- Joined
- Aug 28, 2018
I'm putting a more detailed response in the actual case, but I'll cross-post it to here:
“A court may grant a new trial or set aside a judgment upon a showing of good cause. See Tex. R. Civ. P. 320. Texas courts are afforded broad discretion in granting new trials. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). A trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(a)&(d). The Final Judgment was signed November 25, 2019.”
TRCP 329b states that district and county courts can modify the judgment or entertain motions for new trials so long as the motions are filed in a timely manner. According to this rule, that window is thirty days after the order is signed. Since the order granting fees and motions was signed 25 November 2019, the latest they could file was 25 December 2019. Since that was a holiday, they would have had to have filed it prior to this point. According to the signature on the motion as well as the filing date, this was both signed and filed on 26 December 2019, putting it outside that window. Even if we were to accept that there should be some leeway granted for the motion's filing deadline being passed, it was signed and filed at almost 2000 (8:00 PM), putting it outside the normal work day.
“It is also within the Court’s discretion to modify or clarify its judgment. DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.—Dallas 2008, no pet.) (“During the period of a trial court’s plenary power, its power to modify its judgment is virtually absolute.”); see also id. (“The trial court’s plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment is limited to a maximum of one hundred and five days after the judgment is signed.”). In this case, the qualifying language to the awarded appellate fees should be modified to make clear that if Defendants appeal and are successful in “modifying” the $100,000.00 fee award, then the conditional appellate fees are unaffected.”
However, in DeGroot v. DeGroot, the trial court heard a divorce proceeding, which falls under different rules. Further, the DeGroot decision was ruled the way it was because one of the parties filed a timely motion, where-as in this case they did not. While they are correct that plenary power resides with the trial court for a maximum of 105 days, it only matters insofar as they had filed it in a timely manner. Once again, failing to do that, they forfeit that argument. Further, I'll cite TRCP 329b(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.”
So, as long as it's timely filed, the court maintains plenary power. So what happens if it isn't? Let's look at TRCP 329b(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.”
Since this motion was filed after that deadline, the court cannot modify any portion of the order. This means that this doesn't even need to be responded to unless the judge asks the plaintiff to do so, which I don't think Chupp is going to do. Defense hammered Ty on the “late filing” for his TCPA response, which was filed late and had actual difficulties that they could provide proof of. In this case, it was filed over a day late, and what's more was signed on that same date. There is no wiggle room for them here.
