F & Z Business LLC and K & G Ventures Corp v. Afisco Interest LLC ( 2011 )

Affirmed and Memorandum Opinion filed June 2, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00274-CV

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F&Z Business LLC and K&G Ventures Corp., Appellants

V.

Afisco Interests, LLC, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 885747

MEMORANDUM OPINION

The trial court granted a motion for new trial, then ruled that the order was void because it was signed after the court’s plenary power had expired. On appeal, we must determine whether the trial court correctly applied the law in deciding that it lacked the jurisdiction to grant the motion for new trial. Finding no error, we affirm.

Appellee Afisco Interest, LLC sued appellants F&Z Business LLC and K&G Ventures Corp. to recover on a promissory note and to foreclose on a security interest lien. A judgment was entered in Afisco’s favor on October 1, 2008. Appellants timely filed a motion for new trial. The parties agree that the motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). They dispute, however, the precise date on which it was overruled.

On January 15, 2009, the trial court signed an order granting the motion for new trial. The court subsequently declared that the order was void because its plenary power had lapsed before the order was signed. See Tex. R. Civ. P. 329b(f). This appeal followed.

The question to be determined is whether the trial court still had plenary power when it granted the new trial on January 15, 2009. Because this issue turns on a question of law, our review is de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The applicable law is provided by Rule 329b of the Texas Rules of Civil Procedure, which contains the following provisions:

(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

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(e) If a motion for new trial is timely filed by any party, 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 until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

Tex. R. Civ. P. 329b.

            Appellants contend under the plain meaning of Subsection (c) that their motion for new trial could not be overruled by operation of law until December 16, 2008, which is the first day following the expiration of seventy-five days since the date of judgment. Under this interpretation, the trial court’s plenary power would extend through January 15, 2009, which is 106 days from the date of judgment.

            Appellants’ reading of Rule 329b does not comport with its plain terms. A motion for new trial is overruled by operation of law not at the earliest opportunity following the expiration of seventy-five days, but at the end of the seventy-fifth day itself. In this case, that day was December 15, 2008. Cf. Taack v. McFall, 661 S.W.2d 923, 923–24 (Tex. 1983) (per curiam) (holding that motion for new trial was overruled by operation of law on December 22, 1982, seventy-five days after date of default decree on October 8, 1982). The trial court’s plenary power accordingly extended thirty more days through January 14, 2009, and not a day longer. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000); Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985) (per curiam) (“A trial court’s plenary power may be extended for as long as one hundred five days by a timely filed motion for new trial.”). The trial court was without jurisdiction to grant a new trial on January 15, 2009. The order declaring the grant to be void was therefore proper. We overrule appellants’ sole issue.

            Afisco has argued that appellants’ appeal is frivolous, and therefore deserving of sanction. See Tex. R. App. P. 45. The decision to grant sanctions is a matter of discretion, which we exercise with prudence and caution, and only after careful deliberation. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Although imposing sanctions is within our discretion, we will do so only in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.—Houston [14th Dist.] 2000, no pet.). In determining whether to impose sanctions, we review the record from the viewpoint of the advocate and decide whether the advocate had reasonable grounds to believe the case could be reversed. Smith, 51 S.W.3d at 381.

            After considering the entire record and appellants’ briefs, we do not believe that this case presents egregious circumstances worthy of sanction.

            We affirm the trial court’s order.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.