Full Opinion (html_with_citations)

                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS


    DANIEL RAWLS,                                             §                  No. 08-21-00197-CV

                                      Appellant,              §                     Appeal from the

    v.                                                        §                   109th District Court

    LA FOGATA MEXICAN GRILL,                                  §               of Andrews County, Texas
    LOURDES GALINDO, AND
    JOHN/JANE DOE,                                            §                       (TC# 22,263)

                                      Appellees.              §



                                                   OPINION

         Appellant, Daniel Rawls, appeals from the trial court’s order setting aside a default

judgment against Appellant Lourdes Galindo 1 and granting a new trial. Rawls raises two issues

on appeal: the trial court did not have jurisdiction to grant the motion for new trial because it was

not timely filed, and the trial court abused its discretion in granting the new trial because




1
  Rawls sued Galindo, La Fogata, and John/Jane Doe, but his motion for default judgment sought judgment against
only Galindo and La Fogata, and his nonmilitary declaration stated he sought default against only Galindo and/or La
Fogata. Nonetheless, the default judgment granted judgment against all three defendants. The order setting aside the
default judgment notes the motion to set aside default judgment was filed by Galindo and it states “Defendant” is
entitled to a new trial. Neither party raises any issues regarding defect of parties. We assume the parties and the trial
court are treating Galindo in her individual and representative capacity and default judgment has been set aside as to
both Galindo and La Fogata.
Appellants failed to meet the Craddock factors. Because we conclude the trial court had

jurisdiction when it granted the new trial, we affirm.

                 I.      FACTUAL AND PROCEDURAL BACKGROUND

       Rawls filed suit against La Fogata Mexican Grill (La Fogata), Lourdes Galindo, and

John/Jane Doe for negligently “over-serving” him alcohol in the restaurant, La Fogata, owned by

Galindo. After proper alternate service on Galindo, and no answer was filed, Rawls moved for

default judgment against Galindo and La Fogata.

       The motion for default judgment was set for submission on July 27, 2021. Notices of

hearing were mailed to La Fogata and Galindo at the business address. USPS domestic return

receipts (green cards) indicate the notices were received by someone with the initials “LG” on July

9. On July 27, the trial court signed a default judgment in favor of Rawls against La Fogata,

Galindo, and John Doe, jointly and severally, in the amount of $5,000,000.

       The parties acknowledge Galindo filed a motion to set aside default judgment and for new

trial on August 26, within thirty days of the default judgment. That same day, Rawls filed a

response to Galindo’s motion. Rawls’ response argued Galindo’s motion failed to satisfy the

Craddock factors required by a defendant attempting to set aside a default judgment. Rawls’

response also states neither the motion nor the affidavit mention what meritorious defense or

defenses she would raise against any of the causes of action raised in the petition. On August 27,

the court issued an order setting the motion for new trial on October 25, 2021. Also on August 27,

at 7:34 am, the district clerk rejected Galindo’s motion stating:

       We do not file attachments. Please separate the Motion and the Order and resubmit
       making both documents lead documents in the same envelope. If you use the same
       envelope as before the documents will have the original file date when we accept
       them. Thank you. Sherry Dushane, District Clerk 432-524-1417[.]




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        The parties acknowledge Galindo again attempted to file a motion for new trial on August

27, and it was also rejected. Finally, on August 30, Galindo’s motion to set aside the default

judgment and for new trial was file-stamped. Accompanying the motion were two affidavits.

Galindo’s affidavit was notarized August 26, and the second affidavit was notarized August 27.

        At the hearing on the motion to set aside the default and for new trial on October 25,

counsel for the parties discussed the timeliness of the motion for new trial. Rawls’ attorney noted

that the file-stamped motion for new trial indicates it was filed on August 30, more than thirty days

after the court signed the default judgment. Galindo’s attorney stated he had a notice identifying it

was filed on August 26. Upon questioning by the court, Rawls’ attorney acknowledged receiving

the motion for new trial on August 26 and filing a response to it that same day. Rawls’ attorney

argued the August 26 motion was rejected and stated a “substantially different” motion for new

trial was filed on August 27, which was also rejected. Rawls’ attorney stated the August 30 motion

that was accepted was filed outside the “applicable window.” Galindo’s attorney responded that

he responded to the clerk’s instruction by separating the order and filed into the same e-filing from

August 26, “which was confirmed by the court’s staff.”

        The trial court ruled the motion was timely filed and, after hearing arguments of counsel,

the trial court signed an order granting the motion on October 28. Rawls appeals from the granting

of a new trial.

                  II.   STANDARD OF REVIEW AND APPLICABLE LAW

        We review a challenge to the trial court’s subject matter jurisdiction de novo. Tex. Dept. of

Parks & Wildlife v. Miranda,
133 S.W.3d 217, 228
 (Tex. 2004). A trial court loses subject matter

jurisdiction thirty days after a judgment is signed if no party to the judgment files a motion



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extending the trial court’s plenary power. Smalley v. Smalley,
436 S.W.3d 801, 806
 (Tex.

App.— Houston [14th Dist.] 2014, no pet.).

         A motion for new trial must be filed withing thirty days after the judgment complained of

is signed. TEX. R. CIV. P. 329b(a). A trial court has plenary power to grant a new trial until thirty

days after a timely-filed motion for new trial is overruled, either by order or by operation of law,

whichever occurs first.
Id.
 329b(e). If the court does not rule on a motion for new trial within

seventy-five days after the judgment was signed, it is considered overruled by operation of law.
Id.
 329b(c). A timely-filed motion for new trial extends the court’s plenary jurisdiction until the

expiration of 105 days after a judgment is signed or the motion is ruled upon, whichever occurs

first. See
id.
 329b(c), (e); see also L.M. Healthcare, Inc. v. Childs,
929 S.W.2d 442, 444

(Tex. 1996); Maddox v. Tex. Dept. of Protective and Regulatory Servs.,
45 S.W.3d 210, 214
 (Tex.

App.—El Paso 2001, no pet.).

         A document is considered timely filed if it is electronically filed at any time before

midnight on the filing deadline. TEX. R. CIV. P. 21(f)(5). “The clerk may not refuse to file a

document that fails to conform with this rule. But the clerk may identify the error to be corrected

and state a deadline for the party to resubmit the document in a conforming format.” Id. 21(f)(11).

                                            DISCUSSION

         Before we address whether the trial court abused its discretion in granting a new trial after

the default judgment, we must first address whether the trial court had jurisdiction to grant the new

trial.

         A. Jurisdiction to grant motion for new trial

         Rawls argues the trial court did not have jurisdiction to grant Appellees’ motion for new

trial, that is, that the trial court acted outside its period of plenary jurisdiction. If the trial court



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granted the motion for new trial outside its plenary jurisdiction, the order for new trial would be

void. See Hemenway v. Hemenway, No. 14-19-00978-CV,
2021 WL 4472685
, at *2 (Tex.

App.— Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op.).

       It is undisputed Galindo filed a motion for new trial on August 26, within the thirty days

allowed by Rule 329b(a), and within the trial court’s initial thirty days of plenary power after the

default judgment was signed on July 27. See TEX. R. CIV. P. 329b(a), (d). The filing of this motion

for new trial extended the court’s plenary jurisdiction until thirty days after the motion was

overruled, either by order or by operation of law. TEX. R. CIV. P. 328b(e). The August 26 motion

was rejected by the clerk with the instruction to refile making both the motion and the proposed

order lead documents. Although the clerk may not refuse to file a document, the clerk may identify

errors in the filing to be corrected and state a deadline for the party to make the corrections and

resubmit the document. TEX. R. CIV. P. 21(f)(11).

       It is also undisputed Galindo refiled a motion for new trial on August 27 and again on

August 30, when the motion was finally file-marked. As this court has previously held, the

resubmission of an otherwise timely filed document through the electronic filing system in

accordance with the clerk’s instructions does not render the filing of the document untimely.

Nevarez Law Firm, P.C. v. Investor Land Servs., L.L.C.,
610 S.W.3d 567
, 570 (Tex. App.—El

Paso 2020, no pet.). If the document is refiled in accordance with the clerk’s instructions and by

the deadline set by the clerk, the effective date is deemed as the first date the document was

transmitted to the electronic filing service unless that date was a Saturday, Sunday, or legal holiday,

in which case the document is deemed filed on the next day that is not a Saturday, Sunday, or legal

holiday.
Id.
 (citing TEX. R. CIV. P. 21(f)(5)). The original transmission date is the effective date




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regardless of the clerk’s file stamp. See In re Barr, No. 05-19-00511-CV,
2019 WL 2082468
, at

*2 (Tex. App.—Dallas May 13, 2019, no pet.) (mem. op.).

       Here, there is nothing in the record to indicate the clerk gave a deadline to file the corrected

motion. The record does indicate, however, Galindo followed the clerk’s instructions and refiled

the motion. Therefore, we hold the original transmission date of August 26 is the effective date of

the filing. The August 26 motion was not ruled on by the court within seventy-five days and was

overruled by operation of law on October 11. See TEX. R. CIV. P. 329b(c). Nonetheless, the court

was within its additional thirty days of plenary jurisdiction when it granted new trial on October

28. See TEX. R. CIV. P. 329b(e). Accordingly, we overrule Rawls’ first issue.

       B. Discretion in setting aside default judgment and granting motion for new trial

       Rawls argues in his second issue the trial court abused its discretion in granting the new

trial because Galindo failed to meet the requirements of Craddock stating, “default judgments,

though disfavored, must be upheld where the defendant cannot meet all three Craddock factors.”

See Craddock v. Sunshine Bus Lines Inc.,
133 S.W.2d 124, 125-26
 (Tex. 1939) (establishing three

factors to guide a trial court in determining whether to set aside a default judgment and grant new

trial). Rawls’ argument, however, is misplaced when reviewing the granting of a new trial after a

default judgment. An order granting a motion for new trial rendered within the period of the trial

court’s plenary power is generally not reviewable on appeal. Wilkins v. Methodist Health Care

System,
160 S.W.3d 559, 563
 (Tex. 2005); In re R.G.A.C.L.G., No. 05-20-00457-CV,
2022 WL 123104
, at *2 (Tex. App.—Dallas Jan. 13, 2022, no pet.) (mem. op.); Poff v. Guzman,
532 S.W.3d 867, 868
 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Shrewsbury v. Por, No. 08-13-00364-




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CV,
2015 WL 3898801
, at *1 (Tex. App.—El Paso June 24, 2015, no pet.) (mem. op.). 2 This rule

has been applied by the Texas Supreme Court and many of our sister courts in the context of

reviewing a motion for new trial granted after setting aside a default judgment. See Cummins v.

Paisan Constr. Co.,
682 S.W.2d 235
-36 (Tex. 1984) (per curiam); In re R.G.A.C.L.G.,
2022 WL 123104
 at *2; Poff,
532 S.W.3d at 868
; Ochoa v. Ochoa, No. 11-15-00103-CV,
2017 WL 1957708
,

*1 (Tex. App.—Eastland May 11, 2017, pet. denied) (mem. op.); White v. Clean Slate Serv., Inc.,

No. 03-14-00372-CV,
2015 WL 739607
, at *1 (Tex. App.—Austin Feb. 20, 2015, no pet.)

(mem. op.).

         Because we have determined the trial court had jurisdiction when it granted Galindo’s

motion to set aside the default judgment and granting the new trial, we conclude its decision to do

so is not reviewable. See Wilkins,
160 S.W.3d at 563
; Cummins,
682 S.W.2d at 236
.

                                            III.      CONCLUSION

         Having determined that the trial court granted Appellees’ motion for new trial within the

period of its plenary jurisdiction and its decision is not reviewable, we affirm.


                                                       SANDEE B. MARION, Chief Justice (Ret.)

December 22, 2022

Before Rodriguez, C.J., Alley, J., and Marion, C.J. (Ret.)
Marion, C.J. (Ret.) (Sitting by Assignment)




2
  The Texas Supreme Court has recognized two exceptions to the general rule that motions for new trial are not
appealable: “(1) when the trial court’s order is wholly void; and (2) when the trial court erroneously concluded that
the jury’s answers to special issues were irreconcilably in conflict.” In re R.G.A.C.L.G.,
2022 WL 123104
, at *2 (citing
Wilkins,
160 S.W.3d at 563
. Neither of these exceptions apply here. We recognize the Texas Supreme Court has
further limited a trial court’s discretion to grant a new trial when setting aside a jury verdict in In re Columbia Med.
Ctr. of Las Colinas,
290 S.W.3d 204, 213
 (Tex. 2009).


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