McInnis
v.
Gross

Court of Appeals of Texas, Fifth District, DallasJun 12, 2003
No. 05-02-01384-CV. (Tex. App. Jun. 12, 2003)

No. 05-02-01384-CV.

Opinion Filed June 12, 2003.

Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-05297-D.

AFFIRM.

Before Justices BRIDGES, O'NEILL, and FITZGERALD.


MEMORANDUM OPINION


Appellants Janine Charboneau McInnis and William A. McInnis appeal a take-nothing judgment granted in favor of Michael Gross, M.D. In two points of error, appellants contend the trial court erred in (1) severing their claims against Gross from their claims against another doctor, C. Edward Wells M.D., and (2) denying their motion for new trial as to Gross because it granted Wells's motion for new trial. For the following reasons, we affirm the trial court's judgment.

Appellants sued Drs. Gross and Wells for medical malpractice in connection with injuries appellant Janine Charboneau McInnis sustained during a Cesarean section. Following a jury trial, the jury found that Wells was negligent, but that Gross was not. In accordance with the verdict, the trial court entered a take-nothing judgment in favor of Gross. However, the trial court refused to enter a judgment in accordance with the jury's verdict as to Wells and granted his motion for new trial. After the trial court granted Wells's motion for new trial, appellants filed a motion for new trial as to Gross to allow a "retrial of all parties." The trial court denied appellants' motion. Gross subsequently filed a motion to sever which the trial court granted, making the take-nothing judgment in his favor final. This appeal followed.

In their first point of error, appellants contend the trial court erred in severing their claims against Gross from their claims against Wells. However, the record shows that, after severance, appellants settled their claims against Wells and those claims were dismissed with prejudice. Thus, those claims are no longer pending in the trial court. This court will not reverse for error unless is probably caused the rendition of an improper judgment. See Tex.R.App.P. 44.1(a). Because appellants' nonsuited their claims against Wells, they have suffered no harm from the severance order. See Kramek v. Stewart, 648 S.W.2d 399, 401 (Tex.App.-San Antonio 1983, no writ). Therefore, we overrule appellants' first point of error.

We note that, contrary to appellants' suggestion, we are not concluding their claims against Gross were disposed of by the Wells nonsuit, but that the nonsuit rendered harmless the complaint raised.

In their second point of error, appellants contend the trial court erred in denying their motion for new trial as to Gross. As noted above, the jury found Gross was not negligent. In this point of error, appellants have alleged no error with respect to that finding. Instead, they assert the trial court should have granted them a new trial as to Gross for the sole reason that the trial court granted Wells's motion for new trial. According to appellants, it is unfair to require them to try their claims against Gross separately from their claims against Wells because the claims are interwoven. Appellants argument again ignores that they have nonsuited their claims against Wells and those claims have been dismissed with prejudice. Therefore, the claims cannot be tried together. We overrule appellants' second point of error. We affirm the trial court's judgment.