Trevino v. Trevino, 01-25-00807-CV, March 19, 2026.
On appeal from the County Court at Law No. 1 Galveston County, Texas.
Synopsis
The First Court of Appeals held that it lacks subject-matter jurisdiction over an appeal once a trial court timely exercises its plenary power to grant a motion for new trial. Because the grant of a new trial vacates the underlying judgment, there is no final, appealable order to support the court's jurisdiction, necessitating a dismissal of the appeal rather than a mere abatement.
Relevance to Family Law
In Texas family law litigation, the post-judgment period is often a flurry of simultaneous activity where parties may perfect an appeal while concurrently seeking a motion for new trial to address issues of property division or conservatorship. This case serves as a critical reminder that the trial court’s plenary power under Tex. R. Civ. P. 329b remains potent even after the appellate record has begun to vest. For the practitioner, a successful motion for new trial is a total "reset" button; it does not merely pause the appeal but terminates it entirely. This requires family law litigators to be prepared for a jurisdictional dismissal and a return to the trial court docket, regardless of the resources already expended on appellate briefing.
Case Summary
Fact Summary
The Appellant, Mark Anthony Trevino, initiated an appeal following a judgment rendered in a family law proceeding in Galveston County. While the appeal was pending before the First Court of Appeals, the trial court exercised its plenary power to grant a motion for new trial. Recognizing that the trial court’s action fundamentally altered the status of the judgment, the parties jointly moved the appellate court to abate the appeal pending the outcome of the new trial. However, the appellate court raised the issue of its own jurisdiction, questioning whether an appeal can remain live when the judgment it seeks to challenge has been legally vacated by the trial court.
Issues Decided
- Does an appellate court retain jurisdiction over an appeal when the trial court timely grants a motion for new trial?
- Is abatement an appropriate remedy when the underlying judgment of an appeal has been set aside by the trial court?
Rules Applied
- Tex. R. Civ. P. 329b(e): Provides the trial court with the authority to grant a new trial within its period of plenary power.
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001): Establishes the general rule that appellate jurisdiction is limited to the review of final judgments.
- Markowitz v. Markowitz, 118 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2003): Clarifies that the granting of a motion for new trial sets aside the original judgment, allowing parties to proceed as if no previous proceedings occurred.
Application
The court’s analysis focused on the structural necessity of a final judgment to support appellate jurisdiction. When the trial court granted the motion for new trial pursuant to Rule 329b(e), it effectively extinguished the finality of the original decree. The court reasoned that because the grant of a new trial "sets aside" the original judgment, there was no longer a "final judgment" for the court to review under the Lehmann standard. The parties' request for an abatement—a procedural move often used to cure minor jurisdictional defects or await related trial court rulings—was insufficient in this context. The court determined that because the judgment was not merely suspended but entirely vacated, the appellate court was divested of jurisdiction. Consequently, the court found that the only appropriate action was to dismiss the appeal in its entirety, as the parties were returned to their original positions prior to the entry of the now-vacated judgment.
Holding
The court held that it lacked jurisdiction over the appeal because the trial court’s timely order granting a new trial vacated the finality of the underlying judgment. Without a final judgment, the appellate court has no power to hear the merits of the case or to hold the case in abatement. The court further held that all pending motions in the appellate cause must be dismissed as moot, as the termination of the appeal’s jurisdictional basis renders all ancillary requests for relief irrelevant.
Practical Application
- Abatement vs. Dismissal: Practitioners should be aware that while courts often abate appeals for the clarification of orders (Rule 27.2), they will generally dismiss for lack of jurisdiction when a motion for new trial is granted, as the "controversy" in the appellate court no longer involves a final order.
- Strategic Reset: If you are representing the appellee and believe the trial court made a reversible error, securing a motion for new trial is a more efficient and cost-effective remedy than defending an appeal, even if it leads to a dismissal of the current appellate cause.
- Cost Management: Clients should be advised that filing a notice of appeal while a motion for new trial is pending carries the risk of the appeal being dismissed (and filing fees potentially lost) if the trial court grants the motion for new trial.
Checklists
Post-Judgment Jurisdictional Audit
- Confirm the exact date the judgment was signed to calculate the 30-day and 75-day plenary power windows.
- If a motion for new trial is granted, verify that the order was signed while the trial court still retained plenary power under Rule 329b.
- Immediately notify the Clerk of the Court of Appeals upon the signing of an order granting a new trial to avoid unnecessary briefing costs.
Navigating Dismissal After a New Trial Grant
- Review the order granting the new trial for any specific limitations; if the order is general, prepare for a trial de novo on all issues.
- Ensure that any bond or cash deposit in lieu of bond filed for the appeal is properly addressed for refund or application to the continued trial court proceedings.
- Calendar the new trial dates, as the appellate dismissal returns the case to the trial court's active docket as if the first trial had not occurred.
Citation
Mark Anthony Trevino v. Candice Spivey Trevino, No. 01-25-00807-CV (Tex. App.—Houston [1st Dist.] Mar. 19, 2026, no pet. h.) (mem. op.).
Full Opinion
Link to Full Opinion ~~eaa2f3b4-27cd-4cb5-ab80-23eeb4905afa~~
