Hong Zhuang v. Carlos Rodriguez

• Court: Court of Appeals of Texas
• Decided: February 13, 2023
• Docket: 05-21-00983-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed February 13, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00983-CV

HONG ZHUANG, Appellant V. CARLOS RODRIGUEZ, Appellee

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-18388

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Wright1 Opinion by Justice Nowell Hong Zhuang sued Carlos Rodriguez, and, several months later, the trial court

entered summary judgment in her favor. Rodriguez timely filed a motion for new

trial, which the trial court granted. The case eventually proceeded to a bench trial,

and the trial court rendered judgment against Zhuang. On appeal, Zhuang raises two

issues challenging the trial court’s order granting Rodriguez’s motion for new trial.2

We affirm the trial court’s judgment.

1 The Hon. Carolyn Wright, Justice, Assigned 2 Although Zhuang’s notice of appeal stated she was appealing from the motion for new trial and the final judgment, she does not raise any issues challenging the final judgment in this appeal. Generally, when a motion for new trial is timely filed and the motion is

granted during the trial court’s plenary power, the order granting a new trial is not

subject to review either by direct appeal from that order or from a final judgment

rendered after further proceedings in the trial court. See Wilkins v. Methodist Health

Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (citing Cummins v. Paisan Constr. Co.,

682 S.W.2d 235, 236 (Tex. 1984)); Nguyen v. Terra Nostra Realty, Inc., No. 01-20-

00668-CV, 2022 WL 4240909, at *3 (Tex. App.—Houston [1st Dist.] Sept. 15,

2022, no pet.) (mem. op.); Interest of R.G.A.C.L.G., No. 05-20-00457-CV, 2022 WL

123104, at *2 (Tex. App.—Dallas Jan. 13, 2022, no pet.) (mem. op.); Dupree v.

Dupree, No. 14-20-00296-CV, 2021 WL 4899228, at *6 (Tex. App.—Houston [14th

Dist.] Oct. 21, 2021, no pet.) (mem. op.). When a motion for new trial is granted, the

court “wipes the slate clean and starts over.” Wilkins, 160 S.W.3d at 563.

Rodriguez timely filed the motion for new trial, and the trial court granted the

motion during its period of plenary power over the original judgment. See TEX. R.

CIV. P. 329b. Thus, in this case, “the trial court wiped the slate clean when it granted

[Rodriguez’s] motion for new trial; it is as though the court’s first order granting

summary judgment never existed.” Wilkins, 160 S.W.3d at 563. Consequently, the

order is not subject to review on appeal, and we decline to consider the issues Zhuang

raises on appeal.

–2– We affirm the trial court’s judgment.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

21983F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HONG ZHUANG, Appellant On Appeal from the 101st Judicial District Court, Dallas County, Texas No. 05-21-00983-CV V. Trial Court Cause No. DC-18-18388. Opinion delivered by Justice Nowell. CARLOS RODRIGUEZ, Appellee Justices Partida-Kipness and Wright participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 13th day of February 2023.

–4–