Smith v. Caney Creek Estates Club, Inc., 2563

Decision Date31 March 1982
Docket NumberNo. 2563,2563
Citation631 S.W.2d 233
PartiesW. R. SMITH, Appellant, v. CANEY CREEK ESTATES CLUB, INC., Appellee. cv.
CourtTexas Court of Appeals
OPINION

PER CURIAM.

Appellant has filed a motion for extension of time to file appeal bond.

On October 28, 1981, judgment was entered by the trial court in a non-jury trial held before the 23rd Judicial District Court in Matagorda County. On November 24, 1981, twenty-six (26) days after the judgment was signed, a motion for new trial was filed. Rule 329b(a), T.R.C.P. On January 11, 1982, the seventy-fifth day after the judgment was signed, the trial court granted appellant's motion for new trial. Rule 329b(c), T.R.C.P. On February 1, 1982, ninety-six (96) days after the judgment was signed, the trial court granted a motion by the appellee to reconsider its order granting a new trial. Subsequently, the trial court vacated its order granting a new trial and reinstated its judgment entered on October 28, 1981. The appellant complains that since the ninety (90) day period for perfecting appeal has now passed, he must seek an extension of time in which to file his appeal bond.

The issue before us is whether a trial court can grant a new trial and then vacate its order granting the new trial and reinstate the original judgment after the seventy-five day period allowed by Rule 329b(c), T.R.C.P. has passed. This Rule provides:

"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 is signed, it shall be considered overruled by operation of law on expiration of that period."

The trial court appears to have erroneously relied on Rule 329b(e) for its authority to vacate its order granting the new trial and reinstating its judgment of October 28, 1981, after the seventy-five day period allowed by Rule 329b(c). However, a close inspection of Rule 329b(e) reveals that the trial court is not granted such authority.

Rule 329b(e) provides:

"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." (emphasis ours).

The purpose of the amendment to the civil rules, which became effective January 1, 1981, is to provide judges and practicing attorneys simply stated directions and timetables for appealing civil cases. Insofar as new trials are concerned, definite periods of time are prescribed in which certain actions are to be taken. These actions are controlled by specific rules.

In the case before us, the trial court granted the motion for new trial on the seventy-fifth day and thus made a "determination" as specified by Rule 329b(c). While there is a thirty-day extension provision contained in Rule 329b(e), that provision allows for a new trial to be...

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8 cases
  • In re Steiger
    • United States
    • Texas Court of Appeals
    • August 9, 2001
    ...Dist.] 1988, no writ); Alvarez v. Brasch, 747 S.W.2d 551, 552 (Tex. App.-Corpus Christi 1988, orig. proceeding); Smith v. Caney Creek Estates Club, Inc., 631 S.W.2d 233, 235 (Tex. App.-Corpus Christi 1982, no writ); see also Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) ("A tria......
  • In re Luster
    • United States
    • Texas Court of Appeals
    • March 11, 2002
    ...Dev. Co. v. Blanton, 755 S.W.2d 158, 159 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding [leave denied]); Smith v. Caney Creek Estates Club, Inc., 631 S.W.2d 233, 235 (Tex.App.-Corpus Christi 1982, no writ). But see Biaza v. Simon, 879 S.W.2d 349, 357 (Tex.App.-Houston [14th Dist.] 199......
  • Ferguson v. Globe-Texas Co.
    • United States
    • Texas Court of Appeals
    • September 19, 2000
    ...no writ); Homart Development Co. v. Blanton, 755 S.W.2d 158, 159 (Tex.App.-Houston [1st Dist.] 1988, no writ); Smith v. Caney Creek Estates Club, Inc., 631 S.W.2d 233, 236 (Tex.App.-Corpus Christi 1982, no writ); see also Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). But see Bi......
  • Gates v. Dow Chemical Co.
    • United States
    • Texas Court of Appeals
    • July 13, 1989
    ...appellant a trial had been concluded. See, Garza v. Gonzalez, 737 S.W.2d 588 (Tex.App.--San Antonio 1987, no writ); Smith v. Caney Creek Estates Club, Inc., 631 S.W.2d 233 (Tex.App.--Corpus Christi 1982, no writ). After summary judgment was granted here the co-defendant submitted affidavits......
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