Mr. and Mrs. Robert Elberger v. Ford Motor Company, Inc., Dub Miller Ford, Inc. and Daryl Waterwall ( 2007 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00926-CV

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ROBERT AND MONA ELBERGER, Appellants

V.

DUB MILLER FORD AND DARYL WATERWALL, Appellees

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On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 02-CV-125729

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MEMORANDUM OPINION

After this case had been set on the dismissal docket and subsequently retained, the trial court denied the motion for continuance that appellants, Robert and Mona Elberger, filed because they were unavailable on the date of trial. In two issues on appeal, appellant acontends that the court (1) gave inadequate notice of a trial reset date and (2) abused its discretion in denying appellants' motion for continuance. We affirm.

Factual Background

Appellants filed their original petition against appellees, Ford Motor Company, Inc., Dub Miller Ford, Inc., and Daryl Waterwall, on August 22, 2002 alleging that they suffered damages because of appellees' failure to repair their vehicle. On September 9, 2002, appellees filed their answer and Rule 194 Request for Disclosure, and appellants responded to the request for disclosure on October 11, 2002.

After October 11, 2002, there was no action taken on the case until 2006. On February 22, 2006, the trial court sent a letter to counsel notifying them that the case had been set on the dismissal docket for May 31, 2006 unless a motion to retain was filed by May 24, 2006. Appellants filed their motion to retain on May 31, 2006, stating that they were "ready to go to trial." Even though the motion to retain was filed after the deadline set by the court, the court granted the motion on June 15, 2006, and sent a letter to counsel initially setting trial on July 21, 2006 and stating that there would "be no continuances or passes granted." The letter further stated that a hearing could be passed by agreement of the attorneys. The letter also stated that "failure to comply might result in [the] case being dismissed for want of prosecution."

Appellants claim in their motion for a new trial that they contacted the trial court coordinator on July 20, the day before the trial was initially set, to determine whether the case was going to be called to trial on Friday, July 21. Appellants' counsel was involved in a trial in another district, and preferred that the case be heard Monday, July 24. The trial court coordinator initially complied with appellants' request and set the case to be called on July 24, but then called appellants on July 21 to notify appellants that appellees had a conflict with July 24 and that trial was, at that point, set for Friday, July 28. The trial court also sent written notice on July 21 that the trial was set for July 28. Appellants had been scheduled to fly to Atlanta that day to attend a family wedding. Appellants decided, based on the trial court coordinator's recommendation, to file a motion for continuance and have it heard on July 28. Appellants filed their motion for continuance on July 26, 2006, stating that they would be "unavailable for trial because of a pre-planned trip." They also attached an affidavit to the motion, which contained a statement by appellants that said only, "I verify that the facts contained in the attached Motion for Continuance are true and correct."

Appellants' counsel was present in court on July 28th. However, appellants were not present. The court denied the motion for continuance. Appellants' counsel did not proceed with the case because he did not have any witnesses, and the court rendered a judgment in favor of appellees.

On August 8, 2006, appellants filed a motion for new trial. The motion asked only that the court "reconsider its entry of default and grant this motion for new trial." It did not allege lack of, or inadequate, notice of the trial setting.

Notice of Trial Date

In this first issue, appellants argue that the notice assigning the case to trial on July 28, 2006 was not reasonable under Rule of Civil Procedure 245, which provides in part:

The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties.

Tex. R. Civ. P. 245 (emphasis added).

Appellants do not argue that they did not receive the 45 days' notice required for an initial trial setting under rule 245. Nor do they argue that moving the case from July 21, 2006 to July 24, 2006 was unreasonable. However, they do contend that moving the case to July 28, 2006 was unreasonable because they had already made travel plans on that date. We disagree.

Rule 3.4.2 of the Local Rules for the District Courts of Fort Bend County provides:

Cases shall be set for trial for a date certain. If a case is not assigned to trial by the Friday after the date it was set, the case will be reset. Unless all parties agree otherwise, the original setting must comply with all requisites of T.R.C.P. 245.

By its very terms, rule 3.4.2 provides notice that any case set for trial in a Fort Bend district court is subject to assignment for trial any day before the Friday after the date it is originally set. In this case, trial was set for Friday, July 21, 2006 and notice was given in accordance with rule 245. At appellants' request, the trial date was moved to Monday, July 24, 2006, and, at appellees' request, the trial date was moved to Friday, July 28, 2006. The July 28, 2006 trial date was on the first Friday after the initial setting--within the time period in which rule 3.4.2 provides for assigning a case to trial. As such, appellants had reasonable notice of the July 28, 2006 trial setting.

Accordingly, we overrule point of error one.

Motion for Continuance

In their second issue, appellants argue that the trial court abused its discretion in denying appellants' motion for continuance. The decision of the trial court in denying a motion for continuance will not be disturbed unless there is a showing of a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Retzlaff v. Texas Dep't of Criminal Justice, 135 S.W.3d 731, 745 (Tex. App.--Houston [1st Dist.] 2003, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Barkhausen v. Craycom, Inc., 178 S.W.3d 413 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).

Under Rule of Civil Procedure 251, a continuance will not be granted unless there is sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law. Tex. R. Civ. P. 251; Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 (Tex. App.--El Paso 2003, no pet.). The mere absence of a party does not entitle him to a continuance. Vickery v. Vickery, 999 S.W.2d 342, 363 (Tex. 1999); Briscoe, 130 S.W.3d at 169. The motion for continuance based on absence of testimony must be supported with an affidavit showing: (1) the substance of the testimony, (2) the materiality of the testimony, and (3) the movant's due diligence to procure such testimony. See Tex. R. Civ. P. 252; Briscoe, 130 S.W.3d at 169; Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

Appellants' motion for continuance did not comply with the requirements of rule 252. Appellants argued that they would be "unavailable for trial because of a pre-planned trip," that this trip was planned "with much time in advance," and that they had "already made their travel arrangements and purchased their tickets." However, the motion did not include any information regarding the substance and materiality of their planned testimony.

On the record before us, we cannot say that the trial court abused its discretion in refusing to grant appellants' request for a continuance. Trial courts are to take the entire procedural history of a case into account when making a decision, and are to look at the entire record, not just the sworn motions. See Waste Water, Inc. v. Alpha Finishing and Developing Corp., 874 S.W.2d 940, 944 (Tex. App.--Houston [14th Dist.] 1994, no writ); Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.--Beaumont 1992, no writ). Given that this case had been on the trial court's docket for almost four years, that appellants had been warned that this was a "try or dismiss date," and that appellants showed little diligence in pursuing the case and chose to be away on the day of trial, the trial court was within its discretion to deny appellants' motion for continuance.

Accordingly, we overrule appellants' second issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.