Wenzal M. Hardwick v. Cynthia K. Hardwick ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00325-CV
WENZAL M. HARDWICK APPELLANT
V.
CYNTHIA K. HARDWICK APPELLEE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-03369-362
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an appeal of a final decree of divorce following a bench trial. In his
sole issue, Appellant Wenzal M. Hardwick (Husband) argues that the trial court
abused its discretion by denying his unverified motion for continuance filed on the
day of trial. We will affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
Husband and Appellee Cynthia K. Hardwick (Wife) were married on
December 11, 2004. On May 5, 2014, Wife filed a petition for divorce, and
Husband later filed a counter-petition for divorce. Both parties were initially
represented by counsel. Wife’s attorney, however, was permitted to withdraw on
January 30, 2015, and Husband’s attorney was permitted to withdraw on March
13, 2015.2 The parties then proceeded pro se for a period of time, during which
they entered an agreed scheduling order setting their case for a bench trial on
July 1, 2015.
On June 25, 2015, Wife’s prior attorney served Husband with a notice of
appearance. That notice of appearance was filed in the trial court on June 29,
2015. The parties appeared for trial on July 1, 2015, Wife with her attorney, and
Husband appearing pro se. Husband filed, at 8:12 a.m. on the morning of trial,
an unverified motion for continuance arguing that he needed additional time to
retain counsel. The trial court denied Husband’s motion for continuance, and
following a bench trial, the trial court entered a final decree of divorce.
2
Both Husband and Wife agreed to the withdrawal of their respective
attorneys.
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III. HUSBAND’S MOTION FOR CONTINUANCE
In his sole issue, Husband complains that the trial court should not have
denied his motion for continuance, arguing that he was “surprise[d] [by the]
unexpected reappearance of [Wife’s] previous trial counsel.”
A. The Law
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. In re Z.C., 280 S.W.3d 470, 478 (Tex. App.—Fort Worth 2009, pet.
denied); see BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.
2002). The denial of a motion for continuance will only be reversed if the trial
court acted arbitrarily, unreasonably, or without reference to any guiding rules
and principles. Garner v. Fid. Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—
Dallas 2008, no pet.) (citing BMC Software, 83 S.W.3d at 800).
“A motion for continuance must be in writing, state the specific facts
supporting the motion, and be verified or supported by an affidavit.” 3 Serrano v.
Ryan’s Crossing Apartments, 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007,
pet. denied); see Tex. R. Civ. P. 251. If a motion for continuance is not verified
or supported by affidavit, we presume the trial court did not abuse its discretion in
3
Verification is “[a] formal declaration made in the presence of an
authorized officer, such as a notary public, by which one swears to the truth of
the statements in the document.” Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex.
App.—El Paso 2006, no pet.) (quoting Black’s Law Dictionary 1556 (7th Ed.
1999)). An affidavit is statutorily defined as “a statement in writing of a fact or
facts signed by the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his seal of office.”
Tex. Gov’t Code Ann. § 312.011(1) (West 2013).
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denying the motion. Shaw v. Lemon, 427 S.W.3d 536, 544 (Tex. App.—Dallas
2014, pet. denied), cert. denied, 135 S. Ct. 1563 (2015); Serrano, 241 S.W.3d at
564; Daugherty v. Jacobs, 187 S.W.3d 607, 619 (Tex. App.—Houston [14th Dist.]
2006, no pet.); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490,
493 (Tex. App.—Fort Worth 1999, pet. denied).
B. Application of the Law to the Facts
Here, Husband’s motion for continuance contained a “Verification” page
that included the following statement: “I, the undersigned, swear under oath that
the above Motion for Continuance is true and correct.” Husband’s signature
immediately followed that statement. While the “Verification” page contained a
place for a notary’s signature and seal, the space for the notary was left blank.
Thus, Husband’s motion for continuance was not verified or supported by
affidavit, and we therefore presume that the trial court did not abuse its discretion
in denying it. See Shaw, 427 S.W.3d at 544; Serrano, 241 S.W.3d at 564;
Daugherty, 187 S.W.3d at 619; Sw. Country Enters., 991 S.W.2d at 493; see
also Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas
2003, pet. denied) (holding trial court did not abuse its discretion by denying oral
continuance request based on pro se litigant’s desire to be represented by
counsel at hearing when pro se litigant had nine days’ notice of the hearing in
which he could have found counsel).
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Although the parties do not address the issue, we also consider whether
Husband’s statement on the “Verification” page qualifies as an unsworn
declaration under Texas Civil Practice and Remedies Code section 132.001.
See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2016). That
section provides that, with the exception of certain situations that do not apply
here, “an unsworn declaration may be used in lieu of a written sworn declaration,
verification, certification, oath, or affidavit required by statute or required by a
rule, order, or requirement adopted as provided by law.” Id. § 132.001(a). An
unsworn declaration, however, must be “in writing” and “subscribed by the
person making the declaration as true under penalty of perjury.” Id. § 132.001(c);
see Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 564 (Tex. 2012)
(explaining that unsworn declarations may be used in lieu of verifications or
affidavits so long as they are subscribed as true under “penalty of perjury”);
Dominguez v. State, 441 S.W.3d 652, 658 (Tex. App.—Houston [1st. Dist.] 2014,
no pet.) (“The inclusion of the phrase ‘under penalty of perjury’ is the key to
allowing an unsworn declaration to replace an affidavit.”). Here, Husband’s
signed statement on the “Verification” page was not made under penalty of
perjury, and as such, it does not cure the fact that his motion for continuance was
not verified or supported by affidavit. See Tex. Civ. Prac. & Rem. Code Ann. §
132.001(a); Caruana, 363 S.W.3d at 564; Dominguez, 441 S.W.3d at 658.
We overrule Husband’s sole issue.
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IV. CONCLUSION
Having overruled Husband’s sole issue, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: September 29, 2016
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