                                  NUMBER 13-10-00070-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JOSE FIDENCIO LINAN,                                                                       Appellant,

                                                    v.

JOSE G. PADRON AND REYNALDO PENA,                                                          Appellees.


                         On appeal from 138th District Court
                             of Cameron County, Texas.


                              MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Wittig1
                 Memorandum Opinion by Justice Wittig

        Appellant, Jose Fidencio Linan, filed an appeal from the final judgment presenting

eight issues. Appellees, Jose G. Padron and Reynaldo Pena, countered by filing a “Motion



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         Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. See T EX . G O V 'T C OD E A N N . § 74.003
(Vernon 2005).
to Dismiss for Want of Jurisdiction and Notice of Defect in Notice of Appeal that Cannot

be Corrected.” Because appellant’s second motion for new trial was granted after the trial

court’s plenary jurisdiction had expired, we grant appellees’ Motion to Dismiss for Want of

Jurisdiction. We dismiss for want of jurisdiction.

                                   I. BACKGROUND

       December 3, 2008, a jury returned a verdict apportioning negligence between the

parties. Even though the jury found Padron’s negligence was not a proximate cause of

the occurrence in answering the first question, it nevertheless found Padron fifty percent

negligent in causing the injury in answer to question two. Appellant filed a pre-judgment

motion for new trial or in the alternative for judgment notwithstanding the verdict. On April

16, 2009, the trial court denied appellant’s motion for new trial. However, the judgment

was not signed until May 19, 2009. By operation of rule 306c, appellant’s prematurely filed

motion for new trial was deemed filed on May 19, 2009. TEX . R. CIV. P. 306c (stating that

a prematurely-filed motion for new trial shall be deemed to have been filed on the date of

the judgment but subsequent to the time of signing the judgment.)

       June 17, 2009, appellant filed a second motion for new trial. On July 31, 2009, the

trial court granted the second motion for new trial. On December 14, 2009, the trial court

vacated the order granting the new trial and reinstated the judgment of May 19, 2009.

Appellant filed a third motion for new trial on January 11, 2010, which was denied on

January 14, 2010. Appellant filed his notice of appeal to this court on February 18, 2010.

       In sum, the three critical dates in this appeal include May 19, 2009, when the

judgment was signed, May 19, 2009, again, when the trial court’s earlier denial of the



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motion for new trial became effective, and July 31, 2009, when a new trial was ostensibly

granted.

                                    II. STANDARD OF REVIEW

       Whether a trial court has subject-matter jurisdiction is a question of law subject to

de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

                                       III. DISCUSSION

       Appellees argue that the trial court had no jurisdiction to enter the December 14,

2009 order vacating the July 31, 2009 order granting a new trial. The appellant had

previously filed two motions for new trial and the first such motion was denied before the

May 19, 2009 judgment. Thus, the second or amended motion for new trial filed on June

17, 2009, had to be ruled on within thirty days of the May 19 judgment. Plenary jurisdiction

was lost June 18, 2009. In support of their argument that this Court lacks jurisdiction,

appellees cite In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008). Under

Brookshire, pursuant to rule 329b(e), the trial court retains plenary power for thirty days

after overruling a motion for new trial. Id. However, the losing party may ask the trial court

to reconsider its order denying a new trial—or the court may grant a new trial on its own

initiative—so long as the court issues an order granting a new trial within its period of

plenary power. Id. In Brookshire, the original motion for new trial was denied the day after

the judgment was signed. Id. at 68. Rule 329b(b) provides that one or more motions for

new trial may be filed without leave of court before any preceding motion for new trial is

overruled and within thirty days after the judgment or other order complained of is signed.

TEX . R. CIV. P. 329b(b).



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       Appellant argues that if a judgment is modified in any respect, the time for appeal

runs from the time the judgment is modified, citing Arkoma Basin Exploration Co. v. FMF

Assocs. 1990-A, Ltd., 249 S.W.3d 380, 390-91 (Tex. 2008). “[A] trial judge who modifies

a judgment and then withdraws the modification has modified the judgment twice rather

than never.” Id. at 391. To the same effect, appellant argues the applicability of In re

Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 231-232 (Tex. 2008) (holding that if a new

trial is granted and later withdrawn, the appellate deadlines run from the later order

granting reinstatement rather than the earlier order).        Appellant further argues that

because the May 19, 2009 judgment was reinstated by the December 14, 2009 order, the

judgment was modified, and appellate deadlines are restarted under rule 329b(h). See

TEX . R. CIV. P. 329b(h).

       As appellees point out, Arkoma involves a trial court’s suggestion of remittitur.

Arkoma, 249 S. W. 3d at 390-91. In Arkoma, the motion for new trial was filed after the

original judgment was signed and thus extended the time for appeal until ninety days after

the judgment. Id. (citing TEX . R. APP. P. 26.1(a)). The case is not applicable because the

motion for new trial had not been denied. TEX . R. CIV. P. 329b(b), (d), (e). Arkoma

presents the more typical situation when a judgment is entered, and thereafter a motion

for new trial is filed. The situation in Arkoma is not burdened by the applicability of rule

329b(e), terminating the trial court’s plenary power thirty days after the motion for new trial

is overruled. Id. In Arkoma, the motion for new trial was not filed prematurely, nor was

it filed after the trial court had denied a motion for new trial, as happened in this case.




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        In Baylor, following a defense verdict, the plaintiff was granted a new trial eighty-two

days after the judgment, followed two months later by an order vacating the new trial order.

Baylor, 280 S.W.3d at 228. Shortly thereafter, a new trial was again granted. Id. at 228-

29. The supreme court noted that rule 329b was amended effective January 1, 1981, and

terminates the trial court's plenary power 30 days after all timely motions for new trial are

overruled. Id. at 230. However, “. . . there is no provision limiting its plenary power if such

motions are granted.” Id. “Plenary power of course expires only after final judgments, not

vacated judgments.” Id. Baylor is distinguishable both under its facts and applicable rules.

In this appeal, the original motion for new trial was denied and thereafter the trial court had

thirty days within which to act. Id.; TEX . R. CIV. P. 329b(e). By contrast, a new trial was

granted in Baylor during the trial court’s plenary jurisdiction. Baylor, 230 S.W.3d at 228.

“Federal courts and commentators agree: ‘There is no sound reason why the court may

not reconsider its ruling [granting] a new trial’ at any time.” Id. at 231.

        Appellant also argues that his January 2, 2009 motion is a motion for judgment

notwithstanding the verdict. He asserts the verdict has only three possible outcomes, each

calling for entry of a judgment n.o.v. Appellant then contradicts himself, admitting in his

response that the third possible outcome itself called for a new trial.2 The third argument

in his response argued that the jury’s answers were in conflict and irreconcilable, therefore

he was entitled to a new trial. Appellant also cites Brookshire for the proposition that the

nature of a motion is determined by its substance, not its caption. Brookshire, 250 S.W.




        2
         Appellant’s Response to Appellees’ Motion to Dism iss for W ant of Jurisdiction and Notice of Defect
of Appeal, p. 3.

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3d at 72. We agree, and thus will review the substance of the January 2, 2009 motion for

new trial or alternatively for judgment n.o.v.

       The motion is called both a motion for new trial and alternatively, a motion for

judgment n.o.v. In the motion, appellant first argued that the jury’s answers to the first two

questions were conflicting and irreconcilable. He cites Texas & P. R. Co. v. Snider, 321

S.W.2d 280, 281 (Tex. 1959), holding that a conflict in jury findings will not prevent the

rendition of judgment and require a mistrial unless the findings, considered separately and

taken as true, would compel the rendition of different judgments. “Moreover, it is the duty

of the courts to reconcile apparent conflicts in jury findings if that can reasonably be done.”

Id. However, the conflict in the present case was that the plaintiff was not found negligent

in answer to question one, but his negligence was found to have caused fifty percent of the

injury in question two.

       Appellant next cites Maddox v. Ellison, 240 S.W.2d 398, 400 (Tex. Civ.

App.–Amarillo, 1951, no writ), holding that: “In order for jury findings to conflict they must

oppose each other and be such that they cannot both be true. They mutually destroy each

other and amount to no finding.” Appellant concluded his argument stating that the two

jury findings compose a conflicting verdict. Appellant argued from Bradford v. Arhelger,

340 S. W. 2d 772, 774 (Tex. 1960). In that case, the high court was confronted with two

conflicts—a conflict between the findings of unavoidable accident and the finding that the

defendant's negligence was a proximate cause of the injuries—and a conflict between the

finding of unavoidable accident and the finding that the plaintiff's negligence was a




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proximate cause of the injuries. Id. As noted by appellant, the court granted a new trial

because of the fatal conflict. Id.

       It would appear to us that these authorities are in line with appellant’s request for

a new trial.

       Next, appellant cited several cases indicating the trial court has the authority and

duty to call the jury’s attention to conflicts in its answers. We do not disagree with the

enunciated principles. Notably, appellant concluded this portion of his argument by stating

that he was entitled to a new trial. Appellant cannot now disavow his own request for a

new trial.

       Appellant then argued in the alternative that the trial court should have “harmonized”

the jury’s answers in his favor and only awarded fifty percent of the damages. We view this

portion of the motion as a motion for judgment, n.o.v. The motion concluded with a prayer

for a new trial, or alternately, that the trial court harmonize the verdict and render judgment

for fifty percent of the found damages.

       We conclude, contrary to appellant’s argument, that the motion in substance was

a motion for new trial. We also conclude that the motion included an alternate request for

judgment n.o.v.

                                     IV. CONCLUSION

       When the trial court entered judgment on May 19, 2009, that became the effective

date for the previous order denying appellant’s early-filed motion for new trial. See TEX .

R. CIV. P. 306c. At that juncture, the trial court had thirty days to grant a new trial, vacate,

modify, correct or reform the judgment. TEX . R. CIV. P. 329b(e). Although appellant filed



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another motion for new trial on June 17, 2009, the trial court had only until the next day to

grant the motion. It did not. By the time the second motion for new trial was granted

seventy-five days later on July 31, 2009, plenary jurisdiction had been lost. TEX . R. CIV.

P. 329b (b), (e). The trial court’s July 31 order granting a new trial more than thirty days

after the first motion for new trial was overruled was void. Brookshire, 250 S.W.3d at 72.

       We grant appellees’ motion to dismiss for want of jurisdiction.       The appeal is

DISMISSED FOR WANT OF JURISDICTION. We hold that the trial court’s original

judgment of May 19, 2009, is the final judgment in this case. Pending motions, if any, are

dismissed as moot.


                                                                DON WITTIG
                                                                Justice

Delivered and filed the
12th day of August, 2010.




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