Jane Matyastik v. the City of Cameron, Texas

Opinion

NO. 07-11-0155-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 18, 2012

JANE MATYASTIK,

Appellant v.

THE CITY OF CAMERON, TEXAS,

Appellee ____________________________

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY;

NO. 30,923; HONORABLE EDWARD P. MAGRE, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Jane Matyastik appeals from an order granting the City of Cameron’s motion to

foreclose on three demolition liens encumbering her realty. The order was issued after

the trial court conducted a hearing on the motion, a hearing at which Matyastik did not

appear. She suggests, via a motion for new trial, that she was absent from the hearing

because she failed to receive notice of the proceeding and that this afforded her basis

for a new trial on the matter. The motion was overruled by operation of law. Before us, she contends that the trial court erred in failing to grant a new trial because the notice

was not sent to her last known address. We disagree and affirm for several reasons.

First, the contention about there being a mistake in the address to which the

notice was sent was not mentioned in her motion for new trial. Thus, it was not

preserved for review. TEX. R. APP. P. 33.1 (requiring presentation of the complaint to

the trial court as a prerequisite of preserving it for review).

Second, bare allegations of the lack of service in a motion for new trial do not

suffice. Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc.,

143 S.W.3d 538, 544 (Tex. App.–Austin 2004, no pet.); see also Smith v. Mike Carlson

Motor Co., 918 S.W.2d 669, 672 (Tex. App.–Fort Worth 1996, no writ). The movant

must offer evidence either in the form of an affidavit or live testimony. Limestone

Construction, Inc. v. Summit Commercial Industrial Properties, Inc., 143 S.W.3d at 544.

Matyastik did not do so here. Because there was no evidence before the trial court in

support of the motion for new trial, the trial court did not abuse its discretion in denying

it. See Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992) (describing

the pertinent standard of review as one of abused discretion).

Accordingly, we affirm the order of the trial court.

Brian Quinn Chief Justice