Porter v. Vick
| Decision Date | 02 June 1994 |
| Docket Number | No. 94-0122,94-0122 |
| Parties | John W. PORTER and Royce Coleman, Relators, v. The Honorable Phillip VICK, Judge, Respondent. |
| Court | Texas Supreme Court |
Royce Coleman, Denton, James W. Coleson, Lake Dallas, for relators.
Harvey Rosenberg, Allen Landerman, Dallas, for respondent.
This mandamus proceeding arises out of a trial court order vacating the grant of a new trial. The Honorable Phillip Vick presided over the non-jury trial and rendered judgment for defendant Nicholas Hsu that plaintiff John W. Porter take nothing, and that the contingent third-party claim against Royce Coleman was therefore immaterial.
Porter and Coleman timely filed a motion for new trial. All parties received notice of the proposed hearing. On the hearing date, counsel for Hsu was detained at a court in another county. His office telephoned Judge Vick's office and apparently obtained the misinformation that the hearing would be rescheduled. Consequently neither Hsu nor his counsel appeared for the hearing. Coleman apparently was given the same misinformation.
Counsel for Porter did appear at the docket call just before the hearing, where it was announced that a visiting district judge, the Honorable Graham Purcell, would hear the case as part of Judge Vick's overflow docket. When Porter appeared but Hsu and his counsel did not, Judge Purcell signed an order granting the new trial by default. There is no evidence that Porter or his counsel knew why Hsu did not appear or that Judge Vick's office personnel had told anyone the hearing would be rescheduled. Nothing suggests any irregularities in Judge Purcell's appointment or hearing of the motion for new trial.
Hsu filed a motion requesting Judge Vick to rescind the order granting new trial. The judge heard evidence and argument on two separate days on this motion. All parties concede that Judge Vick signed the order vacating the order granting new trial long past the time for plenary power over the judgment, as measured from the date the judgment was signed. See, e.g., TEX.R.CIV.P. 329b.
Porter and Coleman seek mandamus relief from this last order, contending it is void under Fulton v. Finch, 162 Tex. 351, 354-55, 346 S.W.2d 823, 826 (1961), in which this court held that any order vacating an order granting a new trial which was signed outside the court's period of plenary power over the original judgment is void. We sustain their contention. We did not substantively modify the Fulton v....
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Noell v. City of Carrollton & Carrollton Prop. Standards Bd.
...new trial raising evidentiary grounds was not void, even though the successor judge heard no evidence in the case. See Porter v. Vick, 888 S.W.2d 789, 790 (Tex.1994), overruled on other grounds by In re Baylor Med. Ctr. At Garland, 280 S.W.3d 227 (Tex.2008). In reaching this conclusion, the......
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In re Baylor Medical Center at Garland
...Under the current rules, if no judgment is signed, no plenary-power clock is ticking. But some 33 years after Fulton this Court issued Porter v. Vick, a five-paragraph per curiam opinion that read Fulton to render void any attempt to vacate a new-trial order after plenary power would have e......
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In re Steiger
...may only vacate, or "ungrant," an order granting a new trial during the period when it continues to have plenary power. Porter v. Vick, 888 S.W.2d 789, 789-90 (Tex. 1994); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 826 (1961). The majority of the courts that have considered this issue h......
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In re Luster
...may only vacate or "ungrant" an order granting a new trial during the period when it continues to have plenary power. Porter v. Vick, 888 S.W.2d 789, 789 (Tex.1994); Fulton v. Finch, 162 Tex. 351, 354-55, 346 S.W.2d 823, 826 (1961); In re Steiger, 55 S.W.3d 168, 171 (Tex.App.-Corpus Christi......