in the Interest of W.A.B., III, a Child ( 2019 )

Affirmed and Memorandum Opinion filed May 21, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00181-CV
IN THE INTEREST OF W.A.B., III, A CHILD
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Cause No. 2013-04887
MEMORANDUM OPINION
This is an appeal from a default judgment in a suit to modify a parent-child
relationship. In a single issue, appellant (“Father”) argues that the trial court erred
by denying Father’s motion for continuance of the trial setting based on his
attorney’s unavailability. Because we conclude that Father failed to preserve his
complaint for appellate review and that, in any event, the trial court did not abuse
its discretion under the circumstances of this case, we affirm the trial court’s
judgment.
Background
A Harris County family district court signed a final decree of divorce on
January 31, 2014, dissolving the marriage between Father and Mother. The court
also signed an agreed order in a suit to modify the parent-child relationship
(“SAPCR”) pertaining to Mother’s and Father’s son, W.A.B., III. Several years
later, Father filed a petition to modify the SAPCR order, alleging a material and
substantial change in W.A.B.’s circumstances. Mother filed a counterpetition,
seeking a modification of issues regarding, inter alia, medical treatment,
education, and possession of the child. Mother also sought an increase in child
support payments.
The Harris County district court set this case for a bench trial at 9:00 a.m. on
Monday, October 16, 2017, and provided notice to all counsel.
On Thursday, October 12, 2017, at approximately 10:00 a.m., Father’s
counsel received an email from the court manager for the 10th Judicial District
Court of Galveston County calling Father’s counsel to trial at 9:00 a.m. on Monday
October 16, 2017, in Galveston—the same date and time as the SAPCR trial
setting in Harris County. The Galveston case was a felony criminal prosecution.
Father filed a motion for continuance in the Harris County District Clerk’s
office at 8:54 p.m. on Sunday, October 15, 2017. Father sought a continuance of
the October 16, 2017 trial setting in the SAPCR proceeding due to the conflicting
felony criminal trial setting in Galveston County. The motion for continuance was
verified and attached a copy of the email from the Galveston County district court
manager advising counsel of his obligation to appear for trial on October 16, 2017,
at 9:00 a.m. The motion for continuance also alleged that counsel’s unavailability
was not the result of Father’s own fault or negligence, “as prior to Wednesday,
October 11, 2017, [counsel] believed that the [criminal case] would not be reached
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for trial until the following week at the earliest.” The record does not show that
Father attempted to obtain a hearing date and time for the Harris County district
court to consider the motion for continuance.
When the Harris County district court called the docket for this case at 9:00
a.m. on Monday, October 16, 2017, neither Father nor his counsel appeared. The
court apparently recessed until the afternoon, and then proceeded “on a post-
answer default basis” at 1:43 p.m. that day. Mother’s counsel was present and
stated on the record that she received an email from Father’s counsel the prior
evening advising that he would be filing a motion for continuance due to the
conflicting Galveston County trial setting. Mother’s counsel found it “very
concerning” that Father’s counsel did not provide notice of the conflict until late
Sunday evening on October 15 when counsel learned of the conflict on Thursday
October 12. The court made no express ruling on the motion for continuance and
proceeded to hear testimony on the petitions to modify the SAPCR order. After
Mother testified, the trial court orally rendered judgment granting Mother’s
counterpetition and awarding $6,023.24 in attorney’s fees. The trial court
subsequently signed a final judgment on November 7, 2017.
After the trial court signed the default judgment, Father filed a motion to set
aside the judgment. Although the trial court set the motion for a hearing at
Father’s request, the court’s docket sheet indicates that neither Father nor his
counsel appeared, and the “matter was passed.”
Analysis
Father appeals the default judgment. In one issue, he argues that the trial
court erred in denying the motion for continuance based on his attorney’s
unavailability.
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A. Preservation of Error
A trial court is not required to consider a motion that is not brought to its
attention. See Murphree v. Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at
*1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.); In re
Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
Showing that a motion was filed with the court clerk does not constitute proof that
the motion was brought to the trial court’s attention or presented to the trial court
with a request for a ruling. See Murphree, 2012 WL 2312706, at *1; Smith, 263
S.W.3d at 96; see also Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 448-
49 (Tex. App.—Dallas 2011, no pet.) (filing motion for continuance, and setting
motion for hearing, was insufficient to bring the motion to the attention of the trial
court). When the record does not show that a motion for continuance was filed and
brought to the trial court’s attention before final judgment is rendered, any error is
not preserved. See Tex. R. App. P. 33.1(a); Murphree, 2012 WL 2312706, at *1.
Father filed his motion for continuance of the SAPCR trial setting
approximately twelve hours before trial was set to begin. He did not set the motion
for a hearing. Neither Father nor his counsel appeared at the time set for trial to
present and argue the merits of Father’s motion for continuance. The record does
not show that Father presented the motion for continuance to the trial court with a
request for a ruling or otherwise brought it to the trial court’s attention before the
final judgment was rendered. The record also reveals no ruling on the motion.
Thus, appellant has failed to preserve this issue for appellate review. See Tex. R.
App. P. 33.1(a); Murphree, 2012 WL 2312706, at *1.
B. The Trial Court’s Discretion
Presuming Father preserved error and that the trial court denied the motion
for continuance, we nonetheless conclude the trial court would not have abused its
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discretion. As the sole basis for his motion, Father contends that he was entitled to
a continuance because his counsel had a conflicting trial setting in another court
that took priority over the present case.
We review a trial court’s decision to deny a motion for continuance for a
clear abuse of discretion and on a case-by-case basis. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004) (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). A clear abuse of discretion is shown
when a trial court reaches a decision “so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law.” Id.
Generally, a motion for continuance will not be granted without “sufficient
cause supported by affidavit, or by consent of the parties, or by operation of law.”
Tex. R. Civ. P. 251. The “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; see also Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
It was incumbent upon Father’s attorney to promptly notify the trial court of
the conflicting trial settings. See Sec. Admin. Jud. Reg., Reg. R. Admin. 10.2.1
(local rule providing that an attorney assigned to trial in two different cases on the
same day has a duty to notify the affected courts of the conflicting trial settings as
soon as they are known); see also Harris Cty. Fam. R. 8.7 (“It is the duty of
counsel to report promptly to the court immediately upon learning of a conflicting
engagement that might preclude that counsel’s availability for trial. Failure to do
so may result in sanctions.”). Father’s counsel failed to notify the trial court of the
conflicting settings as soon as he was aware of them, which was no later than
Thursday, October 12, 2017. See In re K.A.R., 171 S.W.3d 705, 711 (Tex. App.—
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Houston [14th Dist.] 2005, no pet.) (noting that appellant’s attorney failed to notify
trial court of conflicting settings as soon as she was aware of them, “which was no
later than” the date she received notice of the trial court’s order setting case for
trial). Father’s counsel did not file the motion for continuance until 8:54 p.m.
Sunday, October 15, 2017, three days after receiving notice of the conflict and
approximately twelve hours before trial was set to commence in this case. Father’s
counsel thus deprived the trial court of the opportunity of resolving the setting
conflict with the presiding judge of the 10th District Court in Galveston County. 1
See Sec. Admin. Jud. Reg., Reg. R. Admin. 10.2.2 (stating that, “[i]nsofar as
practicable, Judges should attempt to agree on which case has priority”). The
motion for continuance also did not state why Father’s counsel failed to take earlier
steps to avoid the conflicting settings. See Murphree, 2012 WL 2312706, at *3;
Reyna v. Reyna, 738 S.W.2d 772, 775 (Tex. App.—Austin 1987, no writ) (counsel
failed to take reasonable steps to avoid conflict).
For these reasons, we conclude that the trial court would not have abused its
discretion in denying the motion for continuance based on Father’s assertion of a
conflicting trial setting that allegedly had priority. See K.A.R., 171 S.W.3d at 711
(holding trial court did not abuse its discretion in denying continuance based on
conflicting trial setting in criminal case in another county because attorney for non-
appearing party did not promptly notify trial court of conflicting setting upon
learning about it); see also Murphree, 2012 WL 2312706, at *3 (same); Spearman
v. Tex. Dep’t of Corrs., 918 S.W.2d 23, 24-25 (Tex. App.—Eastland 1996, no writ)
(same).
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The October 12 email from the 10th Judicial District court manager states: “If any
attorney has a conflict with other cases set for trial, the Court requests the cause number and
court in which there is a conflict, so that those cases can be monitored.” There is no indication in
this record that Father’s counsel alerted the 10th District Court in Galveston to the conflicting
settings.
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We overrule Father’s sole issue on appeal.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell and Bourliot and Former Justice Michael
Massengale, sitting by assignment.
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