Bruce Shrewsbury v. Ban Chu Por A/K/A Frank Por ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BRUCE SHREWSBURY, §
No. 08-13-00364-CV
Appellant, §
Appeal from the
v. §
County Court at Law Number Six
BAN CHU POR a/k/a FRANK POR, §
of El Paso County, Texas
Appellee. §
(TC#2012-DCV04318)
§
MEMORANDUM OPINION
Bruce Shrewsbury sued Ban Chu Por a/k/a Frank Por and others 1 for breach of contract.
Shrewsbury moved for summary judgment as to Por on the ground that Por had not timely filed an
answer and was in default. On September 19, 2013, the trial court entered an order granting
Shrewsbury’s motion for summary judgment “for $95,514.26 plus interest” because “Por failed to
timely file a response.” On October 18, 2013, Por timely filed a “motion to reconsider summary
judgment and for new trial,” contending among other things that Shrewsbury failed to meet his
burden of proof on summary judgment to establish his claims as a matter of law. On November
22, 2013, the trial court entered its order granting new trial “on the basis that Plaintiff’s motion for
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One of the other defendants answered and was later dismissed without prejudice from the lawsuit. The other named
defendant was never served and never made an appearance in the lawsuit.
summary judgment failed to carry his burden to conclusively prove liability and damages herein.”
The trial court’s order specifically vacated and set aside the prior judgment and granted new trial.
Shrewsbury then filed a notice of appeal seeking appellate review of the trial court’s order granting
the motion for new trial. We will dismiss the appeal for lack of jurisdiction.
An order granting a motion for new trial rendered within the trial court’s plenary power is
not reviewable on appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.
2005); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). When a motion for
new trial is granted, “the court essentially wipes the slate clean and starts over.” Wilkins, 160
S.W.3d at 563. Por’s motion for new trial was timely filed, and the court granted the motion
during its period of plenary power over the judgment. See TEX.R.CIV.P. 329b. Because the
order granting new trial is not subject to review on appeal, we dismiss this appeal for lack of
jurisdiction. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (noting that
generally appeals may be taken only from final judgments).
STEVEN L. HUGHES, Justice
June 24, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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