Preiss v. Moritz

• Decision Date: 11 October 2001
• Docket Number: No. 03-00-00734-CV,03-00-00734-CV
• Parties: (Tex.App.-Austin 2001) 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, Appellants v. Charles E. Moritz, M.D.; Central Texas Kidney Associates, P.A.; Wilbert Polson, M.D.; and Austin Radiological Association, P.A., Appellees
• Court: Texas Court of Appeals

Page 285

60 S.W.3d 285 (Tex.App.-Austin 2001)

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, Appellants v. Charles E. Moritz, M.D.; Central Texas Kidney Associates, P.A.; Wilbert Polson, M.D.; and Austin Radiological Association, P.A., Appellees

No. 03-00-00734-CV

Court of Appeals of Texas, Austin

October 11, 2001

Rehearing Overruled November 15 and December 6, 2001

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. 98-12024, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Lee Yeakel, Justice

Appellants Duane Preiss (representing his children, Alexis and Ronni Preiss, and the estate of his deceased wife, Traci L. Rasmussen-Preiss) and Shirley Rasmussen (Traci's mother) (together "Preiss"), appeal from a judgment based on a jury verdict in favor of appellees Charles Moritz, Central Texas Kidney Associates, P.A., Wilbert Polson, and Austin Radiological Association, P.A. (together "the healthcare providers"). Preiss complains on appeal that the district court erred in denying him a new trial because two unqualified jurors served on the district-court jury. We will reverse the district court's judgment and remand the case to that court.

FACTUAL AND PROCEDURAL BACKGROUND

Preiss brought a medical-malpractice action against the healthcare providers, arguing that they were negligent in performing a kidney biopsy on Traci and that their negligence was the cause of her death. At trial, by a 10-2 vote, the jury found that any negligence of the healthcare providers was not a cause of Traci's death, but rather her death was caused, at least in part, by her own negligence. The district court rendered judgment on the jury's verdict that Preiss take nothing. Preiss filed a motion for new trial, arguing that one of the jurors was statutorily disqualified from serving as a juror and had also committed juror misconduct. Later, the district court granted Preiss leave to file an amended motion for new trial. Preiss's amended motion was filed more than thirty days after the district-court judgment. See Tex. R. Civ. P. 329b(b) (stating that leave of court required to file amended motion for new trial more than thirty days after judgment ordered). The amended motion added allegations that a second jury member, Irene Olivares Garcia, was also statutorily disqualified from serving on the jury. After a hearing, the district court denied Preiss's amended motion.

Preiss then filed a "Motion to Vacate Interlocutory Judgment and to Enter Final Judgment" asserting that the district court's final judgment did not dispose of one of the healthcare providers, Central Texas Kidney Associates, P.A., thus rendering the judgment interlocutory and unappealable. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). The district court denied Preiss's motion.

Preiss originally appealed by six issues. By his second issue, Preiss argued that the district court erred in denying his motion to vacate. This Court, expressing concern that it did not have jurisdiction to hear the appeal absent a final judgment specifically disposing of all the parties in the district court, abated the appeal and remanded the cause to the district court for the entry of a final judgment disposing of all the parties. See Preiss v. Moritz, No. 03-00-734-CV, slip op. (Tex. App.--Austin Apr. 12, 2001) (not designated for publication) (citing Tex. R. App. P. 27.2 (appellate court may allow appealed order that is not final to be modified so as to be made final)). The district court rendered an amended final judgment that disposed of all issues and all parties. Preiss then moved the district court for a new trial, seeking relief from the amended final judgment, or in the alternative, that the court reconsider his earlier amended motion for new trial. The district court denied Preiss's motion.¹ We now consider Preiss's remaining issues.

DISCUSSION

By his first issue, Preiss argues that the district court erred in denying his motion for new trial because juror Garcia was statutorily disqualified from jury service. See Tex. Gov't Code Ann. § 62.102(8) (West 1998) ("A person is []qualified to serve as a petit juror [if she] . . . is not under indictment or other legal accusation of misdemeanor or felony theft or any other felony.").

When examining a trial court's action on a motion for new trial, appellate courts apply an abuse of discretion standard. "A motion for new trial is addressed to the trial court's discretion and the court's ruling on such will not be disturbed on appeal in the absence of a showing of an abuse of discretion." Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Jackson v. Van Winkle, 660 S.W.2d 807, 808-09 (Tex. 1983). "It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles or to rule without supporting evidence." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).

At the time she sat on the jury, Garcia was under legal accusation of the misdemeanor offense of theft by check. Before voir dire, each potential juror completed a questionnaire distributed by the district clerk consisting of commonly asked voir dire questions. On her juror questionnaire Garcia was asked, "Have you ever been an . . . accused, or a . . . complainant, or a . . . witness in a criminal case?" She responded "NO" and was later selected as a juror. After the verdict was rendered, Preiss's counsel discovered that Garcia had the outstanding misdemeanor-theft charge. Garcia testified at the motion-for-new-trial hearing that in June 1993 she wrote a check that was returned for insufficient funds. After being notified of the problem, she returned to the store where she wrote the check and paid the amount in full. However, she received a letter from the Travis County Attorney informing her that, because of the insufficient check, she was required to attend a financial-management class or the State would file criminal charges against her. She completed the course in January 1994. Garcia testified that she submitted the proper proof of her completing the class to the county attorney. However, in July 1994, the State filed theft-by-check charges against Garcia that remained pending at the time of her jury service. A warrant for Garcia's arrest, which remained unserved, was also issued.

Initially, we note that this is not a juror-misconduct case. Garcia's statements on her juror questionnaire were truthful to the extent of her knowledge. She believed that no charges had been filed and did not learn the contrary until after her jury service. There is no evidence that Garcia intended to conceal information from the parties. Yet the fact remains that, at the time she was a juror, she was under legal accusation of misdemeanor theft and therefore not legally qualified to serve.

The supreme court has addressed the importance of the section 62.102 qualifications for jury service. In Palmer Well Services, Inc. v. Mack Trucks, Inc., 776 S.W.2d 575 (Tex. 1989). Palmer Well Services, following a 10-2 verdict against it, discovered that a juror voting in favor of the verdict was under felony indictment. Id. at 576; see Tex. Gov't Code Ann. § 62.102(8). Palmer Well Services moved for a new trial, but the motion was overruled by the trial court. Palmer Well Servs., 776 S.W.2d at 576. On appeal, the court of appeals affirmed, holding that the juror should have been excluded because of the indictment and that Palmer Well Services did not lack diligence in failing to discover the fact of the indictment earlier. Id. However, the court held that Palmer Well Services failed "to demonstrate that the unqualified juror's presence on the jury was a material factor which was reasonably calculated to, and probably did, cause the rendition of an improper judgment." Id.

The supreme court reversed the court of appeals and remanded the case to the trial court for a new trial. Id. at 577. In so doing, the court observed that the statutory disqualification was not discovered until after the jury's verdict was returned, the failure to discover the pending felony indictment was not due to Palmer Well Services' lack of diligence, and material injury occurs when a verdict is returned by fewer than ten qualified jurors. Id. Of particular concern to the court was the fact that an unqualified juror voted in favor of the verdict:

[I]f the rules and statutes governing the qualifications of jurors and the requisites of verdicts are to have any effect, litigants similarly situated to Palmer [Well Services] must be held to have suffered material injury as a matter of law. Therefore, because this is not an instance in which a verdict could have been rendered by less than ten jurors, as a matter of law Palmer [Well Services] was materially injured by the rendition of an unfavorable verdict by less than the requisite number of qualified jurors.

Id. at 577; accord Dunlap v. Excel Corp., 30 S.W.3d 427, 433 (Tex. App.--Amarillo 2000, no pet.); see Tex. R. Civ. P. 292 (stating that verdict may be rendered by no fewer than same ten members of original jury of twelve).

Here, it is beyond dispute that Preiss is similarly situated to Palmer Well Services. Because Garcia voted in favor of the 10-2 verdict, Preiss suffered an unfavorable verdict by fewer than ten qualified jurors. We thus must hold that Preiss was materially injured as a matter of law.

The healthcare providers do not assert that Preiss discovered the pending charges against Garcia before the jury returned its verdict. However, the healthcare providers argue that Preiss lacked diligence in discovering the disqualifying facts. The supreme court's opinion in Palmer Well Services provides no guidance on this issue, because Palmer Well Services' diligence was conceded before ...