Deviating slightly from its posted calendar, the Texas Supreme Court did issue an order list today containing an opinion that could be very important to trial lawyers and appellate counsel trying to time their post-trial motions.

A summary and analysis of that case, In re Brookshire Grocery Co., No. 05-0300, follows the break. You can click on the title of this post to read more.

In orders affecting other granted cases, in Southwestern Bell Telephone v. Harris County Toll Road Authority, No. 06-0933, the Court denied the request of amicus curiae GTE and Verizon to participate in oral argument. That case is set for oral argument on January 15, 2008, and more information will be posted about it that week.

The rest of the order list was very brief — the Court disposed without comment of one other mandamus action and a pending case involving the interests of a child — suggesting that the bulk of the Court’s work is being left for the conference it has scheduled next week.

• In re Brookshire Grocery Co., No. 05-0300. Divided 5-4, the Texas Supreme Court held that a motion for new trial made before judgment that was then denied as part of the Mother Hubbard clause in the judgment itself also extinguished any ability of the party or the trial court to further extend the trial court’s plenary power to deal with a later, more comprehensive post-judgment motion for new trial. In other words, only one motion for new trial can extend the trial court’s plenary power. After the first motion is overruled, the trial court only has 30 days in which it can reconsider — regardless of whether an additional motion for new trial is filed.

  Between the time of the jury verdict and when the trial court rendered judgment, Brookshire filed a motion for new trial along with its motion for judgment notwithstanding the verdict. At that time, it advised the trial court that it also had additional grounds for seeking new trial that it might make in a later, more comprehensive post-trial motion, and the trial court seemed to acquiesce. The trial court later rendered judgment, denying Brookshire’s motion for new trial along with all other pending motions. Just 29 days after judgment, Brookshire filed that more comprehensive motion. And 25 days later, the trial court actually granted the motion for new trial. The other side then sought mandamus relief from the court of appeals, which ultimately vacated that trial court order, holding that the trial court lacked power to grant any relief on that motion for new trial. Today, the Supreme Court agreed, denying Brookshire’s request to mandamus that court of appeals order.

  The Chief Justice wrote the majority opinion, joined by Justices O’Neill, Medina, Johnson, and Willett in denying the mandamus. The dissent was written by Justice Hecht and joined by Justices Wainwright, Brister, and Green.

  Comment: This is really a case about the trial court’s plenary power — its power to make alterations to the judgment. The trial court’s plenary power normally extends for 30 days after it overrules a motion for new trial, and in that time period it may choose to reconsider or make other rulings related to the judgment. Brookshire argued that the 30-day time period could be further extended by a second motion for new trial filed with the consent of the trial court. The Texas Supreme Court rejected that argument, holding that the time period ran out 30 days after the filing of the first motion.

  Had the trial court granted Brookshire’s motion for new trial on the day it was filed, rather than waiting a few weeks, the order would have fallen within the 30-day window and thus would have been valid. It was the assumption by the parties and by the trial court that it had additional time that was the problem. The dissent is certainly right that “Tricky procedural rules threaten substantive rights” See page 1 of the dissent. This particular rule — while somewhat tricky — is clear enough that it can be planned for in future cases.

  The practice tip is to be cautious in filing a motion for new trial before the trial court renders judgment. Doing so can create a very short window in which the Court would be empowered to act on any further motions for new trial you might file after the judgment. The Court’s opinion in this case also acknowledges that other post-trial motions may still extend the trial court’s plenary jurisdiction even if a motion for new trial cannot. ((“Additionally, under Rule 329b, a trial court’s plenary power to grant a new trial expires thirty days after it overrules a motion for new trial, only provided no other type of 329b motion (such as a motion to modify, correct, or reform the judgment) is “timely filed.” See TEX. R. CIV. P. 329b(e), (g). Thus, a party whose motion for new trial is overruled within thirty days of judgment may still file a motion to modify, correct, or reform the judgment—provided it is filed within thirty days of judgment—and thereby extend the trial court’s plenary power.” See page 9 of the majority. )) Thus, it’s quite possible that litigants who think the trial court needs additional time to digest their post-trial motions may couple their later motions with relatively trivial motions to modify or reform the judgment, which independently could extend the trial court’s plenary jurisdiction. ((Indeed, some of the back-and-forth between the majority and dissent concerns whether this was such a case — whether the motion in this case could be construed as an inartful attempt at a motion to modify the judgment, which would have worked to extend the trial court’s plenary power. The two opinions are at odds over whether a motion that requests vacating the judgment is properly a motion to “modify” the judgment. That question may be more directly litigated another day.))