in Re Debra K. Hildebrandt and Ted Marant ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-638 CV ____________________

IN RE DEBRA K. HILDEBRANDT AND TED MARANT

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Original Proceeding

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MEMORANDUM OPINION

In this original proceeding, Debra K. Hildebrandt and Ted Marant contend the trial court abused its discretion in denying their motion to reconsider the trial court's order granting a new trial. The trial court signed a final judgment on July 13, 2007, and Kevin Ross Hildebrandt filed a motion for new trial within thirty days. The trial court signed an order granting a new trial on September 21, 2007, within the period of the trial court's plenary power over its judgment. See Tex. R. Civ. P. 329b. The seventy-fifth day following the date of judgment fell on September 26, 2007. Debra filed a motion to reconsider on November 8, 2007. Finding it lacked plenary power to rule on the motion, the trial court denied that motion on November 15, 2007.

Relators concede the trial court's order follows the "'majority' rule" in Texas, but contend the trial court abused its discretion in refusing to consider the merits of the motion to reconsider as an exercise of the trial court's inherent plenary power over all interlocutory rulings. See In re Luster, 77 S.W.3d 331 (Tex. App.-Houston [14th Dist.] 2002, mand. denied). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles." In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). In this case, the trial court followed well-established guiding rules and principles. See Porter v. Vick, 888 S.W.2d 789 (Tex. 1994) ("[A]ny order vacating an order granting a new trial which was signed outside the court's period of plenary power over the original judgment is void."). The petition for writ of mandamus is denied. Relators' request for a stay is denied.

PETITION DENIED.

PER CURIAM

Opinion Delivered January 4, 2008

Before McKeithen, C.J., Gaultney and Horton, JJ.