Albert De Ases, Jr. v. Arlene De Ases Yznaga

• Court: Court of Appeals of Texas
• Decided: November 17, 2011
• Docket: 13-11-00088-CV
• Status: Published

Opinion

NUMBER 13-11-088-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALBERT DE ASES JR., Appellant,

v.

ARLENE DE ASES YZNAGA, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Vela This is an appeal from a default judgment granted in favor of appellee, Arlene De

Ases Yznaga, in a suit to remove a cloud on title to property. Appellant, Albert De Ases Jr., appearing pro se both in the trial court and here, argues that the trial court erred in not

granting his motion for new trial. He also urges that the trial court did not properly

address his request for discovery, did not file findings of fact and conclusions of law after

diligent requests, allowed "illegal" cross-examination, and refused to return out-of-pocket

expenses of $450.00. We affirm.

I. BACKGROUND

Yznaga filed a trespass to try title case to remove a cloud on the title to two lots for

which she claimed ownership and sued for damages. The trial court entered final

judgment on October 27, 2010, removing the cloud on the title to the subject property, and

confirming title in Yznaga. De Ases did not appear at trial. On November 22, 2010, De

Ases timely filed a motion for new trial. At the hearing, he did not contest that he had

received notice of the trial setting. De Ases indicated that he did not appear because he

thought the trial would be continued because he had filed a motion for continuance the

day before trial that concerned previous discovery requests. The trial court inquired if he

had a reason for not appearing at the trial, and he responded "well, my main reason was

that I thought and Your Honor and the court that the court would address me because I

filed it upstairs." The court then denied the motion for new trial, explaining that it had no

basis upon which to grant it. De Ases filed a request for findings of fact and conclusions

of law on March 23, 2011.

II. STANDARD OF REVIEW

We review a trial court's decision to deny a motion for new trial under an abuse of

discretion standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).

2 A trial court abuses its discretion when it acts "‘without reference to any guiding rules or

principles' or, stated another way, when the trial court acts in an arbitrary and

unreasonable manner." City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d

750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

242 (Tex. 1985)). We may not substitute our own judgment for that of the trial court

when reviewing matters committed to the trial court's discretion. Bowie Mem'l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

A trial court's decision to deny a motion for new trial will not be disturbed on

appeal absent an abuse of discretion. See Strackbein v. Prewitt, 671 S.W.2d 37, 38

(Tex. 1984). However, a trial court abuses its discretion by failing to grant a new trial

when all three Craddock requirements are met. See id. at 38–39; Craddock v. Sunshine

Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Under the Craddock test, the

defendant must demonstrate that (1) his failure to appear was not intentional or the result

of conscious indifference, (2) there is a meritorious defense, and (3) granting a new trial

will not operate to cause delay or injury to the plaintiff. Craddock, 133 S.W.2d at 126. In

this case, De Ases did not attempt to meet the Craddock test. Thus, we will attempt to

review the issues he raised to determine if the trial court abused its discretion in denying

his motion.

III. ANALYSIS

By his first issue, De Ases argues that the trial court did not "properly address" his

request to compel discovery. The trial court explained to De Ases that the mere filing of

a document is not sufficient. A party must also request the matter to be heard. It was

3 undisputed that De Ases filed the document he complains about the day before trial. The

motion for continuance was sworn, but he did not ask for a hearing. Although De Ases

was not an attorney, he embarked on a case pro se and is held to the same standard.

See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). He was required to comply

with all applicable laws and rules of procedure. Id. The trial court did not abuse its

discretion in not granting the motion for new trial on that basis. We overrule issue one.

De Ases next complains of the trial court’s failure to file findings of fact and

conclusions of law. The record reflects that De Ases filed a request for findings of fact

and conclusions of law on March 23, 2011, 147 days after judgment was entered on

October 27, 2010. The rules of civil procedure require findings of fact and conclusions of

law to be requested within twenty days after a judgment is signed. TEX. R. CIV. P. 296.

Because De Ases’s request was not timely, the trial court was not required to file them.

Williams v. Kaufman, 275 S.W.3d 637, 642 (Tex. App.—Beaumont 2009, no pet.). We

overrule issue two.

By issue three, appellant suggests that the trial court did not address De Ases’s

due process claim. While the brief is not clear what that claim entailed, the trial court

asked De Ases at the hearing if there was any reason why he did not attend the trial after

having been properly served. Clearly, the trial court was attempting to discern if De Ases

could meet the first prong of Craddock. Because there was no proper reason offered for

his absence and because he does not argue what exactly his due process claim might be,

we cannot say his due process rights were violated. Issue three is overruled.

4 By his fifth issue, De Ases suggests that the trial court did not address the "illegal

direct cross-examination" conducted by Yznaga’s counsel. When the motion for new

trial hearing commenced, counsel for Yznaga began to question De Ases about whether

he had admitted to filing legal documents in the deed records concerning the wrong

property. These questions were actually addressing the underlying case for which

default judgment had been granted. De Ases objected, and that line of questioning

ceased. Because no additional questions were asked, we cannot determine what

appellant argues was an "illegal" examination. We overrule issue five.

Issue four reads as follows: "Did the District Court’s presiding Judge properly

answer any and all questions from Appellant concerning Court reports Report." We are

unable to construe this issue’s meaning. It was not supported by argument or authority.

Appellate briefs must contain appropriate citations to the record. See TEX. R. APP. P.

38.1(i). Bare assertions of error without proper citation to the record or to authority waive

error. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.

1994) (appellate court has discretion to waive point of error due to inadequate briefing);

Devine v. Dallas County, 130 S.W.3d 512, 513–14 (Tex. App.—Dallas 2004, no pet.)

(holding that when a party fails to adequately brief a complaint, he waives the issue on

appeal). The issue was inadequately briefed, and De Ases has waived error, if any.

Thus, we overrule issue four.

Similarly, in De Ases’s sixth issue, he requests the return of $450.00, which he

claims was the amount of out-of pocket expenses he incurred. There was no evidence in

the record, however, of such expenditure. Therefore, we are not persuaded by this

5 argument. We overrule De Ases’s sixth issue.

IV. CONCLUSION

We affirm the judgment of the trial court.

ROSE VELA Justice

Delivered and filed the 17th day of November, 2011.