Hou-Scape, Inc. v. Conway Hall Sprinkler Company Incorporated ( 2015 )

Affirmed and Memorandum Opinion filed June 30, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00075-CV
HOU-SCAPE, INC., Appellant
V.
CONWAY HALL SPRINKLER COMPANY INCORPORATED, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1005789
MEMORANDUM OPINION
Hou-Scape, Inc. appeals from a final judgment favoring Conway Hall
Sprinkler Company Incorporated after a bench trial. In two issues, Hou-Scape
contends that the trial court erred in granting Conway Hall’s motion for new trial
after the first trial resulted in a judgment for Hou-Scape. We affirm.
Discussion
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 generally not
reviewable on appeal, either by direct appeal from the order or from a final
judgment rendered after further proceedings in the trial court. Cummins v. Paisan
Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984); Langham v. Geisendorff, No. 06-
11-00049-CV, 2011 WL 1901969, at *2 (Tex. App.—Texarkana May 20, 2011, no
pet.); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290
S.W.3d 204, 209 (Tex. 2009) (discussing Cummins). Hou-Scape does not contend
that Conway Hall’s motion was untimely or that the trial court granted the motion
outside its plenary power; indeed, the record demonstrates the motion was timely
filed and the trial court acted within its plenary power. Hou-Scape brought this
direct appeal after judgment was entered at the conclusion of the second trial.
Only two exceptions to this general rule have been recognized: (1) when the
trial court’s order is void and (2) when the trial court erroneously concluded that
the jury’s answers to special issues were irreconcilably in conflict. See Wilkins v.
Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); see also In re
Columbia, 290 S.W.3d at 209 (discussing Wilkins); In re Wyatt Field Serv. Co.,
454 S.W.3d 145, 149-50 & n.1 (Tex. App.—Houston [14th Dist.] 2014, orig.
proceeding) (same).1 In its two issues, Hou-Scape specifically argues that the trial
court abused its discretion in granting a new trial because (1) the newly discovered
evidence was known to Conway Hall prior to the first trial, and (2) the affidavit
attached to the motion for new trial failed to show what diligence was used to
discover the evidence in question. Hou-Scape does not argue that either of the two
exceptions identified in Wilkins that would render the trial court’s order reviewable
1
The Texas Supreme Court has authorized, in certain circumstances, more extensive
merits-based review of orders granting new trials in mandamus proceedings. See In re Toyota
Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758-59 (Tex. 2013). It has not, however, extended
such review to direct appeals. See In re Columbia, 290 S.W.3d at 209-10 (holding no remedy
was available on direct appeal where neither of the Wilkins exceptions was present).
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are applicable here. Because the trial court’s order granting a new trial was an
unappealable order and Hou-Scape does not argue any exception to that general
rule, we overrule its two issues. See, e.g., Wilkins, 160 S.W.3d at 563; Cummins,
682 S.W.2d at 236; Brown v. Brown, No. 14-03-00978-CV, 2004 WL 1263949, at
*1 (Tex. App.—Houston [14th Dist.] June 10, 2004, no pet.) (mem. op.).
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Jamison, Busby, and Brown.
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