Second Motion for New Trial Did Not Extend Trial Court’s Plenary Power

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.

Join the discussion 2 Comments

  • Jeff N. says:

    Interesting opinion for those who are into the rules of civil procedure.
    This case is a procedural knot, as shown on the online docket at the supreme court website. The Court denied a stay of proceedings below while it considered the mandamus petition, and so the judgment for plaintiff has already been affirmed by the Texarkana court. There’s now a petition for review from that judgment pending in the supreme court.
    If it accomplishes nothing else, at least this opinion will discourage litigants from deciding to file a motion for new trial before the judgment is signed. That will be a good thing.

  • Don Cruse says:

    Jeff,
    I agree that the case should be a clear warning to trial and appellate lawyers about the danger of filing a motion for new trial before the judgment is signed.
    It also has a murkier aspect that may save or confuse litigants in future cases — the Court’s recognition that a valid motion to modify the judgment under Rule 329b(g) can reset the clock for a litigant who made the mistake of filing his new trial motion too early.
    It could save a litigant because, if he successfully files a valid motion to modify after the judgment, the trial court gets the same extension of plenary authority as if there had been a timely motion for new trial. See Tex. R. Civ. P. 329b(g).
    It could confuse litigants because a later court might disagree about whether that motion was really, in substance, a motion to modify the judgment. The Court here — by a 5-4 vote — seems to be imposing a requirement that a true “motion to modify, reform, or correct” a judgment ask for something less than outright vacatur of the judgment, although it’s certainly possible the Court may revise that view in a case presenting the question more directly.