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Moritz v. Preiss6/12/2003
. Davis, 553 S.W.2d 624, 626 (Tex. 1977). But, the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power. Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex. 1983).
To summarize the purpose of an untimely motion or amended motion for new trial:
If the trial court ignores the tardy motion, it is ineffectual for any purpose. The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion.
Kalteyer, 837 S.W.2d at 851 (citing 4 McDonald, Texas Civil Practice in District and County Courts ยง18.06.02 (Frank W. Elliott ed., rev. ed. 1984)).
Here, Preiss filed the amended motion for new trial thirty-five days after the trial court signed the original judgment. We have concluded that this judgment was final for purposes of appeal. Accordingly, Preiss's amended motion for new trial was untimely. See Tex. R. Civ. P. 329b(b). The untimely motion's only purpose was to guide the trial court in the exercise of its inherent authority, and it is a nullity for purposes of preserving issues for appellate review. See Kalteyer, 837 S.W.2d at 851. The court of appeals, therefore, erred in reviewing Preiss's contention that the trial court abused its discretion in denying the amended motion for new trial and reversing the trial court's judgment based on the juror disqualification issue raised for the first time in that motion.
We acknowledge that in Jackson, decided under the prior version of Rule 329b, we allowed appellate review of issues raised in an untimely motion and amended motion for new trial after the trial court considered the merits of the untimely motions and denied the motions before its plenary power expired. Jackson, 660 S.W.2d at 808. However, to give full effect to our procedural rules that limit the time to file new trial motions, today we hold that an untimely amended motion for new trial does not preserve issues for appellate review, even if the trial court considers and denies the untimely motion within its plenary power period. We overrule Jackson only to the extent that it allows appellate review of a trial court's decision to deny an untimely new trial motion.
III. CONCLUSION
In sum, because the trial court's original judgment followed a trial on the merits and was not intrinsically interlocutory in character, it is presumed final. Consequently, Preiss's amended motion for new trial filed more than thirty days after the trial court signed the judgment is untimely, and the court of appeals should not have considered whether the trial court abused its discretion in denying it. Accordingly, without hearing oral argument, we reverse the court of appeals' judgment and render judgment that Preiss take nothing. See Tex. R. App. P. 59.1, 60.2(c).
Michael H. Schneider Justice
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