law-motion-for-new-trial | preservation of error for appellate review by motion for new trial |


MOTION FOR NEW TRIAL |

APPELLATE CASE LAW FROM THE TEXAS SUPREME COURT

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, 03/25/05)   
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

08-0301          
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)

08-0312  
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.

08-0323  
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)


07-1062  
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)

08-0212
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.[9]

For these reasons, we overrule Ben’s third and fourth issues.


08-0266
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.[3]  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.

08-0191  
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.

08-0100  
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)


07-0638          
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

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.


07-0729          
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, diligence)
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 do so.