Andres, Robert J. v. Whisner, Barry E. ( 2002 )

Dismissed and Opinion filed November 21, 2002

Dismissed and Opinion filed November 21, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00574-CV

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ROBERT J. ANDRES, Appellant

V.

BARRY E. WHISNER, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 754,039

M E M O R A N D U M  O P I N I O N

This case was appealed de novo to the county court from justice court.  The county court=s judgment, signed October 16, 2001, found that appellant had not properly posted his bond to perfect his appeal de novo and ordered the papers in the case returned to justice court as though no appeal had been attempted.  Appellant filed a timely motion for new trial on November 2, 2001.  On December 4, 2001, the county court granted the motion for new trial and reinstated the case.  On February 6, 2002, the trial court granted appellee=s motion to set aside the order for new trial and ordered the judgment dated October 16, 2001 revived.

A trial court may only vacate or Aungrant@ an order granting a new trial during the period when it continues to have plenary power.  Porter v. Vick, 888 S.W.2d 789, 789 (Tex. 1994); In re Luster, 77 S.W.3d 331, 334 (Tex. App.CHouston [14th Dist.] 2002, orig. proceeding).  Accordingly, a trial court only retains plenary power to vacate or Aungrant@ an order granting a new trial for seventy‑five days after the original judgment is signed.  Id. Any order vacating an order granting a new trial that was signed outside the trial court=s period of plenary power over the original judgment is void.  Id.  In this case, the 75th day from the original judgment was December 31, 2001.  Thus, the Court=s order vacating the granting of the new trial, signed February 6, 2002, was void. The case therefore remains at the status existing at the time of the signing of the December 4, 2001 order granting a new trial, setting aside the judgment for appellee, and reinstating the case on the docket.  Accordingly, the county court retains jurisdiction to hear the reinstated appeal de novo.^[1]  This Court has no jurisdiction over the appeal.  Appellant=s motion to retain the case is denied.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed November 21, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Because the trial court=s order Aungranting@ the motion for new trial was void, mandamus may lie, if necessary.  See In re Luster, 77 S.W.3d at 335 (finding no adequate remedy by appeal and conditionally granting writ of mandamus where trial court=s order ungranting new trial was void).