Juanita Garofalo v. Dallas Area Rapid Transit

• Court: Court of Appeals of Texas
• Decided: April 7, 2015
• Docket: 05-13-01595-CV
• Status: Published

Opinion

Affirmed and Opinion Filed April 7, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01595-CV

JUANITA GAROFALO, Appellant V. DALLAS AREA RAPID TRANSIT, Appellee

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-13-03116-E

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Whitehill

Appellant Juanita Garofalo, pro se below and on appeal, sued appellee Dallas Area Rapid

Transit in justice court for property damage her pick-up truck suffered in a collision with a

DART bus. The justice court rendered a take-nothing judgment, and Garofalo appealed to the

county court at law. After a de novo bench trial, the county court rendered a take-nothing

judgment. Garofalo raises three appellate points of error. In her first two points, she complains

that the county court erred by discounting certain evidence at trial and by denying her new-trial

motion. In her third point, she contends the justice court erred by denying her motion for

reinstatement. We affirm. Reinstatement of Justice Court Case

We address Garofalo’s third point of error first. She asserts that the justice court

rendered judgment against her because she failed to appear at trial, and that the justice court

erred by not granting her motion for reinstatement. We conclude that Garofalo’s third point of

error is moot because she was given a trial de novo by the county court at law. See Stevenson v.

Hous. Auth. of City of Austin, 385 S.W.3d 684, 687 (Tex. App.—El Paso 2012, no pet.)

(complaint that justice court denied appellant due process was mooted by de novo trial in county

court); Coleman v. Bank of Am., Nat’l Ass’n, No. 06-11-00105-CV, 2012 WL 1940674, at *1

(Tex. App.—Texarkana May 30, 2012, no pet.) (complaints about justice-court default judgment

were mooted by de novo trial in county court). Accordingly, we overrule Garofalo’s third point

of error.

Refusal to Consider Evidence at Trial

Garofalo’s first point of error asserts that the county court erred by allegedly refusing to

consider certain evidence that she presented at trial. Although she cites two federal regulations

that purportedly require drug testing of mass-transit employees after certain kinds of accidents,

she does not explain their relevance to her point of error, and she cites no other authorities in

support of her first point of error. Nor does she support her first point of error with a cogent

argument demonstrating error. We conclude her first point of error is inadequately briefed and

therefore overrule it. See TEX. R. APP. P. 38.1(i); Garofalo v. Check Into Cash of Tex., LLC, No.

05-12-01193-CV, 2013 WL 3874537, at *2 (Tex. App.—Dallas July 24, 2013, pet. denied)

(mem. op.) (rejecting points of error as inadequately briefed); Bolling v. Farmers Branch Indep.

Sch. Dist., 315 S.W.3d 893, 895–96 (Tex. App.—Dallas 2010, no pet.) (explaining the

requirements of Texas Rule of Appellate Procedure 38.1).

–2– Denial of Motion for New Trial Based on New Evidence

Garofalo’s second point of error asserts that the county court erred by denying her new-

trial motion. We review this ruling for abuse of discretion. Roberts v. Roper, 373 S.W.3d 227,

235 (Tex. App.—Dallas 2012, no pet.). Garofalo argues that she was entitled to a new trial to

present new evidence—a recorded statement by a witness who did not appear at trial. A party

seeking a new trial based on newly discovered evidence must show that (i) she did not discover

the evidence until after the trial, (ii) her failure to discover the evidence was not due to lack of

diligence, (iii) the evidence is not cumulative or merely for impeachment, and (iv) the evidence

is so material that it would probably produce a different result if a new trial were granted. Id.

Garofalo presents no argument that she satisfied the first two of these elements. We see nothing

in the record indicating that she satisfied those requirements. We hold that the trial court did not

abuse its discretion by denying Garofalo’s new-trial motion, so we overrule her second point of

error.

We affirm the trial court’s judgment.

131595F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUANITA GAROFALO, Appellant On Appeal from the County Court at Law No. 5, Dallas County, Texas No. 05-13-01595-CV V. Trial Court Cause No. CC-13-03116-E. Opinion delivered by Justice Whitehill. DALLAS AREA RAPID TRANSIT, Justices Francis and Lang-Miers Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee DALLAS AREA RAPID TRANSIT recover its costs of this appeal from appellant JUANITA GAROFALO.

Judgment entered April 7, 2015.

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