McGuire, James A. v. Commission for Lawyer Discipline--Appeal from 61st District Court of Harris County

Affirmed and Memorandum Opinion filed February 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00920-CV

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JAMES A. McGUIRE, Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

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On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 97-22475

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M E M O R A N D U M O P I N I O N

Appellant, James McGuire, appeals from the denial of two motions for new trial following entry of an agreed judgment for violations of the Texas Disciplinary Rules of Professional Conduct. Specifically, appellant contends the trial court erred in: (1) allowing his motion for new trial to be overruled by operation of law; and (2) failing to dismiss the complaint for want of prosecution. We affirm.

Facts

  The Commission for Lawyer Discipline ( the Commission ) filed suit against McGuire alleging three separate incidents of attorney misconduct. On May 21, 2001, the Commission and McGuire (represented by counsel) entered into an agreed judgment. Nonetheless, on June 19, 2001, McGuire s counsel filed an unverified motion for new trial and alleged that McGuire had not consented to the judgment. On the same day, McGuire filed a pro se motion for new trial with similar allegations. The record reflects that his motion was verified and he attached affidavits signed by himself and his wife. Neither McGuire nor his attorney attempted to set their respective motions for hearing. Subsequently, both motions were overruled by operation of law.

Motion for New Trial

In his first point of error, McGuire contends the trial court erred in overruling the motions because he raised valid grounds for the court to grant a new trial. We consider both motions because they were overruled on the same grounds. The decision whether to grant a motion for new trial is reviewed for an abuse of discretion. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). Where a motion for new trial is overruled by operation of law, the same standard applies and the question becomes whether the trial court abused its discretion by allowing the motion to be overruled by operation of law. See Dir., State Employees Workers Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Bank One v. Moody, 830 S.W.2d 81, 85 (Tex.1992). The Commission contends McGuire waived any error by failing to request a hearing, thus allowing his motion for new trial to be overruled by operation of law. See Shamrock Roofing Supply, Inc. v. Mercantile Nat l Bank, 703 S.W.2d 356, 357 (Tex. App. Dallas 1985, no writ). We agree. There is no abuse of discretion when the defendant fails to call his motion to the trial court s attention [through a request for a hearing] and allows it to be overruled by operation of law. Id. at 357 58. We could find an abuse of discretion if McGuire, though diligent, was unable to obtain a hearing. Id. Our search of the appellate record reveals no attempt by McGuire or his counsel to obtain a hearing.[1] A trial court is not required sua sponte to examine all motions filed, but relies on counsel to set such motions for hearing. Id. at 358. Accordingly, the trial court did not abuse its discretion in allowing McGuire s motion to be overruled by operation of law. Id.; see Garcia v. Arbor Green Owners Ass n, Inc., 838 S.W.2d 800, 802 (Tex. App. Houston [1st Dist.] 1992, writ denied); see also Fluty v. Simmons Co., 835 S.W.2d 664, 668 (Tex. App. Dallas 1992, no writ) (requiring party to obtain hearing on motion for new trial before complaining trial court abused its discretion by not granting motion for new trial that was overruled by operation of law). For the above reasons, we overrule McGuire s first point of error.

Want of Prosecution

In McGuire s second point of error, he contends the trial court erred in failing to dismiss the suit against him for want of prosecution. He argues that four years had elapsed between the date suit was filed and the trial. We find appellant has not preserved error on this issue because he raises it for the first time on appeal. A point not raised by pleadings, by a motion for new trial, or otherwise presented to the trial court may not be raised for the first time on appeal. Cecil v. Frost, 14 S.W.3d 414, 417 (Tex. App. Houston [14th Dist.] 2000, no pet.). Therefore, we overrule McGuire s second point of error and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 20, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] During oral argument, McGuire for the first time claimed that the Commission set a hearing on his motion for new trial. He further argued that the trial judge did not attend the scheduled hearing. McGuire s assertions were not reflected in the appellate record. We informed McGuire that these assertions were not reflected in the appellate record. If the trial court s record reflects that a hearing was requested or set, McGuire had the burden to present a sufficient appellate record to show error. See Melendez v. Exxon Corp., 998 S.W.2d 266, 274 (Tex. App. Houston [14th Dist.] 1999, no pet.)

The rules of appellate procedure permit McGuire to request that the trial court clerk file omitted items in a supplemental appellate record. See Tex. R. App. P. 34.5(c)(1). In the weeks following oral argument, McGuire failed to supplement the appellate record. Instead, he filed a written motion, asking the court to take judicial notice that the Commission requested a hearing on his motion for new trial. We cannot take judicial notice of another court s records without proof of those records. Cf. Richards v. Comm n for Lawyer Discipline, 35 S.W.3d 243, 251 (Tex. App. Houston [14th Dist.] 2000, no pet.).