Joseph Louison v. Flavien Caddette ( 2023 )

Opinion issued May 11, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00034-CV
———————————
JOSEPH LOUISON, Appellant
V.
FIAVIEN CADDETTE, Appellee1
On Appeal from County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1168015
MEMORANDUM OPINION
This is an appeal from a final judgment involving an agreement for the sale of
real property. Appellant Joseph Louison appeals the trial court’s final judgment
1
The style of this case in the trial court contains a misspelling of appellee’s first and
last name, i.e., “Fiavien Caddette.” Appellee’s first and last names spelled correctly
are “Flavien Cadette.”
rendered after a bench trial in favor of appellee Flavien Cadette on Cadette’s
counterclaims against Louison for fraud and promissory estoppel. Louison raises
four issues on appeal. In his first and second issues, he contends that the trial court
erred in rendering judgment in favor of Cadette because (1) a party cannot enforce
an agreement for the sale of real property without a writing which satisfies the statute
of frauds and (2) Cadette failed to provide Louison with a formal written agreement
which was a condition precedent to any future performance by Louison. In his third
and fourth issues, Louison asserts that the trial court abused its discretion in
admitting Cadette’s exhibits and denying Louison’s request for a continuance. We
affirm.
Background
On November 24, 2019, Louison and Cadette, along with Cadette’s wife,
Alix, met at a Golden Corral restaurant to negotiate the sale of a five-acre tract of
property in Saint Lucia (the tract). Cadette agreed to sell the tract, which was to be
subdivided from a ten-acre tract of property he owned, to Louison for
$225,000ECD.2 Louison made three payments of $10,000 each to Cadette totaling
$30,000 toward the sale price. Louison later demanded a refund of the $30,000
partial payment which Cadette refused.
2
Saint Lucia’s currency is the Eastern Caribbean dollar (ECD).
2
A. The Pleadings
On April 23, 2021, Louison filed an original petition alleging as follows:
III.
Facts
Plaintiff and Defendant were in the process of negotiating a
transaction involving some land. Defendant represented to Plaintiff that
he had a plot of real property for sale. Plaintiff expressed an interest in
the property. Defendant represented that he had good marketable title
to the property.
Consequently, Plaintiff decided to make an earnest money
deposit to demonstrate good faith. Defendant provided Plaintiff with
three (3) informal receipts acknowledging payment of Plaintiff’s
deposits.
IV.
There was no written agreement identifying the property or
otherwise detailing the transaction provided to Plaintiff. In addition,
Defendant did not show or provide Plaintiff a copy of documents
showing that Defendant owned the property.
Defendant’s failure to provide Plaintiff with proper
documentation to legitimize the transaction only served to frustrate the
purpose for which Plaintiff entered the transaction.
Defendant promised action which he had no intention of
performing. Therefore, Plaintiff demanded a refund of his deposit, and
Defendant refused to provide Plaintiff with a refund.
Plaintiff to date, lost two days from work in pursuing legal
recourse, and will in all likelihood lose another day or two from work.
3
Louison sought “damages in excess of Ten Thousand Dollars ($10,000.00)”
and attorney’s fees “in accordance with the Texas Civil Practice and Remedies
Code.”
Cadette answered asserting a general denial and counterclaims for fraud and
promissory estoppel. In support of his counterclaims, Cadette alleged that he and
Louison entered into an agreement under which Cadette agreed to sell the tract to
Louison for $225,000ECD. He alleged that, in reliance on Louison’s promises,
representations, and partial payments, Cadette hired a surveyor and began the
process of subdividing the tract from a larger tract he owned to convey it to Louison,
and he arranged for Louison to be picked up in Saint Lucia for a walking inspection
of the property. Cadette further alleged that after he had incurred substantial
expenses in reliance upon Louison’s promise to purchase the tract, Louison began
making false, unsubstantiated allegations that Cadette did not own the tract. Cadette
also specially excepted to Louison’s petition asserting that it failed to state a cause
of action, plead all the elements of any particular cause of action, give fair notice of
the claims asserted against Cadette, or specify the statutory basis for his request for
attorney’s fees.
4
B. The Bench Trial
The trial court conducted a one-day bench trial on November 1, 2021. Four
witnesses testified: Louison, Cadette, Alix, and Cadette’s attorney, Jarett
LaRochelle, on the issue of attorney’s fees.
1. Louison
Louison testified that he agreed to purchase land located in L’Abbayee, Saint
Lucia from Cadette for $225,000ECD. Louison did not know whether the tract he
agreed to buy was the entire tract of property Cadette owned or only a portion of it
or how long it would take to pay the entire purchase price. He stated that he was not
familiar with the property and did not travel to Saint Lucia to inspect the property.
Louison testified that he intended to build homes and a farm for agriculture and
livestock on the tract but that he did not know whether the tract was suitable for his
intended purpose.
Louison testified that he made three partial payments of $10,000 each to
Cadette toward the purchase price on May 21, 2020, October 21, 2020, and
December 27, 2020. He testified that he asked Cadette to provide him with
documentation showing that Cadette owned the tract for sale and told him that he
would not proceed with the purchase if Cadette did not provide him with the
requested documentation. When Cadette did not provide him with proof of
ownership, Louison demanded a refund of the $30,000 deposit. Louison testified that
5
he repudiated the agreement after Cadette refused to show him proof that he owned
the property. Louison denied accusing Cadette of not owning the property or
representing to anyone in their church or community that Cadette was trying to sell
him property he did not own.
After the presentation of Louison’s case, Cadette moved for a directed verdict
on the ground that Louison’s petition failed to state a cause of action or any basis for
recovery of damages or attorney’s fees. After noting that Louison had presented no
evidence supporting an award of attorney’s fees, the trial court granted the motion
for directed verdict on Louison’s request for attorney’s fees. The trial court,
however, withheld its ruling on the motion with respect to whether Louison’s
pleadings stated a cause of action until after Cadette presented his case.
2. Cadette
Cadette testified that he met Louison at church and has known him for ten
years. On November, 24, 2019, Cadette and Alix met Louison for breakfast at a
Golden Corral restaurant. Louison told Cadette that he wanted to retire in Saint Lucia
and buy a piece of land for a coconut plantation. Cadette told Louison he owned a
ten-acre tract of land in Saint Lucia and that he would sell five acres of the tract to
Louison for $250,000ECD. Louison rejected the price proposed by Cadette but
agreed to buy the tract for $225,000ECD. Cadette testified that he agreed to sell the
property to Louison for $225,000ECD and that they sealed the deal with a
6
handshake. Cadette testified that Louison subsequently made partial payments
totaling $30,000, and that he told Louison that these payments were nonrefundable.
Cadette told Louison that he would generate a deed of sale once Louison had paid
the total sales price of $225,000ECD. Cadette testified that he gave Louison a receipt
for the $30,000 partial payment but that the receipt did not include the terms of the
sale.
Cadette testified that he showed Louison a copy of his deed to the property.
Cadette’s attorney offered the deed into evidence, and Louison’s attorney objected
because the exhibits had not been provided to him prior to trial and on relevancy
grounds. The trial court called a recess and instructed the parties to exchange their
exhibits and discuss admissibility. When trial resumed, Louison’s attorney objected
to all the defense exhibits because they had not been previously provided and on
hearsay grounds. The trial court overruled the objections and admitted Defense
Exhibits 1 through 7.3
3
Exhibit 1, entitled “Deed of Donation” and registered with the Registrar of Land of
Saint Lucia on October 25, 2012, reflects that Alix deeded an undivided one-half
share of the ten-acre tract of land to Cadette. Exhibit 2 is the receipt for Cadette’s
$600 payment for the inspection and valuation report. Exhibit 3 is the consultancy
report and the receipts for Cadette’s payments to the consultant. Exhibit 4 is the
receipt for Cadette’s payment to the surveyor. Exhibits 5 and 6 are the valuation
reports for an additional small parcel of land Cadette offered to give Louison and
the ten-acre tract, respectively. Exhibit 7 is the handwritten receipt reflecting
Louison’s partial payment of $30,000 to Cadette signed and dated by the parties.
7
Cadette testified that he showed the property deed to Louison proving that he
owned the ten-acre tract from which he would subdivide the five acres. Cadette
testified that another man offered to buy the five-acre tract from him for
$275,000ECD but Cadette refused the offer. Cadette stated he wanted to sell the
property to Louison because they had attended the same church together for the past
ten years, Cadette valued their friendship, and Louison would be able to watch over
the remaining five acres for him. Cadette testified that he also offered to give
Louison an additional small parcel of land for a building for his crops as part of the
agreement.
Cadette testified that he incurred out-of-pocket expenses to prepare the
property to sell to Louison. He paid $600 for inspection and valuation of the
property, $5,000 to a consultant who was responsible for overseeing the sale of the
tract, and $8,000 to hire a surveyor. Cadette testified that he was required to hire the
consultant and surveyor in order to subdivide the ten-acre tract and that the local
government required the paperwork before it would approve the sale.
Cadette testified that he made arrangements for Louison to inspect the
property in 2020 while Louison was in Saint Lucia with his wife to visit her mother
who was sick. After Louison quarantined for two weeks, Cadette called a friend,
Gregory Victor Emmanuel, to pick up Louison and take him to inspect the property.
Cadette testified that Louison called him from the property and told Cadette he
8
“love[d] it,” and “go ahead” and “get the property going for him.” Cadette also asked
Emmanuel to make a video of the property which Cadette sent to Louison.
Cadette testified that Louison came to his house in December 2020 and told
Cadette he wanted his money back. Cadette testified that Louison did not give him
a reason for wanting to “back out” of the agreement, and he told Louison that he
could give him more time if he was “tight for money.” Cadette testified that Louison
called him a liar and told him that he was trying to sell something he did not own.
Cadette showed Louison the property deed proving that he owned the property and
told him that he had foregone other offers to sell the property to him as well incurring
expenses to prepare the property for sale.
On cross-examination, Cadette acknowledged that the receipt for Louison’s
$30,000 payment did not reflect that the payment was nonrefundable but stated that
this condition was a part of the parties’ agreement from the beginning. Cadette also
testified that he did not give Louison a bill of sale or property sale receipt that
included a description of the property. He testified that the terms of the agreement
were not reduced to writing because it was a “handshake agreement.”
3. Alix
Alix testified that that she was present at the breakfast meeting when Cadette
and Louison discussed the sale of the property. She stated that Louison paid a total
of $30,000 toward the sales price. Alix testified that the deposit was nonrefundable.
9
She stated that there were other buyers interested in buying the property but that
Cadette had promised to sell it to Louison.
4. LaRochelle
In support of Cadette’s request for attorney’s fees, LaRochelle testified that
he has been practicing law in Texas since November 2003, that he charges $250 an
hour, and the fees customarily charged by attorneys in the area for the same or
similar services is $250 to $400 an hour. He stated that the matter required at least
fourteen hours of time and service, the novelty and difficulty of the questions
involved was not exceedingly high, and the skill required to perform the legal
services required in the case was that of a normal practitioner with some experience
in civil litigation. LaRochelle testified that he is a solo practitioner and that the case
required a portion of his time but did not preclude him from accepting other
employment. He testified that he charged Cadette $3,500 in attorney’s fees and that
these fees were reasonable and necessary in light of the above factors. LaRochelle
stated that the following fees would be reasonable and necessary in the event of an
appeal: (1) $5,000 for representing Cadette in the court of appeals; (3) $5,000
through the petition-for-review stage in the Supreme Court of Texas; and (3) $5,000
for merits briefing in the Supreme Court.
After both sides rested, Louison’s attorney requested a trial amendment with
respect to the evidence about Louison’s partial payment of $30,000. The trial court
10
advised that a trial amendment was no longer appropriate because Louison had put
on his evidence and rested his case. When the trial court asked about the basis of
Louison’s suit because it was unclear that his petition stated a cause of action upon
which the court could grant relief, Louison’s attorney stated:
The suit basically, Judge, is an unjust enrichment—unjust enrichment
fraud suit, which he—he collected money for and he did not give
anything in return. And we believe the statute of frauds is still alive.
And to the extent that Mr. Cadette is saying that my client is responsible
for anything whatsoever, we believe that he should have had an
agreement in writing which specifies and stipulates all of the conditions
that he is wanting to claim that he talked about.
The trial court stated that Louison neither pleaded fraud or unjust enrichment nor
raised the statute of frauds as a defensive matter, and that the only evidence presented
with regard to the $30,000 partial payment was that it was nonrefundable. The trial
court denied Louison’s request for a trial amendment, granted Cadette’s motion for
instructed verdict on Louison’s petition, and stated that it would grant judgment in
favor of Cadette on his counterclaims.
The trial court signed its final judgment on November 17, 2021. It ordered
that Louison take nothing on his claims against Cadette, and it awarded $13,600 in
damages and $3,500 in attorney’s fees as well as conditional appellate fees to
Cadette. The trial court entered findings of fact and conclusions of law the same day.
Louison filed a motion to vacate and for new trial which the trial court denied on
January 12, 2022.
11
This appeal followed.
Standard of Review
In a bench trial, the trial court determines the credibility of the witnesses and
the weight to be given their testimony. Miranda v. Byles, 390 S.W.3d 543, 553 (Tex.
App.—Houston [1st Dist.] 2012, pet. denied). The trial court’s findings of fact have
the same force and dignity as a jury’s verdict upon jury questions. Luna v. Pickel,
No. 02-19-00371-CV, 2020 WL 5949927, at *5 (Tex. App.—Fort Worth Oct. 8,
2020, no pet.) (mem. op.); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston
[1st Dist.] 2002, pet. denied). “The general rule is that if the trial court’s findings of
fact are not challenged by a point of error on appeal, they are binding upon the
appellate court.” See Trammell v. Trammell, 485 S.W.3d 571, 576 (Tex. App.—
Houston [1st Dist.] 2016, no pet.). We apply a de novo standard of review to a trial
court’s conclusions of law in a bench trial and will uphold them if the judgment can
be sustained on any legal theory supported by the evidence. Wood v. Wiggins, 650
S.W.3d 533, 544 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (citing City of
Keller v. Wilson, 168 S.W.3d 820, 822 (Tex. 2005)).
Statute of Frauds
In his first issue, Louison contends that the trial court erred in rendering
judgment in favor of Cadette on his counterclaims because a party cannot enforce an
agreement for the sale of real property without a writing which satisfies the statute
12
of frauds. Cadette responds that Louison failed to plead the statute of frauds in his
petition and did not file an answer to Cadette’s counterclaims for promissory
estoppel and fraud.
A contract for the conveyance of real property must comply with the statute
of frauds to be enforceable. Ramji v. 6100 Clarkson, L.P., No. 01-18-00044-CV,
2019 WL 2455620, at *7 (Tex. App.—Houston [1st Dist.] June 13, 2019, no pet.)
(mem. op.); Lewis v. Adams, 979 S.W.2d 831, 834 (Tex. App.—Houston [14th Dist.]
1998, no pet.). To comply with the statute of frauds, the contract must be in writing
and signed by the party to be charged with the agreement. TEX. BUS. & COM. CODE
§ 26.01(a). However, the statute of frauds is an affirmative defense to the
enforcement of a contract, which must be pleaded or it is waived. TEX. R. CIV. P. 94
(“In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute
of frauds . . . and any other matter constituting an avoidance or affirmative
defense.”); Ramji, 2019 WL 2455620, at *7; Swinehart v. Stubbeman, McRae, Sealy,
Laughlin & Browder, Inc., 48 S.W.3d 865, 875 (Tex. App.—Houston [14th Dist.]
2001, pet. denied).
Here, as the trial court noted, Louison did not plead the affirmative defense of
statute of frauds. In fact, the record reflects that Louison did not file an answer to
Cadette’s counterclaims for promissory estoppel and fraud. Because Louison failed
to plead the statute of frauds as an affirmative defense, he has waived it. See Ramji,
13
2019 WL 2455620, at *7 (concluding where defendant never pleaded statute of
frauds as affirmative defense to parties’ contract, he could not complain for first time
on appeal that sales agreement was invalid because plaintiff never signed it); Cannon
v. MBCI, No. 14-11-00895-CV, 2013 WL 1845736, at *4 (Tex. App.—Houston
[14th Dist.] Apr. 30, 2013, pet. denied) (mem op.) (concluding party who failed to
plead statute of frauds as affirmative defense to personal guarantee agreement
waived it); Coastal Resources, Ltd. v. Los Lazos Const. & Lease Serv., LLC, No. 04-
11-00763-CV, 2013 WL 1760602, at *5 (Tex. App.—San Antonio Apr. 24, 2013,
pet. denied) (mem. op.) (concluding defendant waived affirmative defense of statute
of frauds because it never pleaded it as affirmative defense to plaintiff’s breach of
contract claim); Nicol v. Gonzales, 127 S.W.3d 390, 393 (Tex. App.—Dallas 2004,
no pet.) (concluding landowner waived affirmative defense that document
purporting to give neighbor easement over part of his property failed to contain
description of easement sufficient to satisfy statute of frauds where he failed to plead
affirmative defense of statute of frauds and record did not show that defense was
tried by consent); Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 776 (Tex.
App.—Corpus Christi 2001, no pet.) (holding defendant waived statute of frauds to
enforcement of personal guarantee where he failed to plead it as affirmative defense).
We overrule Louison’s first issue.
14
Condition Precedent
In his second issue, Louison argues that Cadette failed to provide him with a
formal written agreement which was a condition precedent to any future
performance by Louison. Thus, he argues, Cadette’s breach in failing to satisfy the
condition precedent renders Cadette’s counterclaims invalid. In response, Cadette
asserts that he specifically pleaded that all conditions precedent to his right to recover
were performed or occurred, and that Louison failed to specifically deny that any
condition precedent he now raises on appeal was not performed or did not occur.
A condition precedent may be either a condition to the formation of a contract
or a condition to an obligation to perform an existing agreement. Hohenberg Bros.
Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). Where there is a
condition precedent to the formation of a contract, then no binding contract will arise
until the specified condition has occurred or been performed. See Sharifi v. Steen
Auto., LLC, 370 S.W.3d 126, 144 (Tex. App.—Dallas 2012, no pet.). On the other
hand, conditions precedent to an obligation to perform are those acts or events which
occur subsequent to the making of a contract and which must occur before there is a
right to immediate performance and before there is a breach of a contractual duty.
Hohenberg Bros. Co., 537 S.W.2d at 3.
The burden of both pleading and proof of performance of a condition
precedent to recovery is governed by Texas Rule of Civil Procedure 54:
15
In pleading the performance or occurrence of conditions precedent, it
shall be sufficient to aver generally that all conditions precedent have
been performed or have occurred. When such performances or
occurrences have been so ple[]d, the party so pleading same shall be
required to prove only such of them as are specifically denied by the
opposite party.
TEX. R. CIV. P. 54. When a plaintiff alleges “all conditions precedent have been
performed or have occurred,” a defendant must specifically deny any conditions that
were not performed or have not occurred. Id.; Greathouse v. Charter Nat’l Bank-
Sw., 851 S.W.2d 173, 177 (Tex. 1992). When a defendant fails to specifically deny
any performance or occurrence of conditions precedent, “[R]ule 54 does not cumber
[a plaintiff] with proving[] the performance or occurrence of any condition precedent
to its recovery.” Abrams v. Salinas, 467 S.W.3d 606, 615 (Tex. App.—San Antonio,
2015, no pet.) (quotation omitted); see also Sharifi, 370 S.W.3d at 147; Rockwall
Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 508 (Tex.
App.—El Paso 2010, no pet.) (“Where a defendant does not specifically deny a
plaintiff’s performance-of-conditions-precedent pleading, a plaintiff is not
encumbered with proof of such performance.”).
Here, Cadette pleaded that all conditions precedent were met. Specifically, he
alleged that “[p]ursuant to Rule 54 of Texas Rules of Civil Procedure,
Defendant/Counter-Plaintiff FLAVIEN CADETTE would say that all conditions
precedent to his right to recover have been performed or have occurred.” Louison,
however, did not file an answer to Cadette’s counterclaims or otherwise specifically
16
deny the performance or occurrence of any conditions precedent to Cadette’s
recovery on his counterclaims. Absent a specific denial of each condition precedent,
Louison is not entitled to complain about the alleged non-performance of the
conditions precedent. See Abrams, 467 S.W.3d at 615–16 (concluding that former
husband waived for appellate review his claim that former wife failed to satisfy
conditions precedent and thus could not seek to enforce his obligation under agreed
divorce decree to pay one-half of child’s college expenses where record did not
contain any pleadings showing former husband specifically denied allegation that
all conditions precedent had been met); Sharifi, 370 S.W.3d at 147 (concluding
prospective buyer did not have to prove satisfaction of conditions precedent in
agreement to purchase automotive repair business that seller did not specifically
deny in his live pleading in action for breach of agreement based on seller’s failure
to appear at closing); Rockwall Commons, 331 S.W.3d at 508 (concluding borrower
waived on appeal argument regarding any failure by lender to satisfy conditions
precedent, in lender’s contract action against borrower, because borrower did not
specifically deny performance or occurrence of specific conditions in answer).
We overrule Louison’s second issue.
Admission of Trial Exhibits
In his third issue, Louison contends that the trial court abused its discretion in
admitting Cadette’s exhibits because they were not provided prior to trial. Louison
17
argues that the documents were inadmissible hearsay because no foundation was laid
for their admission as a business record. Cadette responds that the trial court did not
abuse its discretion when it overruled Louison’s objections and that it properly
admitted Cadette’s exhibits.
The admission and exclusion of evidence is committed to the trial court’s
sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
The test for abuse of discretion is whether the trial court acted without reference to
any guiding rules and principles. Downer v. Aqua Marine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985).
During trial, Cadette’s attorney offered Exhibits 1 through 7 for admission
into evidence. Louison’s attorney objected because Cadette’s attorney did not
exchange his exhibits prior to trial, and on hearsay and relevancy grounds.4 The trial
court instructed the parties to exchange their exhibits and discuss admissibility
during a recess. When trial resumed, Louison’s counsel objected again to admission
of the defense exhibits. The trial court overruled the objections.
On appeal, Louison argues that the trial court erred in admitting the exhibits
because they were inadmissible hearsay. Specifically, he asserts that they are
inadmissible because no foundation was laid for their admission as a business record,
4
It is undisputed that Louison did not serve any requests for production on Cadette
or any other discovery requests during the course of litigation.
18
the exhibits lacked trustworthiness, and they are documents prepared in anticipation
of litigation. Louison, however, did not make these objections in the trial court. The
record shows that while Louison objected to the exhibits as inadmissible hearsay, he
did so only on the grounds that he could not “cross-examine the documents.”
Louison’s complaints on appeal, i.e., that the documents lacked foundation and
trustworthiness and were prepared in anticipation of litigation, do not comport with
the objections he made at trial.5 An objection on appeal that does not comport with
the objection raised at trial presents nothing for review. See Weidner v. Sanchez, 14
S.W.3d 353, 368–69 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing
Religious of Sacred Heart of Tex. v. City of Hous., 836 S.W.2d 606, 614 (Tex.
1992)); F.D.I.C. v. Golden Imports, Inc., 859 S.W.2d 635, 641 (Tex. App.—Houston
[1st Dist.] 1993, no writ) (concluding party waived complaint on appeal that trial
court erred in submitting special issue to jury because it improperly commented on
weight of evidence where party did not make same objection at trial).
We overrule Louison’s third issue.
5
Louison also objected to the exhibits in the trial court on relevancy grounds arguing
that they postdated the date of the transaction giving rise to the suit. Louison does
not argue on appeal that the trial court erred in overruling his objection to admission
of the exhibits on relevancy grounds.
19
Motion for Continuance
In his fourth issue, Louison contends that the trial court abused its discretion
in denying his request for a continuance. He argues that good cause was shown for
a continuance because his attorney was ill and he had a doctor’s appointment that
afternoon, and a continuance would not have prejudiced Cadette’s rights. In
response, Cadette asserts that the trial court did not abuse its discretion because
Louison did not file a written motion for continuance and he failed to comply with
the rules of civil procedure.
Rule of Civil Procedure 251 states that a continuance shall not be granted
“except for sufficient cause supported by affidavit, or by consent of the parties, or
by operation of law.” TEX. R. CIV. P. 251. When a motion for continuance is not
verified or supported by affidavit, we presume the trial court did not abuse its
discretion by denying the motion. Shaw v. Lemon, 427 S.W.3d 536, 544 (Tex.
App.—Dallas 2014, pet. denied) (citing Moreno v. Silva, 316 S.W.3d 815, 818 (Tex.
App.—Dallas 2010, pet. denied)). Further, a motion for continuance that is not in
writing and not in compliance with Rule 251 does not preserve error for appeal. See
Redmond v. Kovar, No. 09-17-00099-CV, 2018 WL 651272, at *3 (Tex. App.—
Beaumont Feb. 1, 2018, no pet.) (mem. op.) (concluding trial court did not err in
denying motion for continuance where motion was made orally and was not
supported by affidavit or consent of parties and therefore did not comply with Rule
20
251); Dempsey v. Dempsey, 227 S.W.3d 771, 776 (Tex. App.—El Paso 2006, no
pet.) (noting oral request for continuance does not preserve error); Taherzadeh v.
Ghaleh–Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied)
(concluding presentation of oral motion without supporting affidavit failed to
preserve complaint for appellate review). The record shows that Louison’s motion
was made orally and it was not supported by affidavit or by consent of the parties.
Because the motion for continuance was not in writing and did not comply with Rule
251, Louison’s oral request for a continuance did not preserve error. See Dempsey,
227 S.W.3d at 776.
We overrule Louison’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Amparo Guerra
Justice
Panel consists of Justice Landau, Countiss, and Guerra.
21