X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Barbara Goss, the plaintiff below, filed a petition for writ of mandamus asking this court to order the trial court to vacate its order granting Brookshire Grocery Co.’s motion for new trial. The underlying lawsuit is a tort action by Barbara Goss against Brookshire, in which the jury awarded substantial damages in her favor. Following the jury’s verdict, but before judgment, Brookshire filed a combined motion for judgment notwithstanding the verdict and, in the alternative, motion for new trial. A hearing was held on Brookshire’s motions, after which the trial court rendered judgment on the jury’s verdict. Brookshire’s motions were denied by written order signed the next day. Brookshire later filed a much more extensive motion for new trial, which the trial court ultimately granted. HOLDING:Conditionally granted. Under these provisions, a trial court retains plenary power for 30 days after it rules, or for 75 days (when overruled as a matter of law), plus 30 more. The motion in this case, partially titled “In the Alternative Motion for New Trial” was overruled Dec. 10, 2004. Goss contends the trial court lost plenary power Jan. 10, 2005; thus, the court was clearly without authority when it granted Brookshire’s second motion Feb. 1, 2005. Brookshire responds with two alternative arguments. Brookshire contends the initial motion entitled “Motion for Judgment Notwithstanding the Verdict and in the Alternative Motion for New Trial” was not considered as such by the trial court. Brookshire posits that the trial court understood that motion to be only a motion for judgment notwithstanding the verdict and that Brookshire would later file a more complete motion for new trial. Although the hearing on the first motion was mostly directed at a discussion of the motion for judgment notwithstanding the verdict, it was not exclusively so. This was partly because of an overlap in the requested relief and the reasons for that relief. The court cannot say conclusively that the court ruled solely on the motion for judgment notwithstanding the verdict and that it did not consider the motion for new trial. Even if the court did at one time have that intention, the judgment itself clearly and unambiguously disposes of both motions, and to make such a decision was clearly within the authority of the court. Brookshire also argues that, at the hearing on the first motion, the trial court impliedly granted it permission to file an amended motion for new trial. Arguably, the trial court did at least impliedly grant permission to file an amended motion. Assuming that such permission can be granted by implication under these facts, the remaining question is whether it would serve to extend the plenary authority of the trial court. The Texas Supreme Court has held that it does not. In Re: Dickason, 987 S.W.2d 570 (Tex. 1998). Brookshire argues that Dickason is distinguishable, because it does not show that the second motion for new trial was either timely filed or filed with the permission of the court. Under its analysis, the critical distinction is whether the motion was timely filed with permission of the court � and if it was, then Texas Rule of Civil Procedure 329b(e) leaves plenary power with the trial court until 30 days after that motion is overruled. That argument is not persuasive. In Dickason, the court would have analyzed the matter substantially differently had it been of the opinion that no timely motion was filed. That opinion is predicated on the assumption that a proper amended motion was before the court, and yet concludes that the plenary time periods are exclusively based on the original motion, not on the amended motion. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.