Opinion
NO. 03-14-00372-CV
02-20-2015
Elizabeth A. White, Appellant v. Clean Slate Service, Inc. d/b/a Servpro of North Austin, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-13-002841, HONORABLE GUS J. STRAUSS, JUDGE PRESIDING
MEMORANDUM OPINION
Elizabeth A. White sued Clean Slate Service, Inc. d/b/a Servpro of North Austin alleging causes of action for breach of contract and intentional infliction of emotional distress arising out of water remediation services Clean Slate Service performed after a broken water line caused flooding throughout White's house. White obtained a default judgment against Clean Slate Service and was awarded damages in excess of three million dollars. Clean Slate Service timely filed a motion for new trial asserting that it was not properly served with citation and that it had a meritorious defense to White's claims. The trial court granted the motion for new trial and set aside the default judgment. White then filed a notice of appeal seeking appellate review of the trial court's order granting the motion for new trial. We will dismiss the appeal for lack of jurisdiction.
An order granting a motion for new trial rendered within the trial court's plenary power is not reviewable on appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). When a motion for new trial is granted, "the court essentially wipes the slate clean and starts over." Wilkins, 160 S.W.3d at 563. Clean Slate Service's motion for new trial was timely filed and the court granted the motion during its period of plenary power over the judgment. See Tex. R. App. P. 329b. Because the complained-of order is not subject to review on appeal, we dismiss this appeal for lack of jurisdiction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (noting that generally appeals may be taken only from final judgments).
/s/_________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland Dismissed for Want of Jurisdiction Filed: February 20, 2015