GENE NELSON, SOUTHERN DIAGNOSTIC RADIOLOGY & THERAPY SERVICES, LC AND SOUTHERN MEDICAL EQUIPMENT SALES & SERVICES, LLC, Appellants
GULF COAST CANCER AND DIAGNOSTIC CENTER AT SOUTHEAST, INC., GULF COAST ONCOLOGY ASSOCIATES, P.A., AND MARK A. D'ANDREA, M.D., Appellees
Appeal from the 125th District Court Harris County, Texas
Trial Court Cause No. 2012-69261
consists of Chief Justice Frost and Justices Donovan and
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.
and Procedural Background
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.
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.
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.
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
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.
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, 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
We Must Presume the Trial Evidence Omitted from the Appellate
Record Supports the Trial Court's Judgment as to the