Tuesday, May 20, 2008

MFNT: Order granting a new trial moots appeal

Judge reconsidered one day after notice of appeal was filed in credit card suit, granted motion for new trial, and thus reinstated case on the docket as if no final judgment had been rendered.

Stelly v. Citibank , No. 14-07-00601-CV (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges) (credit card debt suit, appeal mooted by trial courts' grant of motion for new trial MNT while it retained plenary power)
Opinion by Chief Justice Hedges
Full case style: Diane T. Stelly v. Citibank (South Dakota) N.A.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
Disposition: Dismissed


On appeal, appellant Diane T. Stelly contends that the trial court erred in granting summary judgment in favor of appellee Citibank (South Dakota) N.A. on a credit card account debt Stelly allegedly owed. Stelly also contends the trial court abused its discretion in denying her motion for new trial. However, because the trial court subsequently granted Stelly's motion for new trial during the period of its plenary power, we dismiss this appeal as moot and for lack of jurisdiction.

On May 4, 2007, the trial court signed a final summary judgment awarding actual damages, attorney's fees, post-judgment interest, and costs to Citibank. Stelly timely filed a motion for new trial, and on July 17, 2007, the trial court held a hearing on the motion. At the conclusion of the hearing, the trial court orally announced that it was denying Stelly's motion. Stelly immediately filed a notice of appeal. However, the next day, July 18, the trial court entered a written order granting Stelly's motion for new trial.

Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a motion for new trial is granted, the case is reinstated upon the docket of the trial court and will stand for trial the same as though no trial had been had. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, when the trial court grants a motion for new trial, the trial court "essentially wipes the slate clean and starts over." Id. Here, the trial court granted Stelly's motion for new trial within the period of its plenary power. See Tex. R. Civ. P. 329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). Therefore, the issues presented in this appeal are rendered moot and this Court lacks appellate jurisdiction. Accordingly, we order the appeal dismissed.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed May 15, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce,
and Senior Justice J. Harvey Hudson.*

*Senior Justice Hudson sitting by assignment.

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