                            NUMBER 13-06-00306-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MARIA ESTELLA PEREZ,                                                         Appellant,

                                           v.

COMMISSION FOR LAWYER DISCIPLINE,                                             Appellee.


 On appeal from the 103rd District Court of Cameron County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

      Appellant Maria Estella Perez (“Perez”), proceeding pro se, appeals the trial court's

refusal to set aside a post-answer default judgment that was granted in favor of appellee,

the Commission for Lawyer Discipline (the “Commission”). The underlying judgment,

obtained after Perez answered the Commission’s petition but without her participation at

trial, disbars Perez and orders her to pay restitution and attorney’s fees. Perez sought a

new trial, but her motion was overruled by operation of law. See TEX . R. CIV. P. 329b(c).
By eight issues, which may be properly categorized as two, Perez contends that: (1) the

trial court erred in not granting her motion for new trial because she established that her

nonappearance was not intentional or the result of conscious indifference; and (2) the trial

court erred in not holding an evidentiary hearing on her motion. We affirm.

                                      I. BACKGROUND

       On June 17, 2005, the Commission filed its first original disciplinary petition against

Perez in district court. In its petition, the Commission alleged that Perez misappropriated

funds belonging to an estate that she had represented and refused to provide an

accounting to the estate’s administrator. Perez answered with a general denial on August

1, 2005. The Commission amended its petition on August 16 to include allegations that,

because of an impairment, Perez ceased representing a client but did not formally

withdraw as the client’s counsel. The amended petition also alleged that Perez failed to

refund the unearned portion of fees that the client had paid to her.

       The matter was set for trial on February 16, 2006.          The trial, however, was

continued. The reporter’s record contains a letter from John Gladney, Perez’s “temporary

attorney,” to the district court judge that presided over the case.         Gladney’s letter

accompanied a motion and order for continuance and reads:

       As pointed out in the motion, no agreement has been reached for me to
       represent Ms. Perez, and indeed, I have to date received no payment from
       Ms. Perez. Please sign the enclosed order which indicates that I was given
       permission to enter [an] appearance solely for the purpose of presenting the
       Motion for Continuance, and that I have no further obligations toward Ms.
       Perez. While Ms. Perez was still in the hospital, I orally advised her that the
       case has been reset for March 3, 2006, and I also advised Ms. Perez in
       writing of the time and date of the trial setting.

A bench trial commenced on March 3, 2006, which Perez did not attend or participate in.

       At trial, the Commission presented testimony from Robert Kaszczuk and Paul



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Homburg, disciplinary attorneys for the State Bar of Texas, and Hector Gutierrez, a

beneficiary of an estate that Perez allegedly mishandled. The Commission also offered

numerous exhibits, which the trial court admitted. On March 3, the trial court rendered the

underlying judgment, which found that Perez had violated several rules of professional

conduct, disbarred her, ordered her to pay $33,923.91 in restitution, and assessed $14,150

in attorney’s fees against her.

         Perez filed a motion for new trial on March 30, 2006. The motion alleged that Perez

was in a deep depression, and the depression prevented her from timely participating in

the trial. Attached to Perez’s motion was an affidavit that she executed and various

medical records. According to Perez’s affidavit, she entered the hospital suffering from a

knife wound, was discharged from the hospital on February 16, 2006, and shortly thereafter

entered into a severe depression. The record, however, does not contain any evidence

from any mental health expert concerning Perez’s contention of being in a deep and

debilitating depression.

         The Commission did not address Perez’s excuse for not participating in the trial, but

instead it argued that Perez’s motion failed to show good cause or establish a colorable

defense.1 Attached to the Commission’s response was an affidavit by Gladney, which

stated:

         In February 2006 I briefly represented Maria Estella Perez in [this case] for
         purposes of prosecuting a motion for continuance and obtaining a resetting
         of the trial date. Attached to this affidavit is a true and correct copy of a letter


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           On April 27, 2006, Perez filed a "First Am ended Motion to Set Aside Judgm ent and Order a New
Trial.” W e construe Perez’s first am ended m otion for new trial as untim ely, and we will not consider it or the
evidence attached to it. See T EX . R. C IV . P. 329b(b) ("One or m ore am ended m otions for new trial m ay be filed
without leave of court before any preceding m otion for new trial filed by the m ovant is overruled and within
thirty days after the judgm ent or other order com plained of is signed."); Moritz v. Preiss, 121 S.W .3d 715,
719-20 (Tex. 2003) (interpreting Rule 329b(b) to m ean that, for a party to properly am end a m otion for new
trial, the am ended m otion for new trial m ust also be filed within thirty days of the date of the trial court's
judgm ent).

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       I sent to [the trial judge] with a copy to opposing counsel for the Commission
       for Lawyer Discipline. The statements in the letter are true, including these
       statements from the second paragraph of the letter: ‘While Ms. Perez was
       still in the hospital, I orally advised her that the case has been reset for
       March 3, 2006, and I also advised Ms. Perez in writing of the time and date
       of the trial setting.’

       Perez’s motion for new trial was overruled by operation of law. SEE TEX . R. CIV. P.

329b(c) (providing that a motion for new trial not ruled upon within seventy-five days after

the judgment is signed is overruled by operation of law). This appeal ensued.

                                        II. DISCUSSION

       By her first issue, Perez contends that she could not process the notice Gladney

gave her because she received it while she was hospitalized and suffering from

depression. In essence, Perez argues that her absence from trial was not intentional or

the result of conscious indifference because her condition excuses her actions. We

disagree.

A.     Standard of Review

       Trial courts have broad discretion in ruling on motions for new trial. Limestone

Constr. v. Summit Commercial Indus. Props., 143 S.W.3d 538, 542 (Tex. App.–Austin

2004, no pet.). We review a trial court's denial of a motion for new trial for an abuse of

discretion. Id. The test for abuse of discretion is whether the trial court acted arbitrarily or

without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838

(Tex. 2004). A trial court abuses its discretion if it misinterprets or misapplies the law. In

re DuPont De Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004).

B.     Applicable Law

       A post-answer default can be set aside only if a defendant proves that: (1) her

nonappearance was not intentional or the result of conscious indifference; (2) she has a


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meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice.

Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (citing Craddock v. Sunshine Bus Lines,

134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939)). A motion for new trial “must allege facts

which in law would constitute a defense to the cause of action asserted by the plaintiff, and

must be supported by affidavits or other evidence proving prima facie that the defendant

has such meritorious defense.” Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966).

C.     Analysis

       Perez does not cite a single authority for the argument that a self-diagnosed

depression during the time of trial requires the granting of a new trial, and we cannot find

one. See TEX . R. APP. P. 38.1(h). Instead, the record contains Gladney’s affidavit

testimony that he relayed the March 3, 2006 trial date to Perez both orally and in writing.

See TEX . R. CIV. P. 21a (“A certificate by a party or an attorney of record, or the return of

the officer, or the affidavit of any person showing service of a notice shall be prima facie

evidence of the fact of service.”). There is, thus, appropriate evidence that notice was sent

to and received by Perez. Cf. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005)

(holding that oral assurance by attorney that notice was mailed, was insufficient to show

that notice was received, and finding no other evidence in record proving receipt of notice).

We hold that Perez has failed to establish the first Craddock element.

       A corollary to Perez’s first issue is that her due process rights were violated because

the trial court did not take into account her self-diagnosed depression. Once again, this

argument is not supported by relevant authority. See TEX . R. APP. P. 38.1(h). Moreover,

Perez’s due process argument is raised for the first time on appeal and therefore is waived

because she did not present the trial court with any due process argument in her motion

for new trial. See City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per

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curiam) (“Even constitutional challenges not expressly presented to the trial court by written

motion, answer or other response to a motion for summary judgment will not be considered

on appeal as grounds for reversal.”); Birdo v. Ament, 814 S.W.2d 808, 811 (Tex.

App.–Waco 1991, writ denied) (concluding that even constitutional errors, such as due

process complaints, are waived if not raised first in the trial court). Perez’s first issue is

overruled.

D.     Evidentiary Hearing on Motion for New Trial

       By her second issue, Perez argues that the trial court erred in not conducting an

evidentiary hearing on her motion for new trial. Whether to hold a hearing on a motion for

new trial is in the trial court's discretion. Jefa Co. v. Mustang Tractor & Equip. Co., 868

S.W.2d 905, 909 (Tex. App.–Houston [14th Dist.] 1994, writ denied); Parham v. Wilbon,

746 S.W.2d 347, 351 (Tex. App.–Fort Worth 1988, no writ). Based upon the record before

us, the trial court could have reasonably concluded that Perez’s motion, on its face, did not

satisfy the first Craddock element and therefore there was no need for an evidentiary

hearing. We hold that the trial court did not abuse its discretion by not holding an

evidentiary hearing on Perez’s motion for new trial. Perez’s second issue is overruled.

                                      III. CONCLUSION

       The trial court’s judgment is affirmed.



                                                         _______________________
                                                         ROGELIO VALDEZ,
                                                         Chief Justice

Memorandum Opinion delivered and
filed this the 19th day of June, 2008.




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