in Re Kenny Bates Dba Bates Backhoe Service
429 S.W.3d 47
| Tex. App. | 2014Background
- Jacob Walker (plaintiff) sued Kenny Bates (relator/backhoe operator) for negligence after a backhoe incident at a construction site crushed Walker; jury apportioned fault 50% Bates, 25% LECS (employer), 25% Walker and awarded damages.
- Trial court signed final judgment on August 15, 2012; Walker timely filed a motion for new trial on September 13, 2012.
- The court orally granted the new-trial motion after a hearing on October 23, 2012 and issued a docket-control order November 15, 2012, but no signed written order granting the new trial appears in the record until a December 21, 2012 document signed after the court’s plenary power expired.
- Bates filed a mandamus petition in the court of appeals; that court stayed trial-court proceedings on February 4, 2013.
- While the appellate stay remained in effect, Walker filed a motion for nunc pro tunc relief and the trial court signed a nunc pro tunc order (March 18, 2013) claiming a prior timely-signed new-trial order; the court of appeals held that nunc pro tunc order void for violating the appellate stay and the December 21, 2012 new-trial order void because it was signed after plenary power expired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s December 21, 2012 written order granting a new trial is valid though signed after plenary period | Walker: court actually signed a written order within plenary period; clerical loss caused later imaging date; affidavit supports earlier signing | Bates: no signed order within plenary period; oral pronouncement and docket entries insufficient under Rule 329b | Court: December 21 order void — Rule 329b requires a written signed order within plenary period; affidavit insufficient to overcome the signed dated order |
| Whether the trial court’s nunc pro tunc order could correct the signing date after appellate stay | Walker: nunc pro tunc can reflect an earlier signing date to cure clerical error | Bates: nunc pro tunc was filed and granted while the appellate stay was in effect, violating the stay | Court: nunc pro tunc order is void because it was entered in direct violation of the appellate stay |
| Whether a new trial was properly granted on factual-sufficiency grounds but using legal-sufficiency standard | Bates: trial court abused discretion by purporting to grant on factual sufficiency but applying legal-sufficiency standard | Walker: (not addressed substantively because of plenary/stay rulings) | Court: did not reach merits—unnecessary because orders are void |
| Whether substantial evidence supported jury findings so new trial was improper | Bates: evidence supports jury’s apportionment; new trial on factual sufficiency was wrong | Walker: factual-sufficiency challenge justified new trial | Court: not addressed due to void orders; issue unresolved on mandamus |
Key Cases Cited
- In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) (mandamus available to correct clear abuse of discretion)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (standard for clear abuse of discretion)
- In re Lovito-Nelson, 278 S.W.3d 773 (Tex. 2009) (Rule 329b requires a written signed order granting new trial within plenary period; bright-line rule)
- Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993) (written signed order required to grant new trial)
- In re Taylor, 113 S.W.3d 385 (Tex. App.—Houston [1st Dist.] 2003) (orig. proceeding) (orders signed after plenary period are void)
- City of Corpus Christi v. Maldonado, 398 S.W.3d 266 (Tex. App.—Corpus Christi 2012) (orders entered in violation of appellate stay are void)