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:The jury returned a verdict for Barbara Goss in her tort action against Brookshire. On Dec. 3, 2004, after the verdict but before the trial court signed the judgment, Brookshire filed a “Motion for Judgment Notwithstanding the Verdict and in the Alternative Motion for New Trial.” In these motions, Brookshire argued that no evidence supported the verdict and urged the court to render judgment in its favor; alternatively, Brookshire sought a new trial based on an alleged error in the court’s charge. On Dec. 9, 2004, the court heard the motions and signed a judgment conforming to the jury verdict. The next day, Dec. 10, 2004, the court signed an order denying not only Brookshire’s motion for judgment notwithstanding the verdict, but also its alternative motion for new trial. Specifically, the order stated that “[h]aving considered the pleadings and the evidence presented, and having heard and considered the arguments of counsel, the Court finds that said Motions are denied.” On Jan. 7, 2005, 29 days after judgment, Brookshire filed a second motion for new trial, which again argued, in considerably more detail, that there was insufficient evidence to support the judgment and that the court’s charge was erroneous. Goss countered that the Dec. 10, 2004, order terminated the period for filing amended or supplemental motions for new trial under Texas Rule of Civil Procedure 329b(b), and triggered the final 30 days of the trial court’s plenary power under Rule 329b(e). After a Jan. 25, 2005, hearing, the trial court granted Brookshire’s motion for new trial in an order signed on Feb. 1, 2005. Goss sought mandamus relief from the 6th Court of Appeals, arguing that the trial court lacked jurisdiction on Feb. 1, 2005, to grant the second motion for new trial, because its plenary power expired on Jan. 10, 2005, 30 days after the court overruled the first motion for new trial. The 6th Court agreed and ordered the trial court to vacate the Feb. 1, 2005, order; the trial court has complied. Brookshire then sought a writ of mandamus directing the trial court to reinstate the order granting a new trial. HOLDING:The court denied the petition for a writ of mandamus. The court stated that it had to decide whether a motion for new trial filed within 30 days of judgment, but after a prior motion for new trial has been overruled, is timely for purposes of extending plenary power under Rule 329b(e). Rule 329b, the court stated, governs the filing of motions for new trial (as well as motions to modify, correct, or reform the judgment) and outlines their effect on the trial court’s plenary power. The rule provides, in relevant part: “(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed. “(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed. . . . “(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.” In the Brookshire case, the court stated that if the only timely filed motion under Rule 329b(e) was Brookshire’s first motion for new trial, then the trial court’s plenary power expired Jan. 10, 2005, 30 days after the court overruled that motion. Consequently, the court found that the trial court would have lacked jurisdiction on Feb. 1, 2005, to grant the second motion for new trial. The court concluded that this interpretation of Rule 329b was correct. Subsection (b) of Rule 329b, the court stated, provides that an amended motion may be filed without leave of court when: 1. no preceding motion for new trial has been overruled; and 2. it is filed within 30 days of judgment. As used in the rule, the court stated, the word “and” is conjunctive: an amended new-trial motion is timely filed only before the court overrules a previous one. An amended motion filed afterwards, the court stated, need not be considered by the trial court and does not extend the trial court’s plenary power. Rule 329b’s history, the court stated, supported its conclusion that a motion for new trial filed after a preceding motion has been overruled is not timely for purposes of extending the trial court’s plenary power. Amendments to the rule made in 1981, the court stated, retained a previous restriction that all motions for new trial must be filed before the trial court overrules a previous motion for new trial. Thus, in response to the 6th Court’s conditional grant of mandamus, the trial court properly vacated its Feb. 1, 2005 order granting new trial. OPINION:Jefferson, C.J., delivered the opinion of the court, in which O’Neill, Medina, Johnson and Willett joined. DISSENT:Hecht, J., delivered a dissenting opinion, in which Wainwright, Brister and Green, JJ., joined. “Relator Brookshire Grocery moved for a new trial after verdict but before judgment. At a hearing on the motion, Brookshire’s counsel explained to the trial court that she had included one ground in the motion that she wanted the court to consider before rendering judgment on the verdict, but that if the court denied the motion on that ground, she would file a ‘comprehensive’ post-judgment motion on other grounds. After argument, the court announced that it would deny the motion, render judgment on the verdict, and then ‘look more carefully at the other points’ Brookshire’s counsel had mentioned. That is exactly what it did. Brookshire filed a second motion for new trial 29 days after the judgment was signed (28 days after the first motion was denied), and the court granted it 25 days later. By considering the second motion, as well as by its statements at the hearing on the first motion, the court effectively granted leave to file. I would hold that the overruling of Brookshire’s first motion did not preclude the second and therefore, the court’s order granting a new trial was not void.”

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.