Business with pending Texas litigation should be aware of a recent decision by the Texas Supreme Court clarifying when a trial court loses plenary power to order a new trial. In In re Brookshire Grocery Company,2008 WL 53702 (Tex. 2008), the court held that an amended motion for new trial does not extend a trial court’s plenary power to grant a new trial unless it has been filed before any prior motion for new trial was overruled and it is filed within 30 days of judgment. In its 5 to 4 decision, the court rejected the contention that meeting either of those conditions was sufficient to extend the trial court’s plenary power.
The issue arose in a tort action filed by Goss against Brookshire where the jury returned a verdict in favor of Goss. Before the judgment was signed, Brookshire filed a motion for judgment notwithstanding the verdict that also requested a new trial in the alternative. The trial court signed the judgment on December 9, 2004 and on December 10, 2004, the trial court entered an order denying the motion. Twenty-nine days after the judgment was signed, Brookshire filed a second motion for new trial that again argued that the court’s charge was erroneous and that there was insufficient evidence to support the verdict. The lower court granted the motion on February 1, 2005 despite Goss’s contention that the trial court’s plenary power had expired. Goss filed a petition for writ of mandamus in the court of appeals, and the court of appeals ordered the trial court to vacate its order. Brookshire then sought mandamus relief in the Supreme Court, asking to have the order granting a new trial reinstated.
The Supreme Court held that the trial court did not have plenary jurisdiction to grant the motion for new trial. Under Texas Rule of Civil Procedure 329b, a motion for new trial must be filed within 30 days after the judgment is signed. Amended motions may be filed without leave of court if they are filed (1) before any prior motion has been overruled and (2) within 30 days after the judgment was signed. A trial court’s plenary power to grant a new trial expires 30 days after all timely-filed motions for new trial are overruled. In this case, the court had to determine whether Brookshire’s second motion for new trial, which was filed within 30 days of judgment but after a prior motion had been overruled, was timely-filed for purposes of extending the trial court’s plenary power.
The court concluded that the only timely- filed motion for purposes of the rule was Brookshire’s first motion for new trial, meaning the trial court’s plenary power expired on January 10, 2005, 30 days after the court overruled that first motion. In reaching this determination, the court interpreted Rule 329b(b) to provide that amended motions may be filed when two conditions are met – no preceding motions have been overruled and it is within 30 days of judgment. A motion that does not meet both conditions need not be considered by the trial court and, more importantly, does not extend the trial court’s plenary power. Even if the trial court granted leave to file an amended motion, the trial court’s plenary power cannot be extended unless both conditions are met.
Full Opinion Text: http://www.supreme.courts.state.tx.us/historical/2008/jan/050300.htm