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Schmitt v. Schmitt

State of Texas in the Fourteenth Court of Appeals
Jun 20, 2017
NO. 14-17-00221-CV (Tex. App. Jun. 20, 2017)

Opinion

NO. 14-17-00221-CV

06-20-2017

TOMMY LAYTON SCHMITT, Appellant v. PETRA ULRIKE SCHMITT, Appellee


On Appeal from the 308th District Court Harris County, Texas
Trial Court Cause No. 2016-22377

ORDER

The trial court signed a judgment in favor of appellee on December 21, 2016. Appellant timely filed a notice of appeal and a motion for new trial. On March 21, 2017, the trial court signed an order granting appellant's motion for new trial. On May 18, 2017, we dismissed this appeal for lack of jurisdiction because there was no appealable judgment.

After the appeal was dismissed, the trial court signed an order vacating the new-trial order. The parties have now filed a joint motion to reinstate the appeal on that basis.

A trial court may vacate a new-trial order at any time before final judgment. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 232 (Tex. 2008) (orig. proceeding). However, the original judgment, which was vacated by the order granting a new trial, is not resurrected by the order vacating the new-trial order. Rather, the trial court must sign a new judgment. Gathe v. Gathe, 376 S.W.3d 308, 315 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("When the trial court 'ungrants' a new trial, the original judgment cannot be reinstated; rather, the trial court must enter a new judgment."). A party may then file a notice of appeal from the new judgment. See Baylor Med. Ctr., 227 S.W.3d at 231.

Nothing prohibits the trial court from rendering the new judgment on the same grounds as those in the original judgment. Zapata v. ACF Indus., 43 S.W.3d 584, 586 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ("We hold that an order granting a new trial does not prevent a trial court from later rendering summary judgment on the same grounds as those asserted before the new trial was granted."); Vo v. Doan, No. 14-14-00994-CV, 2016 WL 3574671, *8 (Tex. App.—Houston [14th Dist.] June 30, 2016, pet. denied) (mem. op.)

We will hold the parties' motion to reinstate the appeal until August 21, 2017, so that the trial court may sign a final judgment and appellant may file a notice of appeal from that judgment. The parties shall ensure that the district clerk files a supplemental clerk's record in this court containing the final judgment, notice of appeal, and any post-judgment motions or requests for findings of fact.

If the supplemental clerk's record is not filed by August 21, 2017, the court will take appropriate action, which may include denying the motion to reinstate the appeal.

PER CURIAM


Summaries of

Schmitt v. Schmitt

State of Texas in the Fourteenth Court of Appeals
Jun 20, 2017
NO. 14-17-00221-CV (Tex. App. Jun. 20, 2017)
Case details for

Schmitt v. Schmitt

Case Details

Full title:TOMMY LAYTON SCHMITT, Appellant v. PETRA ULRIKE SCHMITT, Appellee

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Jun 20, 2017

Citations

NO. 14-17-00221-CV (Tex. App. Jun. 20, 2017)