law-MNT | plenary power | newly discovered evidence as basis for motion for new trial |

Motion for New Trial

STANDARD OF REVIEW

The decision whether to grant a new trial because of newly-discovered evidence is within the trial court's
sound discretion, and will not be disturbed absent an abuse of that discretion.  First Heights Bank, FSB v.
Marom, 934 S.W.2d 843, 846 n.2 (Tex. App.- Houston [14th Dist.] 1996, no writ).  A trial court abuses its
discretion if it acts without reference to guiding rules and principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241B42 (Tex. 1985).  In reviewing the trial court's ruling for an abuse of discretion, we
indulge every reasonable presumption in favor of the refusal to grant a new trial.  Patriacca v. Frost, 98 S.W.
3d 303, 307 (Tex. App.- Houston [1st Dist.] 2003, no pet.).

To be entitled to a new trial for newly-discovered evidence, Wife must demonstrate that the new evidence is
not merely cumulative of other evidence introduced at trial.  See Rankin, 831 S.W.3d at 467.  “Cumulative"
evidence, simply, is additional evidence to the same point, that is, evidence that merely repeats the
substance and effect of other evidence.  Etter v. State, 629 S.W.2d 839, 842 (Tex. App.- Houston [14th Dist.]
1982) (Murphy, J., dissenting), aff'd, 679 S.W.2d 511 (Tex. Crim. App. 1984); Vick v. Schaff, 260 S.W. 916,
921 (Tex. Civ. App.- Waco 1924, writ dism'd w.o.j.).
Sheshtawy v. Sheshtawy, (Tex.App.- Houston [14th Dist.] Nov. 18, 2008)(Hudson) (divorce, property, motion
for new trial based on claim of new evidence fails, diligence, cumulative evidence)
AFFIRMED: Opinion by Justice Hudson  
(Before Chief Justice Hedges, Justices Hudson and Brown)
14-07-00227-CV        Amal Sheshtawy v. Adel Sheshtawy, Drill Bit Industries, Inc. and Tri-Max Industries, Inc.--
Appeal from 309th District Court of Harris County
Trial Court Judge: Judge Frank Barlow Rynd


In the Interest of D.A.P. (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore)
(child support, OAG suit UCCJEA, modification, order on SAPCR counterclaim reversed, no jurisdiction over
out-of-state parent due to failure to serve with citation UCCJEA)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore  
Before Justices Fowler, Frost and Seymore
14-06-00975-CV        In the Interest of D.A.P
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York

In her motion for new trial, Bishop asked the trial court to set aside its final order because it was rendered without service or
her appearance.  In support of her supplemental motion for new trial, Bishop testified that she had not been served with
process.  Bishop requested that the clerk of the trial court include in the appellate record all requests for service of process.  
The only process request included in our record is a request for issuance and service of process on Piccardo.  The record
also reflects that Bishop did not waive service of process or voluntarily appear before the trial court rendered its final order.  
Furthermore, the trial court's order indicates Bishop had not been served and did not enter an appearance before the final
order was signed.  In the order, the trial court stated that Bishop is the mother of D.A.P., and the court rendered a child-custody
order regarding D.A.P.  The court stated that Piccardo made an appearance, however, it did not state that Bishop made an
appearance.  Likewise, though the trial court stated that it had jurisdiction over Piccardo, it did not state that it had jurisdiction
over Bishop.  The Attorney General, Piccardo, and Piccardo's attorney signed the trial court's order, but there is no signature or
space for a signature by Bishop or her attorney.

In sum, the record in this case shows that Bishop had not been served with process, had not waived service of process, and
did not voluntarily appear before the trial court conducted the trial and rendered its final order regarding custody.  Therefore, the
trial court   erred in modifying the Washington child custody order.  Consequently, the trial court abused its discretion by
denying Bishop's motion for new trial in this regard.  Because we reverse the trial court's order as to Piccardo's claims against
Bishop, this appeal does not prejudice Bishop's ability, on remand, to argue, as she does in this appeal, that the trial court
does not have jurisdiction over the child custody issues under the Uniform Act.

Accordingly, we sustain Bishop's second issue, reverse the portion of the order pertaining to issues of child custody, and
remand for further proceedings consistent with this opinion.

Messina v. Messina (Tex.App- Houston [1st Dist.] July 24, 2008)(Bland)
(divorce post-judgment proceeding, undisclosed assets, MSA, sanctions, dismissal with prejudice following
nonsuit)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00277-CV Susan Gail Messina v. Louis Anthony Messina
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster  

Susan asserts that the trial court erred in denying her motion for new trial because it relied on “its memory” of the case, rather
than on the record.  Susan does not point to any evidence in the record to support her contention.  Furthermore, “it is presumed
that the court is familiar with the entire record of the case up to and including the motion to be considered.”  Downer, 701 S.W.
2d at 241.  At the hearing on Susan’s motion for new trial, the court stated its concerns for judicial economy and its worry that
this suit could continue indefinitely.  The record reflects that the trial court considered the evidence and the motion before
ruling.  We hold that the trial court did not abuse its discretion in denying Susan’s motion for a new trial.[1]

Barrick v. CRT Disaster Services (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Hudson)(check fraud,
motion for new trial, unpleaded claim)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00853-CV E.W. "Bill" Barrick Et Al v. CRT Disaster Services
Appeal from 281st District Court of Harris County (Hon. David J. Bernal)

Order entered after expiration of plenary power void
In re Valdes (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Keyes)
(motion for reconsideration of motion for new trial, plenary power expired, order void)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-08-00165-CV In re Fernando F. Valdes
Appeal from 122nd District Court of Galveston County
Trial Court Judge: Hon. John Ellisor