How may bites at the apple does a losing litigant get in the trial court prior to appeal? In its first opinion issued in 2008, the Texas Supreme Court confirms that the permissible bites go beyond one, but that a second motion for new trial does not, unlike other post-judgment motions, extend the trial court's plenary jurisdiction beyond 30 days after the judgment when the first such motion has already been been overruled. Accordingly, the supreme court sides with the court of appeals and denies mandamus sought by the losing defendant. While in the case in bar the ruling on this procedural issue benefits the prevailing tort paintiff, the new precedent will apply to plaintiffs and defendants alike, depending on who loses at trial and is not ready to throw in the towel. Given that the Supremes find the question correctly decided by the court of appeals, it is surprising that they bothered to issue an opinion at all. The reason must be that four justices did not join the rest, and instead precipitated the rare occurrence of a mandamus denial with two opinions. Perhaps one member switched sides following recent vocal criticism of the Court as being biased in favor of defendants, and increased media attention to the lopsided win-lose ratios of corporations and insurance companies on the one hand, and consumers and tort plaintiffs on the other.
In Re Brookshire Grocery Co., No. 05-0300, 250 S.W.3d 66 (Tex. Jan. 4, 2008)(Opinion by Wallace Jefferson) (posttrial motions, second motion for new trial, civil procedure, extension of trial court's plenary power jurisdiction) Dissent by Hecht
In this mandamus action, we determine whether a motion for new trial filed within thirty days of judgment, but after a preceding motion for new trial has been overruled, extends the trial court’s plenary power under Texas Rule of Civil Procedure 329b. Because we hold that it does not, we deny relator Brookshire Grocery Company’s petition for writ of mandamus
Our holding today does not preclude a party whose motion for new trial has been overruled from continuing to seek a new trial while the trial court is still empowered to act. Pursuant to Rule 329b(e), the trial court retains plenary power for thirty days after overruling a motion for new trial; thus, the losing party may ask the trial court to reconsider its order denying a new trial—or the court may grant a new trial on its own initiative—so long as the court issues an order granting new trial within its period of plenary power. See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (noting that a trial court can always “grant a new trial, or vacate, modify, correct or reform the judgment” during this time); see also Tex. R. Civ. P. 5 (trial court may not enlarge period for granting new trials except as stated in the rules).