Gene Nelson, Southern Diagnostic Radiology & Therapy Services, LC and Southern Medical Equipment Sales & Services, LLC v. Gulf Coast Cancer and Diagnostic Center at Southeast, Inc., Gulf Coast Oncology Associates, P.A., Mark A. D'Andrea, M.D.
529 S.W.3d 545
| Tex. App. | 2017Background
- Dr. Mark D’Andrea and affiliated practices (the D’Andrea Parties) sued their former employee Gene Nelson and his companies (the Nelson Parties) for theft, conversion, and fraud by nondisclosure based on alleged misuse of D’Andrea’s DEA number to order and resell medications; discovery alleged Oct. 19, 2012.
- Nelson Parties moved for no-evidence summary judgment; D’Andrea Parties did not timely respond, and the trial court granted summary judgment on Jan. 7, 2015 for lack of response.
- D’Andrea Parties filed a verified motion for new trial (or to reconsider) asserting counsel’s calendaring mistake and submitting an affidavit and additional exhibits; the trial court granted the motion on Mar. 2, 2015.
- Nelson Parties later amended their answer to assert the statute of limitations as an affirmative defense; after a bench trial the court entered final judgment for the D’Andrea Parties on July 10, 2016; Nelson appealed.
- On appeal Nelson argued (1) the claims were time-barred because the last fraud occurred in Nov. 2007, and (2) the trial court erred in granting the new trial based on counsel’s negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations bars D’Andrea’s claims | D’Andrea: discovery rule applies; claims timely because discovery occurred in Oct. 2012 | Nelson: documentary evidence and trial proof show last fraud in Nov. 2007 so limitations ran before suit | Court: Affirmed for D’Andrea — appellate record incomplete; presume omitted trial evidence supports trial court and does not show limitations bar |
| Whether granting new trial was erroneous | D’Andrea: counsel’s inadvertent calendaring mistake justified new trial; new evidence warranted reconsideration | Nelson: counsel’s negligence insufficient; affidavits and chart were insufficient or hearsay | Court: Not reviewable on direct appeal — order granting new trial is generally unreviewable absent limited exceptions, which Nelson did not invoke |
Key Cases Cited
- Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) (defendant bears burden to plead/prove limitations; plaintiff bears burden to invoke discovery rule)
- Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002) (partial reporter’s record: presumption that omitted portions support trial court unless appellant files statement of points)
- Kings River Trail Ass’n, Inc. v. Pinehurst Trail Holdings, L.L.C., 447 S.W.3d 439 (Tex. App.—Houston [14th Dist.] 2014) (presumption that omitted trial evidence supports judgment)
- Haut v. Green Café Mgmt., 376 S.W.3d 171 (Tex. App.—Houston [14th Dist.] 2012) (same presumption regarding incomplete appellate record)
- Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005) (order granting new trial generally not reviewable on direct appeal)
- Cummins v. Paisan Constr. Co., 682 S.W.2d 235 (Tex. 1984) (same rule on non-reviewability of new-trial orders)
- In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (mandamus may be available in narrow circumstances despite general non-reviewability)