Elizabeth A. White v. Clean Slate Service, Inc. D/B/A Servpro of North Austin

• Court: Court of Appeals of Texas
• Decided: February 23, 2015
• Docket: 03-14-00372-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00372-CV

Elizabeth A. White, Appellant

v.

Clean Slate Service, Inc. d/b/a Servpro of North Austin, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-GN-13-002841, HONORABLE GUS J. STRAUSS, JUDGE PRESIDING

MEMORANDUM OPINION

Elizabeth A. White sued Clean Slate Service, Inc. d/b/a Servpro of North Austin

alleging causes of action for breach of contract and intentional infliction of emotional distress arising

out of water remediation services Clean Slate Service performed after a broken water line caused

flooding throughout White’s house. White obtained a default judgment against Clean Slate Service

and was awarded damages in excess of three million dollars. Clean Slate Service timely filed a

motion for new trial asserting that it was not properly served with citation and that it had a

meritorious defense to White’s claims. The trial court granted the motion for new trial and set aside

the default judgment. White 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. Clean Slate Service’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. App. P. 329b.

Because the complained-of order 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).

_____________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: February 20, 2015