Opinion
No. 05-08-00789-CV
Opinion Filed September 18, 2009.
On Appeal from the 302nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-21756-U.
Before Chief Justice THOMAS and Justices O'NEILL and MURPHY.
MEMORANDUM OPINION
In two issues, appellant Gerald Keepper contends the trial court erred by granting appellee Jennie Carver-Keepper's motion for new trial and that appellant's due process rights were violated when he was not allowed to present evidence at the hearing on the motion for new trial. We affirm the trial court's judgment.
Background
Appellant filed for divorce on December 22, 2005. Although properly served, appellee failed to file an answer, and an associate judge signed a default judgment on August 25, 2006. Appellee filed a timely motion for new trial. At the October 23, 2006 hearing on the motion, appellee testified about why she did not file an answer to the petition, why she believed the default decree should be changed, and why granting the motion would not injure or delay appellant. Appellant's attorney cross-examined appellee. After appellee's testimony, appellant moved for a directed verdict. The trial court overruled the motion for directed verdict and immediately granted the motion for new trial. Appellant did not object that the trial court ruled on the motion for new trial before he offered any evidence and did not make an offer of proof regarding any evidence he would have offered if given the opportunity to do so.
Following a bench trial, the trial court rendered a final divorce decree on March 19, 2008.
Granting Motion for New Trial
In his first issue, appellant asserts the trial court erred by granting the motion for new trial because appellee failed to meet her burden of proof under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). However, with very limited exceptions, an order granting a new trial rendered while the trial court has plenary power over the case is not subject to appellate review, either by direct appeal from the order or from a final judgment rendered after later proceedings. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (recognizing overturning of trial court's grant of new trial when trial court's order was void or trial court erroneously concluded jury's answers to special issues were irreconcilably conflicting); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984) (per curiam). See also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., No. 06-0416, 2009 WL 1900509, at *3 (Tex. July 3, 2009) (orig. proceeding).
Here, the motion for new trial was timely filed and the trial court granted the motion while it retained plenary power over the default judgment. Accordingly, the trial court's act of granting a new trial and setting aside the default judgment is not reviewable on appeal. We overrule appellant's first issue.
Due Process
Relying on Producer's Construction Co. v. Muegge, 669 S.W.2d 717 (Tex. 1984) (per curiam), appellant argues in his second issue that he was denied due process when the trial court granted the motion for new trial before appellant offered any evidence at the hearing. In Muegge, the plaintiffs sued to clear a cloud on title to land. One of the defendants, Producer's Construction, filed counterclaims against two of the plaintiffs, Barron Muegge and Charles Holland. After Muegge's case in chief, the defendants moved for judgment and Muegge moved to sever the counterclaims. Producer's Construction's counsel then indicated he was ready to proceed. The trial court stated it was taking the motions under advisement, did not wish to continue hearing evidence at that time, and after it ruled on the motions, the parties could "decide if you all want to go forth as far as evidence is concerned on the rest of the case." Instead of holding further proceedings, the trial court, a month later, rendered final judgment for Muegge and denied all other relief. The supreme court concluded the trial court erred by rendering judgment before Producer's Construction had an opportunity to present evidence and rest its case. Id. at 719.
Here, the record indicates the trial court prematurely ended the hearing on the motion for new trial. Although appellant participated in the hearing by cross-examining appellee, he had not presented any evidence when the trial court granted the motion for new trial. Appellant, however, did not lodge any objection to the trial court's failure to allow the presentation of evidence and did not obtain a ruling from the trial court. Further, appellant did not indicate to the trial court that he was prepared to offer any evidence at the hearing, and the record contains no offer of proof of what evidence appellant would have offered at the hearing if given an opportunity to do so. Appellant, therefore, failed to preserve any error by the trial court in not providing appellant an opportunity to present evidence at the hearing. Tex. R. App. P. 33.1(a); In re J.(B.B.)M., 955 S.W.2d 405, 410, 411 (Tex. App.-San Antonio 1997, no pet.). We overrule appellant's second issue.
We affirm the trial court's judgment.