Eric Kingston v. Heather Parker McMahan

• Court: Court of Appeals of Texas
• Decided: January 30, 2020
• Docket: 01-18-01118-CV
• Status: Published

Opinion

Opinion issued January 30, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01118-CV ——————————— ERIC KINGSTON, Appellant V. HEATHER PARKER MCMAHAN, Appellees

On Appeal from the County Court at Law No. 3 Galveston County, Texas Trial Court Case No. CV-0079711

MEMORANDUM OPINION

This is an attempted appeal from the trial court’s November 20, 2018 order

granting appellee’s motion for new trial and to set aside default judgment. We

dismiss the appeal. An order granting a new trial is not an appealable order. See Fruehauf Corp.

v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). A trial court’s order granting a new trial

is only appealable if the trial court’s order is void or if “the trial court erroneously

concluded that the jury’s answers to special issues were irreconcilably in conflict.”

In re Wyatt Field Serv. Co., 454 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.]

2014, orig. proceeding).

A trial court has plenary power to grant a new trial within 30 days after the

judgment is signed. See TEX. R. CIV. P. 329b(d). If a party timely files a motion for

new trial, the trial court has plenary power to grant a new trial until 30 days after a

timely-filed motion for new trial is overruled, either by written, signed order or by

operation of law, whichever occurs first. See TEX. R. CIV. P. 329b(e). If a motion for

new trial is not determined by a written, signed order within 75 days after judgment

was signed, it is considered overruled by operation of law. See TEX. R. CIV. P.

329b(c). A motion for new trial is timely filed if it is filed within 30 days after the

judgment is signed. See TEX. R. CIV. P. 329b(a).

The record indicates that the trial court signed an order granting a motion for

default judgment on September 7, 2018, and appellee filed a motion for new trial

and to set aside default judgment on September 26, 2018. Because it was filed within

30 days after the judgment was signed, the motion for new trial was timely filed.

The trial court’s November 20, 2018 order granting a new trial was signed within 75

2 days after the judgment was signed, and thus, the trial court had plenary power to

grant a new trial. See TEX. R. CIV. P. 329b(c). Because the trial court had plenary

power to rule and there was no jury trial or special issues involved, the order granting

a new trial is an interlocutory order that is not appealable. See Fruehauf, 848 S.W.2d

at 84.

Appellant was advised of our intent to dismiss this appeal for lack of

jurisdiction by order issued on August 6, 2019. No response was filed.

Because the trial court’s November 20, 2018 order is neither a final judgment

nor an appealable interlocutory order, we have no jurisdiction over the appeal. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating general rule

that appeals may be taken from final judgments); Bally Total Fitness Corp. v.

Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (holding that interlocutory orders may

only be appeal if permitted by statute).

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a); 43.2(f). Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Landau and Hightower.