in Re Michelle Lozano

Opinion

MEMORANDUM OPINION No. 04-11-00316-CV

IN RE Michelle LOZANO

Original Mandamus Proceeding 1

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Marialyn Barnard, Justice

Delivered and Filed: May 18, 2011

PETITION FOR WRIT OF MANDAMUS DENIED

On March 3, 2011, relator Michelle Lozano filed a petition for writ of mandamus and an

emergency motion for temporary relief, complaining the trial court granted a new trial outside its

plenary power. 2 The underlying suit is a modification of the parent-child relationship. On

January 12, 2011, the trial court signed the judgment appointing Lozano and Gil Lombana as

joint managing conservators, with Lozano having the right to designate the primary residence of

the child. On February 9, 2011, Lombana filed a motion for new trial, and on March 2, 2011,

Lombana filed a “motion for sanctions for failure to serve.” In her petition for writ of

1 This proceeding arises out of Cause No. 2007-CI-11826, styled Michelle Lozano v. Gil Lombana, pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable John D. Gabriel presiding. However, the order complained of was signed by the Honorable Larry Noll, presiding judge of the 408th Judicial District Court, Bexar County, Texas. 2 Relator failed to comply with Texas Rule of Appellate Procedure 52.3(j), which requires that “the person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.” See TEX. R. APP. P. 52.3(j). 04-11-00316-CV

mandamus, Lozano asserts the motion for sanctions is an amended motion for new trial. On

March 14, 2011, the trial court held a hearing on what Lozano refers to as the “Amended

Motion.” 3 On March 22, 2011, the trial court signed an order entitled “Order Granting New

Trial and Imposing Sanctions,” which holds that the motion for new trial is granted. There is no

mention of an amended motion for new trial in the trial court’s order.

Lozano contends the filing of an amended motion for new trial does not extend the trial

court’s plenary power over the judgment, and, therefore, the trial court lacked plenary power to

grant a new trial. However, it is unclear based on the record before us whether the trial court

granted the motion for new trial or whether the trial court construed the motion for sanctions as

an amended motion for new trial and granted the amended motion. Nonetheless, regardless of

whether the trial court construed Lombana’s second filing as amended motion for new trial as

Lozano suggests, the outcome is the same—the trial court retained plenary power to grant a new

trial.

Once Lombana timely filed the original motion for new trial, the trial court’s plenary

power was extended for seventy-five days after the judgment was signed. See TEX. R. CIV. P.

329b(c). Therefore, the order granting a new trial on March 22, 2011 was within the trial court’s

plenary power. If the second filing is construed as an amended motion for new trial, as Lozano

suggests, we agree with Lozano that it was untimely filed because it was not filed within thirty

days of the judgment. See id. 329b(b) (providing that “[o]ne or more amended motions for new

trial may be filed without leave of court before any preceding motion for new trial filed by the

3 Lozano fails to provide this court with a reporter’s record from this hearing. Texas Rule of Appellate Procedure 52.7 requires that relator provide “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.” See TEX. R. APP. P. 52.7(a)(1). Lozano has failed to comply with this provision. Therefore, we cannot determine whether the trial court held a hearing on the original motion for new trial as filed or on an amended motion for new trial as Lozano suggests.

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movant is overruled and within thirty days after the judgment or other order complained of was

signed”); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). However, when an amended

motion is not filed in accordance with 329b(b), “the trial court may, at its discretion, consider the

grounds raised in an untimely motion and grant a new trial under its inherent authority before the

court loses plenary power.” Moritz, 121 S.W.3d at 720. If we construe the second filing as an

amended motion for new trial, once the original motion for new trial was filed the trial court

retained plenary power for seventy-five days after the judgment was signed. Therefore, the trial

court did not err in granting a new trial under its inherent authority to do so while it still retained

plenary power. Id. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R.

APP. P. 52.8(a).

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