law-new-trial-motion

law-motion-for-new-trial | motion for new trial based on newly discovered evidence | MNT after default judgment
| grant of new trial after default criteria: Craddock test | deadline for filing motion for new trial | motion for new
trial overruled by operation of law without hearing | motion for new trial in family law court case | motion for new
trial on grounds that no notice was given | post-judgment motions | extending appellate deadline

MOTION FOR NEW TRIAL - NEW TRIAL ORDERS

The Texas Supreme Court has consistently held that a written order granting a new trial is
mandatory. See Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003) (per curiam)
(declining to overrule precedent, ignore Rule 329b, and accept docket entry in lieu of written order); Faulkner
v. Culver, 851 S.W.2d 187, 188 (Tex.1993) (per curiam) (holding oral pronouncement and docket entry cannot
be substituted for a written order). Recently, the Texas Supreme Court ruled that a scheduling order also
cannot take the place of a signed order granting a new trial. In re Lovito-Nelson, 278 S.W.3d 773, 775-76 (Tex.
2009).
In Re Johnson (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam) (SAPCR modification)
(motion for new trial, order setting aside default judgment, extension of deadline from weekend day to following
Monday, order signed within plenary power)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00782-CV In Re Jacqueline Johnson
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern

EFFECT OF GRANT OF NEW TRIAL MOTION: “[W]hen the trial court grants a motion for new trial, the court
essentially wipes the slate clean and starts over.” Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563
(Tex. 2005). Accordingly, when “a new trial is granted, the case stands on the trial court’s docket ‘the same as
if no trial had been had.’” In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230–31 (Tex. 2008) (orig.
proceeding) (quoting Wilkins, 160 S.W.3d at 563)); see also Figueroa v. Davis, 318 S.W.3d 53, 68 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (“The . . . judgment became a nullity the moment that the trial court granted a
new trial.”); In re Walker, 265 S.W.3d 545, 550–51 (Tex. App.—Houston [1st Dist.] 2008) (“[T]he granting of the
new trial had the ‘legal effect of vacating the original judgment and returning the case to the trial docket as
though there had been no previous trial or hearing.”), mand. denied, In re Dep’t of Family & Protective Servs.,
273 S.W.3d 639 (Tex. 2009).
“[A]n order granting a new trial does not prevent a trial court from later rendering summary judgment on the
same grounds as those asserted before the new trial was granted.” Zapata v. ACF Indus., Inc., 43 S.W.3d 584,
586 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Stanley v. CitiFinancial Mortg. Co., 121 S.W.3d
811, 816 (Tex. App.—Beaumont 2003, pet. denied) (rejecting argument that granting of a new trial following
summary judgment precludes subsequent summary judgment).

STANDARD OF REVIEW ON APPEAL: We review a trial court’s denial of a motion for new trial for abuse of
discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Champion Int’l Corp. v. Twelfth Court of Appeals, 762
S.W.2d 898, 899 (Tex. 1988) (orig. proceeding). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court’s clear failure to analyze or apply the law
correctly constitutes an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding); Cayton v. Moore, 224 S.W.3d 440, 445 (Tex. App.—Dallas 2007, no pet.).

NEW TRIAL MOTION & ORDER - APPELLATE CASE LAW FROM HOUSTON

Imkie v. The Methodist Hospital (pdf)(Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(effect of failure to respond to
no-evidence motion for summary judgment, denial of motion for new trial affirmed)
(trial court properly granted the motion for summary judgment, and did not abuse its discretion by denying the
motion for new trial. Court of appeals affirms the ruling of the trial court.)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00831-CV Marwa Imkie v. The Methodist Hospital
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

EFFECT OF ORDER GRANTING NEW TRIAL: When a motion for new trial is granted, the case is
reinstated upon the docket of the trial court and will stand for trial the same as though no trial had
been had . Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, when the trial
court grants a motion for new trial, the trial court "essentially wipes the slate clean and starts over." Id. Here,
the trial court granted Stelly's motion for new trial within the period of its plenary power. See Tex. R. Civ. P.
329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). Therefore, the issues presented in this
appeal are rendered moot and this Court lacks appellate jurisdiction. Accordingly, we order the appeal
dismissed. S telly v. Citibank (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges) (credit card debt suit,
appeal mooted by trial court's grant of motion for new trial after notice of appeal was filed)
DISMISSED: Opinion by Chief Justice Adele Hedges
14-07-00601-CV Diane T. Stelly v. Citibank (South Dakota) N.A.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
Attorney for Appellant: George R. Neely
Attorney for Appellee Citibank: Allen Lee Adkins

THE 30-DAY DEADLINE AND HOW TO EXTENT IT
L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (stating that motion for new trial or to
modify judgment must be filed within 30 days from date trial court signs judgment).
Figueroa v. Davis (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Radack)
(untimley motion for new trial, notice of appeal, dismissal for lack of jurisdiction, DWOJ)

The trial court retains plenary power for only 30 days by operation of rule 329b unless a party files an
appropriate motion to extend the trial court's plenary power. See Tex. R. Civ. P. 329b(d) ("[R]egardless of
whether an appeal has been perfected," trial court retains "plenary power to grant a new trial or to vacate,
modify, correct, or reform the judgment within thirty days after the judgment is signed.").

The trial court's plenary power expires on the 30th day after the judgment, therefore,
unless a party timely seeks relief contemplated by rule 329b(d). To be timely, therefore, and
result in a continuation of the trial court's plenary power, a motion filed to extend the trial court's plenary power
must be filed by the 30th day after the trial court signs the judgment. See L.M. Healthcare, 929 S.W.2d at 444;
In re T.G., 68 S.W.3d at 176. A motion for new trial is not timely if it is filed, as here, more than 30 days after the
trial court signs the final judgment. Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).

MOTION FOR NEW TRIAL IN FAMILY LAW CASE | CONSIDERATION OF BEST INTEREST OF CHILD
Singh v. Singh (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Bland)
(divorce with children, conservatorship SAPCR, division of marital property, denial of Motion for Continuance
and motion for new trial)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00198-CV Ritu Singh v. Rajiv Singh
Appeal from 312th District Court Court of Harris County
Trial Court Judge: Hon. David Farr

TIMELINESS OF POST-JUDGMENT NEW TRIAL MOTION(S) - EFFECT ON PLENARY JURISDICTION
In re Val d es (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Keyes)
(motion for reconsideration of motion for new trial, plenary power expired, order void)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-08-00165-CV In re Fernando F. Valdes
Appeal from 122nd District Court of Galveston County
Trial Court Judge: Hon. John Ellisor

HOUSTON APPELLATE COURT CASES | TEXAS CASE LAW |
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE