David Kellebrew v. Featherlite Precast Corporation ( 1992 )

CV2-008 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





ON MOTION FOR REHEARING





NO. 3-92-008-CV



DAVID KELLEBREW,

APPELLANT

vs.





FEATHERLITE PRECAST CORPORATION,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 430,189, HONORABLE JOSEPH HART, JUDGE PRESIDING

The prior opinion and judgment of this Court, dated August 26, 1992, are withdrawn and the following substituted.

In three points of error, David Kellebrew appeals from the trial court's judgment refusing to reinstate his cause after dismissal, and from its denial of two motions for continuance. We will overrule all three points of error and affirm the trial court's judgment.

THE CONTROVERSY

This lawsuit arose out of an accident that occurred in November 1985. Kellebrew filed suit in October 1987. In January 1989, the court granted Kellebrew's motion to continue the scheduled hearing on Featherlite's motion for summary judgment. Kellebrew later filed a motion for continuance on May 16, 1990, based on counsel's being involved in the trial of a federal class action lawsuit. In his brief, Kellebrew states that no order concerning this motion is in the record. In its brief, Featherlite states that it agreed to the continuance and no order was issued. ⁽¹⁾

Featherlite then, by letter, suggested a January trial setting but agreed to Kellebrew's request for a March setting, notifying Kellebrew on June 21, 1990, that the case was set for March 4, 1991 (first on docket). On February 20, 1991, eight months after notification and twelve days before trial, Kellebrew moved for a continuance. The trial court denied the motion with a notation that the conflicting case setting offered as a reason for continuance had not been set until December 1990, months after the Featherlite setting in Travis County, and that counsel failed to move for continuance until well after December. Trial began on March 6, but resulted in a mistrial during voir dire.

Featherlite advised Kellebrew that it would seek a setting on either October 7 or 21, 1991. On March 14, 1991, Featherlite sent a letter to Kellebrew notifying counsel of a setting for October 7, 1991. In the letter Featherlite specifically asked about any conflicting trial settings, requested the earliest possible notice of any conflicts, and informed Kellebrew that, should he seek another continuance, Featherlite would advise the judge hearing the motion that, as of the date of the letter, no conflicts had been brought to Featherlite's or the court's attention. On September 30, 1991, Kellebrew filed a motion for continuance on the basis that a trial in Orange County would run over into the Travis County setting. The motion for continuance was denied.

On the day the case was called, Kellebrew appeared with an attorney from the same firm as his attorney-of-record and again requested a continuance. The continuance was denied and the case called for trial. Counsel for Kellebrew announced at that time, in open court, that he would not proceed to select a jury that afternoon, at which time the court dismissed the cause. A motion to reinstate was heard on November 13, 1991, and denied.

MOTIONS FOR CONTINUANCE

In his first two points of error, appellant contends that the trial court erred in denying his motions for continuance filed on September 30, 1991, and October 7, 1991. The grant or denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed unless the record shows a clear abuse of discretion. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634 (Tex. 1986). The test for an abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, that is, in an arbitrary and unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). That the reviewing court might decide the matter differently under similar circumstances does not result in the trial court's having abused its discretion. Downer, 701 S.W.2d at 242. We view the evidence in the light most favorable to the action of the trial court and indulge every presumption in its favor. Sims v. State, 816 S.W.2d 502, 508 (Tex. App.--Houston [1st Dist.] 1991, writ denied).

A more detailed statement of the test for "abuse of discretion" is: (1) whether the trial court's exercise of discretion was legally erroneous; and (2) if it were, whether the impact of the error requires reversal. Reyna v. Reyna, 738 S.W.2d 772, 774 (Tex. App.--Austin, 1987, no writ). Error can also occur if a court exercises its discretion without sufficient facts from which it may make a rational decision. Id. Error can occur if the court makes an erroneous choice as a matter of law by: (1) making a choice that was not within the range of choices permitted the court by law; (2) arriving at a choice in violation of an applicable legal rule, principle, or criterion; or (3) by making a choice that was legally unreasonable in the context in which it was made. Id. at 775. Such a choice may occur if the trial court fails to consider legally relevant evidence, unreasonably exaggerates a legally relevant factor, or rests its determination on a factor that the court is forbidden by law to consider. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 939-40 (Tex. App.--Austin 1987, no writ).

The rule governing absence of counsel as a ground for continuance says:

Except as provided elsewhere in these rules, absence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record.

Tex. R. Civ. P. 253 (emphasis added). The absence of counsel must not be due to the fault or negligence of the party requesting the continuance. State v. Crank, 666 S.W.2d 91, 94 (Tex.), cert. denied, 469 U.S. 833 (1984).

We now consider whether the denial of the continuances was an abuse of discretion. In this case, in March 1991, Featherlite's attorney specifically requested that Kellerbrew notify him at the earliest possible moment of any conflicts, given the previous history of conflicts with settings for Featherlite's case. The record shows that as of the date of receipt of the letter notifying Kellerbrew of the Travis County setting, no conflict was disclosed.

After waiting approximately seven months, Kellerbrew's counsel requested a continuance of the Featherlite trial. Counsel explains he was trying a case in Orange County that could not be continued. ⁽²⁾ However, what counsel does not explain is what steps, if any, he took between March of 1991 and September 30, 1991, to resolve the conflict before requesting additional continuances in Travis County. The docket sheet from Orange County attached to the motion for reinstatement suggests that a continuance was granted in that case on May 30, 1991, with a reset date in July. The next entry shows various actions on September 30, 1991, with no explanation for the resetting from July. The docket sheet also shows the Orange County case had already been dismissed and reinstated.

The actual or potential availability of another attorney from the same firm has been considered as a factor in denying continuances. The record does not show why another attorney from the firm could not have handled one or the other matter, other than client preference. ⁽³⁾ See Rabe v. Guaranty Nat'l Ins. Co., 787 S.W.2d 575, 579 (Tex. App.--Houston [1st Dist.] 1990, writ denied); Dover Corp. v. Perez, 587 S.W.2d 761, 766 (Tex. Civ. App.--Corpus Christi 1979, writ ref'd n.r.e.), supp. op. on remittitur, 591 S.W.2d 547 (1979, no writ). Kellebrew relies on Dancy v. Dagget, 815 S.W.2d 548 (Tex. 1991) (orig. proceeding) to support the proposition that he had an absolute right to be represented by the particular attorney of his choice from that firm. Dancy is distinguishable, however, and does not stand for the proposition cited. In Dancy, a hearing was set on temporary orders in Dancy's divorce. After that setting, a criminal case was set. The attorney promptly filed a motion to reset the divorce hearing and the divorce case was reset. The attorney appeared in the criminal case, which was continued to the next day, the day of the divorce setting. There is no indication in the opinion that the resetting of the criminal case was due to any action on the part of Dancy's counsel. The court did not simply dismiss the case for failure to appear, but rather adjudicated on the merits. The trial court violated a local rule regarding conflicts in trial settings. The supreme court held that, under these circumstances, it was an abuse of discretion to try the case. There was no indication in the case that any other attorney was available to represent the client. There is also no indication of the same history of delays.

Given the history of delays and continuances, given that appellee's counsel had requested early notification of conflicts, and given that counsel did little or nothing in advance to avoid the conflict, the court had adequate facts from which it could rationally conclude that absence of appellant's counsel was due to fault. It was not an abuse of discretion to deny the continuance. Cf. Thrower v. Johnston, 775 S.W.2d 718 (Tex. App.--Dallas 1989, no writ) (abuse of discretion found when: case set by appellee's counsel without attempt to determine potential conflicts; as soon as conflict discovered, appellant's counsel attempted to negotiate earlier setting; and all trial court had to do to resolve conflict was to reset case for an afternoon, rather than morning start on the first day of trial). ⁽⁴⁾ We overrule points of error one and two.

REINSTATEMENT

In his third point of error, appellant contends that the trial court erred in denying his motion to reinstate the cause on the trial court's docket. Featherlite contends that the reinstatement provision of Tex. R. Civ. P. 165a(3) does not apply because the cause was not dismissed under 165a for failure to appear but under the court's inherent power to control its docket because of counsel's refusal to proceed. An appellant seeking reversal of a dismissal has the burden of establishing a clear abuse of discretion whether the trial court acted under its express or its inherent authority and whether appellant complains of an order of dismissal or a denial of a motion to reinstate. Stromberg Carlson Leasing Corp. v. Central Welding Supply Co., 750 S.W.2d 862, 864 (Tex. App.--Houston [14th Dist.] 1988, no writ). That is, whether the case is dismissed under the court's inherent power or under Rule 165a, the standard of review is abuse of discretion. ⁽⁵⁾ That a combination of legal principles and factual circumstances might limit the range of choices available to a trial court does not change the standard of review from abuse of discretion. See Landon, 724 S.W.2d at 939.

In this case, two continuances were denied. Counsel's failure to appear was thus not the result of accident or mistake. ⁽⁶⁾ That does not mean that the court, in the exercise of its discretion, would have been prohibited from choosing to reinstate the case, if it found good cause demonstrated, but it did not. As in reviewing points of error one and two, we find no satisfactory explanation of why another attorney in the firm could not have handled one or the other matter; no explanation of why counsel, in view of the letter from Featherlite's counsel, in particular, did not notify Featherlite's counsel earlier; why the Orange County case that conflicted was continued from its July setting (apparently by agreement), especially in view of the fact that the case had already been dismissed and reinstated. The record reveals a pattern of delays and late disclosure of conflicts. Again, we find no abuse of discretion on the trial court's part. We overrule point of error three.

Kellebrew's motion for rehearing adds points of error four, five, and six, contending that the court used an improper standard of review, violated Rule 90(a) by not discussing the sufficiency of the evidence ⁽⁷⁾, and violated Kellebrew's due process rights by denying him his choice of attorney. For the reasons discussed in points one, two, and three, we overrule these points.

Having overruled all points of error, we overrule the motion for rehearing and affirm the judgment of the trial court.

Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Affirmed

Filed: October 21, 1992

[Do Not Publish]

1. ¹ In the statement of facts from the hearing on the October 3, 1991, motion for continuance, a copy of a letter dated May 24, 1990, from Featherlite's counsel to Kellebrew's counsel appears. The letter says that a member of Judge Hart's staff and Featherlite's counsel agreed to place the motion for continuance in the file unsigned because although the continuance was agreed, counsel for both sides had not agreed on a new trial date. Therefore, Featherlite did not want the judge to sign the order and assign a trial date. The letter proposed a January 1991 setting. In response, Kellebrew's counsel requested a March setting but did not dispute that Featherlite had agreed to a continuance.

2.   Appellant's counsel complains that the trial court did not make diligent enough efforts to contact the trial judge in Orange County, apparently to verify that counsel was in trial there. The question, however, was not counsel's whereabouts but why he was in Orange, rather than Travis, County.

3. ³ Appellant's counsel places great emphasis on an affidavit from his client in which the client stated that he did not want any other attorney, that he did not feel any other lawyer could competently represent his interests, and that his file was large and complicated. The trial court, however, also had before it the pleadings in the case, showing that the client was suing based on an injury incurred due to the collapse of the bed of a flatbed truck. The court could have concluded that in its opinion, the case was not complex enough so that another attorney from the firm would not have had adequate time to prepare and handle it.

4. ⁴ Appellant's counsel relies on Thrower as support for his position. However, counsel quotes the last part of the opinion, in which the court applies the law to the facts of the case. The facts in Thrower are quite different from the facts in this case, rendering Thrower distinguishable from counsel's case.

5. ⁵ See W. Wendell Hall, Standards of Appellate Review in Civil Appeals, 21 St. Mary's L.J. 883-885 (1990). The author discusses the reinstatement provisions of 165a(3) as being similar to the requisites for granting a new trial in a default judgment. Id. at 885. A proper default judgment is reviewed under an abuse of discretion standard. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).

6. ⁶ The order dismissing the case stated that plaintiff refused to proceed with his case and the court found that the case should be dismissed. The order refusing to reinstate the case stated that the motion was denied. There are no findings of fact or conclusions of law in either order. The judgment must be upheld on any legal theory that finds support in the evidence. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).

Counsel quotes from the statement of facts to suggest that Judge Hart refused to find that the failure to appear was intentional or the result of conscious indifference.

MR. MORGAN: Judge, just for the record, does the Court find that there was not a reasonable explanation for the dismissal or does the Court find there was a conscious indifference or intentional conduct that would result in the Court's ruling.

THE COURT: I do not find that any failure was due to an accident or mistake or that the failure has otherwise been reasonably explained.

The answer to the question perhaps could have been given more directly in terms of the question. However, the judge said that he did not find that any failure was due to an accident or mistake or had been reasonably explained. The alternatives left under Rule 165a(3) are intentional conduct or conscious indifference. In any event, such an exchange is not a finding or a failure to find as we have no findings of fact or conclusions of law. See Tex. R. Civ. P. 296.

7. ⁷ Texas R. App. P. 90(a) requires the Court's opinion to address every issue raised and necessary to disposing of the appeal. We have discussed the evidence to the degree necessary under an abuse of discretion review.