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In re Spinks

Court of Appeals of Texas, Fourth District, San Antonio

January 8, 2020

IN RE David Wayne SPINKS

          Original Mandamus Proceeding [1]

          Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Liza A. Rodriguez, Justice

         Relator, David Wayne Spinks, contends the trial court signed an order granting Rebecca Sue Detimore a new trial outside the trial court's plenary jurisdiction. Therefore, Spinks asserts the new trial order is void. We conditionally grant the petition for writ of mandamus.

         BACKGROUND

         Only the following dates on which certain events occurred in 2019 are relevant here; the facts of the underlying suit for divorce are not relevant:

• March 14: The trial court signed a default final decree of divorce.
• April 11: Detimore filed a motion to set aside the default judgment and for new trial.
• April 17: Spinks filed a motion to amend return of service because the original return of service was not verified in front of a notary public.
• June 20: The trial court conducted a hearing on Detimore's new trial motion and Spinks's motion to amend, at the end of which the trial court verbally granted both motions.
• June 20: The trial court signed a written order granting Spinks's motion to amend return of service.
• July 10: The trial court signed a written "Order Granting Motion for New Trial" (the "new trial order").
• July 11: Spinks filed a motion to vacate and set aside the new trial order asserting the order was signed outside the trial ...

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