In re Brookshire Grocery Co.

Decision Date04 January 2008
Docket NumberNo. 05-0300.,05-0300.
Citation250 S.W.3d 66
PartiesIn re BROOKSHIRE GROCERY COMPANY, Relator.
CourtTexas Supreme Court

Charles H. Clark, Clark Lea Rutter & Logsdon, Deborah J. Race, Ireland Carroll & Kelley, P.C., Tyler, John W. Alexander, Alexander & Boswell, Winnsboro, for Brookshire Grocery Company.

Jeffrey R. Ward, George Alan Boll, Juneau, Boll & Ward, P.L.L.C., Addison, and Michael Jung, Strasburger & Price, L.L.P., Dallas, for Barbara Goss.

WALLACE B. JEFFERSON, Chief Justice.

In this mandamus action, we determine whether a motion for new trial filed within thirty days of judgment, but after a preceding motion for new trial has been overruled, extends the trial court's plenary power under Texas Rule of Civil Procedure 329b. Because we hold that it does not, we deny relator Brookshire Grocery Company's petition for writ of mandamus.

I Background

In the underlying tort action, the jury returned a verdict for Barbara Goss in her action against Brookshire. On December 3, 2004, after the verdict but before the trial court signed the judgment, Brookshire filed a "Motion for Judgment Notwithstanding the Verdict and in the Alternative Motion for New Trial." In these motions, Brookshire argued that there was no evidence to support the verdict and urged the court to render judgment in its favor; alternatively, Brookshire sought a new trial based on an alleged error in the court's charge. On December 9, 2004, the court heard the motions and signed a judgment conforming to the jury verdict. The next day, December 10, 2004, the court signed an order denying not only Brookshire's motion for judgment notwithstanding the verdict, but also its alternative motion for new trial.1 Specifically, the order stated that "[h]aving considered the pleadings and the evidence presented, and having heard and considered the arguments of counsel, the Court finds that said Motions are DENIED." (Emphasis added.)

On January 7, 2005, twenty-nine days after judgment, Brookshire filed a second motion for new trial, which again argued, in considerably more detail, that there was insufficient evidence to support the judgment and that the court's charge was erroneous. Goss countered that the December 10, 2004 order "terminated the period for filing amended or supplemental motions for new trial under Tex.R. Civ. P. 329b(b), and triggered the final thirty days of the Court's plenary power under Tex.R. Civ. P. 329b(e)." After a January 25 hearing, the trial court granted Brookshire's motion for new trial in an order signed on February 1.

Goss sought mandamus relief from the court of appeals, arguing that the trial court lacked jurisdiction on February 1 to grant the second motion for new trial, because its plenary power expired on January 10, thirty days after the court overruled the first motion for new trial.2 The court of appeals agreed and ordered the trial court to vacate the February 1 order; the trial court has complied. 160 S.W.3d 288, 292. Brookshire now seeks a writ of mandamus directing the trial court to reinstate the order granting new trial.

II Standard of Review

Mandamus relief is appropriate when a trial court issues an order after its plenary power has expired. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000). When the mandamus proceeding arises out of the interpretation of legal rules, we give limited deference to the lower courts' analysis. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

III Discussion

Texas Rule of Civil Procedure 329b governs the filing of motions for new trial (as well as motions to modify, correct, or reform the judgment) and outlines their effect on the trial court's plenary power. The rule provides, in relevant part:

(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.

(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed.

. . .

(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 of law, whichever occurs first.

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

We must decide whether a motion for new trial filed within thirty days of judgment, but after a prior motion for new trial has been overruled, is "timely" for purposes of extending plenary power under Rule 329b(e). If Brookshire's second motion for new trial was indeed "timely filed," the trial court's plenary power extended until thirty days after that motion was overruled either by signed order or by operation of law. See TEX.R. CIV. P. 329b(e). Under this scenario, the trial court would have had plenary power when it granted the second motion for new trial on February 1, 2005. If, however, the only "timely filed" motion—as governed by Rule 329b(e)—was Brookshire's first motion for new trial,3 the trial court's plenary power expired January 10, 2005, thirty days after the court overruled that motion. Consequently, the trial court would have lacked jurisdiction on February 1 to grant the second motion for new trial.

We conclude the latter interpretation is correct. Subsection (b) of Rule 329b provides that an amended motion may be filed without leave of court when: (1) no preceding motion for new trial has been overruled and (2) it is filed within thirty days of judgment. TEX.R. CIV. P. 329b(b). "And" is conjunctive: an amended new-trial motion is timely filed only before the court overrules a prior one. See Bd. of Ins. Comm'rs v. Guardian Life Ins. Co. of Tex., 142 Tex. 630, 180 S.W.2d 906, 908 (1944) ("Ordinarily the words `and' and `or,' are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive, nature." (citation omitted)). An amended motion filed afterwards: (1) need not be considered by the trial court and (2) does not extend the trial court's plenary power. A contrary interpretation would effectively substitute the word "or" for "and," so that a litigant's motion for new trial, filed after a preceding motion has been overruled, would extend the trial court's plenary power. But "ordinarily the words `and' and `or' are not interchangeable," Bayou Pipeline Corp. v. R.R. Comm'n, 568 S.W.2d 122, 125 (Tex.1978), and they should not be here.

Brookshire asks us to hold that an amended motion for new trial can be timely filed after a preceding motion has been overruled, as long as it is filed with leave of court and within thirty days of judgment.4 The relator cites a court of appeals opinion that offers some support for this proposition. See Morris v. Morris, 250 S.W.3d 119, 120, 2003 WL 22872095, at *1, 2003 Tex.App. LEXIS 10239, at *3 (Tex. App.-Tyler December 3, 2003, no pet.). The Morris court, however, held that while a trial court may grant a new trial based on the grounds stated in a motion for new trial that is filed after a preceding motion has been overruled, but within thirty days of judgment, it must do so within the trial court's plenary power as measured from the date the court overruled the first motion for new trial. 250 S.W.3d at 120, at *1. 2003 Tex.App. LEXIS 10239, at *4 (citing Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003)). The Morris court held that the trial court lost plenary power thirty days after overruling the first motion for new trial. Id. (citing TEX.R. CIV. P. 329b(e)). Because the trial court did not grant the second motion for new trial until after that thirty-day period expired—as is the case here—the order granting the motion was void. Id. We agree with Morris to the extent it holds that a motion for new trial filed after a preceding motion has been overruled cannot operate to extend the trial court's plenary power under Rule 329b(e).5

Rule 329b's history supports our conclusion that a motion for new trial filed after a preceding motion has been overruled is not "timely" for purposes of extending the trial court's plenary power. Rule 329b was substantially revised and amended in 1981.6 Before then, a party had to file a motion for new trial within ten days of judgment and could file one amended motion, provided it was: (1) filed within twenty days after filing the original motion and (2) the original motion had not been "acted upon." See TEX.R. CIV. P. 329b(2) (1978, amended 1981). While these two restrictions had always been a part of the rule, prior to a 1967 amendment, the rule also mandated that the amended motion could be filed only by leave of court. See TEX.R. CIV. P. 329b(2) (1961, amended 1967). Thus, before 1967, a party could not file an amended motion after the original had been acted upon, even if leave of court was obtained. See, e.g., Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031, 1034 (1934) (discussing the predecessor to Rule 329b and holding that a motion for new trial could be amended "only before it is acted upon").

In 1967, we amended Rule 329b to conform to our holding in Consolidated Furniture Company v. Kelly that a motion for new trial could be freely amended "without" leave of the court, provided it was filed within the time period mandated under Rule 329b. See Kelly, 366 S.W.2d 922, 923 (Tex.1963) (holding that "[i]t is the right of a party to amend, subject only to the qualification that the amendment be proper and in proper time. The leave of the court is a matter of course.") (citation omitted) (emphasis added); see also Amendments to the Rules of Civil Procedure Presented to the...

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