Bruce Shrewsbury v. Ban Chu Por A/K/A Frank Por

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 08-13-00364-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

BRUCE SHREWSBURY, § No. 08-13-00364-CV Appellant, § Appeal from the v. § County Court at Law Number Six BAN CHU POR a/k/a FRANK POR, § of El Paso County, Texas Appellee. § (TC#2012-DCV04318) §

MEMORANDUM OPINION

Bruce Shrewsbury sued Ban Chu Por a/k/a Frank Por and others 1 for breach of contract.

Shrewsbury moved for summary judgment as to Por on the ground that Por had not timely filed an

answer and was in default. On September 19, 2013, the trial court entered an order granting

Shrewsbury’s motion for summary judgment “for $95,514.26 plus interest” because “Por failed to

timely file a response.” On October 18, 2013, Por timely filed a “motion to reconsider summary

judgment and for new trial,” contending among other things that Shrewsbury failed to meet his

burden of proof on summary judgment to establish his claims as a matter of law. On November

22, 2013, the trial court entered its order granting new trial “on the basis that Plaintiff’s motion for

1 One of the other defendants answered and was later dismissed without prejudice from the lawsuit. The other named defendant was never served and never made an appearance in the lawsuit. summary judgment failed to carry his burden to conclusively prove liability and damages herein.”

The trial court’s order specifically vacated and set aside the prior judgment and granted new trial.

Shrewsbury then filed a notice of appeal seeking appellate review of the trial court’s order granting

the motion for new trial. We will dismiss the appeal for lack of jurisdiction.

An order granting a motion for new trial rendered within the trial court’s plenary power is

not reviewable on appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.

2005); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). When a motion for

new trial is granted, “the court essentially wipes the slate clean and starts over.” Wilkins, 160

S.W.3d at 563. Por’s motion for new trial was timely filed, and the court granted the motion

during its period of plenary power over the judgment. See TEX.R.CIV.P. 329b. Because the

order granting new trial is not subject to review on appeal, we dismiss this appeal for lack of

jurisdiction. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (noting that

generally appeals may be taken only from final judgments).

STEVEN L. HUGHES, Justice June 24, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.