TO PRESERVE PLENARY POWER, A WRITTEN ORDER GRANTING A MOTION FOR NEW TRIAL IS REQUIRED

In re Torres-Medina
Dallas Court of Appeals, No. 05-14-01046-CV (September 8, 2014)
Chief Justice Wright and Justices Fillmore and Evans (Opinion)
Suarez filed for divorce from Torres-Medina. On January 16, 2014, the trial court signed a divorce decree that did not include child support. Torres-Medina filed a motion for new trial. At the end of the hearing on that motion, the judge orally granted a new trial and asked Torres-Medina to prepare an order granting the motion. No order was prepared. When the new trial began, the trial judge advised the parties he could not find a written order granting a new trial but said he believed he had signed one. The court proceeded with the new trial and on July 18, 2014—about six months after signing the original decree—signed a second divorce decree that required Torres-Medina to pay child support. Torres-Medina then filed a petition for writ of mandamus to vacate the second divorce decree, arguing the trial court lacked plenary power to render that decree. The Dallas Court of Appeals conditionally granted the writ, finding that without a written order granting or denying a motion for new trial, the motion is overruled automatically seventy-five days after the judgment is signed, pursuant to TEX. R. CIV. P. 329b(c). The Court explained, “An oral order granting new trial, even when accompanied by a docket entry indicating that the motion has been granted and a scheduling order setting the date for the new trial cannot substitute for the required written order granting new trial.” Because no written order was entered, the trial court here lost its plenary power to conduct a new trial or enter a new judgment, rendering the second decree “a nullity.”

Print