Coinmach, Inc. v. Aspenwood Apt. Corp.

• Decision Date: 06 February 2003
• Docket Number: No. 01-00-01081-CV.,01-00-01081-CV.
• Citation: 98 S.W.3d 377
• Parties: COINMACH, INC., Appellant, v. ASPENWOOD APT. CORP., Appellee.
• Court: Texas Court of Appeals

98 S.W.3d 377

COINMACH, INC., Appellant, v. ASPENWOOD APT. CORP., Appellee.

No. 01-00-01081-CV.

Court of Appeals of Texas, Houston (1st Dist.).

February 6, 2003.

Daryl W. Bailey, Looper, Reed & McGraw, Robert M. Roach, Jr., Cook, Roach & Lawless, L.L.P., Houston, Lisa Greenwood Duffee, Needham, Duffee & Vernone, Dallas, for Appellant.

Marvin Isgur, Floyd, Isgur, Rios & Wahrlick, P.C., Robert B. Dubose, Cook & Roach, LLP, Houston, for Appellee.

Panel consists of Justices HEDGES, JENNINGS, and KEYES.

OPINION

EVELYN V. KEYES, Justice.

The issue for this Court is whether the effective date of the order granting a new trial is (1) the date the trial court signs the order or (2) the date the trial court clerk file-stamps the signed order. If the latter, then the order granting the new trial in this case did not take effect before the trial court's plenary jurisdiction expired, and this appeal will proceed. If the former, then the trial court granted a new trial during its plenary jurisdiction, and this appeal will be dismissed for want of jurisdiction. We hold that the order granting a new trial became effective on the date signed by the trial court, and we dismiss this appeal for want of jurisdiction.

Procedural Background

This is an appeal from a judgment signed on June 14, 2000. Defendant and appellant, Coinmach, Inc. (Coinmach), timely filed, on July 14, 2000, a motion to modify and a motion for new trial. See TEX.R. CIV. P. 329b(a), (g). Coinmach's notice of appeal was timely filed on September 11, 2000. See TEX.R.APP. P. 26.1(a). On September 25, 2000, during its plenary jurisdiction, the trial court signed an order granting a new trial.¹ The trial court clerk file-stamped the order granting a new trial on October 3, 2000.

On September 29, 2000, plaintiff and appellee, Aspenwood Apt. Corp. (Aspenwood), filed a motion in this Court to "preserve appellate jurisdiction." In that motion, Aspenwood requested this Court to order the trial court clerk to file the clerk's record as such record existed on September 27, 2000. Aspenwood argued that as of that date, when the trial court's plenary jurisdiction expired, there was no order in the record granting a new trial and that to be effective such an order had to be either in the court's file record or in the minutes of the court. Aspenwood supported its argument with citations to In re Fuentes, 960 S.W.2d 261 (Tex.App.-Corpus Christi 1997, orig. proceeding) and State Farm Ins. Co. v. Pults, 850 S.W.2d 691 (Tex. App.-Corpus Christi 1993, no writ). This Court denied the motion on October 4, 2000, without stating its reasons.

On October 6, 2000, Coinmach filed an emergency motion to abate appeal. Coinmach maintained that, unless the Court abated the appeal until the trial court's order granting a new trial was no longer subject to challenge on appeal, Coinmach faced the trap that if this appeal were dismissed, and Aspenwood ultimately were to succeed in its argument that the new trial order was void, Coinmach would have no way of appealing the initial judgment, which is the subject of this appeal. In the motion, Coinmach argued that the timeliness of an order granting a new trial depended on the date the order was signed, not the date it was entered or filed by the trial court clerk, as insisted by Aspenwood. In support, Coinmach cited to TEX.R. CIV. P. 329b(e) and several cases, the two most closely on point being Board of Trustees of Bastrop v. Toungate, 958 S.W.2d 365 (Tex. 1997) and Heard v. Heard, 305 S.W.2d 231 (Tex.Civ.App.-Galveston 1957, writ ref d). Aspenwood responded that the cases cited by Coinmach were distinguishable, and, while admitting that no reported case dealt with the precise question before this Court, insisted that a long line of cases dictated that judgments, orders, and decrees of courts of record must be entered of record, again relying on Pults and Fuentes, among other cases. Aspenwood also argued on public policy grounds that if "an order signed by a trial judge was effective while maintained in the trial judge's private papers, it would invite a host of problems," and seemed to suggest that future orders could simply be backdated. However, Aspenwood states that it is not questioning the integrity of the trial judge in this case.

The Court denied the motion to abate appeal and, in the same order, stated that the recently filed clerk's record showed the order granting a new trial was signed while the trial court had plenary jurisdiction. Noting that there was no appeal from an order granting a new trial, see Stolhandske v. Stern, 14 S.W.3d 810, 814 (Tex.App.-Houston [1st Dist.] 2000, pet. denied), the Court ruled that the appeal would be dismissed unless within 30 days, a party filed a supplemental clerk's record and brief demonstrating that it had jurisdiction of the appeal.

Aspenwood filed a "brief demonstrating that this Court has jurisdiction of this appeal," which reiterated its previous arguments. Aspenwood also asserted that "common sense and public policy" favored its position that a trial court was not permitted to supplement the case file or to make docket entries after its plenary jurisdiction had expired, even when such actions were taken to document an order signed when the trial court had plenary jurisdiction. According to Aspenwood, it would be otherwise "unworkable." It asks, if a week's delay in supplementing the case file is acceptable, why not a month or a year's delay? Aspenwood relied on Reese v. Piperi, 534 S.W.2d 329 (Tex.1976). Furthermore, according to Aspenwood, TEX.R. CIV. P. 76 requires that all a trial court's papers be available to counsel for review, and rule 76 could not be followed if orders could be effective prior to the time they are placed in the public record.

Coinmach filed a motion to dismiss for want of jurisdiction, reiterating its previous arguments.

Analysis

Our starting point is the applicable rules of civil procedure:

1. Beginning of periods. The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial .... but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.

TEX.R. CIV. P. 306a(1) (emphasis added).

2. Date to be shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein.

TEX.R. CIV. P. 306a(2) (emphasis added).

3. Notice of judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4) [provision for altering the date of judgment when established that "notice or actual knowledge of the signing" of the judgment was not received by certain dates].

TEX.R. CIV. P. 306a(3) (emphasis added).

(c) In the event an original or amended motion for new trial ... is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

TEX.R. CIV. P. 329b(c) (emphasis added).

(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation law, whichever occurs first.

TEX.R. CIV. P. 329b(e) (emphasis added).

The meaning of rules 306a and 329b could not be plainer.² It is the date of the signing of the judgment by the trial court that determines the beginning of the period prescribed for the trial court's plenary power to grant a new trial. See TEX.R. CIV. P. 306a(1), (2). The trial court clerk gives the parties notice of the date of the signing of the judgment, not of the date the trial court clerk filed the judgment. TEX.R. CIV. P. 306a(3). 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 motion for new trial is timely filed,³ and it is not determined by a written order signed within 75 days after the judgment was signed, it is overruled by operation of law. See TEX.R. CIV. P. 329b(c). If a timely-filed motion for new trial is overruled either by a signed order or by operation of law, the trial court retains plenary jurisdiction to grant a new trial for 30 days after such overruling. TEX.R. CIV. P. 329b(e).

In fact, rule 306a(4) recognizes that a party may not get notice of the signed judgment. TEX.R. CIV. P. 306a(4). In such an event, rule 306a(5) provides a procedure under which the date the party or its counsel received notice or actual knowledge of the signing of the judgment may be established as the date from which the period commences for filing a motion for new trial or for the trial court's plenary jurisdiction. TEX.R. CIV. P. 306a(5).

The holdings of the Texas Supreme Court in Reese v. Piperi and the Corpus Christi Court of Appeals in In re Fuentes and State Farm Ins. Co. v. Pults, relied upon by Aspenwood, do not place a different interpretation on the language in rules 306a and 329b.

In Reese v. Piperi, the judgment was granted on May 16; the motion for new trial was filed on May 23. 534 S.W.2d at 329. The trial court held a hearing on the motion on June 25, at which time it announced its intention to grant a new trial. Id. However, the trial court did not sign an order granting the new trial until September 5. Id. at 330. The supreme court held...