COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ADRIANA SANTOS

,

Appellant,

v.

CARLOS GARCIA

,

Appell ee. §

§

§

§

§ No. 08

- 23

- 00 317

- C V

Appeal from the

4 9th Judicial D istrict Court

o f Webb County, Texas

(TC# 2019

- CVG

- 001704

- D1 )

MEMORANDUM OPINION 1

This case presents a property dispute. A ppellant Adriana Santos appeals from a denial of

her motion for new trial

, which challenged a judgment in favor of Appellee Carlos Garcia

. In two

issues o n appeal, Santos contends (1) the trial court abused its discretion by denying her motion

for new trial b ased on newly

- discovered evidence ; and (2) the trial court erred by failing to issue

findings of fact and conclusions of law. We affi rm.



### I. F ACTUAL 

### B ACKGROUND

Garcia filed suit against Adriana Santos f /k/a Adriana Villarreal (Santos) and Guillermo

Villarreal (Villarreal) (collectively, the Defendants)

, 2 asserting a variety of causes of action.

1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket

equalization order. Accordingly, we apply the Fourth Court of Appeals ’ precedent to the extent it conflicts with our

own. See Tex. R. App. P. 41.3

.

2 The Defendants divorced in 2010.2

Garcia ’s petition alleged he had contract ed with the Defendants to purchase real property located

at 3105 Potomac Loop in the City of Laredo

. Garcia alleged he made seven payments over a period

of approximately eleven months totaling $20,000. Those payments, h e contended

, were

c u mulative ly treated as a down payment on the purchase of the p roperty

. Garcia further contended

t he Defendants acted as owner

- financers of the p roperty

, whereby they collect ed his monthly

mortgage payments from 2010 to 2018.

Garcia further alleged the circumstances changed thereafter. In August 2018

, the

Defendants sent him a letter claiming they owned the p roperty and demanded he vacate the

premises or face eviction. In response

, Garcia sent a letter to Santos and her attorney asking that

an error on the 2010 Warranty Deed to Secure Assumption ( Warranty Deed) be corrected and that

both the Warranty Deed and the 2010 Deed of Trust be filed in the Webb County Property Records.

The letter also stated Garcia was the rightful owner of the p roperty and eviction would be

inappropriate without proper notice of foreclosure and a foreclosure sale.

Approximately one year later, Garcia described that he was again served with a notice to

vacate the premises. The notice alleged the agreement between the parties was a month

- to

- month

rental and Garcia was in default on the agreement. The letter also stated that Santos would file suit

for forcible detainer against Garcia. After Garcia filed his second amended petition, Santos filed a

counter

- petition alleging she leased the property to Garcia beginning in 2009 ; that Garcia made

payments until 2018 ; and that he stopped making payments in May 2019. S antos denied Garci a

purchased the property from her

.

During a bench trial, Garcia relied on the Warranty Deed

, which contain ed the signatures

of both Defendants (as grantors), but erroneously nam ed Garcia as both g rantor and g rantee in the

body of the document

. Garcia also relied on a Deed of Trust naming him as the grantor and Santos3

as the lender. Both documents were n otarized by Amy Sarli. Santos denied signing the Warranty

Deed. Villareal testified he did not remember whether he signed the Warranty Deed.

In July 2023, t he trial court signed a final judgment that (1) decreed Garcia held superior

right, title to, and interest in the p roperty over any claims of the D efendants and any claims brought

by any persons or entities claiming by

, through

, or under the D efendants

, and ( 2 ) awarded Garcia

damages and attorney’s fees

. The judgment also awarded Santos $19,269.10 for taxes and

insurance she paid and $10,563.61 for the difference in the amount owed according to the purchase

price and the amount owed by Santos

.

Santos filed a motion for new trial alleging she ha d acquired new evidence that impeache d

the trial testimony of Garcia and his wife

, Melissa Garcia

, and went “ to the very matter of

Ms. Adriana Santos not sig n ing the Deed of Trust

. ” In her motion, Santos contended as follows:

In this matter, Defendant Santos learned about the new evidence after the trial after

someone advised her.

. . . She was not only advised that the Notary and the Plaintiff

and his wife were also Facebook friends with the notary, Amy Sarli and her family.

. . . During the trial, Carlos Garcia and his wife Melissa Garcia, both testified that

they had no idea who the notary, Amy Sarli, was other than at the time the alleged

Deed of Trust was executed in 2010. During the trial Defendant Adriana Santos

and Guillermo Villarreal both denied signing the purported document.

Defendant Santos did not know that the Plaintiff and Ms. Sarli had a

business relationship as Mr. Garcia denied that fact. This was information obtained

after the fact directly from Ms. Sarli, since the case was now over to Ms. Sarli. [sic]

From the new evidence, now Ms. Sarli has stated to Defendant Santos that

Carlos Garcia is in fact her client.

. . . Additionally, some form of relationship is

supported by the Facebook association by the Plaintiff, his wife and Ms. Sarli and

her family.

. . .

This evidence does not only impeach the Plaintiff and his wife’s statements

that they had no clue or no relationship with Ms. Sarli. Additionally, it goes to the

crux of the case since Ms. Santos states that she had no knowledge and did not sign

a Deed of Trust with regards to the property at interest in the case.

This evidence was not apparent before the trial as it has been denied to by

both parties, the Plaintiff and the notary. The whole case in this situation rested on

the signing of alleged deed of trust by Ms. Santos.4 Defendant Santos has attached multiple Facebook interactions by the

Plaintiff and his wife with the Ms. Sarli and her family.

. . .

Garcia filed a response to Santos’s motion for new trial

, in which he contended that Santos

knew Sarl i had notarized both deeds nearly four years before trial, that Santos took his pretrial

deposition in which he was asked about his relationship with Sarli

, and that Santos “ had every

opportunity to inquire further about the relationship between [himself] and Sarli from the date of

the deposition to the date of trial and failed to do so. ”

The trial court conducted a hearing on the motion for new trial at which Garcia, his wife,

Santos, and Sarli testified. At the hearing, Santos alleged her recently discovered evidence showed

that, during the bench trial, Garcia and his wife lied about knowing Sarli. Garcia countered that

Sarli’s existence was easily discovered before trial and Santos could have subpoenaed her for trial.

At the end of the hearing, the trial court denied the motion for new trial. 3 On that same day, Santos

requested findings of fact and conclusions of law. She also filed a notice of past due findings of

fact and conclusions of law. The trial court did not issue any findings or conclusions.



### II

. M OTION FOR 

### N EW 

### T RIAL

In her first issue on appeal, Santos asserts the trial court erred by denying her motion for

new trial, which she based on her claim that she had obtained crucial, newly

- discovered evidence

that was not accessible to her before trial

. She urged that the evidence would significantly alter the

outcome of the case.

3 By the time the trial court conducted the hearing on October 17, 2023, the motion for new trial had already been

overruled by operation of law. See Tex. R. Civ. P. 329b(c) ( “ In the event an original or amended motion for new trial

. . . is not determined by written order signed within seventy

- five days after the judgment was signed, it shall be

considered overruled by operation of law on expiration of that period. ” ).5

A. Standard of r eview & a pplicable l aw

We review the de nial of a motion for new trial for an abuse of discretion. Matter of

Marriage of Stokes

, No. 04

- 23

- 00138

- CV, 2024 WL 2034740, at *1 ( Tex. App.

— San Antonio

May 8, 2024, no pet.) (mem. op.)

. To establish an abuse of discretion, the complaining party must

demonstrate the trial court acted unreasonably, arbitrarily, or without reference to guiding rules

and principles. Downer v. Aquamarine Operators, Inc.

, 701 S.W.2d 238, 241

– 42 ( Tex. 1985)

.

A movant seeking a new trial based on 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)

. Mere allegations will not suffice

to obtain a new trial based on newly

- discovered evidence

. Strong v. Strong

, 350 S.W.3d 759, 772

( Tex. App.

— Dallas 2011, pet. denied)

. Instead, “ admissible evidence must be introduced at a

hearing on the motion for new trial establishing such essential facts as no prior knowledge on the

part of the movant, the prior diligence exercised by the movant, and the nature of the newly

discovered evidence. ” Id. A movant has not exercised due diligence if the effort used to procure

the evidence after trial would have had the same result if that effort had been exercised before trial.

Knight v. Minter

, No. 05

- 11

- 00829

- CV, 2012 WL 3234276, at *2 ( Tex. App.

— Dallas Aug. 9,

2012

, no pet. ) (mem. op.)

.

B. Analysis

We begin our analysis with the second element, which requir es proof that Santos ’ s failure

to discover the new evidence sooner was not due to her lack of diligence

. Although Santos testified

at the hearing on her motion for new trial, she was not asked any questions about the newly

discovered evidence. Instead, she relied on her affidavit and several Facebook screenshots6

allegedly showing that Garcia and his wife were “ friends ” with Sarli

, 4 all of which were attached

to her motion. In her affidavit, Santos stated:

I have denied signing any documents related to

. . . the property at issue in this case.

In the trial, Mr. Garcia and his wife, the Plaintiffs, both denied having any

relationship with the Notary, Amy Sarli. I, the Defendant, has [sic] since found out

the Plaintiffs and the notary have had a working business relationship for some

time. This was not known to me and had been denied on multiple occasions.

In addition, it [sic] was made aware that the parties are Facebook friends

and have commented and shared “ likes ” on each others ’ posts. This info rmation

further questions and contradicts the statements made by both Plaintiffs in trial that

they had no communication or relationship with Ms. Sarli.

No evidence was offered during the hearing that this “ new ” evidence could not have been

discovered through due diligence prior to trial on the merits

. On appeal, Santos contends she

exercised due diligence during trial by “ extensively reviewing all available evidence and

conducting thorough depositions and interrogatories. ” As support for this contention, she cites to

Garcia’s pretrial deposition testimony in which Garcia was asked about the terms of the sale

,

payments he made, one of the 2020 deeds, and the notary. Regarding Sarli, he was asked as

follows:

Q. And as you can see, it was also signed by an Amy Sarli, the same notary. Are

you aware of that?

A. Correct.

Q. And you mentioned you do not know Amy Sarli, she ’ s not a friend of yours,

or you do no other business with her?

A. No, she ’ s not my friend.

Q. Do you do other business with Ms. Sarli, at all?

A. I have gone there to notarize papers but only for that.

Q. Do you know if she does income tax returns, as well, as notary services?

A. Yes, to my knowledge, she does.

Q. Have you ever used her for income tax purposes?

4 At the hearing on the motion for new trial, Sarli testified her Facebook page was for her business, her daughters

maintained the page, the so

- called “ friends ” were all her clients and not personal friends, and she had “ a couple of

thousand ” Facebook “ friends. ”7

A. To tell you the truth, I don ’ t remember. If I did, then it may have been once,

but I don ’ t remember. Not that I recall

.

Although this testimony

, which was not submitted to the trial court at the new trial hearing,

may support an allegation that Garcia knew Sarli, it provide s no support for Santos’s contention

t h at she could not discover it despite having exercised due diligence. Santos knew before trial that

Sarli notarized both deeds

. At his deposition, Garcia said he knew Sarli because she notarized

“ papers ” for him

. This pretrial testimony contradicts Santos’s affidavit averring she had “ since

found out the Plaintiffs and [Sarli] have had a working business relationship for some time. ”

During the hearing, Santos provide d no explanation for why she did not further explore the nature

and extent of any “ working business relationship ” during either Garcia’s pretrial deposition or the

2023 trial

, nor did she explain why she did not explore Sarli’s social media before trial

— the

screenshots are from 2022, several years after the two deeds were notarized in 2010

. On appeal,

she contends this information was “ not accessible through standard pretrial investigative processes

d ue to its private nature on social media platforms

, which only later became evident. ” However,

n othing in the record supports her allegation that Sarli’s Facebook page could not have been

discovered before trial “ due to its private nature

. ” 5

We conclude t he trial court could have found that Santos did not show s he had exercised

diligence with respect to the discovery of this “ new ” evidence. The refore, the trial court did not

abuse its discretion by denying Santos’s motion for new trial based on newly

- discovered evidence.

Accordingly, we overrule her first issue on appeal.

5 During the hearing, Sarli testified the Facebook page was hers “ [i]f you look for me. ”8 

### III. F INDINGS OF 

### F ACT 

### & C ONCLUSIONS OF 

### L AW

In her second issue on appeal, Santos asserts the trial court erred by failing to issue findings

of fact and conclusions of law regarding her motion for new trial

, thereby hampering her ability to

effectively challenge the trial court’s decision and impeding this court’s ability to conduct a

thorough review

.

Findings of fact and conclusions of law are required upon request in any case tried without

a jury in a district or county court pursuant to Texas Rule of Civil Procedure 296

. See Tex. R. Civ.

P. 296 ( “ Requests for Findings of Facts and Conclusions of Law ” )

. Several courts of appeal have

nevertheless held that Rule 296 does not apply to post

- judgment hearings. See Shearn v. Brinton

Shearn

, No. 01

- 17

- 00222

- CV, 2018 WL 6318450, at *11 ( Tex. App.

— Houston [ 1st Dist.] Dec. 4,

2018, no pet.) (mem. op.) ; Shelton v. Shelton

, No. 07

- 96

- 0050

- CV, 1996 WL 560336, at *1

( Tex. App.

— Amarillo Oct. 2, 1996, writ denied) ; Geisendorff v. Fenwick

, No. 04

- 94

- 00457

- CV,

1995 W

. L 612406, at *2 ( Tex. App.

— San Antonio Oct. 18, 1995, writ denied) ; Johnson v. J.W.

Constr. Co.

, 717 S.W.2d 464, 467

– 68 ( Tex. App.

— Fort Worth 1986, no writ)

.

Even if the trial court was required to file findings of fact and conclusions of law

, upon

proper request, following a hearing on a motion for new trial, the failure to do so does not compel

reversal if the record before the appellate court affirmatively demonstrates that the complaining

party suffered no harm. Ad Villarai, LLC v. Chan Il Pak

, 519 S.W.3d 132, 135 ( Tex. 2017) (per

curiam) ; Howe v. Howe

, 551 S.W.3d 236, 244 ( Tex. App.

— El Paso 2018

, no pet. )

. The test for

determining harm is whether the circumstances of the case would require an appellant to guess the

reason or reasons the trial court ruled against it. Elizondo v. Gomez

, 957 S.W.2d 862, 865

( Tex. App.

— San Antonio 1997, writ denied) (finding no harm because, based on t rial court ’ s

statements, parties had notice of the reasons for the court ’ s decision ) ; Landbase, Inc. v. T.E.C.

,

885 S.W.2d 499, 501

– 02 ( Tex. App.

— San Antonio 1994, writ denied) (failure to file findings and9

conclusions harmless where the basis for the court ’ s ruling was apparent from the record). T rial

courts are encouraged to make findings and conclusions to narrow the bases of a judgment to only

a portion of multiple claims and defenses, thereby reducing the number of issues an appellant must

raise on appeal. Hernandez v. Moss

, 538 S.W.3d 160, 165 ( Tex. App.

— El Paso 2017, no pet.)

.

“ [I] f there is only a single ground of recovery or only a single defense, the appellant does not

usually have to guess at the basis of the trial court ’ s judgment and the objective of the rule is not

thwarted

. ” Id.

In this case, there was a si n gle basis for the motion for new trial

— newly

- discovered

evidence

. Th e factors that must be considered before granting a new trial based on newly

discovered evidence are well

- settled

. See Waffle House

, 313 S.W.3d at 813 (stating four factors

movant must establish). W hether the evidence here co u ld have been discovered before final

judgment was contested at the hearing. Furthermore, the trial court reminded Santos that

, among

other things, she had the burden to show due diligence.

Based on the arguments raised at the hearing on the motion

, we conclude Santos had notice

of the reasons for the trial court ’ s decision. Therefore, we find that even if Santos was entitled to

findings of fact and conclusions of law

, the trial court did not err because Santos d id not have to

guess at the basis for the trial court ’ s denial

, and our ability to review the issue on appeal has not

been impeded

. Accordingly, we overrule her second issue on appeal.



### IV. C ONCLUSION

For the reasons stated above, we affirm the trial court’s order denying Santos’s motion for

new trial

.

GINA M. PALAFOX, Justice

September 2 4

, 2024

Before Alley, C.J., Palafox and Soto, J J

.