                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-18-00559-CV

                                   IN RE Kishan Kumar MANTGANI

                                     Original Mandamus Proceeding 1

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: November 7, 2018

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator, Kishan Kumar Mantgani, asserts the trial court abused its discretion by granting a

motion for new trial after its plenary power had expired. Because we agree, we conditionally grant

the petition for writ of mandamus.

                                             BACKGROUND

           After the real party in interest (the “RPI”) filed a petition for divorce, relator answered and

filed a motion to dismiss the petition. In his motion to dismiss, relator denied the existence of any

marriage to the RPI, claiming he was married to another woman. The RPI later supplemented her

petition to allege a putative marriage. On August 29, 2016, the associate judge signed an order

granting the motion to dismiss with prejudice.


1
  This proceeding arises out of Cause No. 2015-CVG-002787-D4, styled In the Matter of the Marriage of San Juanita
Barajas Mantgani and Kishan Kumar Mantgani, pending in the 406th Judicial District Court, Webb County, Texas,
the Honorable Oscar J. Hale, Jr. presiding.
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        On September 20, 2016, the RPI filed a motion asking for clarification of the order or,

alternatively, a motion for new trial. In her motion, the RPI stated two reasons for a new trial: (1)

“The Order that was signed was to dismiss the case. The order that was supposed to be signed was

only to declare the Marriage between the parties invalid,” and (2) “The parties have a child and

properties and interest in the property.”

        On November 2, 2016, the associate judge conducted a hearing on the RPI’s motion, and

the following notation appears on the docket sheet: “Hearing set for Motion for New Trial. . . .

Court to amend order signed on 8/29/16. Court will not dismiss case. Orders to be submitted by

both attorneys. No further dates provided.” A written order granting the motion for new trial was

never signed, and no other written order memorializing the above “notation” was ever signed.

        On December 7, 2017, relator filed a motion to dismiss for lack of jurisdiction. Relator

argued that because no new trial order had been signed, the trial court lost plenary jurisdiction on

November 12, 2016, seventy-five days after the August 29, 2016 judgment. Relator asserted any

orders signed after November 12, 2016 were void and he asked the court to dismiss the case due

to lack of plenary jurisdiction. On February 13, 2018, the district court conducted a hearing on the

motion to dismiss. On June 25, 2018, the court signed an “Order Accepting Recommendation of

Associate Judge and Amending Ruling [sic] Previous Order of Associate Judge.” The order states,

in part, as follows:

        It is hereby Ordered and Decreed that [the RPI] may proceed in this matter
        regarding claims and her cause of action of a Putative Marriage and that the current
        Suit Affecting The Parent Child Relationship claims likewise remain on the court’s
        docket.

        It is hereby Ordered that the claim by [the RPI] for formal marriage remain
        dismissed.




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       On August 9, 2018, relator filed his petition for writ of mandamus. Relator asserts the June

25, 2018 order is void because it was rendered after the trial court’s plenary jurisdiction expired.

The RPI filed a response.

                                   STANDARD OF REVIEW

       Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623

(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion

when there is no other adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.

1992) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show

“that the trial court could reasonably have reached only one decision.” Liberty Nat’l Fire Ins. Co.

v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840).

The relator has the burden of establishing both prerequisites to mandamus relief, and this burden

is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).

       “Mandamus is appropriate to set aside an order for new trial that is granted after the court’s

plenary power expires and that is, therefore, void.” In re Dickason, 987 S.W.2d 570, 571 (Tex.

1998) (orig. proceeding) (per curiam); see also In re Zavala, No. 04-10-00436-CV, 2010 WL

3418282, at *1 (Tex. App.—San Antonio Aug. 31, 2010, orig. proceeding) (mem. op.) (per curiam)

(holding same). If the trial court has no power to grant the new trial, “any subsequent retrial would

be a nullity.” Dickason, 987 S.W.2d at 571. Under these circumstances, a relator does not have

an adequate remedy at law and is entitled to mandamus relief. Id.

                                             WAIVER

       As a preliminary matter, the RPI asserts relator delayed in seeking mandamus relief.

However, the RPI’s contention rests not on relator’s delay after the trial court signed the new trial

order, but instead, on her argument that relator conducted discovery and “obtained rulings from

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the court” on pending matters after November 2, 2016. The RPI relies on caselaw that stands for

the proposition that delay alone in seeking mandamus relief is ample grounds to deny relief. While

this is true, the mandamus record here does not support the RPI’s argument. The trial court signed

the new trial order on June 25, 2018. Forty-five days later, on August 9, 2018, relator filed his

petition for writ of mandamus. Therefore, on this record, we cannot conclude relator waived his

right to seek mandamus relief.

                                  MOTION FOR NEW TRIAL

       “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 within thirty days after the

judgment is signed.” TEX. R. CIV. P. 329b(d). Motions to alter the judgment, including motions

for new trial, are overruled automatically by operation of law seventy-five days after judgment,

unless the court signs a written order granting or denying the motion before expiration of the

seventy-five-day period. See TEX. R. CIV. P. 329b(c). Once a timely-filed motion for new trial is

overruled, the court retains plenary power for another thirty days to grant a new trial or to vacate,

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

       On August 29, 2016, the associate judge signed an order granting relator’s motion to

dismiss with prejudice. On September 20, 2016, the RPI filed a motion asking for clarification of

the order or, alternatively, a motion for new trial. The RPI’s motion for new trial triggered the

seventy-five-day period for extending plenary power and ruling on the motion under Rule 329b(c).

The seventy-fifth day after the court’s August 29, 2016 order dismissing the case with prejudice

was November 12, 2016. Because November 12 was a Saturday, time was extended to Monday

November 14, 2016. See TEX. R. CIV. P. 4 (in computing time periods under the rules of civil

procedure, “[t]he last day of the period so computed is to be included, unless it is a Saturday,

Sunday, or legal holiday, in which event the period runs until the end of the next day which is not

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a Saturday, Sunday, or legal holiday.”); see also Sims v. Fitzpatrick, 288 S.W.3d 93, 105 (Tex.

App.—Houston [1st Dist.] 2009, no pet.) (applying Rule 4 to computation of Rule 329b(c)

seventy-five-day period for ruling on motion for new trial).

       Accordingly, the RPI’s motion for new trial would have been overruled by operation of

law on November 14, 2016, unless the trial court signed a written order granting or denying the

motion on that day or earlier. Although the trial court’s docket entry states, “Court to amend order

signed on 8/29/16. Court will not dismiss case,” the mandamus record does not contain a written

order granting the RPI’s motion for new trial that was signed on or before November 14, 2016.

Thus, the motion for new trial was overruled by operation of law on November 14, 2016. The trial

court retained plenary power to “vacate, modify, correct, or reform” its August 29, 2016 order of

dismissal “until thirty days after” the RPI’s motion for new trial was “overruled, either by a written

and signed order or by operation of law, whichever occurs first.” See TEX. R. CIV. P. 329b(e).

Thirty days after November 14, 2016 was December 14, 2016. The trial court did not sign a written

new trial order until June 25, 2018.

       In her response to the petition for writ of mandamus, the RPI agrees with relator that the

suit related to the existence of a formal or informal marriage was dismissed with prejudice.

However, she asserts the issues of a “putative marriage and the SAPCR matters” remain pending

before the court.

       Although the court’s docket sheet appears to state the trial court’s intention to amend the

August 29, 2016 order and not dismiss the case, there is no written new trial order, or any written

amended order specifying the amendments, clarifying what if any issues were dismissed, or

clarifying which issues remain pending. Within the seventy-five-day period, a court order granting

or denying a motion to alter the judgment is effective only if it is in writing. The Supreme Court

of Texas has consistently held that a written order granting a new trial is mandatory. See

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Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003) (per curiam)

(declining to overrule precedent, ignore Rule 329b, and accept docket entry in lieu of written

order); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding) (per curiam)

(holding oral pronouncement and docket entry indicating motion for new trial was granted cannot

be substituted for a written order). A court may not grant a new trial by implication. See In re

Lovito-Nelson, 278 S.W.3d 773, 775-76 (Tex. 2009) (orig. proceeding) (per curiam); McCormack

v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (orig. proceeding). The Lovito-Nelson Court held,

“It is important that the requirement of a written order granting a motion for new trial be a bright-

line rule.” 278 S.W.3d at 775. “The requirement is not difficult to meet, and the movant who fails

to satisfy it is not left without [the] possibility of relief. [She] may still attempt to prosecute an

appeal, a restricted appeal, or a bill of review. But a motion for new trial is not granted without a

signed, written order explicitly granting the motion.” Id. at 776.

       Because no written order granting a new trial or amending the August 29, 2016 order was

signed within seventy-five days of the August 29, 2016 dismissal order, the trial court lost plenary

power on December 14, 2016. Therefore, we conclude the trial court’s June 25, 2018 order was

signed long after the court’s plenary power expired. “Judicial action taken after the court’s

jurisdiction over a cause has expired is a nullity.” State ex rel. Latty v. Owens, 907 S.W.2d 484,

486 (Tex. 1995) (per curiam).

                                          CONCLUSION

       For the reason stated above, we conditionally grant the petition for writ of mandamus and

direct the trial court to vacate, within fifteen days from this opinion, its June 25, 2018 Order

Accepting Recommendation of Associate Judge and Amending Previous Order of Associate




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Judge. We are confident the trial court will comply with this opinion within the next fifteen days.

A writ will issue only if the trial court fails to do so.

                                                     Luz Elena D. Chapa, Justice




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