Guardianship of Dahl, In re

• Decision Date: 31 October 1979
• Docket Number: No. 9040,9040
• Citation: 590 S.W.2d 191
• Parties: In re Guardianship of George Leighton DAHL.
• Court: Texas Court of Appeals

Page 191

590 S.W.2d 191

In re Guardianship of George Leighton DAHL.

No. 9040.

Court of Civil Appeals of Texas, Amarillo.

Oct. 31, 1979.

Rehearing Denied Dec. 5, 1979.

Vial, Hamilton, Koch, Tubb, Knox & Stradley, Robert G. Vial, M. Leigh Bartlett, Gerald R. Powell and Stephen L. Baskind, Dallas, for appellant.

Bickel & Case, Thomas L. Case, Dallas, for appellee.

REYNOLDS, Chief Justice.

In this guardianship contest, the trial court, accepting the jury verdict finding that contestant-appellee George Leighton Dahl is not of unsound mind, rendered judgment decreeing, Inter alia, that Mr. Dahl is a man of sound mind and that applicant-appellant Gloria Dahl Akin's application for permanent guardianship is in all things denied. Mrs. Akin's twelve-points-of-error appeal seeking to reverse the judgment justifies only a reformation of the judgment to conform to the verdict. Reformed and affirmed.

On 28 March 1978, Gloria Dahl Akin filed her Ex parte application for her immediate appointment as temporary guardian of the person and estate of her eighty-three year old father, George Leighton Dahl. She alleged that Mr. Dahl "is not mentally competent to attend to his person or to his business affairs," and the pressing matters affecting the personal estate of Mr. Dahl make necessary the immediate appointment of a temporary guardian. She further alleged that her appointment should be continued for as long as the court deems necessary or be made permanent.

An order appointing, and enumerating the powers of, Mrs. Akin as temporary guardian was signed 20 April 1978. Approximately one week later, Mr. Dahl entered his answer and contest to the temporary guardianship application, simultaneously demanding a jury trial. Both parties then moved for, and vigorously opposed the other's efforts to effect, extensive discovery and production of records and documents. These efforts, as well as motions concerning the payment of costs, expenses, attorneys' fees and the association and disqualification of counsel, evoked numerous orders by the trial court up to the date of trial.

The trial setting of 15 May 1978 was vacated upon the granting of Mrs. Akin's motion for continuance, and the trial was reset for 30 May 1978. Mr. Dahl moved for, and was denied a termination of the temporary guardianship or grant of an instant trial and a limit on discovery. On 22 May 1978, Mrs. Akin amended her application, specifically alleging a need to appoint a permanent guardian of both the person and estate of Mr. Dahl upon the ground that he "is not mentally competent or physically able to attend to his personal affairs or business affairs." The next day, Mr. Dahl answered, and thereafter amended his answer, contesting the application, and the issue of a permanent guardianship was joined.

Four days before trial date, Mrs. Akin filed her second motion for continuance. The motion was overruled and the case proceeded to trial before a jury. After a nine-day trial during which the jury heard deposition and live testimony included in the more than 2,000-page statement of facts and viewed 124 exhibits, the court submitted one special issue, accompanied by a definition, to the jury. The submission and the answer of the jury are shown in the record thusly:

Do you find from a preponderance of the evidence that George Leighton Dahl is of unsound mind?

ANSWER: He is

or

He is not

ANSWER: He is not

Definition : Persons of unsound mind are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.

The court accepted the verdict and, receiving Mr. Dahl's motion for judgment on the verdict and Mrs. Akin's motion for judgment non obstante veredicto, rendered judgment on the verdict. The 12 June 1978 judgment decreed, insofar as material to the appellate issues, that:

1. George Leighton Dahl is a man of sound mind.

2. The temporary guardianship be, and the same is hereby, in all things dissolved, set aside and terminated on this day, and the Application for Permanent Guardianship is in all things denied.

After Mrs. Akin's amended motion for new trial was overruled, she perfected this appeal from the judgment.

First noticed is Mrs. Akin's point that the court abused its discretion in overruling her second motion for continuance. The predicate for Mrs. Akin's motion was that: (1) she did not have time to prepare her case for trial because of the complexity of the issues, the volumes of documents and plethora of witnesses involved, and the late entry into this suit by the firm of Vial, Hamilton, Koch, Tubb, Knox & Stradley, who joined her original counsel, James Hartnett of the firm of Turner, Hitchins, McInerney, Webb & Hartnett, with leave of the trial court on 17 May 1978; (2) she was delayed and prejudiced in her preparation of the cause for trial because Dahl refused to comply with a court order to produce copies of various checks and transcriptions of telephone conversations made by Dahl, by the accelerated program of discovery and necessity of court hearings to force Dahl to comply with court orders, by the inability of the court to rule on important motions, and particularly a motion to compel a witness to answer certified questions during a deposition, due to the shortness of time, and because Dahl filed a suit in Federal district court to restrain her from prosecuting the present suit; and (3) discovery was not complete in that further depositions were scheduled and Dahl had not produced all documentary evidence in his possession.

All of the matters alleged to warrant a continuance call for discretionary determinations by the trial judge. The parties recognize that the granting or refusing of a motion for continuance is within the sound discretion of the trial court. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1964). The court's decision is subject to review on appeal, American Bankers Insurance Company v. Fish, 412 S.W.2d 723, 725 (Tex.Civ.App. Amarillo 1967, no writ), but it will be reversed only upon a showing of abuse of discretion. Celanese Coating Co., Devoe Paint Div. v. Soliz, 541 S.W.2d 243, 249 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n. r. e.).

The primary thrust of the point is that associated counsel, Robert G. Vial, had insufficient amount of time to adequately and properly prepare Mrs. Akin's case for trial. Cited is Leija v. Concha, 39 S.W.2d 948 (Tex.Civ.App. El Paso 1931, no writ), and Moran v. Midland Farms Co., 282 S.W. 608 (Tex.Civ.App. El Paso 1926, no writ), for the principle that it is error to deny a continuance when a party is unable to prepare for trial because substitute counsel is employed at such a late date that he is given inadequate time, or the trial is set at an unreasonably early date.

Granting the soundness of the principle, neither Leija nor Moran depicts the situation before us for review. In Leija, counsel of record withdrew the day before trial and substitute counsel was forced to trial thirty minutes after employment. Moran concerned the situation where counsel of record was called upon to meet and defend at a final hearing new issues which had been tendered only twenty-four hours earlier.

Here, while counsellor Vial did not officially enter the case until thirteen days before trial date, Mrs. Akin's counsel from the inception of the litigation remained in the case. Although Mrs. Akin makes the general, conclusory allegation that the court's denial of a continuance greatly prejudiced her in that there was insufficient time to prepare her case for trial, significantly there is no specification of any preparation that otherwise might have been made. There is no suggestion that Mrs. Akin's original and remaining counsel was not fully competent to represent her interests; no attempt is made to designate any material fact which could have been, but was not, developed due to time limitation; and no suggestion of any particular deficiency in the presentation of her case is advanced. Absent a strong and specific showing of what preparation for trial might have been made but for the court's denial of a continuance, no abuse of discretion is shown. McAx Sign Co., Inc. v. Royal Coach, Inc., 547 S.W.2d 368, 370 (Tex.Civ.App. Dallas 1977, no writ).

Moreover, it should be noted that the instruments and documents alluded to in Mrs. Akin's motion were, almost from the moment the proceedings entered the adversary stage, the subjects of extensive discovery actions vigorously pursued. The court made many rulings on motions regarding discovery, and there is no contention of inaction on any motion. Considering the court's involvement, and its recognition that the sensitive nature of the suit necessitated its prompt disposition, the court was in the best position to determine whether discovery was reasonably complete and the case ready for trial. Without some positive showing otherwise, we are not prepared to say that the mere retention of co-counsel thirteen days before trial, coupled with a conclusory allegation of insufficient time to prepare for trial, shows an abuse of discretion in overruling a second motion for continuance. The eighth point of error is overruled.

During the course of the trial, the propriety of an entry into and the removal of some papers from Mr. Dahl's apartment was questioned. There was testimony that the entry and removal of papers were sanctioned by a court order; however, Mrs. Akin, to rebut the suggested impropriety, tendered as evidence certain court documents relating to the temporary guardianship of the person and estate of Mr. Dahl. The documents were the court's order authorizing her to take possession of Mr. Dahl's apartment, the probate clerk's certification that Mrs. Akin was issued Letters of Temporary Guardianship, and the order of the court appointing Mrs. Akin temporary guardian. The clerk's certificate showed the guardianship was for the person...