Summary
noting appellate court must determine whether the trial court abused its discretion in allowing motion for new trial to be overruled by operation of law
Summary of this case from In re A.E.Opinion
No. 04-15-00691-CV
05-04-2016
Armando HERNANDEZ and Nancy Hernandez, Appellants v. Mario SALDIVAR, Fernando Saldivar, Jorge Calderon, and Jorge Saldivar, Appellees
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-17077
Honorable Barbara Hanson Nellermoe, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
This is an appeal from a summary judgment rendered against appellants, Armando Hernandez and Nancy Hernandez. In a single issue on appeal, the Hernandezes assert the trial court abused its discretion when it denied the motion for new trial filed by Nancy during the time she was proceeding pro se. We affirm.
The trial court did not rule on the new trial motion. Instead, the motion was overruled by operation of law.
PROCEDURAL BACKGROUND
The Hernandezes sued appellees, Mario Saldivar, Fernando Saldivar, Jorge Calderon, and Jorge Saldivar on various claims. Mario Saldivar and Fernando Saldivar (hereinafter, "the Saldivars") filed counter-claims. The Hernandezes nonsuited all of their claims against all pending parties, and the case proceeded on the Saldivars' counterclaims.
On May 14, 2015, counsel for the Hernandezes moved to withdraw and the motion was granted on June 11, 2015. On July 6, 2015, the Saldivars filed a motion for summary judgment on their counterclaims, which they supplemented on July 7, 2015. The trial court conducted a telephonic hearing on the motion for summary judgment, and the court signed the summary judgment in favor of the Saldivars on August 5, 2015.
On August 28, 2015, Nancy Hernandez filed a pro se motion for new trial. The only evidence attached to the motion was Nancy's affidavit in which she stated: "The Movant made a mistake in not knowing how to properly file the document in response to the Saldivar's [sic] lawyer's summary judgment motion. Movant does not have an attorney to help in this civil case." The motion was never set for hearing, and was overruled by operation of law on or about October 19, 2015. On November 3, 2015, the Hernandezes filed a joint supplemental motion for new trial. The Hernandezes timely filed a notice of appeal, and they are represented on appeal by counsel.
By the time the supplemental motion was filed, the Hernandezes had retained counsel. Counsel filed a notice of appearance on November 3, 2015.
STANDARD OF REVIEW
On appeal, the Hernandezes do not assert the trial court erred in rendering summary judgment against them. Instead, their only complaint on appeal is that the trial court erred in denying the motion for new trial. When—as here—a motion for new trial is overruled by operation of law, we must determine whether the trial court abused its discretion in allowing the motion to be overruled. Awoniyi v. McWilliams, 261 S.W.3d 162, 165 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Limestone Const., Inc. v. Summitt Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App.—Austin 2004, no pet.). An abuse of discretion by the trial court occurs when the trial court fails to correctly analyze or apply the law. Limestone, 143 S.W.3d at 542. Under an abuse of discretion standard, we must determine whether the trial court acted arbitrarily or without any reference to guiding legal principles. Id.
ANALYSIS
The premise of the Hernandezes' argument on appeal is that a trial court abuses its discretion by denying a motion for new trial filed by pro se litigants who demonstrated good cause, no undue prejudice to the summary judgment movant, and a meritorious defense. The Hernandezes assert this appeal is controlled by Nguyen v. Kuljis, 414 S.W.3d 236 (Tex. App.—Houston [1st Dist.] 2013, no pet.), which the Hernandezes interpret as holding that a pro se litigant who has failed to respond to a motion for summary judgment is entitled to a new trial (1) if the pro se litigant demonstrates good cause and no undue prejudice to the summary judgment movant, but (2) the pro se litigant need not establish a meritorious defense.
The Saldivars counter that this appeal is controlled by Pascual Madrigal P.L.L.C. v. Commercial IT Solutions Inc., No. 04-13-00742-CV, 2014 WL 4230174 (Tex. App.—San Antonio Aug. 27, 2014, no pet.), in which a panel of this court held the nonmovant in a summary judgment proceeding "must: (1) establish the failure to file a summary judgment response was neither intentional nor the result of conscious indifference, but rather a mistake or accident; (2) produce summary judgment evidence sufficient to raise a genuine issue of material fact; and (3) prove the granting of the motion for new trial will cause no delay or otherwise work an injury to the summary judgment movant." Id. at *4. We note that Pascual Madrigal did not involve a pro se litigant.
In this case, we need not decide which standard to apply because both opinions require that the nonmovant show no prejudice to the movant. As stated above, the only evidence attached to the new trial motion was Nancy Hernandez's affidavit in which she stated a mistake was made in not knowing how to properly file the summary judgment response and the Hernandezes did not have an attorney "to help in the civil case." Her affidavit made no mention of harm or prejudice to the Saldivars. The only reference to harm or prejudice to the Saldivars are the following two conclusory statements contained in the motion itself:
10. Granting the new trial will not prejudice the other parties to this cause.
11. Movant is ready, able and willing to go to trial immediately and no delay, harm or prejudice will occur to the other parties as a result of Movant's [new trial] motion.
In a supplemental motion for new trial filed by both Hernandezes, the Hernandezes added that they were "willing to reimburse [the Saldivars] for reasonable expenses incurred in having the summary judgment granted." However, the Hernandezes cannot rely on contentions contained in the supplemental new trial motion because it was filed after the first motion had been overruled by operation of law seventy-five days after the summary judgment was rendered. See In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (holding Texas Rule of Civil Procedure 329b(b) "provides that an amended motion may be filed without leave of court when: (1) no preceding motion for new trial has been overruled and (2) it is filed within thirty days of judgment. . . . 'And' is conjunctive: an amended new-trial motion is timely filed only before the court overrules a prior one."). Because the supplemental motion for new trial was untimely, the trial court would not have abused its discretion by ignoring it. Thus, the trial court had before it only the two conclusory statements regarding harm or prejudice contained in Nancy's motion.
"When applying the Craddock test, the trial court looks to the knowledge and acts of the defendant as contained in the record before the court." Holt Atheron Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). A motion for new trial that is based on the Craddock elements must contain affidavits or other competent evidence to support factual assertions that are outside the record. Id. at 82-83 (concluding that trial court did not abuse discretion in denying motion for new trial because no factual support for "conclusory allegations" of mistake or accident to support first element of Craddock); Henderson v. Henderson, No. 03-10-00531-CV, 2011 WL 2768549, at *4 (Tex. App.—Austin July 13, 2011, no pet.) (mem. op.) (concluding trial court would not have abused discretion by allowing motion for new trial to be overruled by operation of law because "absence of supporting evidence [to establish lack of notice] is fatal").
In this case, the contentions regarding harm, delay, and prejudice were conclusory statements made in the motion for new trial. "Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes." Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) ("Generally, pleadings are not competent evidence, even if sworn or verified."); San Miguel v. City of Windcrest, 40 S.W.3d 104, 111 (Tex. App.—San Antonio 2000, no pet.) ("The only mention of Windcrest's "bad faith" is in the San Miguels' pleadings. Pleadings, however, are not evidence. . . . Because we find the San Miguels offered no evidence of Windcrest's alleged inequitable behavior, we cannot find the trial court abused its discretion in granting Windcrest's request for injunctive relief."). Therefore, the trial court had no evidence before it that the Saldivars would not be harmed or prejudiced if the motion for new trial was granted.
On January 13, 2016, the Saldivars filed with the trial court an affidavit of their attorney attached to which were various emails between the trial court, counsel, and the parties. This evidence was not before the trial court during the time the new trial motion was pending, see Holt Atherton Indus., 835 S.W.2d at 82; therefore, we do not consider this evidence on appeal. --------
Also, even if the trial court considered the contentions made in the motion, at the time the new trial motion was filed the Hernandezes were not represented by counsel of record, and neither the motion nor any attached affidavit mentioned any attempt by the Hernandezes to retain new counsel. Thus, the trial court could have concluded Nancy's bare assertion that she was "ready, able and willing to go to trial immediately" had no basis in fact. The trial court also had before it the Saldivars' summary judgment evidence, which included evidence that the Hernandezes, on advice of counsel, repeatedly invoked their Fifth Amendment privilege during a week-long hearing on an application for temporary injunction and appointment of a receiver. This evidence may reasonably have led the trial court to conclude the Hernandezes—continuing to act pro se—were not "ready, able and willing to go to trial immediately."
CONCLUSION
In this case and on this record, we cannot conclude the trial court acted arbitrarily or without any reference to guiding legal principles. Therefore, we cannot conclude the trial court abused its discretion by allowing the motion for new trial to be overruled by operation of law. Accordingly, we overrule the Hernandezes' issue on appeal and affirm the trial court's judgment.
Jason Pulliam, Justice