Affirmed and Memorandum Opinion filed June 30, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00075-CV

HOU-SCAPE, INC., Appellant 

V.

CONWAY HALL SPRINKLER COMPANY INCORPORATED, Appellee 

On Appeal from the County Civil Court at Law No. 2 

Harris County, Texas 

Trial Court Cause No. 1005789 

M E M O R A N D U M O P I N I O N 

Hou-Scape, Inc. appeals from a final judgment favoring Conway Hall 

Sprinkler Company Incorporated after a bench trial. In two issues, Hou-Scape 

contends that the trial court erred in granting Conway Hall’s motion for new trial 

after the first trial resulted in a judgment for Hou-Scape. We affirm. 

Discussion

When a motion for new trial is timely filed and the motion is granted during 
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the trial court’s plenary power, the order granting a new trial is generally not 

reviewable on appeal, either by direct appeal from the order or from a final 

judgment rendered after further proceedings in the trial court. Cummins v. Paisan 

Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984); Langham v. Geisendorff, No. 06-

11-00049-CV, 2011 WL 1901969, at *2 (Tex. App.—Texarkana May 20, 2011, no 

pet.); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 

S.W.3d 204, 209 (Tex. 2009) (discussing Cummins). Hou-Scape does not contend 

that Conway Hall’s motion was untimely or that the trial court granted the motion 

outside its plenary power; indeed, the record demonstrates the motion was timely 

filed and the trial court acted within its plenary power. Hou-Scape brought this 

direct appeal after judgment was entered at the conclusion of the second trial.

Only two exceptions to this general rule have been recognized: (1) when the 

trial court’s order is void and (2) when the trial court erroneously concluded that 

the jury’s answers to special issues were irreconcilably in conflict. See Wilkins v. 

Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); see also In re 

Columbia, 290 S.W.3d at 209 (discussing Wilkins); In re Wyatt Field Serv. Co., 

454 S.W.3d 145, 149-50 & n.1 (Tex. App.—Houston [14th Dist.] 2014, orig. 

proceeding) (same).1 In its two issues, Hou-Scape specifically argues that the trial 

court abused its discretion in granting a new trial because (1) the newly discovered 

evidence was known to Conway Hall prior to the first trial, and (2) the affidavit 

attached to the motion for new trial failed to show what diligence was used to 

discover the evidence in question. Hou-Scape does not argue that either of the two 

exceptions identified in Wilkins that would render the trial court’s order reviewable 

 

1

The Texas Supreme Court has authorized, in certain circumstances, more extensive 

merits-based review of orders granting new trials in mandamus proceedings. See In re Toyota 

Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758-59 (Tex. 2013). It has not, however, extended 

such review to direct appeals. See In re Columbia, 290 S.W.3d at 209-10 (holding no remedy 

was available on direct appeal where neither of the Wilkins exceptions was present).
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are applicable here. Because the trial court’s order granting a new trial was an 

unappealable order and Hou-Scape does not argue any exception to that general 

rule, we overrule its two issues. See, e.g., Wilkins, 160 S.W.3d at 563; Cummins, 

682 S.W.2d at 236; Brown v. Brown, No. 14-03-00978-CV, 2004 WL 1263949, at 

*1 (Tex. App.—Houston [14th Dist.] June 10, 2004, no pet.) (mem. op.). 

 We affirm the trial court’s judgment. 

 

 /s/ Martha Hill Jamison 

 Justice 

Panel consists of Justices Jamison, Busby, and Brown.