in Re Robert Wayne Veigel, Relator ( 2010 )

NO. 07-10-0125-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 16, 2010
______________________________
IN RE ROBERT WAYNE VEIGEL,
RELATOR
_________________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Relator, Robert Wayne Veigel, Individually and in his capacity as Co-Trustee of
the Ardella Veigel Trust No. 2, seeks a writ of mandamus from this Court compelling the
Honorable John Board, Judge of the 181st District Court of Potter County, to grant a
motion for continuance in the underlying legal malpractice proceeding.1 Based upon the
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The underlying proceeding is Cause No. 94,778-B, styled Robert Wayne Veigel, et al. v. W.
Calloway Huffaker, Individually and d/b/a W. Calloway Huffaker, P.C., and Robert E. Golden, P.C.; In the
181st District Court in and for Potter County, Texas. Pleadings contained within the limited record before
this Court indicate that W. Calloway Huffaker previously reached a settlement with the Plaintiffs and the
claims against him were dismissed.
standard of review that we must apply in cases such as this, we deny the relief
requested.
Background
The underlying proceeding is a legal malpractice lawsuit filed by Relator on
August 18, 2006. Prior to January 7, 2010, Relator was represented by Jerry Gunn. On
that date, the trial court granted Gunn's motion to withdraw. The motion to withdraw
was not based upon any fault of Relator, but was instead due solely to Gunn's
retirement from the practice of law. On January 15, 2010, Relator's present counsel,
Mitchell A. Toups, filed a Notice of Appearance and Motion for Continuance. That
motion for continuance was granted and the case was continued until the trial court's
docket call to be heard on March 11, 2010.
On March 11, 2010, despite an announcement of “Not Ready” on behalf of
Relator, the trial court scheduled the underlying proceeding for trial to commence on
April 19, 2010. On March 16, 2010, Relator filed the Motion for Continuance that is the
subject of this proceeding. On March 24, 2010, the sole remaining defendant filed a
response in opposition to the motion contending (1) the motion was not supported by
affidavit as required by Rules 251 and 252 of the Texas Rules of Civil Procedure, and
(2) the grounds for continuance stated in the motion did not constitute sufficient cause.
In response thereto, Relator filed a Supplemental Motion for Continuance, with affidavit
attached, bearing a certificate of service dated March 25, 2010. On March 26, 2010,
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the trial court signed an order denying Relator's motion wherein it stated, “[t]he Court
finds Plaintiff has not established sufficient cause supported by affidavit.” Believing the
sole basis for the trial court's ruling to be the lack of an affidavit, on March 30, 2010,
Relator filed a Motion for Reconsideration. On March 31, 2010, the trial court advised
counsel that it would not entertain a hearing on the motion for reconsideration and then
reiterated the April 19th trial setting. In response thereto, Relator filed this Petition for
Writ of Mandamus on April 12, 2010.
Mandamus Standard of Review
AMandamus issues only to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy by law.@ Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth
Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).
Generally, an appellate court may not grant mandamus relief where resolution of
a fact issue underlies the trial court=s decision. Mendoza v. Eighth Court of Appeals,
795 S.W.2d 712, 714 (Tex. 1990) (recognizing that an appellate court may not deal with
disputed issues of fact via a mandamus proceeding). However, where there are no
disputed fact issues relevant to the decision, mandamus will lie if the trial court abuses
its discretion by misapplying controlling legal principles to uncontroverted facts. In re
Ferguson, 172 S.W.3d 122 (Tex.App.–Beaumont 2005, orig. proceeding).
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Discussion
The denial of a motion for continuance is an incidental trial court ruling ordinarily
not subject to review by mandamus. In re Allied Chemical Corp., 227 S.W.3d 652, 658
(Tex. 2007). An exception to this general rule occurs when there are “special
circumstances” which are themselves reviewable on petition for writ of mandamus.
Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997). Here, Relator contends
the trial court erred by either failing to consider the affidavit filed in support of his
Supplemental Motion for Continuance or by refusing to hear argument on his Motion to
Reconsider. Even assuming that the sole basis of the trial court's denial of the
continuance motion on March 26th was the absence of an affidavit (an assumption we
make solely for purposes of this discussion) there is nothing that compels us to likewise
conclude that to also be the sole reason for the trial court's refusal to entertain Relator's
reconsideration motion on March 31st. On March 31st, the trial court could have
concluded that a hearing on Relator's reconsideration motion was unnecessary because
the continuance motion was not supported by sufficient cause. Under either
construction, the trial court's order is not factually incorrect as alleged by Relator.
Accordingly, we are constrained to review the trial court's order to determine whether
the trial court abused its discretion in denying a continuance under the facts of this
case.
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As good cause for continuance, Relator contends that his new counsel has not
been given adequate time to investigate the case and prepare for trial. However, the
limited record before this Court indicates that Relator's counsel was aware of a pending
trial setting when he accepted representation and entered an appearance in this cause.
In fact, Relator's counsel previously received a continuance of that earlier trial setting.
Relator further contends that a continuance is necessary in order to conduct additional
pre-trial discovery, including the deposition of the defendant's expert witness. In
support thereof, the affidavit of Relator's counsel states that he has “requested that
defense counsel provide me with dates for the deposition of their expert” without
identifying the due diligence that he has exercised to secure that testimony. The
inability to depose an expert witness is not sufficient cause for a continuance where the
movant has failed to diligently utilize the Rules of Civil Procedure for discovery
purposes. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988).
Where a case has been pending more than three years, and where Relator's counsel
has had more than three months to investigate the case and prepare for trial, we are
unable to conclude that the trial court clearly abused its discretion by denying a second
motion for continuance. Accordingly, Relator's petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice
Quinn, C.J., concurs in result.
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