied) 2 Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) 6 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 , 70 S.Ct. 652, 657 , 94 L.Ed. 865 (1950) 10 Newton v. SCI Texas Funeral Services, Inc., 2015 WL 1245583 (Tex. App.--Houston [1st Dist.] 2015, no pet.) 3 Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) 10 Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex. App.--El Paso 2005, no pet.) 15 Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782 (Tex. App.-- Corpus …
cited Cited as authority (rule) Woodrow W. Miller, Assignee of Judgments 2 Cash, LLC v. Royal ISD, Waller County and Waller-Harris ESD200
Tex. App. · 2015 · confidence medium
Moritz v. Preiss, 121 S.W.3d 715, 718-719 (Tex. 2003).
discussed Cited as authority (rule) Jaime Salinas and Rosa Salinas v. Tony Martinez, Individually and as General Partner of Martinez, Barrera & Martinez, LLP (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (orig. proceeding); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see TEX.
discussed Cited as authority (rule) Eddie Lerma v. Border Demolition & Environmental, Inc.
Tex. App. · 2015 · confidence medium
As such, the motion was untimely, and while a trial court may consider and grant an untimely motion for new trial as an exercise of its plenary power, “[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.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex.2003).
cited Cited as authority (rule) Mary Smith D/B/A Upscale Child Development Center v. Texas Department of Family and Protective Services
Tex. App. · 2015 · confidence medium
Id.; see Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001).
cited Cited as authority (rule) Kerstin Jones v. Roderick Darryl Jones
Tex. App. · 2014 · confidence medium
P. 329b(e); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
Retrieving the full opinion text from the archive…
Charles E. MORITZ, M.D., Central Texas Kidney Associates, P.A., Wilbert Poison, M.D., and Austin Radiological Association, P.A., Petitioners,
v.
Duane PREISS, Individually and as Next Friend of Alexis Preiss and Ronni Preiss, Minor Children, and as Representative of the Estate of Traci L. Rasmussen-Preiss, Deceased, and Shirley Rasmussen, Respondents
01-1270.
Texas Supreme Court.
Jun 12, 2003.
121 S.W.3d 715
2003 Tex. LEXIS 77
2003 WL 21356011
Stephen W. Harris, the Harris Firm, Austin, Diana L. Faust, R. Brent Cooper, Cooper & Scully, P.C., Dallas, and James B. Ewbank, II, Terri S. Harris, Ewbank & Byrom, P.C., Austin, for Petitioner., J. Woodfin Jones, Scott, Douglass & McConnico, L.L.P., Paul Schorn, Gary Lawrence Rodriguez, Rodriguez & Schorn, PC, Austin, for Respondent.
Schneider.
Cited by 291 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: #24,513 of 633,719
Citer courts: Texas Supreme Court (1) · Court of Appeals of Texas (1)
Justice SCHNEIDER

delivered the opinion for the Court.

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 Mor-itz, Central Texas Kidney Associates, P.A. (CTKA), Wilbert Poison, and Austin Radiological Association, P.A. — for medical malpractice. Traci Preiss’s mother, Shirley Rasmussen, also sued. [1] 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 Mor-itz’s acts.

The jury failed to find that Moritz, Poison, 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, Poison, 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.

[*718] 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 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. 60 S.W.Sd at 287; see also Tex. R.App. P. 27.2 (allowing an appealed order that is not final to be modified so as to be made final). 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. See Tex.R. Civ. P. 329b(b).

Back before the court of appeals, Moritz and the other healthcare providers (Mor-itz) argued that the trial court’s original judgment rendered August 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’s subsequent motion for new trial rendered this argument moot. 60 S.W.3d at 287 n. 1. 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. Id. at 295.

Moritz petitions this Court for review and asks us to reverse the court of appeals’ judgment. 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.

II. ANALYSIS

A. Final Judgment

This Court has long recognized a presumption of finality for judgments that follow a trial on the merits:

When a judgment, not intrinsically interlocutory in character, is rendered and[*719] entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [our procedural rules,] it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966); see also John v. Marshall Health Serv., Inc., 58 S.W.3d 738, 740 (Tex.2001); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 198 (Tex.2001). If a judgment actually disposes of every issue in a case, then it is not interlocutory simply because it does not include one of the parties. See Lehmann, 39 S.W.3d at 200; see also Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161, 1162 (1913) (if a judgment implicitly, but necessarily, disposes of all claims it is presumed final).

We recently affirmed the finality presumption for judgments rendered after a full trial on the merits. John, 58 S.W.3d at 740. In John, after the jury failed to reach a verdict, the trial court granted certain defendants’ motion for directed verdict and rendered a judgment stating that John take nothing from those defendants. The judgment did not name three other defendants, who did not participate in the trial because John had negotiated a preliminary settlement with them. Id. at 739. We held that, although the judgment did not expressly dispose of all parties, the finality presumption applied to all parties, including the defendants the judgment did not name. Id. at 740. In concluding the finality presumption was “entirely appropriate,” 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. TexR. 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.

[*720] 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., 151 Tex. 90, 246 S.W.2d 853, 854 (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. Davis, 553 S.W.2d 624, 626 (Tex.1977). But, the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power. Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex.1983).

To summarize the purpose of an untimely motion or amended motion for new trial:

If the trial court ignores the tardy motion, it is ineffectual for any purpose. The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion.

Kalteyer, 837 S.W.2d at 851 (citing 4 McDonald, Texas Civil Practice in District and County Courts § 18.06.02 (Frank W. Elliott ed., rev. ed.1984)).

Here, Preiss filed the amended motion for new trial thirty-five days after the trial court signed the original judgment. We have concluded that this judgment was final for purposes of appeal. Accordingly, Preiss’s amended motion for new trial was untimely. See Tex.R. Civ. P. 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. See Kalteyer, 837 S.W.2d at 851. The court of appeals, therefore, erred in reviewing Preiss’s 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.

We acknowledge that in Jackson, decided under the prior version of Rule 329b, we 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. Jackson, 660 S.W.2d at 808. However, to give full effect[*721] to our procedural rules that limit the time to file new trial motions, today we hold 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. We overrule Jackson only to the extent that it allows appellate review of a trial court’s decision to deny an untimely new trial motion.

III. CONCLUSION

In sum, 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 thirty 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. Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Preiss take nothing. See Tex.R.App. P. 59.1, 60.2(c).

1

. Preiss and Rasmussen will be referred to collectively as Preiss unless otherwise noted.