                            NUMBER 13-11-00317-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MARTHA POWELL,                                                             Appellant,

                                          v.

ASPLUNDH TREE EXPERT CO.,                                                  Appellee.


               On appeal from the County Court at Law No. 2
                       of Cameron County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      Appellant, Martha Powell, appeals the denial of her motion for new trial following

the trial court’s entry of a summary judgment in favor of appellee, Asplundh Tree Expert

Company. We affirm.
                                         I. BACKGROUND

       Appellant sued appellee on a claim for personal injuries. On January 7, 2010,

appellee filed a no-evidence motion for summary judgment.          On February 2, 2010,

appellant filed a response to the no-evidence motion. On February 11, 2010, appellee

passed its hearing on the motion for summary judgment, stating that it reserved its right

to re-set the hearing to a later date.

       On September 1, 2010, the trial court granted appellant’s lawyer leave to

withdraw as appellant’s attorney. On October 4, 2010, appellee filed a second motion

for summary judgment, this time asserting both traditional and no-evidence grounds for

summary judgment. On November 3, 2010, appellant appeared pro se before the trial

court and requested a continuance of the hearing on appellee’s second motion for

summary judgment. The trial court continued the hearing and ordered the parties to

mediate the case.

       The case was mediated unsuccessfully on December 21, 2010.               Thereafter,

appellee filed its request for and notice of oral hearing on its traditional and no-evidence

motion for summary judgment. A hearing was held on February 23, 2011. Appellant

appeared pro se. She had not filed a response. The trial court granted appellee’s

traditional and no-evidence motion for summary judgment.

       On March 3, 2011, appellant, represented by counsel, filed a verified motion for

new trial, asserting as grounds that her failure to respond to appellee’s motion for

summary judgment was neither intentional nor the result of conscious indifference, but

was instead due to accident or mistake, because as a layperson who was

unrepresented and who did not have the benefit of counsel, appellant was unaware that



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that appellee’s motion, if granted, would operate to dismiss her case, without ever

reaching the merits of the case. No evidence was attached to appellant’s motion for

new trial.     Appellee filed a response to appellant’s motion for new trial, attaching

evidence in support thereof. In its response, appellee contested appellant’s assertion

that her failure to respond to appellee’s motion for summary judgment was “due to

accident or mistake.”         By written order dated April 29, 2011, the trial court denied

appellant’s motion for new trial.1 This appeal ensued.

                                               II. ANALYSIS

        A.      Applicable Law

        In Carpenter, the Texas Supreme Court decided the standard to be applied “to a

motion for new trial filed after summary judgment is granted on a motion to which the

nonmovant failed to timely respond when the respondent had notice of the hearing and

an opportunity to employ the means our civil procedure rules make available to alter the

deadlines Rule 166a imposes.” Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d

682, 683-84 (Tex. 2002) (holding that, under such circumstances, “Craddock does not

apply to a motion for new trial”) (citing Craddock v. Sunshine Bus Lines, Inc., 133

S.W.2d 124 (1939)).           A motion for new trial “should be granted when a litigant

establishes good cause for failing to timely respond by showing that (1) the failure to

respond was not intentional or the result of conscious indifference, but the result of




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          The clerk’s record includes an order setting a hearing on appellant’s motion for new trial for April
27, 2011. The court’s docket sheet indicates that a hearing was held on that date and that, after hearing
evidence and argument, the trial court took the motion under advisement. No reporter’s record of the
hearing has been filed with this Court. On August 2, 2011, this Court, in accordance with rule 37.3(c),
gave appellant written notice that unless this defect is cured within ten days from the date of the notice,
the Court will consider and decide those issues or points that do not require a reporter’s record for a
decision. See TEX. R. APP. P. 37.3(c). The defect was not cured.

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accident or mistake, and (2) allowing the late response will occasion no undue delay or

otherwise injure the party seeking summary judgment.” Id. at 688.

       B.     Standard of Review

       We review a trial court’s ruling on a motion for new trial involving failure to file a

response to a motion for summary judgment for an abuse of discretion. Id. at 686-87

(citing Atkins v. Tinning, 865 S.W.2d 533, 535 (Tex. App.—Corpus Christi 1993, writ

denied) (applying abuse of discretion standard)). A trial court abuses its discretion

when it acts without reference to any guiding rules or principles.         Id. at 687 (citing

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

       C.     Discussion

       As the party seeking relief, it is appellant’s burden to establish that the trial court

abused its discretion in denying her motion for new trial. See Carpenter, 98 S.W.3d at

688. In the absence of a reporter’s record of the evidentiary hearing held on appellant’s

motion for new trial, it is impossible for this Court to conclude that appellant has met her

burden. See Imkie v. Methodist Hosp., 326 S.W.3d 339, 347 (Tex. App.—Houston [1st

Dist.] 2010, no pet.) (“We look to the substance of her arguments in her motion for new

trial and to the evidence provided at the motion for new trial stage.”); Smith v. Holmes,

53 S.W.3d 815, 818 (Tex. App.—Austin 2001, pet. ref’d) (“On a motion for new trial, the

trial court is bound to accept as true the affidavits of the movant, unless the opponent

requests an evidentiary hearing.”).

       Moreover, even if the record had been filed, an abuse of discretion does not

occur when the trial court bases its decisions on conflicting evidence, which is what

appears to have happened in this case. See Goode v. Shoukfeh, 943 S.W.2d 441, 446



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(Tex. 1997); Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). Thus, even if appellant

presented favorable evidence to the trial court at the hearing, the fact that the record

shows that appellee also submitted some evidence of a substantive and probative

character that supports the trial court’s decision precludes this Court from concluding

there was an abuse of discretion. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211

(Tex. 2002); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.]

1993, writ denied)).

       Accordingly, appellant’s issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                       _________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice


Delivered and filed the
9th day of August, 2012.




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