Villarreal v. Myers
| Decision Date | 24 March 2022 |
| Docket Number | 13-20-00215-CV |
| Court | Court of Appeals of Texas |
| Parties | RAMIRO VILLARREAL, Appellant, v. RODNEY MYERS D/B/A I-69 TOWING AND HAROLD WAITE, INDIVIDUALLY AND D/B/A LA FERIA WRECKER SERVICE, Appellees. |
RAMIRO VILLARREAL, Appellant,
v.
RODNEY MYERS D/B/A I-69 TOWING AND HAROLD WAITE, INDIVIDUALLY AND D/B/A LA FERIA WRECKER SERVICE, Appellees.
No. 13-20-00215-CV
Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
March 24, 2022
On appeal from the County Court at Law No. 1 of Cameron County, Texas.
Before Contreras Chief Justice and Hinojosa and Silva Justices.
MEMORANDUM OPINION
CLARISSA SILVA Justice.
This case concerns a small claims petition filed in the justice of the peace court, wherein appellant Ramiro Villarreal alleged he had been unpaid for his work towing vehicles for appellees Rodney Myers d/b/a I-69 Towing and Harold Waite, individually
and d/b/a La Feria Wrecker Service. The justice of the peace court issued a take-nothing judgment in favor of appellees, and Villarreal appealed to the county (trial) court, which also awarded judgment for appellees.
By five issues which we have reorganized below, Villarreal claims the trial court (1) failed to grant his motion for continuance; (2) failed to grant his motion for new trial based on the court's denial of his motion for continuance; (3) "allow[ed] the [a]ppellees to deny, by filing a general denial, an account of which is the foundation of [Villarreal's] cause of action in violation" of the rules of civil procedure; (4) provided unauthorized relief based on appellees' unpleaded affirmative defenses; and (5) committed cumulative error. We affirm.
I. Background
The justice of the peace court issued its judgment on October 4, 2018, and Villarreal timely appealed to the trial court. On November 7, 2018, the trial court issued a setting for a bench trial scheduled for December 13, 2018. Appellees filed a "First Amended Original Answer" on November 16, 2018, raising a statute of limitations affirmative defense.
On December 12, 2018, the day before trial, Villarreal filed a motion for continuance, requesting more time to conduct discovery and citing the Texas Rules of Civil Procedure and the Texas Rules of Judicial Administration in support. See Tex. R. Civ. P. 245 ("The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties."); Tex. R. Jud. Admin.
6.1(a)(2), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (civil nonjury case time standards). The trial court granted Villarreal's motion for continuance and reset the bench trial for May 16, 2019.
On May 13, 2019, Villarreal filed his second motion for continuance, reasserting his right under the rules to have "12 months measured from the date of the answer" to prepare for trial and arguing that he had not received a copy of appellees' motion to strike answers to requests for admissions.[1] Villarreal additionally argued that the trial court had yet to rule on appellees' motion and that its ruling may "have a direct impact on the final outcome of the case." After a hearing on May 14, 2019, the trial court denied appellees' motion and granted Villarreal's request for continuance. The case was reset for a bench trial on May 30, 2019.
On May 29, 2019, Villarreal filed his third written motion for continuance, stating his counsel was going to be in trial in a neighboring county. Villarreal's motion was verified and supported by an affidavit by his counsel. The next day, the trial court acknowledged on the record that he had received Villarreal's motion for continuance, denied the motion, and proceeded with the bench trial without Villarreal or his counsel present.[2] Following testimony from Myers and Waite, the trial court issued a judgment in favor of appellees.
On June 14, 2019, Villarreal filed a motion for new trial, asserting that his counsel had been "in trial from May 28, 2019[, ] until May 30, 2019" in an unrelated criminal cause, [3]and the "continuance should have been granted as a matter of law." Villarreal raised no other grounds for a new trial. Attached to the motion was an affidavit by counsel and an exhibit from counsel's Willacy County criminal case. The exhibit indicated that the trial court in the criminal case had instructed the jury to continue deliberating and contained a time and date stamp of May 30, 2019, at 3:36 p.m. Following a hearing on Villarreal's motion, the trial court denied the motion.
This appeal followed.
II. Motion for Continuance
By his first issue, Villarreal asserts the trial court abused its discretion in failing to grant his third motion for continuance.
A. Standard of Review and Applicable Law
"When reviewing a trial court's order denying a motion for continuance, we consider whether the trial court committed a clear abuse of discretion on a case-by-case basis." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion by acting unreasonably or in an arbitrary manner without reference to any guiding rules and principles. Joe, 145 S.W.3d at 161.
A trial court may not grant a continuance "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 continuance is sought because of the unavailability of counsel, we apply Texas Rule of Civil Procedure 253. See id. R. 253; In re Marriage of Harrison, 557 S.W.3d 99, 117 (Tex. App.-Houston [14th Dist.] 2018, pet. denied). Rule 253 states:
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. 253. Generally, a trial court's denial of a motion for continuance due to unavailability of counsel will be undisturbed on appeal where a record supports skepticism of counsel's true unavailability or the record is silent regarding whether the conflicting settings had been avoidable or why counsel had not taken earlier steps to make the trial court aware of the conflicting settings. See R.M. Dudley Constr. Co. v. Dawson,
258 S.W.3d 694, 701 (Tex. App.-Waco 2008, pet. denied) (concluding no abuse of discretion in denying motion for continuance where the "record does not show the efforts, if any, taken" by the attorney to have the conflicting proceeding reset and there was "no explanation why the motion for continuance was filed . . . on the day before trial"); In re K.A.R., 171 S.W.3d 705, 711 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (concluding same and noting that appellant's attorney failed to notify the trial court of a conflicting setting as soon as she became aware "which was no later than" the date she received notice of the trial court's order setting case for trial); Chandler v. Chandler, 536 S.W.2d 260, 262 (Tex. App.-Corpus Christi-Edinburg 1976, writ dism'd) (concluding same where appellant's attorney cited unavailability due to previously scheduled conflicting setting and submitted documented proof); see also Hontanosas v. Hontanosas, No. 13-08-00309-CV, 2012 WL 432642, at *3 (Tex. App.-Corpus Christi-Edinburg Feb. 9, 2012, no pet.) (mem. op.) (concluding same where attorney claimed unavailability due to being out of state); Sikes v. Sikes, No. 11-08-00296-CV, 2010 WL 2112809, at *2 (Tex. App.- Eastland May 27, 2010, no pet.) (mem. op.) (concluding same and observing that where "the record supports the court's skepticism" based on counsel's failure to attend to prior hearings, "the trial court did not act in an arbitrary or unreasonable manner" in denying appellant's request for continuance based on attorney unavailability).
B. Analysis
Villarreal's second motion for continuance was filed on May 13, and the trial court's order granting the continuance, signed on May 14, scheduled the case for a bench trial on May 30, 2019. It was not until the day before trial that Villarreal filed his third motion
for continuance and made his counsel's impending absence and related reason known. See Tex. R. Civ. P. 251, 253. Though it is unapparent from Villarreal's motion for continuance when Villarreal became aware of the conflicting settings, it presumably occurred before May 29, when counsel claimed he was in the middle of trial elsewhere, and it was incumbent upon Villarreal to promptly notify the trial court of the conflicting settings. See Dawson, 258 S.W.3d at 701; see also Cameron County (Tex.) Dist. & Cnty. Ct. Loc. R. 1.13(c) (requiring that "[a]t the time of announcements, counsel shall . . . advise the judge of anticipated conflicting engagements during the week of trial that may affect counsel's ability to attend trial"); In re W.A.B., No. 14-18-00181-CV, 2019 WL 2181205, at *3 (Tex. App.-Houston [14th Dist.] May 21, 2019, no pet.) (mem. op.) (considering local rule requirements in its analysis of whether the trial court abused its discretion in denying counsel's request for continuance based on a conflicting setting). Villarreal's motion provided no explanation for his late filing and did not state what, if any, preparatory measures had been taken to avoid the conflict. See Dawson, 258 S.W.3d at 701; In re K.A.R., 171 S.W.3d at 711.
Moreover, although this was Villarreal's third motion for continuance before the trial court, the record reflects that it was Villarreal's eighth motion for...
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