Reyna v. Reyna
| Decision Date | 14 October 1987 |
| Docket Number | No. 3-87-035-CV,3-87-035-CV |
| Citation | 738 S.W.2d 772 |
| Parties | Mary Hortencia REYNA, Appellant, v. Ruben Angel REYNA, Appellee. |
| Court | Texas Court of Appeals |
Leonard Martinez, Austin, for appellant.
Bobby R. Taylor, Austin, for appellee.
Before POWERS, BRADY and ABOUSSIE, JJ.
Mary Hortencia Reyna, appellant, appeals from a nihil dicit judgment rendered in a divorce action brought by appellee Ruben Angel Reyna in Travis County. We will affirm the judgment.
Appellee sued for divorce and ancillary relief, including a child-custody determination and a division of the parties' property. At appellant's request, the cause was set for jury trial on November 19, 1986. On that date, appellant's local counsel presented a motion that the cause be continued because her attorney of record was compelled to attend another trial in Harris County--also set for trial on November 19, 1986. The trial court overruled the motion and tried the case and rendered judgment in the absence of appellant and her attorney of record.
The judgment declares that a jury was waived and that appellant appeared and answered but failed to appear for trial. Appellant does not assail these declarations in the judgment. The record does not contain findings of fact and conclusions of law in support of the judgment.
Following the trial-court judgment, appellant moved for a new trial based solely on the ground formerly urged in her motion for continuance--the enforced absence of her counsel to attend another trial in Harris County, set on the same date as her divorce suit in Travis County. The motion for new trial was overruled by operation of law and appellant seeks review in this Court on two points of error: the overruling of her motion for continuance and the overruling of her motion for new trial, each asserted to be an abuse of discretion by the trial court.
Rule 253 of the Texas Rules of Civil Procedure states as follows:
Except as provided elsewhere in these rules, absence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record.
Tex.R.Civ.P.Ann. 253 (1976). The two-part test for "abuse of discretion" is as follows: (1) whether the trial court's exercise of discretion was legally erroneous; and (2) if it was, whether the impact of the error on the case requires reversal. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 937 (Tex.App.1987, no writ).
A court's exercise of a discretionary power may constitute legal error on any of several possible grounds that we shall consider in order.
First, a court commits legal error if it attempts to exercise a power of discretion that it does not legally possess. See, e.g., Government Services Ins. Underwriters v. Jones, 368 S.W.2d 560 (Tex.1963) (). It is not contended here that the trial court lacked the discretionary power to grant or deny a continuance in the circumstances. See Rule 253.
Second, the court commits legal error if it declines to exercise a power of discretion committed to it by law when the circumstances require that the power be exercised. See, e.g., Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 680 (1956) () This possible ground of legal error does not arise in the present case where it is undisputed that the trial court did exercise its discretionary power to grant or deny a continuance under Rule 253.
Third, the court commits legal error if it purports to exercise its discretion without sufficient information upon which a rational decision may be made, as reflected in the appellate record. Whether the trial court acted rationally, in a legal sense, may only be appraised in reference to the factual context in which the court acted in making a choice between legally permissible alternatives. Landon, supra, at 938. The record reveals that the trial court was informed by local counsel of the only factual grounds upon which the motion for continuance was based--that appellant's counsel of record was directed by a judge in Harris County to remain in his court for the trial of a case set for trial that day in that county. Certain other matters were contained in the trial-court record that could have pertained to the trial court's ruling on the motion, as discussed below. We conclude the trial court had before it sufficient information for a rational decision on the motion for continuance.
Fourth, the court commits legal error if it exercises its power of discretion by making an erroneous choice as a matter of law, in any one of the following ways: (a) by making a choice that was not within the range of choices permitted the court by law; (b) by arriving at its choice in violation of an applicable legal rule, principle, or criterion; or (c) by making a choice that was legally unreasonable in the factual-legal context in which it was made. Landon, supra, at 939-40. Concerning the first such possibility, it is quite clear that the trial court's decision to deny appellant's motion for continuance was within the court's power of choice under Rule 253. Consequently, we turn to whether the court's choice was legally unreasonable in context or whether the choice was made in violation of some applicable legal rule, principle, or criterion.
In the present case, appellant's attorney of record announced ready for trial, unconditionally, on three separate occasions after he had himself set the case for trial on November 19, 1986. One occasion was less than 48 hours before the date of trial. On none of these occasions did counsel suggest the possibility of a conflict in trial settings. At approximately 4:00 o'clock p.m. on the day before the case was called, appellant's counsel of record telephoned the court administrator in Travis County, from Houston, and first informed a Travis County official of the conflict. Counsel was told that he would not be released by the court...
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