Marathon Corp. v. Pitzner

• Decision Date: 02 August 2001
• Docket Number: HONDA-SUZUKI
• Citation: 55 S.W.3d 114
• Parties: (Tex.App.-Corpus Christi 2001) MARATHON CORPORATION D/B/ANORTH, APPELLANT, v. JOHN PITZNER, A MENTALLY INCOMPETENT PERSON BY AND THROUGH HIS NEXT FRIEND AND GUARDIAN, STEVEN PITZNER, APPELLEE. No 13-98-098-CV
• Court: Texas Court of Appeals

Page 114

55 S.W.3d 114 (Tex.App.-Corpus Christi 2001)

MARATHON CORPORATION D/B/A HONDA-SUZUKI NORTH, APPELLANT, v. JOHN PITZNER, A MENTALLY INCOMPETENT PERSON BY AND THROUGH HIS NEXT FRIEND AND GUARDIAN, STEVEN PITZNER, APPELLEE.

No 13-98-098-CV

Court of Appeals of Texas, Corpus Christi

August 02, 2001

On appeal from the 370th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Gregory T. Perkes, Meredith, Donnell & Avernethy, Corpus Christi, James P. Baker, Division Claim Attorney, Universal Underwriters Group, Overland Park, KA, Phillip S. Gordon, Houston, Attorneys for Appellant.

Gilberto Hinojosa, J.A. Magallanes, Magallanes, Hinojosa & Mancias, Brownsville, Attorneys for Appellee.

Before Justices Hinojosa, Yanez, and Rodriguez

OPINION

Justice Hinojosa

John C. Pitzner ("Pitzner"), a Dallas County resident, was working for Professional Employers Group, Inc. ("PEG"), a Texas corporation that supplied temporary employees, when he was sent out on an air conditioner repair job on Monday, July 18, 1994, for Environmental Comfort Systems, Inc. d/b/a Country Refrigeration ("ECSI"), a Texas corporation owned by Robert S. "Country" Hull ("Hull"), a Carrollton, Texas resident. Pitzner was asked to repair an air conditioning unit manufactured by York International Corporation ("York"), a Delaware corporation. The unit was located on the roof of Marathon Corporation, a Texas corporation, d/b/a Honda-Suzuki North ("Marathon" or "appellant"), a motorcycle dealership in Dallas. Pitzner was working alone on the roof when the dealership closed at 6:00 p.m. and its employees left. Approximately two hours later, he was found lying semiconscious on the ground next to the Marathon building, bleeding profusely from his left ear. Pitzner had fallen from the roof and sustained severe head trauma. A screwdriver with a burnt tip was found lying nearby. Pitzner's injuries prevented him from explaining what caused him to fall from the roof. He underwent emergency surgical removal of portions of the frontal and temporal lobes of his brain, leaving him seriously and permanently disabled.

Appellee, Steven Pitzner, became Pitzner's guardian and filed a personal injury action in the 370th District Court of Hidalgo County. Appellee asserted products liability, premises liability, and negligence causes of action against ECSI, Hull, PEG, York and Marathon. Appellee alleged that, while working on the unit, Pitzner received an electrical shock that caused him to fall backwards, trip over an improperly placed natural gas line and fall more than twelve feet to the concrete below. Appellee also alleged that the air conditioning unit was placed too close to another unit and did not have a disconnect switch, in violation of Dallas City Code ordinances (Chapter 55 of the Dallas Mechanical Code and Chapter 56 of the Dallas Electrical Code). ECSI, PEG, Hull and York eventually settled appellee's claims against them. Marathon was the sole defendant to go to trial. A jury found Marathon one hundred percent liable for Pitzner's injuries, and found that Pitzner's actual damages were in the amount of $5,945,500.00. The trial court signed a judgment for actual damages of $5,945,500.00, prejudgment interest of $1,785,652.50, and costs. This appeal ensued.

A. Appellate Issues

On appeal, Marathon presents the following issues:

Issue 1: Whether the evidence is legally and factually sufficient to show that Marathon owed a duty to Pitzner;

Issue 2: Whether appellee "failed to prove" that Marathon had any right of control over Pitzner's work and failed to request and obtain a jury finding regarding who had the right of control;

Issue 3: Whether the evidence is legally and factually sufficient to show that Marathon had actual or constructive knowledge of a dangerous condition on the premises, that a condition on the premises posed an unreasonable risk or harm, or that Marathon did not exercise reasonable care to reduce or eliminate the risk;

Issue 4: Whether the evidence is legally and factually sufficient to show that Marathon's negligence, if any, proximately caused Pitzner's injuries;

Issue 5: Whether the evidence is legally and factually sufficient to show that Marathon was solely responsible for Pitzner's injuries Issue 6: Whether the trial court abused its discretion by failing to transfer the case to Dallas County;

Issue 7: Whether the trial court abused its discretion by 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. § 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[ed] 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, "[t]he filing is not completed until the fee is paid, and absent emergency or other rare circumstances, the court should not consider [the motion] before then." Id. at 319 n.3.

In Tate, the appellant timely presented her motion for new trial to the district court, but did not pay the filing fee until after the motion had been overruled by operation of law, but while the trial court still had plenary jurisdiction. Tate, 934 S.W.2d at 83. The Supreme Court held that late payment of the filing fee at this time was sufficient to extend the appellate timetables, but specifically "express[ed] no opinion about whether a motion for new trial, even though extending the appellate timetable, properly preserves error for appeal if, as in this case, the filing fee is not paid until after the motion is overruled by operation of law." Id. at 84 n.1.

Other courts have suggested that a trial court has no authority to hear a motion for new trial before the filing fee has been paid. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 321 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (where appellant never paid filing fee); Polley v. Odom, 937 S.W.2d 623, 625-26 (Tex. App.-Waco 1997, no writ) (where appellant did not pay filing fee until after trial court lost plenary jurisdiction); Spellman, 887 S.W.2d at 482 (where filing fee was not paid until brought to appellants' attention by appellees some seven months after motion was heard and denied by trial court).

In a case very similar to this case, where the filing fee for a motion for new trial was not paid until after the trial court had lost plenary jurisdiction, this Court held that while filing a motion for new trial without payment of the filing fee does not affect the appellate timetable, it

does affect the trial court's discretion to hear and determine the motion. If the movant fails...