in Re: Eduardo Torres-Medina

Conditionally Grant and Opinion Filed September 8, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01046-CV
IN RE EDUARDO TORRES-MEDINA, Relator
Original Proceeding from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-54782-2012
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Fillmore, and Justice Evans
Opinion by Justice Evans
Relator filed this petition for writ of mandamus requesting that the Court order the trial
court to vacate its Final Decree of Divorce pronounced and rendered on May 14, 2014 and
signed on July 18, 2014. Relator contends that the trial court rendered the decree after its
plenary power had expired. We agree and conditionally grant the writ of mandamus.
FACTUAL AND PROCEDURAL CONTEXT
Real party in interest, Idania Lizbeth Sanchez-Navarro Suarez, filed a petition for divorce
from relator Eduardo Torres-Medina. The trial court rendered judgment on the petition on
September 18, 2013 and signed the first divorce decree on January 16, 2014. The first divorce
decree did not require either party to pay child support to the other.
Torres-Medina filed a timely motion for new trial on October 4, 2013. The trial court
heard and granted the motion for new trial on March 25, 2014. At the conclusion of the hearing
on the motion for new trial, the trial judge requested that counsel for Torres-Medina prepare an
order granting new trial and directed the parties to immediately obtain a setting for the new trial
from the court coordinator.
The trial court held the new trial on May 14, 2014. At the beginning of the May 14, 2014
trial, the trial judge noted that he could not find an order granting new trial in the file, although
he believed he had signed such an order. Counsel for Torres-Medina remained silent in the face
of this comment and allowed the new trial to proceed without objection. The trial court then
proceeded with the new trial, pronounced and rendered judgment on May 14, 2014 and signed
the second divorce decree on July 18, 2014. The second divorce decree required Torres-Medina
to pay child support to Sanchez-Navarro Suarez. Accordingly, the trial court also signed an
income withholding order dated July 18, 2014.
NECESSITY FOR WRITTEN ORDER GRANTING NEW TRIAL
Absent a written order granting or denying new trial, a motion for new trial is overruled
by operation of law seventy-five days after the judgment is signed. TEX. R. CIV. P. 329b(c). An
order granting new trial must be written, must be in the form of an order and must be express and
specific. McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (orig. proceeding); see also
Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding); Reese v. Piperi, 534
S.W.2d 329, 330–31 (Tex. 1976) (orig. proceeding). An oral order granting new trial, even when
accompanied by a docket entry indicating that the motion has been granted and a scheduling
order setting the date for the new trial cannot substitute for the required written order granting
new trial. Estate of Townes v. Wood, 934 S.W.2d 806, 807 (Tex. App.—Houston [1st Dist.]
1996, orig. proceeding). The trial court loses jurisdiction to act following the expiration of the
period to rule on the motion for new trial if it has not signed a written order before that date.
McCormack, 597 S.W.2d at 346. Once a trial court loses plenary power, “any subsequent retrial
would be a nullity.” In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding). Here
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there is no written order granting new trial in the record before the Court and the trial judge has
confirmed that no such order exists in the trial court files. Accordingly, the trial court lacked the
power to conduct a new trial in this case.
APPROPRIATENESS FOR MANDAMUS REVIEW
An order or judgment signed after a trial court’s plenary power has expired is void and an
abuse of discretion. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.
proceeding). A relator is not required to show lack of an adequate remedy by appeal to challenge
a void order. Id. (citing Dickason, 987 S.W.2d at 571). Because the second divorce decree and
income withholding order were signed in the absence of a written order granting new trial and
after the trial court’s plenary power expired, we conditionally grant relator’s petition for writ of
mandamus. A writ will issue only in the event the trial court fails to vacate its July 18, 2014
Final Decree of Divorce and its July 18, 2014 Income Withholding Order.
/David Evans/
DAVID EVANS
JUSTICE
141046F.P05
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