in Re Gene Timberlake, Individually and on Behalf of the Estate of Joan Hughes Timberlake, 501 S.W.3d 105

Gene Timberlake (relator) sued to remove Cecelia Timberlake as independent executrix and sought damages against Cecelia and her husband Ray for mishandling Joan Timberlake’s assets; jury returned a unanimous verdict for Gene on nine issues after a September 2012 trial.
Ray and Cecelia filed a motion for new trial / JNOV on November 7, 2012 (2012 MNT/JNOV); the trial court heard argument November 27, 2012 but did not rule on the new-trial portion before signing final judgment on June 14, 2013.
After the June 14, 2013 final judgment (which granted JNOV in part and denied other relief), Ray and Cecelia filed a second motion for new trial on July 12, 2013 (2013 MNT/JNOV).
On September 18, 2013 the trial court signed an order granting a new trial, vacating the June 14 judgment and preserving earlier pre-verdict summary-judgment/directed-verdict rulings as final; relator sought reconsideration (denied orally) and later requested the reporter’s record.
Relator filed a mandamus petition in this court on February 9, 2015 (about 17 months after the new-trial order). He challenged the new-trial grant as (1) unsupported by the evidence, (2) based partly on impermissible grounds (jury not told of defendants’ pre-verdict wins), and (3) void because signed after the trial court’s plenary power expired.

Issue	Plaintiff's Argument (Timberlake)	Defendant's Argument (Ray & Cecelia)	Held
1. Delay / laches: Should mandamus be denied for relator’s delay?	Relator sought mandamus relief restoring the June 14 judgment.	Defendants argued laches (unjustified delay) bars relief.	Denied mandamus on laches grounds: relator’s ~17-month delay (and ~11 months after record completion) was unjustified.
2. Sufficiency of evidence to support jury verdict	Jury’s nine findings were legally and factually sufficient; the June 14 judgment should be reinstated.	Defendants maintain trial court acted within discretion in granting JNOV/new trial on some issues.	Court did not reach merits due to laches as bar to mandamus for first two issues.
3. Trial court exceeded plenary power—was new-trial order void?	The new-trial order was signed after plenary power expired (trial court had effectively denied the prematurely filed 2012 motion for new trial), so order is void and mandamus appropriate.	Defendants: motions were not denied; Rule 306c deems premature motions timely; Rule 329b(e) allows trial court to grant new trial within 30 days after motions are overruled by operation of law.	Majority: order was not void—trial court retained plenary power (105-day window) and could grant new trial on Sept 18, 2013; mandamus denied. Dissent: would have granted mandamus, reading judgment language as denying the earlier motion and rendering the Sept. order void.

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366 (Tex. 1993) (mandamus is discretionary and equitable principles—diligence—inform relief)
In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008) (order entered after plenary power expires is void; analysis of motions-for-new-trial timing)
Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308 (Tex. 2000) (rules for computing plenary period tied to timely-filed motions and overruling by operation of law)
L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996) (plenary-power calculation and effect of motions overruled by operation of law)
In re Boehme, 256 S.W.3d 878 (Tex.App.-Houston [14th Dist.] 2008) (delay can bar mandamus relief)
In re Choice! Energy, L.P., 325 S.W.3d 805 (Tex.App.-Houston [14th Dist.] 2010) (void-order exception to laches; plenary-power analysis)
Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005) (trial court may grant or deny motion for new trial prior to judgment; interplay with Rule 306c)