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Medlock v. Commission for Lawyer Discipline6/21/2000
ence, "similar" to a motion for new trial. The motion contains argument based on matters raised prior to judgment, and also seeks a reconsideration based on allegedly newly discovered evidence. Whether the motion can be considered as a motion for new trial is determined by its substance. Gilbert v. Lobley, 214 S.W.2d 646, 648 (Tex. Civ. App.-Fort Worth 1948, no writ). Based on its substance, we find that Medlock's motion may be considered as a motion for new trial.
A party seeking a new trial in a civil case on grounds of newly discovered evidence must satisfy the court: (1) that the evidence came to the party's knowledge after the trial; (2) that the failure to produce the evidence at trial was not the result of a lack of due diligence; (3) that the evidence is not cumulative; and (4) that the evidence is so material that it would probably produce a different result if a new trial were ordered. Chambers v. Lee, 566 S.W.2d 69, 72 (Tex. App.-Texarkana 1978, no writ). The determination of these facts is within the sound discretion of the trial court, whose actions will not be disturbed on appeal absent a showing of an abuse of such discretion. Jackson v. VanWinkle, 660 S.W.2d 807, 809 (Tex. 1983); Wheeler v. Wheeler, 713 S.W.2d 148, 150 (Tex. App.-Texarkana 1986, writ dism'd). A case presenting a similar issue on appeal is Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). In that legal malpractice case, the plaintiff, who lost by summary judgment on a statute of limitations defense, sought by a motion for new trial to raise facts pertinent to the discovery rule, alleging such facts to be newly discovered evidence. Acknowledging that such a determination is addressed to the sound discretion of the trial court, the Dallas Court of Appeals held that where a motion for new trial is filed after summary judgment has been granted, the district court may only consider the record as it existed prior to granting the summary judgment. Id. at 818.
By failing to file a written response to the Commission's motion, Medlock raised no issue of fact to defeat summary judgment. Medlock has shown no reason why the facts relating to her denial of responsibility for the letter in controversy could not have been raised in response to the Commission's motion. Just as in Black v. Wills, Medlock seeks to raise, after summary judgment, factual issues that should have been raised by responsive summary judgment evidence prior to the summary judgment hearing. We also note that neither affidavit contains, as is required in newly discovered evidence cases, a statement that with the exercise of due diligence, such evidence could not have been discovered before the hearing.
For the reasons stated, we affirm the judgment.
William J. Cornelius Chief Justice
Date Submitted: June 20, 2000
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