Stelly v. Citibank (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges)
(appeal in credit card debt suit mooted when trial court signed order granting motion for new trial during
court's period of plenary power after entry of judgment)(finality of order appealed from)
DISMISSED: Opinion by Chief Justice Adele Hedges
14-07-00601-CV Diane T. Stelly v. Citibank (South Dakota) N.A.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
Attorney for Appellant: George R. Neely
Attorney for Appellee Citibank: Allen Lee Adkins
Trial Court Cause No. 871,770
M E M O R A N D U M O P I N I O N
On appeal, appellant Diane T. Stelly contends that the trial court erred in granting summary judgment
in favor of appellee Citibank (South Dakota) N.A. on a credit card account debt Stelly allegedly
owed. Stelly also contends the trial court abused its discretion in denying her motion for new trial.
However, because the trial court subsequently granted Stelly's motion for new trial during the period
of its plenary power, we dismiss this appeal as moot and for lack of jurisdiction.
On May 4, 2007, the trial court signed a final summary judgment awarding actual damages,
attorney's fees, post-judgment interest, and costs to Citibank. Stelly timely filed a motion for new
trial, and on July 17, 2007, the trial court held a hearing on the motion. At the conclusion of the
hearing, the trial court orally announced that it was denying Stelly's motion. Stelly immediately filed a
notice of appeal. However, the next day, July 18, the trial court entered a written order granting
Stelly's motion for new trial.
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001). When a motion for new trial is granted, the case is reinstated upon the
docket of the trial court and will stand for trial the same as though no trial had been had. Wilkins v.
Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, when the trial court grants a
motion for new trial, the trial court "essentially wipes the slate clean and starts over." Id. Here, the
trial court granted Stelly's motion for new trial within the period of its plenary power. See Tex. R. Civ.
P. 329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). Therefore, the issues
presented in this appeal are rendered moot and this Court lacks appellate jurisdiction. Accordingly,
we order the appeal dismissed.
/s/ Adele Hedges
Judgment rendered and Memorandum Opinion filed May 15, 2008.
Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice J. Harvey Hudson.*
*Senior Justice Hudson sitting by assignment.