in Re Fernando F. Valdes

Opinion issued April 24, 2008

Opinion issued April 24, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00165-CV

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IN RE FERNANDO F. VALDES, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION¹

         By petition for writ of mandamus, relator, Fernando F. Valdes challenges the trial court’s January 26, 2007 order granting a new trial.  In his sole issue, Valdes contends that the trial court abused its discretion by granting real party in interest, Alan Battaglini’s, motion for reconsideration of Battaglini’s motion for new trial after expiration of its plenary power.  We grant mandamus relief.

Background

          In the underlying suit, Valdes sued Battaglini for injuries sustained in a fist fight.  On October 10, 2006, the trial court granted Valdes a default judgment.  Battaglini filed a motion for new trial on October 13, 2006, which the court denied on November 9, 2006.  On December 7, 2006, Battaglini filed a motion to reconsider the court’s denial of his motion for new trial.  The court granted the motion to reconsider on January 26, 2007.  Valdes seeks mandamus relief compelling the trial court to vacate its January 26, 2007 order granting the motion to reconsider.2

Standard of Review

          Mandamus is an extraordinary remedy available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding).  A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  With respect to a trial court’s determination of legal principles, “a trial court has no ‘discretion’ in determining what the law is or applying the law to facts.”  In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840).  Thus, a trial court’s failure to analyze or apply the law correctly will constitute an abuse of discretion and may result in a reversal by extraordinary writ.  Walker, 827 S.W.2d at 840. Mandamus relief is proper when a trial court signs an order for new trial after it has lost plenary power. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998).

Discussion

          The 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).  The filing of a motion for new trial extends the trial court’s plenary power over the judgment.  Lane Bank Equip. Co. v. Smith. S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000).  If the motion is denied, plenary power is extended until 30 days after the motion is denied.  Tex. R. Civ. P. 329b(e).  An amended motion for new trial does not extend plenary power.  Dickason, 987 S.W.2d at 571. 

          Here, the trial court denied the motion for new trial on November 9, 2006. The court’s plenary power expired 30 days later on December 9, 2006.  See Tex. R. Civ. P. 329b(e).  However, the court granted Battaglini’s motion for reconsideration of defendant’s motion for new trial on January 26, 2007.  Battaglini implies that his motion for reconsideration is an amended motion for new trial.  Unlike a motion for new trial, an amended motion for new trial does not extend plenary power.  Dickason, 987 S.W.2d at 571.  Therefore, the trial court lacked plenary power when it signed the motion to reconsider on January 26, 2007.  Because the trial court granted the motion for reconsideration after it had lost plenary power, the order is void.  Id.

Conclusion

          We hold that the trial court abused its discretion by granting Battaglini’s motion for reconsideration of his motion for new trial.  We conditionally grant the writ of mandamus and order the trial court to vacate its January 26, 2007 “Order on Defendant’s Motion for Reconsideration of Defendants Motion for New Trial.”  We are confident that the trial court will promptly comply, and our writ will issue only if it does not.          

                                                                   Evelyn V. Keyes,

                                                                   Justice

Panel consists of Justices Taft, Keyes, and Alcala.

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¹           The underlying suit is Fernando F. Valdes v. Alan W. Battaglini, No. 05-CV-1096 in the 122nd District Court of Galveston County, Texas, the Hon. John Ellisor presiding. 

2               Valdes also sought emergency relief to stay proceedings pending resolution of the mandamus. On March 10, 2008, we granted emergency relief.