law-motion-for-new-trial | preservation of error for appellate review by motion for new trial | is an oral hearing
required? | basis for new-trial motion: newly discovered evidence not available previously despite due diligence |
motion for new trial after default judgment | new trial notwithstanding the jury's verdict | JNOV
MNT Based on Newly Discovered Evidence
A party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has
come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack
of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a
different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). It is
also sometimes said that such evidence cannot be merely for the purpose of impeaching the testimony of the
opposing party. See New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 866 (Tex. 1962); Fantasy Ranch, Inc.
v. City of Arlington, 193 S.W.3d 605, 615 (Tex. App.—Fort Worth 2006, pet. denied); Hughes Drilling Fluids, Inc.,
Div. of Hughes Tool Co. v. Eubanks, 729 S.W.2d 759, 763 (Tex. App.—Houston [14th Dist.] 1986), writ granted w.r.
m., 742 S.W.2d 275 (Tex. 1987). We review a trial court’s denial of a motion for new trial for an abuse of
discretion. Waffle House, 313 S.W.3d at 813.
MOTION FOR NEW TRIAL | ---> NEW TRIAL AFTER JURY VERDICT
The legal effect of an order granting a new trial vacates the original judgment, and returns the case to the trial
court as if no previous trial had been conducted. Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex.App.—
Houston [14th Dist.] 2003, pet. denied); Long John Silver’s Inc. v. Martinez, 850 S.W.2d
773, 777 (Tex.App.—San Antonio 1993, writ dism’d w.o.j.).
APPELLATE CASE LAW FROM THE TEXAS SUPREME COURT
Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (Tex. Jul. 3, 2009)(per curiam) (motion for new trial after post-
answer default judgment due to defense counsel's scheduling conflict should have been granted under Craddock
test criteria)(DEFAULT JUDGMENTS: failure to appear for trial)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET
AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,
08-23-07 Opinion by the Thirteenth Court of Appeals below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam
In Re Lovito-Nelson, No. 08-0482 (Tex. Feb. 27, 2009)(per curiam)(mandamus granted)
(written order required for grant of motion for new trial; docket control order with new trial date insufficient, plenary
IN RE JOANNE LOVITO-NELSON; from Tarrant County
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.
Per Curiam Opinion
Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)
(default judgment, motion to set aside, standard, motion for new trial, motion to set aside, standard, motion for new
trial, Craddock test)
SOL LEVINE, DOROTHEA LEVINE, AND MARDAN ENERGY CORPORATION v. SHACKELFORD, MELTON &
MCKINLEY, L.L.P.; BRAGG, CHUMLEA, MCQUALITY; AND JOSEPH G. CHUMLEA, P.C.; from Dallas County; 5th
district (05-05-00374-CV, ___ S.W.3d ___, 04/07/06)
In Re Brookshire Grocery Co., No. 05-0300 (Tex. Jan. 4, 2008)(Opinion by Wallace Jefferson)
(appellate procedure, posttrial motions, procedure, extension of trial court's plenary jurisdiction)
IN RE BROOKSHIRE GROCERY COMPANY; from Wood County; 6th district (06-05-00033-CV, 160 S.W.3d 288,
The Court denies the petition for writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice Johnson,
and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Wainwright, Justice Brister, and Justice Green joined.
In this mandamus action, the court considers 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, and holds that it does not. Accordingly the court denies relator Brookshire Grocery
Company’s petition for writ of mandamus
PETITIONS FOR REVIEW DENIED BY THE TEXAS SUPREME COURT
ALLEN LANDERMAN v. STATE BAR OF TEXAS; from Collin County; 5th district (05-07-00332-CV, 247 SW3d 426,
03‑05‑08, pet. denied Oct 2008) as redrafted (disciplinary proceeding, preservation of error motion for new trial)
PRUDENCE DIVINCENZO v. SEARS, ROEBUCK AND CO.; from Dallas County; 5th district
(05-07-00525-CV, ___ SW3d ___, 03-10-08, pet. denied Jun 2008)(motion for new trial, nonsuit)
DiVincenzo attempts in this cause to appeal the trial court's finding concerning the date of Sears's notice, the
order granting Sears a new trial, and the order denying reconsideration of those two rulings. This attempt
necessarily fails. We agree with Sears that the substance of DiVincenzo's appeal is a challenge to the trial court's
order granting a new trial. An order granting a motion for new trial is generally not reviewable on appeal. Wall v.
Tex. Dep't of Family & Protective Servs., 173 S.W.3d 178, 184 n.2 (Tex. App.-Austin 2005, no pet.) (citing Wilkins
v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)). Moreover, Divincenzo's voluntary non-suit
vitiated all interlocutory orders.
MALRIE VENSON ELLIS v. MANDA KAY ELLIS; from Tyler County; 13th district (13-07-00034-CV, ___ SW3d ___,
02-07-08) (divorce default judgment, motion for new trial denied)
FLOYD EDGAR HUTSON v. TRI-COUNTY PROPERTIES, L.L.C.; from Parker County; 2nd district
(02-06-00349-CV, 240 SW..3d 484, 11-08-07, pet. denied May 2008)(homestead law, motion for new trial based
on discovery of new evidence, preservation of error)
THE ESTATE OF STEPHEN ELLIS ALEXANDER; from McLennan County; 10th district (10-06-00360-CV, 250
SW3d 461, 01-30-08)(probate, will or intestate, motion for new trial)
Motion for New Trial
Ben contends in his third and fourth issues that the court abused its discretion by denying his motion for new trial
which: (a) challenged the denial of his oral motion for continuance; (b) responded to Cheryl’s and Deborah’s
objections to his summary-judgment proof; and (c) presented additional evidence in opposition to Cheryl’s and
Deborah’s summary-judgment motion.
Because the court did not abuse its discretion by denying Ben’s oral continuance motion, the court necessarily did
not abuse its discretion by denying a motion for new trial challenging that ruling.
We have already noted that the court never ruled on Cheryl’s and Deborah’s objections to Ben’s summary-
judgment evidence. Further, we have considered Ben’s evidence in our review of the court’s judgment. Thus, the
court did not abuse its discretion insofar as it overruled Ben’s motion for new trial with regard to those objections.
“[A] trial judge may accept summary judgment evidence filed late, even after summary judgment, as long as he
affirmatively indicates in the record that he accepted or considered it.” Stephens v. Dolcefino, 126 S.W.3d 120,
133 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the court’s order denying Ben’s motion for new trial
states in pertinent part that the court reviewed “all the pleadings timely filed.” There is nothing in the record of the
hearing on the motion for new trial or the written order denying that motion which affirmatively indicates that the
trial court accepted the additional evidence proffered by Ben with the motion for new trial.
The court would have been well within its discretion to consider this additional evidence or reject it. From the
record before us, we cannot say that the court abused its discretion by denying Ben’s motion for new trial insofar
as that motion presented additional evidence for the court’s consideration.
For these reasons, we overrule Ben’s third and fourth issues.
LEE, WAI-LING v. PALACIOS, ROSE MARIE; from Harris County; 14th district (14-06-00428-CV, ___ SW3d ___,
10-11-07) as redrafted (automobile accident, negligence, summary judgment, motion for new trial)
Lee suggests he was entitled to a new trial because his expert=s report constituted "newly discovered evidence."
A party seeking a new trial based on newly discovered evidence must establish (1) the evidence has come to his
knowledge since trial, (2) it was not owing to want of due diligence that the evidence did not come to his attention
sooner, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a
different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on
other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). We review the denial of a motion for new trial
under an abuse-of-discretion standard. Id.
In his timely motion for new trial, Lee did not mention the expert or attach his report, much less argue that he
satisfied the criteria for obtaining a new trial based on newly discovered evidence. Although Lee suggests the
expert was discussed at a hearing on the motion for new trial, we have no record of the hearing. Rather, Lee
mentioned the expert opinion in his two pleadings entitled, "Submission on Reconsidering Plaintiff's Motion for New
Trial," filed after the trial court denied his motion for new trial. Nevertheless, in these pleadings, Lee did not argue
that he satisfied the criteria for obtaining a new trial based on newly discovered evidence. For instance, he
failed to offer any reason he was unable to obtain an expert opinion before the trial court granted summary
judgment, considering his suit had been on filed more than one and a half years at the time of the ruling.
Accordingly, the trial court did not abuse its discretion by refusing to grant a new trial based on newly discovered
evidence. We overrule Lee's second issue.
CONNIE ALLEN, SURVIVING SPOUSE AND LEGAL REPRESENTATIVE OF GRANVILLE DEAN ALLEN v. TED C.
SCOTT, M.D.; from Lubbock County; 7th district (07-06-00075-CV, ___ SW3d ___, 01-25-08) (motion for new
trial, new evidence, exclusion of evidence)
Connie Allen, surviving spouse and legal representative of Granville Dean Allen, appeals from a judgment denying
her recovery against Ted C. Scott, M.D. Through six issues, she contends that the trial court erred by 1) denying
her motion for new trial, 2) instructing a verdict on the issue of exemplary damages and 3) excluding her expert’s
published article. We affirm.
R. KIM WILLIAMS AND PAMELA WILLIAMS v. JUDITH CUNNINGHAM; from Denton County; 2nd district (02-06-
00154-CV, ___ S.W.3d ___, 12-20-07, pet. April 2008) (motion for new trial denied)
ALEJANDRO PEREZ AND BOBBIE PEREZ v. EMBREE CONSTRUCTION GROUP, INC.; from Tom Green County;
3rd district (03-05-00292-CV, 228 SW3d 875, 06-27-07, pet. denied Jan 2008) (workplace injury)
Motion for New Trial (Denial of MNT without an evidentiary hearing)
In Perez's fourth issue, he contends that the trial court erred in denying his motion for new trial without a hearing.
Perez argues that a trial court has no power to refuse a hearing on a motion for new trial.
The resolution of a motion for new trial is left up to the trial court's discretion. Strackbein v. Prewitt, 671 S.W.2d 37,
38 (Tex. 1984). The trial court's denial of such a motion is not to be disturbed on appeal unless there is an abuse
of that discretion. Id.
Texas law does not require a trial court to hold a hearing before denying a motion for new trial if the motion does
not present a complaint on which evidence must be heard. See Cecil v. Smith, 804 S.W.2d 509, 512 n.5 (Tex.
1991). "Certainly it would not be error for the court to refuse to hold a hearing on a motion for a new trial except
where it would be necessary to hear evidence upon a matter such as jury misconduct." University of Tex. v. Morris,
352 S.W.2d 947, 949 (Tex. 1962). Perez's motion for new trial does not present any issues on which evidence
must be heard, but merely reasserts the legal arguments urged at trial. We hold that the trial court did not err in
denying Perez's motion for new trial without a hearing. Perez's fourth issue is overruled.
JEFFREY WEISS v. JP MORGAN CHASE BANK, N.A. F/K/A MORGAN GUARANTY TRUST COMPANY OF NEW
YORK; from Dallas County; 5th district (05-06-00940-CV, ___ SW3d ___, 07-20-07, pet. denied Jan 2008)
(domestication of foreign judgment, pleanary power, motion for new trial overruled by operation of law, no hearing,
Appellant Jeffrey Weiss appeals the trial court's decision not to hear his motion for new trial during the period after
that motion was overruled by operation of law, but before the trial court's plenary power expired. We affirm the trial
court's judgment. The trial court acted within its discretion because Weiss did not set his motion for new trial for
hearing before the motion was overruled by operation of law, and did not demonstrate diligence in attempting to
RULE 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments
(other than motions to correct the record under Rule 316) in all district and county courts:
(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.
(c) In the event an original or amended motion for new trial or a motion to modify,
correct or reform a judgment 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.
(d) 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 within thirty
days after the judgment 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.
(f) On expiration of the time within which the trial court has plenary power, a judgment
cannot be set aside by the trial court except by bill of review for sufficient cause,
filed within the time allowed by law; provided that the court may at any time correct
a clerical error in the record of a judgment and render judgment nunc pro tunc under
Rule 316, and may also sign an order declaring a previous judgment or order to be
void because signed after the court's plenary power had expired.
(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to
correct the record of a judgment under Rule 316), if filed, shall be filed and
determined within the time prescribed by this rule for a motion for new trial and shall
extend the trial court's plenary power and the time for perfecting an appeal in the
same manner as a motion for new trial. Each such motion shall be in writing and
signed by the party or his attorney and shall specify the respects in which the
judgment should be modified, corrected, or reformed. The overruling of such a
motion shall not preclude the filing of a motion for new trial, nor shall the overruling
of a motion for new trial preclude the filing of a motion to modify, correct, or reform.
(h) If a judgment is modified, corrected or reformed in any respect, the time for appeal
shall run from the time the modified, corrected, or reformed judgment is signed, but
if a correction is made pursuant to Rule 316 after expiration of the period of plenary
power provided by this rule, no complaint shall be heard on appeal that could have
been presented in an appeal from the original judgment.
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