Quality Infustion Care, Inc. v. Ro-West Trust ( 2006 )

Dismissed and Opinion filed October 12, 2006

Dismissed and Memorandum Opinion filed October 12, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00740-CV

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QUALITY INFUSION CARE, INC., Appellant

V.

RO-WEST TRUST, Appellee

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

Harris County, Texas

Trial Court Cause No. 838842

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a judgment signed May 4, 2006.  A motion for new trial was filed on June 2, 2006.  The record reflects that, while the trial court retained plenary power, it granted the motion for new trial on July 18, 2006.  The record also reflects that the trial court subsequently denied the same motion for new trial on July 20, 2006.  The July 20, 2006, order denying the motion for new trial effectively vacated the July 18, 2006, order granting the motion for new trial. 

A trial court retains plenary power to vacate or Aungrant@ an order granting a new trial for seventy-five days after the original judgment is signed. Porter v. Vick, 888 S.W.2d 789, 790 (Tex. 1994).  The July 20, 2006, order was signed seventy-seven days after the date the judgment was signed.  An order vacating an order granting a new trial that is signed outside the court=s period of plenary power is void.  Id. Because the July 20, 2006, order, denying the motion for new trial, was signed outside the trial court=s plenary power, it is void.

The case remains at the status existing at the time of the signing of the July 18, 2006, order granting a new trial and setting aside the judgment of May 4, 2006. Because there is no appealable final judgment, this court has no jurisdiction.^[1]    

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 12, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman. 

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^[1]      On September 19, 2006, this court issued a letter to the parties, notifying them of the possible jurisdictional problem and directing the parties to file responses on or before September 29, 2006.  Appellant has not filed a response.  Appellee filed a response on September 25, 2006, agreeing that the appeal should be dismissed.