Affirmed and Memorandum Opinion filed July 3, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00405-CV

                         PETER OBASOGIE, Appellant
                                         V.
             AMTEX AUTO INSURANCE COMPANY, Appellee

                    On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-18506

                  MEMORANDUM OPINION


      On August 1, 2017, appellant filed a brief in his appeal from the trial court’s
judgment entered on May 19, 2017. On August 10, 2017, this court issued an order
stating that appellant’s brief did not substantially comply with Rule 38 of the Texas
Rules of Appellate Procedure. The court ordered appellant to file an amended brief
that complied with the rule. On September 11, 2017, appellant filed an amended
brief that also fails to substantially comply with Rule 38. Most significantly,
appellant’s brief contains no citations to the record and no authority. See Tex. R.
App. P. 38.1(i).

      It is the appellant’s burden to properly raise and discuss the issues presented
for review. See Tex. R. App. P. 38.1(f); Canton-Carter v. Baylor Coll. of Med., 271
S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). However, we are
instructed to reach the merits of an appeal whenever reasonably possible. Verburgt
v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Accordingly, we will consider
appellant’s claim that the trial court erred in dismissing his case without informing
appellant of the date and time for the hearing.

      Appellant failed to preserve error on this point. Hendricks v. Barker, 523
S.W.3d 152, 156–57 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A motion for
new trial is a prerequisite to a complaint on appeal on which evidence must be heard
See Tex. R. Civ. P. 324(b). A complaint that an order dismissing a case should be
set aside because the claimant was not given notice of the hearing is a complaint on
which evidence must be heard. Hendricks, 523 S.W.3d at 157. Appellant’s brief
asserts a fact, that he was not given notice of the date and time of the hearing, that
calls for an evidentiary hearing. Id. The fact issue of whether or not appellant was
given notice of the date and time of the hearing must be resolved by the trial court
before we can address it. Id. Because appellant did not present this issue to the trial
court, it is not preserved for our review. Id.; see also Williams v. Bayview–Realty
Assocs., 420 S.W.3d 358, 364, 366 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(holding party failed to preserve error by not raising complaint based on a lack
of notice in the trial court and obtaining an adverse ruling); Felt v. Comerica
Bank, 401 S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (noting
court begins with a presumption that a defendant had notice of the trial court setting,



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and that defendant must overcome this presumption by affirmatively showing a lack
of notice via competent evidence). Appellant’s first issue is overruled.

      In a second issue, appellant complains that the trial court erred in failing to
consider “documentary evidence” filed in response to appellee’s Rule 91a motion.
The clerk’s record indicates that appellant filed a response and attached documents
that he contends demonstrate the factual grounds for his claim. However, in deciding
a Rule 91a motion, the trial court “may not consider evidence” and “must decide the
motion based solely on the pleading of the cause of action.” Tex. R. Civ. P. 91a.6.
Thus, appellant’s second issue presents no error.

      The judgment of the trial court is affirmed.




                                       /s/       John Donovan
                                                 Justice


Panel consists of Justices Christopher, Donovan and Jewell.




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