Eric Kingston v. Heather Parker McMahan ( 2020 )

Opinion issued January 30, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01118-CV
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ERIC KINGSTON, Appellant
V.
HEATHER PARKER MCMAHAN, Appellees
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case No. CV-0079711
MEMORANDUM OPINION
This is an attempted appeal from the trial court’s November 20, 2018 order
granting appellee’s motion for new trial and to set aside default judgment. We
dismiss the appeal.
An order granting a new trial is not an appealable order. See Fruehauf Corp.
v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). A trial court’s order granting a new trial
is only appealable if the trial court’s order is void or if “the trial court erroneously
concluded that the jury’s answers to special issues were irreconcilably in conflict.”
In re Wyatt Field Serv. Co., 454 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.]
2014, orig. proceeding).
A trial court has plenary power to grant a new trial within 30 days after the
judgment is signed. See TEX. R. CIV. P. 329b(d). If a party timely files a motion for
new trial, the trial court has plenary power to grant a new trial until 30 days after a
timely-filed motion for new trial is overruled, either by written, signed order or by
operation of law, whichever occurs first. See TEX. R. CIV. P. 329b(e). If a motion for
new trial is not determined by a written, signed order within 75 days after judgment
was signed, it is considered overruled by operation of law. See TEX. R. CIV. P.
329b(c). A motion for new trial is timely filed if it is filed within 30 days after the
judgment is signed. See TEX. R. CIV. P. 329b(a).
The record indicates that the trial court signed an order granting a motion for
default judgment on September 7, 2018, and appellee filed a motion for new trial
and to set aside default judgment on September 26, 2018. Because it was filed within
30 days after the judgment was signed, the motion for new trial was timely filed.
The trial court’s November 20, 2018 order granting a new trial was signed within 75
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days after the judgment was signed, and thus, the trial court had plenary power to
grant a new trial. See TEX. R. CIV. P. 329b(c). Because the trial court had plenary
power to rule and there was no jury trial or special issues involved, the order granting
a new trial is an interlocutory order that is not appealable. See Fruehauf, 848 S.W.2d
at 84.
Appellant was advised of our intent to dismiss this appeal for lack of
jurisdiction by order issued on August 6, 2019. No response was filed.
Because the trial court’s November 20, 2018 order is neither a final judgment
nor an appealable interlocutory order, we have no jurisdiction over the appeal. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating general rule
that appeals may be taken from final judgments); Bally Total Fitness Corp. v.
Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (holding that interlocutory orders may
only be appeal if permitted by statute).
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a); 43.2(f). Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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