Affirmed and Memorandum Opinion filed July 7, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00311-CV

                         H & H WRECKER, Appellant
                                        V.
 CRYSTAL KOCTAR AND BRAZORIA AUTO & RECOVERY, Appellees

                On Appeal from the County Court at Law No. 1
                           Jefferson County, Texas
                       Trial Court Cause No. 124195

                 MEMORANDUM OPINION
      Appellant H & H Wrecker appeals from the trial court’s final judgment in
favor of appellees, Crystal Koctar and Brazoria Auto & Recovery. Appellant
challenges the trial court’s failure to grant a motion for new trial based on newly
discovered evidence. Appellees assert that this is a frivolous appeal and request
appellant be ordered to pay damages under Texas Rule of Appellate Procedure 45.
We affirm the trial court’s judgment but deny appellees’ request for Rule 45
damages.
                                        BACKGROUND

         This case arises from a dispute between H & H Wrecker, a towing and
storage company that has possession of a Ford truck, and Koctar and Brazoria
Auto, who have been seeking to recover the truck as lienholders.1 In April 2013,
Brazoria Auto sold the truck to Keith Brandin, with Koctar loaning money for the
transaction and taking a lien on the truck. On July 1, Brandin called H & H to tow
the truck from his apartment complex. At the time H & H picked up the truck,
Brandin had a Buyer’s Tag Receipt that expired June 30, listing him as Owner #1,
no one as Owner #2, and Avery’s Auto as the issuing dealer. The truck had no
license plates. After taking possession of the truck, H & H ran a title search that
showed the owner as “Orange County” with an address in Orange, Texas. H & H
sent notice to this listed owner on July 5, but there was no response. On August
26, H & H ran another title search. This time, the results showed Brandin as the
owner and Koctar as the first lienholder, with the lien dated August 1. H & H then
sent notices to both Brandin and Koctar that it had possession of the truck.

         After Koctar received notice from H & H that it was holding the truck,
which Brandin had now defaulted on, Brazoria Auto sent two men to H & H to
pick it up on Koctar’s behalf. H & H told the men that they could not see the truck
until the outstanding balance for towing and storage was paid. They refused to pay
the balance, the visit turned into a confrontation, and the men left without the
truck.

         In September 2013, Koctar filed for a tow hearing2 in the justice court, and
multiple hearings were held. On October 21, 2013, the justice court issued an

         1
          Koctar originally held the lien on the truck, but she assigned it to Brazoria Auto during
this dispute.
         2
         Under Chapter 2308 of the Texas Occupations Code, a party is entitled to a hearing to
challenge the towing of a vehicle and the amounts charged as long as the party makes a proper
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order for H & H to release the truck to Koctar and for Koctar to pay H & H
$284.95. That same day, Brazoria Auto went to H & H’s property to get the truck,
but H & H refused to accept payment or release the truck. H & H then appealed
the justice court’s decision to the county court at law.

      The county court held a trial on July 31, 2014. In November, before the
court had issued its decision, Koctar and Brazoria Auto filed a complaint with the
Texas Department of Licensing and Regulation based on the same allegations at
issue in this case. On December 12, the TDLR issued a letter dismissing the
complaint and stating that the evidence did not establish H & H had committed any
violations. On December 16, the county court notified both parties by letter of its
decision to find for Koctar and Brazoria Auto, awarding them the truck, a $1,000
penalty, and $8,750 in attorney’s fees. The county court signed the judgment on
December 23. On January 21, 2015, H & H filed a motion for new trial based on
newly discovered evidence, specifically the December 12 letter from the TDLR.
The motion was unverified and was not accompanied by an affidavit authenticating
the documents attached to the motion. The motion was overruled by operation of
law. H & H timely appealed.

                                       ANALYSIS

      In a single issue, H & H contends that its motion for new trial should have
been granted based on newly discovered evidence. H & H argued in its motion
that it was entitled to a new trial based on the December 12, 2014 letter from the
TDLR dismissing a complaint against H & H based on the same underlying




request for such a hearing. The hearing takes place in justice court and addresses whether
probable cause existed for the removal of the vehicle and whether the towing charge imposed
was statutorily authorized. Tex. Occ. Code Ann. §§ 2308.453, 2308.458 (West 2012).

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allegations as this case. On appeal, H & H claims that it conclusively established
its right to a new trial.

       Whether to grant or deny a motion for new trial based on newly discovered
evidence 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). A party seeking a
new trial on grounds of newly discovered evidence must demonstrate to the trial
court that (1) the evidence has come to its knowledge since the trial, (2) its failure
to discover the evidence sooner was not due to lack of diligence, (3) the evidence
is not cumulative, and (4) the evidence is so material it would probably produce a
different result if a new trial were granted. Waffle House, Inc. v. Williams, 313
S.W.3d 796, 813 (Tex. 2010).

       We review the denial of such a motion for abuse of discretion. Id. 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)).

       When a motion for new trial raises a complaint that requires the presentation
of evidence and an exercise of discretion, the movant must request a hearing,
present its evidence, and obtain a ruling. Monk v. Westgate Homeowners’ Ass’n,
Inc., No. 14-07-00886-CV, 2009 WL 2998985, at *3 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (mem. op.); Rios v. Tex. Bank, 948 S.W.2d 30, 33 n.4 (Tex.
App.—Houston [14th Dist.] 1997, no writ). Under this Court’s precedent, there is
no abuse of discretion when the movant fails to call its motion to the attention of
the trial court through a request for hearing and instead allows it to be overruled by

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operation of law. Felt v. Comerica Bank, 401 S.W.3d 802, 808 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); 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.) (citing Shamrock Roofing Supply, Inc. v. Mercantile
Nat’l Bank, 703 S.W.2d 356, 357–58 (Tex. App.—Dallas 1985, no writ)).

       A trial court has plenary power to grant a new trial within thirty days after
the judgment is signed. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S.
Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The filing of a motion for new trial
within the thirty-day period extends the trial court’s plenary power over the
judgment for up to seventy-five days, depending on when or whether the court acts
on the motion. Tex. R. Civ. P. 329b(c); Lane Bank Equip. Co., 10 S.W.3d at 310.
If the motion is not acted upon, it is overruled by operation of law on the seventy-
fifth day after the signing of the final judgment, and the trial court’s plenary power
is extended for thirty days after the motion is overruled. Tex. R. Civ. P. 329b(c),
(e).

       In this case, the final judgment was signed December 23, 2014. H & H
timely filed its motion for new trial on January 21, 2015, effectively extending the
court’s plenary power. Because the court had not yet ruled on H & H’s motion, it
was overruled by operation of law on March 8, 2015, the seventy-fifth day after the
judgment was signed.3 Nothing in the record indicates that H & H attempted to
obtain a hearing on its motion before it was overruled by operation of law.

       The only evidence of H & H bringing its motion to the trial court’s attention
is a Request for Oral Hearing filed on April 6, 2015, after the motion had been


       3
          H & H filed a supplemental motion for new trial on April 6. This motion was without
effect because it was filed more than thirty days after the judgment was signed and without leave
of court. See Tex. R. Civ. P. 329b(b).

                                               5
overruled. H & H did not obtain a hearing before the trial court’s plenary power
expired on April 7, 2015. Therefore, the trial court did not abuse its discretion
when it allowed the motion to be overruled by operation of law. See Monk, 2009
WL 2998985, at *3; McGuire, 2003 WL 359289, at *1. We overrule appellant’s
sole issue.

      Appellees argue that they are entitled to damages for attorney’s fees because
this is a frivolous appeal. Under Texas Rule of Appellate Procedure 45, a court of
appeals may—on motion of any party or on its own initiative, after notice and a
reasonable opportunity for response—award “just damages” as a sanction if it
determines that an appeal is frivolous. Tex. R. App. P. 45; Lane-Valente Indus.
(Nat’l), Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 206 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). We may award just damages under Rule 45 if,
after considering everything in our file, we make an objective determination that
the appeal is frivolous. Riggins v. Hill, 461 S.W.3d 577, 583 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied).

      When deciding whether an appeal is objectively frivolous, we review the
record from the viewpoint of the advocate and decide whether the advocate had a
reasonable basis to believe the case could be reversed on appeal. Lane-Valente,
468 S.W.3d at 206. Additionally, Rule 45 does not require that a court award
sanctions after every frivolous appeal; rather, the imposition of sanctions is a
discretionary decision exercised with prudence and caution and only after careful
deliberation. Id.

      Although H & H was not successful in its appeal, it did raise substantive
issues directed at the trial court’s actions that were supported by legal authority and
citations to the record. See Tex. R. App. P. 38.1. Therefore, we conclude that



                                          6
H & H’s appeal is not so objectively frivolous that just damages should be imposed
as sanctions under Rule 45. See Lane-Valente, 468 S.W.3d at 207.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Justices Christopher, McCally, and Busby.




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