Saturday, March 28, 2009

Order Granting Motion for New Trial must be in writing

New docket control order won't do, Texas Supreme Court says, even if it contains a new trial date and thus implies that prior judgment was set aside. High court grants mandamus relief to nix revival of suit.

In Re Lovito-Nelson, (Tex. 2009)
No. 08-0482 (Tex. Feb. 27, 2009) (per curiam) (mandamus granted)(written order required for grant of motion for new trial)(order granting new trial must be in writing within court's plenary power)


Rule 329b(c) of the Texas Rules of Civil Procedure states that a motion for a new trial can be granted only by a written, signed order:

In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

In the action underlying this original mandamus proceeding, the trial court determined that its scheduling order had the effect of granting a motion for new trial even though it did not do so explicitly. We disagree.
* * *
It is important that the requirement of a written order granting a motion for new trial be a bright-line rule. Otherwise, one might argue that all sorts of conduct should be given the same effect — a trial setting or other setting, a status conference, a hearing on a discovery motion, a request for discovery — the list is endless. The uncertainty would carry over to appellate deadlines and possibly give rise to mandamus proceedings, like this one. The requirement is not difficult to meet, and the movant who fails to satisfy it is not left without possibility of relief. He may still attempt to prosecute an appeal, a restricted appeal, or a bill of review. But a motion for new trial is not granted without a signed, written order explicitly granting the motion.

IN RE JOANNE LOVITO-NELSON; from Tarrant County Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

RELATED CONCEPTS: motion for new trial post-judgment motions, extension of court's plenary power to set aside judgment appellate deadlines motion to modify the final judgment direct attack on the judgment perservation of error through motion for new trial or other post-judgment motion

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