What Is the Deadline for "Ungranting" a New Trial?

Posted on September 20, 2008 by D. Todd Smith

The headline to this post sounds like a question one might see on the appellate board-certification exam, which is coming up in a few weeks.  So, in that spirit, let's do some multiple choice.  Without peeking, try and select the correct answer from this list:

a.  105 days after the new trial order is signed;

b.  75 days after the new trial order is signed;

c.  30 days after the new trial order is signed;

d.  There is no deadline.

e.  None of the above.

I SAID NO PEEKING!  The answer appears after the jump.

Until three weeks ago, the correct answer was "b."  Now, it's "d."

In In re Baylor Medical Center at Garland (No. 06-0491) (orig. proceeding), the Texas Supreme Court overruled case law effectively holding—based on a now-repealed procedural rule provision—that a trial court could not vacate an order granting a new trial more than 75 days after the order was signed.  In doing so, the Court placed new trial orders on the same footing as any other interlocutory ruling:  they can now be vacated as long as the trial court retains plenary power over the case.

As the supreme court noted, "[n]ew trial orders are rare, and the long list of cases in footnote 8 [of the majority opinion] shows that trial judges often think better of them."  Still, for appellate geeks and anyone wanting to become board-certified in civil appellate law, the new rule is something to know.
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Second Motion for New Trial Did Not Extend Trial Court's Plenary Power

Posted on January 4, 2008 by D. Todd Smith

The Texas Supreme Court issued its first decision of 2008 with today's orders.  In In re Brookshire Grocery Co. (No. 05-0300), the Court held that a motion for new trial filed within 30 days of judgment, but after a preceding motion for new trial had been overruled, did not extend the trial court's plenary power under TRCP 329b.  The Court based its decision on language in the rule allowing an amended motion to be filed without leave of court when no preceding motion for new trial has been overruled and the amended motion is filed within 30 days of the judgment.  Chief Justice Jefferson's majority opinion (in which Justices O'Neill, Medina, Johnson, and Willett joined) also relies on the rule's history and purpose.

The trial court denied Brookshire's first motion for new trial and signed a judgment conforming to the jury's verdict.  More than 30 days after signing the judgment, the trial courtattempted to grant Brookshire's second motion for new trial, which was filed within 30 days of the judgment but after the first motion was overruled.  Under these facts, the supreme court concluded that the trial court lacked jurisdiction to grant a new trial and agreed with the court of appeals' decision to order mandamus relief.

Justice Hecht (joined by Justices Wainwright, Brister, and Green) dissented.  The dissenting justices would have held that the second motion extended the plenary period, and thus would have allowed the trial court to rescind its judgment in favor of a new trial.

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