File: 060940F - From documents transmitted: 07/20/2007 AFFIRMED; Opinion Filed July 20, 2007.
In The
Court of Appeals
Fifth District of Texas at Dallas
............................ No. 05-06-00940-CV
............................ JEFFREY WEISS, Appellant
V.
JPMORGAN CHASE BANK, N.A., f/k/a MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Appellee
............................................................. On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-01429-G
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant
Jeffrey Weiss appeals the trial court's decision not to hear his motion
for new trial during the period after that motion was overruled by operation of law, but before
the trial court's plenary power expired. We affirm the trial court's judgment. Tex. R. App. P.
43.2(a). Because all dispositive issues are settled in law, we issue this memorandum opinion.
Tex. R. App. P. 47.2(a), 47.4.
Factual and Procedural Background
In August 2005, appellee JPMorgan Chase Bank, N.A. obtained a default
judgment in New York against Weiss on an unsecured promissory note. In January 2006,
JPMorgan domesticated the New York default judgment in the 134th District Court of Dallas
County. Weiss claims that he was never served with process in the New York action and first
learned of the domesticated default judgment on March 20, 2006, when he attempted to pay for
a business lunch and his JPMorgan debit card was rejected. One week later, on March 27,
2006, Weiss filed in the district court an expedited motion to vacate, motion for new trial, and
motion to extend postjudgment deadlines, all on the grounds of improper service of process. On
April 10, 2006, the trial court signed an agreed order under Texas Rule of Civil Procedure
306a(4), which designated March 20, 2006 as the date of Weiss's actual notice of JPMorgan's
default judgment and effectively fixed Weiss's postjudgment deadlines. As a result, Weiss's
motion for new trial was deemed filed on March 20, 2006. See Tex. R. Civ. P. 306a. And
under Texas Rule of Civil Procedure 329b(c), Weiss had seventy-five days, i.e., until June 3,
2006, to obtain a ruling on his motion for new trial or it would be overruled by operation of law.
According to the trial court docket in the record, Weiss did not request a
hearing on his motion for new trial
until June 20, 2006. The hearing was scheduled by the trial court for
June 26, 2006. On that date, and before the hearing began, counsel for
JPMorgan argued that under Texas Rule of Civil Procedure 329b(c), the
trial court lost plenary power on June 3, 2006, when the motion for new
trial was overruled by operation of law (i.e., seventy-five days after
March 20, 2006, the deemed date of Weiss's notice of the judgment). In
response, Weiss's counsel argued that under Texas Rule of Civil
Procedure 329b(e), the trial court had plenary power until July 3, 2006
(i.e., for an additional thirty days after the motion for new trial was
overruled by operation of law). The trial court agreed with counsel for
JPMorgan and announced that, because the motion for new trial was not
set for hearing within seventy-five days, the court did not have
jurisdiction to entertain it. The court did not issue a written order
on the motion for new trial.
Weiss raises two issues
in this appeal. In his first issue, Weiss argues that “the trial court
err[ed] in ruling that it lacked jurisdiction to consider Weiss's
motion to vacate and for new trial.” In his second issue, Weiss argues
that the trial judge “err[ed] in failing to grant his motion to vacate
the default judgment or for new trial.” Because our disposition of the
first issue is predicated upon our disposition of the second issue, we
address the second issue first.
Analysis
1. Overruling Weiss's Motion for New Trial
A motion contesting enforcement of a foreign judgment operates as a motion
for new trial. Karstetter v. Voss, 184 S.W.3d 396, 402 (Tex. App.-Dallas 2006, no pet.).
When it involves a question of fact, it is also a motion on which evidence must be heard. See
Fluty v. Simmons Co., 835 S.W.2d 664, 668 (Tex. App.-Dallas 1992, no writ) (motion for
new trial to set aside default judgment is complaint on which evidence must be heard). We will
not disturb a trial court's ruling on a motion for new trial unless the appellant shows the court
abused its discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Karstetter, 184
S.W.3d at 402. And when a motion for new trial requires the exercise of discretion, such as
where evidence must be heard, the trial court must first be given the opportunity to exercise its
discretion before the appellate court can review whether it abused that discretion. See Fluty,
835 S.W.2d at 667-68. To later complain on appeal that the trial court abused its discretion
when it did not grant a motion for new trial to set aside a default judgment, a party must either
present and obtain a hearing on the motion before it is overruled by operation of law or show it
used diligence in attempting to do so. See Fluty, 835 S.W.2d at 668; Capitol State Mortgage
Corp. v. Northstar Mortgage Corp., No. 05-04-01140-CV, 2006 WL 531278, *1 (Tex.
App.-Dallas March 6, 2006, no pet.) (mem. op.). If there is no hearing or diligence in
attempting to set a hearing before a motion for new trial is overruled by operation of law, the
trial court does not abuse its discretion by refusing to entertain the motion during the court's
remaining plenary power. See Fluty, 835 S.W.2d at 666; Capitol State Mortgage,2006 WL
531278, at *1.
Weiss cites three cases to support his claim that the trial court abused its
discretion: Hawkins v. Howard, 97 S.W.3d 676 (Tex. App.-Dallas 2003, no pet.); Herrera v.
Seton Northwest Hosp., 212 S.W.3d 452 (Tex. App.-Austin 2006, no pet.); and Pierce v.
Dutton, No. 2-02-356-CV, 2003 WL 21101521 (Tex. App.-Fort Worth May 15, 2003, no
pet.) (mem. op.). However, these cases do not state that a court abuses its discretion when it
does not conduct a hearing on a motion for new trial and the movant does not attempt to set a
hearing on its motion until after the motion is overruled by operation of law. In the first case, Hawkins, this Court did not discuss whether the movant
attempted to set his motion for new trial before it was overruled by operation of law. But the trial
court actually conducted a hearing after the motion was overruled by operation of law and
during the court's remaining plenary power under Texas Rule of Civil Procedure 329b(e).
Hawkins, 97 S.W.3d at 677-78. In that case, this Court held that because the trial court
conducted a hearing during its remaining plenary power, the trial court abused its discretion
because it did not hear evidence at that hearing. Id. In the second case, Herrera, the movant did
not request a hearing on his motion for new trial before it was overruled by operation of law.
Herrera, 212 S.W.3d at 462. Although the court in Herrera did not state whether the trial
court actually conducted a hearing, the court concluded that the trial court did not abuse its
discretion in allowing the motion to be overruled by operation of law. Herrera, 212 S.W.3d at
462-63. In the third case, Pierce, it is unclear whether the movant used diligence in attempting to
set a hearing before his motion for new trial was overruled by operation of law. But it is clear
that the trial court in Pierce agreed to conduct a hearing while it still had plenary power and
that, after the hearing, the trial court issued a written order denying the motion. Pierce,2003
WL 21101521, at *9. Based on the uncontroverted evidence the movant presented during the
hearing in Pierce, the court concluded that the trial court abused its discretion by denying the
motion for new trial. Id. In short, although these cases recognize that courts are allowed to
conduct a hearing on a motion for new trial during their remaining plenary power under Texas
Rule of Civil Procedure 329b(e) (i.e., within thirty days after a motion for new trial is overruled
by operation of law), they do not state that a court abuses its discretion when it does not
conduct a hearing on a motion for new trial and the movant does not attempt to set the hearing
until after the motion is overruled by operation of law.
In this case, Weiss did not request a hearing on his motion for new trial until
over two weeks after it was overruled by operation of law. Weiss also has not argued or shown
that he used diligence in attempting to obtain a ruling on that motion before it was overruled by
operation of law. And, unlike the courts in Hawkins and Pierce, the trial court in this case did
not conduct a hearing on the motion for new trial during its remaining plenary power. Under
these circumstances, we cannot conclude the trial court abused its discretion. See Fluty, 835
S.W.2d at 666; Capitol State Mortgage,2006 WL 531278 , at *1 . As a result, and without
addressing the merits of Weiss's motion for new trial, we overrule Weiss's second issue.
2. The Trial Court's Statements at the Hearing on the Motion for New Trial
In
his first issue, Weiss complains that the trial court erred in stating
that it did not have jurisdiction to entertain the motion for new trial. We acknowledge that under Texas
Rule of Civil Procedure 329b(e), the trial court maintained plenary jurisdiction for thirty days
after the motion for new trial was overruled by operation of law. Tex. R. Civ. P. 329b(e) (“If a
motion for new trial is timely filed by any party, the trial court . . . 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.”); Capitol State Mortgage,2006 WL 531278, at * 1 (acknowledging
trial court retained plenary jurisdiction and had inherent authority to grant new trial for thirty days
after motion for new trial was overruled by operation of law) . Nevertheless, we affirm the
judgment of the trial court for two reasons.
First,
although the trial court was mistaken when it stated at the hearing
that it did not have jurisdiction to entertain the motion for new trial, we cannot consider those
comments on appeal because they were not included in a written order from the trial court. Cf.Larry F. Smith, Inc. v. Weber Co., 110 S.W.3d 611, 615 (Tex. App.-Dallas 2003, pet.
denied) (oral statements made by trial court after bench trial were not “properly filed written
findings of fact and conclusions of law” and did not limit grounds upon which judgment could be
upheld); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 423 (Tex. App.-Texarkana
2002, no pet.) (appellate court could not consider trial court's grounds for granting summary
judgment stated in letter to parties because “we must look only to the order granting summary
judgment, in which the trial court did not provide the reasons for its ruling.”). Second, we alsoaffirm because, as discussed above, the appellant did not establish that the trial court abused its
discretion. See Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App.-Dallas 1992,
orig. proceeding) (“When a trial court gives an incorrect legal reason for its decision, we will
nevertheless uphold the order on any other grounds supported by the record. . . . A trial court
cannot abuse its discretion if it reaches the right result, even for the wrong reasons.”); In re
Erickson, 208 S.W.3d 737, 744-45 (Tex. App.-Texarkana 2006, no pet.) (same).
In
summary, the trial court acted within its discretion because Weiss did
not set his motion for new trial for hearing before the motion was overruled by operation of law, and did
not demonstrate diligence in attempting to do so .See Fluty, 835 S.W.2d at 668; Capitol State
Mortgage,2006 WL 531278, at * 1.
Conclusion
For the foregoing reasons, we affirm the trial court's judgment.