Ernesto Haberli v. Enrico Boniello Egidio and Nelson Forlano Civitarese

Opinion

Opinion issued May 12, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00117-CV

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ERNESTO HABERLI, Appellant

V.

ENRICO BONIELLO EGIDIO AND NELSON FORLANO CIVITARESE, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2009-42192

MEMORANDUM OPINION

          Appellant, Ernesto Haberli, appeals from the trial court’s judgment signed November 10, 2009.  We have not yet issued an opinion.  Because the trial court subsequently granted appellant’s motion for new trial during the period of its plenary power, we dismiss the appeal for lack of jurisdiction.

Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a motion for new trial is granted, the case is reinstated upon the docket of the trial court and will stand for trial the same as though no trial had been had. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005).  Thus, when the trial court grants a motion for new trial, the trial court “essentially wipes the slate clean and starts over.” Id.

Here, on November 10, 2009, the trial court signed a final judgment in favor of appellee.  On December 10, 2009, appellant timely filed a motion for new trial.  After a hearing and within the period of its plenary power, the trial court granted appellant’s motion for new trial. See Tex. R. Civ. P. 329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995).  Therefore, the issues presented in the appeal are rendered moot, and this Court lacks appellate jurisdiction.

Accordingly, we dismiss the appeal for lack of jurisdiction.  We dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Bland.