law-motion-for-new-trial-overruled-by-operation-of-law, requirement for evidentiary hearing on new trial
motion |
preservation of error for appeal |  

Motion for new trial that is overruled by operation of law may not be sufficient to preserver errors complained
of for appellate review.

Motion for New Trial - Evidentiary Hearing Should Have Been Requested

Monk also contends the trial court erred in allowing his motion for new trial to be overruled by operation of
law.  The decision whether to grant or deny a motion for new trial is within the trial court's discretion.  Balias
v. Balias, Inc., 748 S.W.2d 253, 257 (Tex. App.- Houston [14th Dist.] 1988, writ denied).  When a trial court
has denied a motion for new trial, its ruling may be overturned only upon a showing of a clear abuse of
discretion.  See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987); Vickery v. Tex. Carpet Co., 792 S.W.2d
759, 761 (Tex. App.- Houston [14th Dist.] 1990, writ denied).  The test for abuse of that discretion is whether
the trial court acted arbitrarily or without reference to guiding legal principles.  Cire v. Cummings, 134 S.W.3d
835, 838-39 (Tex. 2004).  This standard also applies when, as here, the motion for new trial is overruled by
operation of law.  See Awoniyi v. McWilliams, 261 S.W.3d 162, 165 (Tex. App.- Houston [14th Dist.] 2008, no
pet.) (citing Bank One v. Moody, 830 S.W.2d 81, 81, 85 (Tex.1992)).         In any proceeding that is to be
accorded finality, due process requires that interested parties receive notice reasonably calculated, under
the circumstances, to apprise them of the pendency of the action and afford them the opportunity to present
their objections.  Dispensa v. Univ. State Bank, 987 S.W.2d 923, 926 (Tex. App.- Houston [14th Dist.] 1999,
no pet.) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950)).  Failure to
give adequate notice violates the demands of due process.  See Jimenez v. Transwestern Prop. Co., 999
S.W.2d 125, 128 (Tex. App.- Houston [14th Dist.] 1999, no pet.).  Except on leave of court, a motion for
summary judgment must be filed and served 21 days before the time specified for the hearing, and 24 days if
it is served by mail or facsimile.  See Tex. R. Civ. P. 21a, 166a(c); Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.

Improper service of a motion for summary judgment is a procedural defect that may be corrected by the trial
court in response to a timely motion for new trial or by an appellate court if the trial court overrules the
motion.  French v. Brown, 424 S.W.2d 893, 894 (Tex. 1967).  In order for Monk to notify the trial court that he
did not respond or appear at the summary judgment hearing because he did not receive timely notice of it,
he was required to file a motion for new trial.  See Lee v. Braeburn Valley West Civic Ass'n, 786 S.W.2d 262,
263 (Tex. 1990).  However, when the complaint is raised in a motion for new trial, the movant must request a
hearing, present evidence, and obtain a ruling.  See Rios v. Tex. Bank, 948 S.W.2d 30, 33 n.4 (Tex. App.-
Houston [14th Dist.] 1997, no pet.).  There is no abuse of discretion when the movant fails to call his motion
to the attention of the trial court through the request of a hearing, and instead allows it to be overruled by
operation of law.  McGuire v. Comm'n for Lawyer Discipline, No. 14-01-00920-CV, 2003 WL 359289, at *1
(Tex. App.- Houston [14th Dist.] 2003, pet. denied) (mem. op., not designated for publication) (quoting
Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank, 703 S.W.2d 356, 357-58 (Tex. App.- Dallas 1985, no

Nothing in the record indicates that Monk attempted to obtain a hearing on his motion.  Because he failed to
request a hearing on the motion for new trial, we conclude that the trial court did not abuse its discretion
when it allowed the motion to be overruled by operation of law.  See id.  Appellant's second issue is overruled.

Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price)
motion for new trial overruled by operation of law not sufficient to preserve complaint about lack of proper
notice of summary judgment motion hearing)(discharge in bankruptcy was not pleaded as affirmative
defense)(pro se appeal)  
AFFIRMED: Opinion by
Senior Justice Frank C. Price, sitting by assignment    
Before Price, Justices Brock Yates and Guzman  
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.    
Appeal from 270th District Court of Harris County
Trial Court
Judge: Brent Gamble