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Nelson v. Gulf Coast Cancer and Diagnostic Center at Southeast, Inc.

Court of Appeals of Texas, Fourteenth District

July 20, 2017

GENE NELSON, SOUTHERN DIAGNOSTIC RADIOLOGY & THERAPY SERVICES, LC AND SOUTHERN MEDICAL EQUIPMENT SALES & SERVICES, LLC, Appellants
v.
GULF COAST CANCER AND DIAGNOSTIC CENTER AT SOUTHEAST, INC., GULF COAST ONCOLOGY ASSOCIATES, P.A., AND MARK A. D'ANDREA, M.D., Appellees

         On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2012-69261

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          OPINION

          Ken Wise, Justice

         In this appeal from a final judgment in a bench trial, the appellants contend that the trial court erred by holding that the statute of limitations did not bar the appellees' claims and by granting the appellees' motion for new trial. Because we must presume that the trial evidence omitted from the appellate record supports the trial court's judgment as to the first issue and the second issue is not reviewable on direct appeal, we affirm.

         Factual and Procedural Background

         Appellee Mark A. D'Andrea, M.D. is a radiation oncologist affiliated with appellees Gulf Coast Cancer and Diagnostic Center at Southeast, Inc. and Gulf Coast Oncology Associations, P.A. (collectively, the D'Andrea Parties). Appellant Gene Nelson was D'Andrea's employee.

         In November 2012, the D'Andrea Parties sued Nelson, Southern Diagnostic Radiology & Therapy Services, LC, and Southern Medical Equipment Sales & Services, LLC (collectively, the Nelson Parties), for theft, conversion, and fraud by nondisclosure. D'Andrea alleged that Nelson would use D'Andrea's Drug Enforcement Agency number to order medications and contrast agents without D'Andrea's knowledge or permission. Nelson then would sell the medications and contrast agents to end users, such as medical drug companies, for a profit. D'Andrea alleged that he discovered the misappropriations on October 19, 2012.

         Two years later, the Nelson Parties filed a no-evidence motion for summary judgment, asserting that the D'Andrea Parties had no evidence of each of the elements of their claims. The D'Andrea Parties did not file a response to the motion. On January 7, 2015, the trial court granted the Nelson Parties' summary-judgment motion, dismissing all of the D'Andrea Parties' claims for lack of a response.

         After that, the D'Andrea Parties filed a verified motion for new trial or in the alternative a motion to reconsider. In support of their motion for new trial, the D'Andrea Parties' counsel averred that the response was not timely filed because she mistakenly calendared its due date. The D'Andrea Parties also filed a response to the Nelson Parties' summary judgment motion, which they asserted contained new information not considered by the court at the time it granted the motion. The new information included D'Andrea's affidavit and an exhibit incorporated by reference.

         On March 2, 2015, the trial court granted the motion for new trial. The record shows that the Nelson Parties subsequently filed an amended answer including the affirmative defense of the statute of limitations.

         After a bench trial, the trial court signed a final judgment in favor of the D'Andrea Parties on July 10, 2016. The Nelson Parties timely filed a notice of appeal from this judgment.

         Issues and Analysis

         In two issues, the Nelson Parties contend that the trial court erred by: (1) granting a final judgment in favor of the D'Andrea Parties because the evidence conclusively shows that the limitations period expired before the D'Andrea Parties filed their lawsuit; and (2) granting the D'Andrea Parties' motion for new trial when the lone ground supporting the motion was the negligent inaction of their counsel.

         I. We Must Presume the Trial Evidence Omitted from the Appellate Record Supports the Trial Court's Judgment as to the ...


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