*1 RISHER, Mary Appellant, Jo
Douglas RISHER, Appellee.
No. 19067. Texas, Appeals
Court Civil
Dallas. 4, 1977.
Jan. 18, 1977.
Rehearing Denied Feb.
оriginal transcript motion was filed. The further shows an amended motion for new trial May overruling filed on 6 and an order signed May the amended motion 28. The appeal bond was filed on June more thirty days signing than after overruling original the motion but within thirty days overruling after the order the amended motion. jurisdictional question arises because provision 329b(2) Tex.R.Civ.P.
an “amended be filed before motion shall original upon the and with- motion is acted (20) twenty original after the mo- tion for new trial filed.” If the order original motion was valid aside, effectively and was not set trial, although amended motion for new twenty days filing filеd within motion, original timely, was not and the period began the bond to run original when the motion was overruled. Frank W. Stenger, Mauzy Stenger, & Presentment of Motion for New Trial Dallas, appellant. over- Appellant contends that the order
Mike McCurley, McGuire, Levy, Collins & motion for new trial was McCurley, Irving, Bernstein, Barton E. Dal- present because she did las, Litem, Ad for appellee. support
motion to the court. of this GUITTARD, Chief argument appellant Justice. submits affidavit orig- judge stating appellant’s Appellee has moved to dismiss this inal motion for new trial was set for a lack of because the original hearing May request appel- 6 at the motion for new trial was hearing lee’s on that counsel and that at the court before the amended motion was filed date, present appellee’s counsel and no appeal bond was filed within appellant’s Appellant’s not. counsel was days from that problem date. The arises counsel that he had notice of the admits from the trial judge’s attempt to set aside deliberately appear, failed to the order overruling motion on evidently theory that if he did not the same date signed that it was and en- present the motion the court would tered, but signing without a formal order authority Appellant to rule on it. makes setting it aside. We hold that the oral here, arguing that contention that since order setting aside the 329b(4)provides duty that it is the original motion for new trial was not effec- moving party present a motion for tive to extend the time for filing the thirty days filing, new trial within and, therefore, court cannot act unless the on the motion appeal bond was filed late. Consequently, moving party presents it. we sustain the motion to dismiss.
According to the under transcript, untenable 8, 1976, April appellant’s supreme the decision of the court in Univer Morris, Aрril sity was filed and an of Texas v. 163 Tex. order case, the original In that was S.W.2d signed May nineteenth after the the motion for new trial was overruled motion, presuma- overruling the motion for new trial on his own very day situation, bly presentment, purposes without and left the supreme was filed. The court held motion had not been peal, if the “presented” effect, requirement that the motion If order had this on. the oral acted nothing thirty days more means time- motion was of the amended than that must call the motion movant peri- thirty-day ly, beginning *3 to a the court’s attention and ask for begin to run filing the did not od for bond рossibility or face the that the court will was on the amended motion overruled until not act and will the motion to be allow first whether such May 28. We consider Thus, the of law. written, could have oral or whether overruling court held that the order filing extending the time for effect of motion was effective. conclude that motion. We an amended not have that effect because could
Appellant argues that the Morris case 5, provides distinguished the fact that restriction Tex.R.Civ.P. by enlarge period in that case was only question presented “may court not that the one of law and thе circumstance that the the rules relat- any action under taking judge going was out of office on the period ... or the ing to new trials Notwithstanding the was filed. of error from taking an Morris, peculiar regard we that facts of higher court . . .” to the trial court that standing decision as for the rule his motion does present movant’s failure pow court had argues that the Appellant authority to rule deprive not the court of on authority its under of er set aside although recognize it. Gibbs, 504 Thompson cases such as argument that appellant’s the force of 1973, 632 S.W.2d — Dallas moving party may not know when his time overruled), holding that under mandamus begun he has has to run unless over 329b(5) court has the trial motion, rest our presented his we cannot expiration thirty of judgments until respect the ground. on this In this decision for new trial is over days after the motion present to the case even less favorable ruled. appel- here appellant than Morris because lant’s counsel had notice that the motion difficulty with this hearing position was set for and is in admittedly has although judge a trial complain know when his that he did not new trial within power to motion was ruled on. We conclude that overruling the days signing an order mаy properly hearing on a mo- set motion, 5 language of Rule for quoted request tion for new trial on the either filing enlargement the time for bids party authority has and that for new trial or a motion set, rule on it at the time whether or restriction, judge Because of this appears present the movant it. Conse- appeal by enter cannot extend the quently, we cannot sustain tardy motion for taining ground ruling is made though the new trial even could the court within the time that prevent was a and did Jones & Sons filing trial. A. F. granted of an amended motion a new turn, therefore, Co., Tex. Republic Supply to сonsideration can effectively (Tex.1952). was set aside Neither whether that order same result the trial court’s oral order the same accomplish judge day. entering judgment his a motion for so Effect of Oral Order days after within ten may be filed trial Chantre judgment. entry of the new Appellant contends that the oral Wel & Union Pension effectively set aside the National Maritime the court juris- after the Plan, question filed until (Tex.Civ.App.- fare S.W.2d 659 At Moreover, diction raised in this court. Beaumont if the application filed an judge grants forty-five a new trial within tunc, which the trial the order nunc filed, he motion is cаnnot set Appellant then court at first denied. aside that and reinstate plied for a writ mandamus to this court action, also, judgment because this directing the trial court to enter order. against violate the restriction in Rule granted This court the mandamus enlarging the time for a motion for order was ground proper entry that a Finch, new trial. Fulton v. 162 Tex. necessary court’s to determination of this On the jurisdiction. complied with judge reasoning, conclude direction, our and we now have before us in enlarge cannot a supplemental transcript an order by setting aside his order November аs follows: motion, whether the *4 May On came on to heard setting order is or written. aside oral the Respondent’s Motion to Aside Or- Set Appellant argues oral that the order was Respondent’s for a Denying der Motion overruling effective the because the Trial, being New the of the and Court original motion for new trial was not set in all re- opinion the same that should purpose extending aside for the of spects hearing because granted the motion, filing for the amended but rather Respondent’s Trial was Motion for a New judge because the that determined he had presented set Petition- hearing by and for acted under a he mistake when overruled Respondent, er and not because and original the motion. judge’s affidavit this that mistakenly Court had assumed shows when he the that acted on motion he Respondent set the for a New Motion hearing did not know that the had been set hearing ap- Trial and to for had failed appellee’s at the of request counsel or that pear; having Court dis- and this further appellant to desired file an amended mo- the New Trial covered after Motion for a goes tion. The affidavit toon state that setting had been denied thаt the on the same the was in- presentment the same had been made of by appellant’s formed orig- counsel that the Respondent; rather Petitioner than hearing inal motion had been set for and in allow coun- Respondent’s order to counsel, appellee’s appellant that desired to timely sel to file an Motion for Amended file an amended motion for new Trial; a New twenty days filing that the the amended IT that IS ORDERED this Court’s Or- expired. Accordingly, motion had the Respondent’s der for a Denying Motion judge states that he “entertained an oral aside, [emphasis hereby New Trial is set by appellant’s motion counsel set aside added] overruling original the court’s order the mandamus, On a telephone motion for trial.” After opinion holding wrote an since the counsel, appellee’s conversation with judge’s affidavit showed that he had setting announced that he was aside motion for motion, and he impression new trial the mistaken under then following entered the docket the hearing had been set at motion notation: “Order request appellant, of he had court, New set aside by Trial Oswin set aside the order without at Chrisman.” affidavit further shows time granting a trial and madе, appel- that after this notation was long amended could then be filed so lant’s filed counsel the amended motion for filing the twenty days as had not run from motion. now reconsider No jurisdiction written- of insofar as our this overruling the is concerned. We that re- conclude run, periods begin to and not gardless the reasons which order, present, that is interlocu- judge to set aside his like the induced the appealing party. order nunc judge’s affidavit and his and favorable tory lan- purpose and intended reveal that the untenable because extend the It order was to rule is not so limited. guage effect for new trial. applies by its terms to purpose an extension forbidden such for the Since order when considered bond original motion was began to run when the Only this construction peal. under May 6. by the order on court’s given full to its obvious rule can effect jurisdiction we have intent that matters this rath- of record be determined from matters such as memoranda er than from informal hold, Although for the reasons and the recollection docket notations stated, not have the oral order would sug- judge, counsel and immediately it had been been effective if gests this case. writing signed, judge’s reduced to order raises such a written failure sup of Rule 306a This construction jurisdiction. Appel- to our other obstacles ported opinion of Justice Johnson by the order could have lee contends that the oral (Tex. Band, Mercer v. “in pronounced no effect because was 1970, no Civ.App. [14th District] - Houston open court.” We need not consider the court heard motion There *5 order re question because even if the day after forty-second new trial court, in pronounced open as garded one entry day made a docket filing and on that purpоse cannot be considered for How a trial was then ordered. that determining appeal ever, sign a formal order the court did may written Only signed bond. orders day. forty-eighth to that effect until under Tex.R. purpose for that considered under Rule 306a the court held that 306a, provides: Civ.P. forty-second day action on the trial court’s periods within determining applicable In no the timetable “had effect on steps of an must trial, which the various because the to the motion for new taken, judg- of rendition of a the date sign any or order or court did not enter Therefore, be deemed to be the ment or order shall judgment on such date.” there- upon written draft date which the new trial was the motion for court held that judge as stated signed of was forty- of law on apply shall in deter- therein. This rule on to consider day, and went fifth a mining within which to file trial court retained question of whether the trial, appeal, notice of motion for new expi a new trial after thereof, in lieu appeal bond or affidavit period. forty-five ration of the fact in exceptions, statements of bills applicable to decision as regard the Mercer courts, transcript in appеllate trial and because, purpose of deter for the case court, petition for writ of error appellate we see no dis mining appeal, error, or other writ of oral order and judge’s a tinction between appeal; but connection with procedure in an new trial and entry granting a docket as deter- be construed this rule shall not entry setting aside an and docket oral order rendition of mining constitutes what for new trial. overruling a motion order any in other situation judgment or order holding that a formal cases Other any purpose. or for other effective must be considered timely another purposes set aside unless applies that this rule Appellant contends Mill Co. Feed order include Poston formal or orders, such as a only to final (Tex.Civ.App. 368 trial, Leyva, for new overruling a motion dism’d) from —Houston District] is taken and [14th which an Surety Western Casualty Co. v. a formal order “shall not be construed Southard, (Tex.Civ. of a S.W.2d constitutes rendition determining what App. writ); and cf. no any in other judgment or order situation - Amarillo Moffett, (Tex.Civ. Burleson any Accordingly, purpose.” writ, Hickman, per App. granting an oral order 306a does not affect — Eastland J.), holding sustaining C. that аn court, open in so pronounced new trial plea of effective privilege was notwith long is not considered for as that order standing a docket dated three notation purpose of the timetable reciting later was set aside. perfection motions for new trial and order, therefore, appeals. is effec Such Appellant disagrees the holding with in may tive when rendered and be recorded Express Mercer cites Travelers Co. v. Winters, formally pro an order nunc tunc. 892 (Tex.Civ.App. e.) analysis, Paso Under there no conflict —El writ ref’d n. r. for its holding judge, respeсt that if the between Mercer and Winters with hearing a trial, open announces in to results that holding since in both granted, that a new effectively trial is but fails a new trial was ordered. through oversight to and enter a writ effect,
ten order to that the order Effect of Order Nunc Pro Tunc and entered at by appellant is cited Winters decision time, thirty days even more than support in further of the forty-five expiration day period. since the trial has entered an order The Winters decision was followed in Trav 23, 1976, nunc November tunc dated Rener, Express elers Co. S.W.2d 549 making proper of the oral ordеr — Eastland May setting Although may appear these cases to reach a oral order must result at variance the reasoning with effective, and, now be conse- considered Mercer, analysis opinions careful re quently, the amended they fact, veals are not conflict. In timely be considered filed. Winters support court cites Mercer in alternative, argues if the *6 holding. The Mercer court was looking 6 cannot May oral order of be considered problem point at the from the of view of date, effective as of its then under applicable “the timetable to the motion for 306b, the pro Tex.R.Civ.P. nunc tunc order trial,” whereas Winters court the was begin must be effective to the considered looking at it from the of view of the periods time from the date of its again open effectiveness of an order in oral 23, signing on 1976. November granting the motion for new trial. In Win agree with of We cannot either /[6] signed ters record contained an order ex- arguments. already these As we have pro nunc tune reciting judge plained, accept reasoning in Mercer pronouncement an oral pres made in the that Rule determination of 306a limits opposing expiration of before ence counsel by to periods prescribed Rule 329b forty-five that he day period orders, written and signed consideration of and then a new the court opinion Winters do not read the held that this oral was effective to set standing contrary construction it for a since judgment appeal aside the which the from an taking does not concern the attempted. pro tunc order The nunc appeal. Moreover, the considerations making only proper effect of concerning plying pro to nunc tunc orders of that rеcord order. Winters is consistent for áre different from 306a, motions new trial our Rule with construction of since pro of applying those to nunc tunc entries provides rule is that it limited to prescribed limits are judgments. No time determination of “the within which any for Rule steps appeal judgments various 329b of an be for judge rule, provision is made taken” and that failure other and no 298 day. Baucum, fifth Hernandez judgment by operation of v.
rendition of a 338 pronounced (Tex.Civ.App.—San S.W.2d 483 ton law. An rendered, 1960, writ). pro is when io If a nunc tunc order open effective signed writing, a motion for new trial immediately reduced to and not minutes, may forty-five days than signed, entered in the more and nullity respect at time. All the motion a with determin be so recorded later except appeal, then, by appellant, ing one the timetable for cases cited later, reasoning, the nunc principle. for this tunc order in discussed stand (Tex. Dunn, purporting 830 this case to set aside the order Dunn v. 439 See S.W.2d 1969); Long, 257 Knox Tex. (1953); Capitol Life Insurance had no effect on
S.W.2d 289 (Tex. Rutherford, appeal Co. v. bond. 1971, no Civ.App. [1st District] — Houston recognize that Tex.R.Civ.P. Ass’n writ); Employers Insurance Texas right provides 306b shall Hartel, (Tex.Civ.App.- 289 S.W.2d nunc pro date from the rendition of a dism’d). Amarillo writ period pos judgment or order and that hand, Rule 329b sets On computed sible for shall ruling on a strict limit date. In view of above au and that such provides thorities, however, we hold that Rule 306b by operation of law a motion is overruled together and Rule 5 should be construed forty-five days filing, unless construed, so Rule 306b when does agreement ruling postponed respect apply to an with to a forty-five days. more than more Under If Rule trial. 306b were rule, agreed post in the absence of cases, applied such ponement, if no on the motion indefi able еxtend the signed expiration for new trial is before express nitely, contrary to the restriction in filing, the forty-five days after motion is 5, by simply delaying signing by operation of law on deemed overruled he desired to start the time until forty-fifth day, running the mo purporting thereafter overrule only applying case cited though tion is a even recites that concerning a motion Rule 306b to an order presented orally
the motion was
over
Corp.
Oil
trial Ambassador
expiration
forty-five days.
ruled before
Robertson,
(Tex.Civ.
Muse,
(Tex.
Flowers v.
427 S.W.2d
per
1964), writ ref’d n.r.e.
App.
ref’d);
Civ.App.
Antonio
— Austin
- San
curiam,
There
Washington
Lifе
v. Golden State Mutual
*7
begin
held to
from
was
Co.,
(Tex.Civ.App.—
cretion of the Our consideration above au ; (b) enlarged upon . . . motion thorities, cited, others as well as has con permit expi- the act done after to be judge signs the trial vinced us that ; . specified period ration of . . overruling a formal order motion for new enlarge period but it forty-five days trial within after the motion taking any relating the rules action under filed, thirty days he may within thereaft rehearing to new trials or motions for trial, er but order a new he has no except as stated in the rules enter would affect the time order that relating thereto . original judg table for an from the majority The focuses clause which case, ment. in this oral “may enlarge states that a court set aside the purporting order over period taking any action under the rules ruling the even , relating except . . . to new trials though later formalized order nunc stated in the . . . .” To view rules tunc, to authorize filing did not serve however, proper this in perspective, and, an amended for new trial together. all rule read therеfore, did not affect the time for portion permits first a court to of the rule bond, began to run which when enlarge any prescribed by period motion for new trial was over supra rules. The is a limita- quoted clause 6,May ruled on Since the bond was 1976. power, general tion to this date, not filed within of that by “except even modified that limitation is of this as stated in . . . .” I con- the rules Appeal dismissed. phrase clude that this restricts trial relating
court to time to motions for limits in other rules. expressly specified AKIN, Justice, concurring. Accordingly, plenary jur- court has I concur in the result reached isdictiоn an order to set aside majority only because trial court failed motion for such order does not new trial if order setting formal aside its prescribed otherwise affect the time limits order overruling the by as Tex.R.Civ.P. 329b. rules such therefore, agree, I with that majority holding, once a trial Under the part which opinion states that court enters an order restricts the oral order the order overruling timetable, regardless of the rea- motion for new was ineffective. son, quo by it cannot the status restore supreme court, Piperi, Reese v. Reading setting aside this order. Rule 5 as (Tex.1976), held that an wаy enlarge I do would in no disposing a motion for new trial proper beyond that which is under the writing must be within the reduced to for- merely rules. It allows full ty-five-day period to effective and that gives prescribed use of the period an oral rendition within *8 permit it. In- the trial court otherwise, said, effect. To hold deed, very purpose of Rule 5 was to by permit- 5 and 306a violate Rules permit enlarge the time the trial court ting long orders nunc than to appeal for rather restrict appellate lapsed. after the times had Here, them. evident that is however, overruling the mo- agree, majori- I cannot with the court entered its order acting misconception. ty’s reading of Rule tion for new trial on a unduly narrow 5. Rule 5, “Enlargement,” and its intent would designated provides: My reading of this rule purpose preserving points appeal on its error in a permit trial court to correct determining appeal. opposed a new the time for case such as this without timely filed, appellant. an If the amended motion penalizing forty-five-day period then the set out in prior is consistent with construction 329b(3) passing the motion be on authority dealing interaction of with the gins to run from the datе the amended appellate motions for new times. trial and motion was filed. is An amended motion for new trial which origi Permitting gov- twenty days filed more than after the amended motion to con- appellate nal is ern the timetable would not motion for new trial Merely because a trial appellate purposes. Valley Transit Co. v. travene Rule 5. 830, Lopez, (Tex.Civ.App.— court enters an order which starts the time 263 S.W.2d 1953, running preclude ref’d); appeal Miller v. does San Antonio Esunas, entering (Tex.Civ.App. aside that order and 401 S.W.2d order; Thus, n.r.e.). appeal runs from —Tyler writ ref’d an a new City which is filed mоre than the latter order. West Lake amended motion Austin, twenty days original City Hills v. ex rel. after the ineffective State (Tex.1971), points supreme 726-27 preserve appeal. on Orr Chevro S.W.2d let, judgment, Inc. v. 885 court that a corrected which Courtney, 488 S.W.2d held original in the taxed costs not mentioned — Texarkana 329b(2) requires judgment, effectively prior that an amend vacated the Since Rule appeal twenty days judgment, ed within and the time for ran from filed supreme original upon, judgment. before the is acted it would the second has, however, second rendition logically follow that an amended motiоn held that a cannot twenty days, orig after the at a date judgment filed within but overruled, appeal; the time for affect the time for inal had been would likewise appeal. on to run from the date of preserve points ineffective to continues effect of the position in the first if sole This is consistent with the taken judgment is to increase the majority opinion, which holds that an second would it Only in that situation twenty days appeal. amended motion filed within Casebolt, original 5. Anderson original, but after the contravene Rule The dis- overruled, pur for the been was ineffective then, tinction, thе trial court’s whether pose times. How determining ever, which would restart it has been held that an amended enlarging other than appeal, has an effect is filed original period. An amended twenty days is effective change the time for though only on even does preserve points preserve necessary to pre appeal; been it is also motion for new trial had in forth points if of error not set viously overruled Co. at City Fire Insurance set aside within motion. Twin motion for new trial was pur- City majority 375. The period. Twin Fire Ins. concludes twenty-day here was to (Tex.Civ. pose of the trial court’s King, Co. v. However, the extend writ ref’d App. [1st Dist.] - Houston merely relied 329b(2), language in the order n.r.e.). language in Rule Under was to al- court’s intention states that the holding necessarily means that timely an Amended “to file low for new trial is filed “be The amended mo- Trial.” upon” if Motion New is acted fore additional presented tion included its order the court sets aside preserve twenty-day peri ground and would original motion before Additionally, under filed. suggests timely Nothing in the rule expires. od Hills and City of West Lake ap holdings different considerations should Casebolt, is not the controlling criteria timely for the pliеd what *9 overruling a court; rather, mandate Casebolt intent of the trial subjective to the is identical effect motion which look to the reviewing court must is motion. its sole effect Only if of the order. by Rule 5. it forbidden of time is
extension jur retains a trial court Unquestionably, thirty days after of a case majority are isdiction relied on The cases Thus, overruling a motion controlling here. and are not distinguishable for new a motion days after Union within Maritime v. National In Chantre law, overruled Plan, 659 trial is 425 S.W.2d Pension & Welfare its may set aside writ), (Tex.Civ.App. - Beaumont Gibbs, v. Thomas a new trial. to reenter attempted the triаl court extending thereby judgment, same — Dallas v. overruled); Mercer 1973, mandamus as that This is the same basis appeal. (Tex.Civ.App.— Band, in supreme court Case- upon by the relied 1970, writ). The the Houston controlling because bolt, is not [14th Dist.] a motion apply when rule should raised an additional Leon & order. See enlarge solely in an not result and would Wettermark, 58 Tex. H. Blum of the amended Recognition time. ment of decisions,it seems (1882). view of these Republic In Jones & in A. F. Son motions court lacks incongruous that Co., 151 Tex. 246 S.W.2d Supply erroneously entered aside an Finch, Tex. to set (1952) and Fulton trial, as (1961), 826-27 Rather, logically fol majority holds. of acts done after required recognition plenary In expired. rules had lows that time set out in other an order us, setting aside it to set aside permits the case before trial court trial if the original motion and for new a motion solely motion all oc is not the amended trial court’s action filing of effect of the does twenty-day period pre curred within the timetable to extend juris extending amended motions scribed for the effect of not have a tardi prescribed trial. concerned limits beyond A. F. Jones & Son diction trial; since the ly filed motion for rules. purрoses motion itself was construed view, my the rules should not, merely by could appeal, the trial court his deny as not to broadly so it, as to affect
overruling make it valid so points his unduly or to restrict appeal. This is specifically rules error on unless the holdings Valley Tran consistent with the interpreta- Our contrary result. require a Similarly, Miller. the amended sit Co. and lay trap rules should tion of the until in Fulton was not overruled undue restriction create an unwary nor forty-ninth day, clearly beyond the scope appeal. However, by the rules. prescribed that orders mo court stated new trial “cannot be un deter
tions for 45-day period without de
mined after the 329b(3). Fulton at 826.
stroying” Rule contemplated such
Clearly, the court within the could be “undetermined”
orders incon period. It would be
forty-five-day which has been
gruous to allow an order
“undetermined” to control run from
Thus, motion is overruled. time the amended violate course, the trial court cannot
Of