Saturday, November 17, 2007

Gag order in Houston teen murder case lifted

In Re: Ashley Paige Benton (Tex.App.- Houston [14th Dist.] Nov. 16, 2007)(Opinion by Justice Guzman)(Before Justices Hudson, Fowler and Guzman)
Appeal from 177th District Court of Harris County
Disposition: Mandamus relief granted; district court judge ordered to vacate gag order

Justice George C. Hanks Jr. reverses termination of parental rights

In Interest of A.A.A. - Alexander v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Hanks) Opinion by Justice Hanks (Before Justices Taft, Hanks and Higley)
01-07-00160-CV
Paul Alexander and Shde Hurst v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT: Opinion by Justice HanksBefore Justices Taft, Hanks and Higley01-07-00160-CV Paul Alexander and Shde Hurst v. Department of Family and Protective ServicesAppeal from 314th District Court of Harris County (Hon. John Phillips)

In this accelerated appeal, Shde Aza Hurst challenges the trial court’s judgment terminating her parental rights to her minor child, A.A.A., and naming the Texas Department of Family and Protective Services (“DFPS”) as A.A.A.’s sole managing conservator. In five issues, Hurst argues that the evidence is legally and factually insufficient to support the trial court’s findings under Section 161.001. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006). In her sixth issue, Hurst asserts that, if we reverse the trial court’s termination of her parental rights, we should also reverse the trial court’s appointment of DFPS as sole managing conservator. We reverse the trial court’s termination of her parental rights and render judgment denying DFPS’s petition to terminate Hurst’s parental rights. We affirm the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator.
* * *
Because we hold that the evidence is legally insufficient to support the trial court’s findings under 161.001(1), we need not review the sufficiency of the trial court’s finding that termination is in A.A.A.’s best interest under 161.001(2). Therefore, we reverse the trial court’s termination of the parent-child relationship between Hurst and A.A.A. and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. See Tex. R. App. P. 43.2(c).

Sole Managing Conservator

Having reversed the termination of Hurst’s parental rights, we now turn to Hurst’s sixth issue, which asks whether the appointment of DFPS as sole managing conservator should also be reversed. Hurst first contends that, because the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator resulted from the trial court’s termination of Hurst and Alexander’s parental rights, the appointment must also be reversed.
We addressed this issue in Earvin v. Department of Family and Protective Services. 229 S.W.3d 345 (Tex.—Houston [1st Dist.] 2007, no pet.). In Earvin, we concluded that, because the trial court appointed DFPS as conservator after finding, independent of its termination of parental rights finding, that appointment of the parent would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development, appointment of DFPS was a separate issue that required independent analysis. Id. at 350–51. The Texas Supreme Court recently reaffirmed that a parent must bring an independent challenge on the issue of conservatorship in similar situations. See In re J.A.J., __ S.W.3d __, 2007 WL 3230169, at *1 (Tex. Nov. 2, 2007) (concluding that, where the trial court finds that appointment of the parent would significantly impair the child’s physical health or emotional development, and appointment of DFPS is in the child’s best interest, “reversal of a termination judgment . . . does not affect the trial court’s conservatorship appointment absent assigned error”).
Here, the trial court found that appointment of Hurst or Alexander would not be in A.A.A.’s best interest because such appointment would significantly impair A.A.A.’s physical health or emotional development. The trial court also found that appointment of DFPS as conservator was in A.A.A.’s best interest. Therefore, DFPS’s appointment as conservator is independent of the trial court’s termination of Hurst’s parental rights and requires independent analysis.
We begin by addressing whether we are precluded from reviewing Hurst’s sixth issue because she failed to follow the procedures for appellate review of a final order under Section 263.405 of the Family Code. Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2006). Subsection 263.405(b) requires an appellant to file, not later than the 15th day after the date a final termination order is signed, “a statement of the point or points on which the party intends to appeal.” Id. § 263.405(b). This statement of points may also be combined with a motion for new trial. Id. Under Subsection 263.405(i), “[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this Subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.” Id. § 263.405(i).
The record includes Hurst’s timely filed motion for new trial and statement of points, which indicates her intention to challenge the legal and factual sufficiency of the evidence in support of the trial court’s findings of 161.001(1)(E), (F), (N), (O), and (2). However, Hurst urged no point concerning the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator. Therefore, because Hurst failed to specifically present this issue in her statement of points, we are precluded from considering it. See Pool v. Texas Dept. of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Accordingly, Hurst’s sixth issue is overruled.
Conclusion
We reverse and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. We affirm the portion of the decree assigning DFPS as the sole managing conservator of A.A.A.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley.

Friday, November 16, 2007

Who said Texas does not have alimony?

Justice John S. Anderson affirms permanent spousal support to wife who admitted three extra-marital affairs and claimed physical and mental incapacity, but worked 30 hours a week; holds that spouse's employment does not preclude award of spousal mainentance, but reverses award of money judgment for medical expenses for lack of evidence of necessity and reasonableness of charges.

Dunaway v. Dunaway (Tex.App.- Houston [14th Dist.] Nov. 13, 2007)(Anderson)(Texas divorce law, indefinite spousal maintenance, disability, incapacity, earnings capacity, consideration of fault, marital misconduct, motion for new trial based on new evidence on wife's employment)

M E M O R A N D U M O P I N I O N

Appellant, Mavis Clifton Dunaway, challenges a final decree of divorce issued on August 28, 2006. Appellant raises five issues on appeal: (1) whether the trial court erred in awarding spousal maintenance; (2) whether the trial court erred in awarding spousal maintenance for an indefinite period of time; (3) whether the divorce decree is voidable when it provides for spousal maintenance for an indefinite period of time without specifically finding an incapacitating physical or mental disability; (4) whether the trial court erred in awarding Susan a $6,569.60 judgment for medical expenses without proof the expenses were reasonable and necessary; and (5) whether the trial court erred in denying the motion for new trial or motion to reform judgment based on newly discovered evidence. We affirm in part and reverse and remand in part.

Factual and Procedural Background

Appellant and Susan married in November 1978 and separated in 2003. Appellant filed for divorce on June 6, 2003, and Susan filed a counter petition on June 23, 2003. In the final decree of divorce, the trial court ordered appellant to pay spousal maintenance in the amount of $500 per month until further order of the court. The trial court also awarded Susan a judgment against appellant for $13,953.93. Part of the money judgment included $6,569.60 in medical expenses incurred by Susan after appellant discontinued her medical insurance in violation of the court=s temporary orders. On September 15, 2006, appellant requested the trial court file findings of fact and conclusions of law. Appellant filed a notice of past due findings of fact and conclusions of law on October 9, 2006, and the trial court issued its findings of fact and conclusions of law on December 1, 2006. In its findings, the trial court found during the marriage appellant was the primary wage-earner and by agreement of the parties, Susan was a Astay at home@ wife with certain known mental and to some extent physical limitations and disabilities. The court further found Susan was eligible to receive spousal maintenance because she lacked the financial resources, including the community assets and liabilities apportioned to her in the divorce, and the ability to meet her needs. In addition, the trial court found Susan was eligible to receive maintenance based on her age, employment history, lack of earning ability, and her physical and emotional condition. On December 11, 2006, appellant filed a request for additional findings of fact and conclusions of law, but the trial court never responded.

Discussion

A. Did the Trial Court Err in Awarding Spousal Maintenance?

In his first issue, appellant contends the trial court erred in awarding spousal maintenance to Susan. More specifically, appellant argues the evidence is legally and factually sufficient to show Susan received sufficient property and monies to meet her minimum reasonable needs. Appellant also argues the trial court erred in not considering the fact Susan admitted to three extramarital affairs.

1. Standard of Review

We review the award of spousal maintenance under an abuse of discretion standard. Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.CDallas 2001, pet. denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. There is no abuse of discretion if some evidence of a substantive and probative nature supports the decision. Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App.CHouston [1st Dist.] 1997, pet. denied). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error; however, they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.

Findings of fact entered in a case tried to a court have the same force and dignity as a jury's verdict upon special issues; however, they are not conclusive when a complete statement of facts appears in the record. Id.; Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.CHouston [14th Dist.] 1985, writ ref'd n.r.e.). Therefore, we apply the same standards when reviewing the legal and factual sufficiency of the evidence supporting the trial court=s fact findings as we do when reviewing the evidence supporting a jury's answer to a special issue. Pickens, 62 S.W.3d at 214.

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id.

When reviewing the factual sufficiency of evidence, we consider and weigh all the evidence and will set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong or unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). A trial court abuses its discretion as to legal matters when it fails to analyze or apply the law correctly. Pickens, 62 S.W.3d at 214 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).

2. Analysis

The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.CDallas 2003, no pet.) (citing O=Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.CAustin 2002, no pet.)). The trial court may, in its discretion, award spousal maintenance only if the party seeking maintenance meets specific eligibility requirements. Id.; see Tex. Fam. Code Ann. ' 8.051 (Vernon 2006). In marriages lasting ten years or more, a spouse is eligible to seek spousal maintenance if the spouse lacks sufficient property to meet minimum reasonable needs and cannot support himself or herself due to (1) an incapacitating physical or mental disability, (2) a child in the home with a disability requiring substantial care and supervision, or (3) the lack of adequate earning ability. Tex. Fam. Code Ann. ' 8.051 (Vernon 2006). Determining the spouse=s minimum reasonable needs is a fact-specific determination done on a case-by-case basis. Deltuva, 113 S.W.3d at 888 (citing Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.CCorpus Christi 2002, no pet.)).
The evidence is undisputed appellant and Susan were married for the requisite ten years. The two were married for approximately twenty-seven years before obtaining a divorce. What appellant argues is that Susan has sufficient property to meet her minimum reasonable needs. Appellant claims Susan received sufficient community property in the divorce to meet her needs and, therefore, the court abused its discretion in awarding spousal maintenance.

Susan testified at trial her minimum monthly expenses were approximately $1,700 per month. She also introduced into evidence a Financial Information Sheet which stated her necessary monthly living expenses were $1,746 per month. Appellant did not introduce any evidence at trial to negate Susan=s minimum monthly expenses; therefore, we find there is evidence sufficient for the trial court to determine Susan=s minimum reasonable needs were $1,746 per month.

According to the record, Susan received approximately $32,000 in 2004 from the sale of two pieces of land and $3,600 over a period of six months from temporary alimony payments. However, Susan testified at the time of trial she had already spent approximately $26,000 on groceries, personal expenses, and car maintenance. Susan also received property in the final divorce decree. The property awarded to Susan included: (1) one checking account worth $459 at the time of trial; (2) one savings account worth $4,975.43 at the time of trial; (3) an individual retirement account worth $2,942.44 at the time of trial; (4) two annuities worth $3,199 and $3,133 as of July 7, 2005; (5) a judgment against appellant for $13,953.93 resulting from appellant=s cancellation of Susan=s health insurance, one-half of the property taxes paid from community funds on the separate property of appellant, and rental income from the separate property of appellant; (6) a judgment against appellant for $6,500 for unpaid spousal maintenance from August 1, 2005 through, and including, August 1, 2006; (7) one-half of the IRS tax refund checks with Susan=s portion totaling $2,207.47; (8) all clothing, jewelry, and other personal effects in Susan=s possession; and (9) a 1988 Ford Crown Victoria motor vehicle. The total amount of property Susan received, however, includes money tied up in an IRA and annuities which are not easily liquidated. In considering assets awarded in the divorce, the law does not require a spouse to spend down long-term assets, liquidate all available assets, or incur new debt simply to obtain job skills and meet needs in the short term. Trueheart v. Trueheart, No. 14-02-01256-CV, 2003 WL 22176626, at *3 (Tex. App.CHouston [14th Dist.] Sept. 23, 2003, no pet.) (mem. op.). In addition, the court found in its findings of fact certain community property liabilities existed at the time of the divorce. The community liabilities included: (1) a Discover credit card account with a balance of $5,943.42; (2) a loan for $10,350 from Susan=s parents for legal expenses; and (3) reimbursement for moving expenses loaned to Susan by her parents for $750.[1]

Furthermore, the record establishes before the separation Susan had not worked for over twenty years and her education was minimal. Susan had graduated from high school and taken a few college courses. Susan was a Astay-at-home@ wife and appellant was the Abreadwinner.@ At the time of trial, Susan was still unemployed but had been seeking employment since the separation in 2003. In July 2003, River Haven Nursing Home hired Susan to work in the kitchen for $6.50 an hour, but she only worked there for approximately one week. Susan testified she quit the job because she was physically unable to do the work. In May 2003, Susan worked at Subway for a brief period of time, but she was subsequently laid off because of reductions in the staff. Susan testified in the year 2003 she only made $200, and in the year 2004 her only income was the $32,000 from the sale of the properties. Other than the property received during the divorce, Susan did not have any separate property to rely on.

In its Findings of Fact, the trial court found spousal maintenance was justified because Susan lacked the financial resources and the ability to meet her needs independently. The trial court found Susan lacked the financial resources to independently meet her needs despite the fact she received community assets in the divorce. The trial court further found Susan was eligible for maintenance because of her age, employment history, lack of earning ability, and her physical and emotional condition. The evidence demonstrates that because Susan=s earnings since the time of separation were minimal, her lack of employment skills limits her to low income jobs, she has no separate property, and her monthly expenses are approximately $1,746, she definitely faces a monthly shortfall. While Susan received a larger portion of the community property than appellant, the trial court could have reasonably concluded her funds would be exhausted before her earnings matched her reasonable minimum monthly expenses. See Deltuva, 113 S.W.3d at 888 (noting even though the wife was awarded the majority of the marital estate there was evidence to support the conclusion the wife=s living expenses would significantly exceed her income); Trueheart, 2003 WL 22176626, at *3 (holding an award of $290,000 of community property was not sufficient to meet wife=s minimum reasonable needs because over half of the award was not easily liquidated and the wife=s income generating potential was minimal). Based on a review of the record, we cannot conclude the trial court=s decision to order appellant to pay spousal maintenance based on Susan=s inability to meet her minimum reasonable needs was an abuse of discretion.

Next, appellant argues the trial court abused its discretion in awarding Susan spousal maintenance because it did not consider the fact Susan admitted to three extramarital affairs during the marriage. Once a court determines a spouse is eligible for maintenance payments, section 8.052 of the Texas Family Code provides a non-exhaustive list of factors the court may consider in determining Athe nature, amount, duration, and manner of periodic payments.@ Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex. App.CSan Antonio 2004, pet. denied) (citing Limbaugh v. Limbaugh, 71 S.W.3d 1, 12B13 (Tex. App.CWaco 2002, no pet.); see Tex. Fam. Code Ann. ' 8.052. Included in this list of factors is any marital misconduct of the spouse seeking maintenance. Tex. Fam. Code Ann. ' 8.052(11). However, the statute does not assign any weight to any particular factor. See id. '8.052.

It is established in the record Susan committed adultery three times during the course of the marriage. The trial court heard this testimony and stated on the record it was a Atie@ between the parties. During Susan=s testimony regarding her adultery, the court stated:

THE COURT: I remind you, that that=s a tie. He=s had an affair. She=s had an affair.@
MR. STOCKER: Is that a question, Judge?
THE COURT No. It=s a statement. It=s also an encouragement to go to another subject that=s more relevant to the Court right now.
MR. STOCKER: Yes, sir.

Despite the trial court=s failure to make a finding of fact regarding Susan=s adultery, based on Susan=s testimony and the judge=s comment during trial, we can infer the trial court took this information into consideration. In addition, the Findings of Fact reflect the trial court took some of the other factors into consideration including the contribution of Susan as the homemaker, Susan=s mental and physical condition, appellant=s separate property, Susan=s lack of education and employment skills, and appellant=s ability to meet Susan=s personal needs. Therefore, we cannot say the trial court abused its discretion in determining the nature, amount, duration and manner of spousal maintenance.

Furthermore, appellant only generally challenges the trial court=s failure to consider the extramarital affairs. Appellant fails to specifically raise a separate issue challenging the trial court=s failure to enter additional findings of fact.[2] On December 11, 2006, appellant requested additional findings of fact and conclusions of law from the court. Within his request, appellant asked the trial court to make a finding of fact that Susan admitted to three extramarital affairs during the marriage. The trial court did not respond to this request. On appeal, however, appellant does not specifically argue the trial court=s failure to enter the additional findings of fact was error; therefore, he has waived any review of whether these findings should have been entered. See Tex. R. App. P. 38.1; Devine v. Dallas County, 130 S.W.3d 512, 513B14 (Tex. App.CDallas 2004, no pet.) (holding appellant waived certain issues due to inadequate briefing). Consequently, we overrule appellant=s first issue.

B. Did the Trial Court Err in Awarding Spousal Maintenance for an Indefinite Period of Time?

In his second issue, appellant contends the trial court erred in awarding Susan spousal maintenance for an indefinite period of time.[3] More specifically, appellant argues the evidence is legally and factually insufficient to prove Susan had an incapacitating physical or mental disability.[4]

1. Standard of Review

When reviewing whether a trial court abused its discretion by ordering spousal maintenance for an indefinite period of time, we use the same standard as discussed above. We review the award of spousal maintenance under an abuse of discretion standard. Pickens, 62 S.W.3d at 214. A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. There is no abuse of discretion if some evidence of a substantive and probative nature supports the decision. Dennis, 962 S.W.2d at 68. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error; however, they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.

2. Analysis

The court may only order spousal maintenance for a period longer than three years if the recipient spouse has an incapacitating physical or mental disability. Tex. Fam. Code Ann. ' 8.054; Pickens, 62 S.W.3d at 215. Testimony on incapacity need not be limited to experts. Pickens, 62 S.W.3d at 215. A fact finder may reasonably infer incapacity from circumstantial evidence or the competent testimony of lay witnesses. Id. The question of the extent and duration of incapacity is an issue that can be answered by lay opinion and does not require medical testimony. Id. at 216.

During trial, Susan testified she had minimal brain damage which affected both her ability to learn and to secure employment. Susan testified she attended special education classes starting in the second grade until she graduated from high school. Susan also testified she had a deteriorating disc in her lower back, her knees often hurt, she suffered from seizures, and she suffered from depression. Susan testified she was on Nuerotin and Trileptal for her seizures and Zoloft and Zocor for her depression and cholesterol. In addition, Susan testified her mental stress kept her from being able to work. She testified when she became too stressed, she would lapse into a seizure. Susan did admit during trial she had not seen a doctor regarding her back pain since approximately 1996 and she had not had a seizure since 2004. Also, on direct examination by appellant=s attorney, Susan testified she did not think she was incapacitated, and when asked why she wanted alimony she stated AI feel like I need it.@ However, Susan later explained she thought Aincapacitated@ meant being wheelchair-bound. Susan further testified her first paying job since separating from appellant was in the kitchen at the River Haven Nursing Home, but she quit after only one week because she physically could not perform the job. She also briefly worked at Subway, which she was physically able to do, but was laid off due to cut backs in the staff. Susan testified she volunteered at two different places three to four days a week. She testified she could cook, clean, and drive; however, she stated her choices in employment were limited because she could not drive on freeways due to her inability to handle stressful situations.
Susan=s mother, Dottie King, testified Susan had limitations through her high school years, and she became stressed and frustrated if she had to perform her work too quickly or under pressure. Dottie testified she believed Susan had incapacitating mental disabilities. Dottie admitted Susan liked to work and wanted to work, but because of Susan=s age, disabilities, and lack of marketable skills, she believed Susan could not secure and maintain appropriate employment.

Appellant testified he believed Susan could support herself and did not think she was one-hundred percent helpless. Appellant testified his wife could cook, clean, drive, and perform household chores. Appellant, however, admitted Susan attended special education classes through high school. He also testified he was aware his wife had some problems with depression, that she took medications for some health problems, and that she was epileptic.

After reviewing all the evidence, we conclude Susan presented some evidence of a substantive and probative nature to support the trial court=s finding Susan has an incapacitating physical and mental disability. Although appellant does point to some evidence which contravenes a finding of physical and mental disability, including his opinion Susan can support herself, the trial court=s ruling is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Therefore, the trial court did not abuse its discretion by awarding spousal maintenance for an indefinite period of time. Accordingly, we overrule appellant=s second issue.

C. Is the Divorce Decree Voidable if it Provides for Spousal Maintenance for an Indefinite Period of Time

Without Specifically Finding an Incapacitating Physical or Mental Disability?

In his third issue, appellant argues the final divorce decree is voidable. Appellant argues when a court=s action is merely contrary to a rule or statute, the action is erroneous or voidable. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990).(Br22) More specifically, appellant contends in this case the divorce decree is voidable because the court only implicitly found Susan suffered from an incapacitating physical or mental disability, and therefore, the order is contrary to the Texas Family Code which says a court may not order maintenance that remains in effect for more than three years. As discussed above, we do not agree with appellant=s contention that the court only implicitly found Susan suffered from an incapacitating physical or mental disability. We conclude the trial court did find Susan suffered from an incapacitating physical or mental disability in its Findings of Fact, and consequently, the divorce decree is not voidable. We overrule appellant=s third issue.

D. Did the Trial Court Err in Awarding Susan a $6,569.60 Judgment for Medical Expenses Without Proof the
Expenses Were Reasonable and Necessary?

In his fourth issue, appellant argues $6,569.60 of the $13,953.93 judgment awarded to Susan was improper.[5] Appellant contends because Susan failed to comply with section 18.001 of the Texas Civil Practice and Remedies Code and did not prove her expenses through expert testimony, no evidence of reasonableness or necessity exists in the record.

1. Standard of Review

When reviewing a no evidence, or legal sufficiency, challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id. at 827. The trier of fact is the sole judge of the witnesses= credibility and the weight to be given their testimony. Id. at 819. This court cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement. Id. at 822. But if the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id.

2. Analysis

A claim for past medical expenses must be supported by evidence that such expenses were reasonable and necessary as a result of the injury. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. App.CHouston [14th Dist.] 2007, no pet.). A proponent can prove reasonableness and necessity of past medical expenses through (1) expert testimony on the issues of reasonableness and necessity or (2) an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. Id.; see Tex. Civ. Prac. & Rem. Code ' 18.001 (Vernon 1997). Proof of amounts charged or paid is not proof of reasonableness. Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (citing Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532 (Tex. App.CFort Worth 2000, no pet.)).

In this case, the only evidence Susan introduced regarding her medical expenses was an exhibit which contained copies of her doctor bills and prescription receipts. During trial, appellant objected to the introduction of the exhibit on the grounds of hearsay and improper predicate. In response, the judge admitted the exhibit to prove Susan had received medical bills, but the judge stated he could not receive the exhibit for the truth of the bills and he could not receive them as proof the expenses reflected in the exhibits were reasonable or necessary. Despite this, Susan failed to produce an affidavit in compliance with section 18.001 of the Texas Civil Practice and Remedies Code or produce expert testimony on the issue of reasonableness and necessity. Consequently, there is no evidence in the record of the reasonableness or necessity of the alleged medical expenses.

In response to appellant=s argument, appellee makes three arguments. First, she argues appellant failed to specifically challenge the trial court=s finding as to the expenses, therefore, the finding is binding on this court. The general rule is that an attack on the sufficiency of the evidence must be directed at specific findings of fact rather than at the judgment as a whole. Halbert v. Kidd Jones Oil Co., No. 07-04-0401-CV, 2005 WL 729039, at *3 (Tex. App.CAmarillo March 30, 2005, pet. denied) (mem. op.). The rule has often been stated 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. Id. However, a challenge to an unidentified finding of fact may be sufficient for review if it is included in the argument of the issue or point, or if after giving consideration to the nature of the case, the underlying applicable legal theories, and the findings of fact provided, the specific findings of fact which the appellant challenges can be fairly determined from the argument. Id. (citing Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982)). In his brief, appellant argues no evidence exists to support a finding that the $6,569.60 judgment for medical expenses was reasonable and necessary. Despite the fact appellant does not challenge the specific finding of fact which awarded Susan the $6,569.60 judgment, appellant=s challenge can be determined from his argument. Accordingly, the finding is not binding on this court.

Appellee next argues appellant waived error on this complaint by failing to pursue his objection to an adverse ruling. We disagree. It is true appellant objected to the medical expenses exhibit, the trial court sustained the objection as to reasonable and necessary, and appellant did not further pursue an adverse ruling. However, in this appeal appellant is not challenging the admission or exclusion of evidence. Instead, appellant is arguing there is Ano evidence@ in the record to support a finding of reasonable and necessary. When appealing from a non-jury trial, an appellant is not required to preserve allegations of legal insufficiency. Renteria v. Trevino, 79 S.W.3d 240, 241 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Those claims may be raised for the first time on appeal. Id. at 241-42. Accordingly, appellant did not waive error on this complaint.

Finally, appellee argues because these medical expenses were awarded due to appellant=s violation of the court=s temporary order, the trial court had the discretion to award such expenses to Susan without expert testimony or a medical record affidavit, but appellee offers no authority to support this contention. The law is well established that to present an issue to this court, a party=s brief shall contain, among other things, a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h); see McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.CDallas 2001, pet. denied). Since appellee failed to adequately brief this argument and our research reveals no such authority, we find her argument is without merit. Accordingly, we sustain appellant=s fourth issue.

E. Did the Trial Court Err in Denying Appellant=s Motion for New Trial or Motion to Reform the Judgment?

In his fifth issue, appellant claims the trial court erred by denying his motion for new trial or a motion to reform the judgment based on newly discovered evidence.[6] More specifically, appellant argues the new evidence was so material it would probably produce a different result if a new trial were granted.

1. Standard of Review

Whether a motion for new trial based upon newly discovered evidence will be granted or refused is generally a matter within the sound discretion of the trial court. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds, 121 S.W.3d 715 (Tex. 2003). We will not disturb the decision on appeal absent an abuse of discretion. Id. In ruling on a motion for new trial, the trial court will consider the weight and the importance of the new evidence and its bearing upon the evidence received at trial. Id. The question is whether the refusal of the trial court to grant a new trial was a manifest abuse of discretion or a violation of a clear legal right. Id. An appellate court will indulge every reasonable presumption in favor of the trial court=s refusal to grant a new trial. Id. at 809B10.

A party seeking a new trial based on newly discovered evidence must show (1) the evidence has come to his knowledge since trial; (2) the failure to discover the evidence before trial was not due to lack of diligence; (3) the new evidence is not cumulative; and (4) the new evidence is so material that it would probably produce a different result if a new trial were granted. Id. at 809.

2. Analysis

Appellant filed a motion for new trial or to reform the judgment based on newly discovered evidence on September 26, 2006, and the trial court subsequently held a hearing. During the hearing, appellant testified he spoke with Susan in August 2006 and she informed him she had been working at TJ Max since November 2005. Appellant testified Susan told him she was classified as a full-time employee and trained other employees.

Susan testified she was employed at TJ Max as a fitting room attendant and had been working there since November 2005. When Susan was hired in November 2005 she was making $7.00 per hour and working twenty-five hours per week. At the time of trial, Susan was making $7.25 per hour and working thirty hours per week, which is the maximum number of hours TJ Max allows. Susan testified she never worked full-time for TJ Max and did not train employees, although occasionally she would show a new employee what to do in the fitting room. Susan testified on cross-examination she did not want to work more than thirty hours even if the store allowed her to do so. On re-direct, however, Susan testified she was unable to work more than thirty hours per week due to her stress level. In addition, Susan testified she had only missed work one time since she began.

After hearing all the evidence, the trial court denied the motion for new trial and the motion to reform judgment. Appellant argues on appeal he meets the four part test required for a new trial. Appellant argues he had no knowledge of this new evidence during trial since it occurred in November 2005, he could not have procured it prior to trial as it did not exist, the evidence is not merely cumulative and does not tend only to impeach, and the evidence would probably produce a different result if a new trial were granted.
The record does not reflect why the trial court denied the motion for new trial. Regardless of the ground on which the trial court based its decision, the trial court did not abuse its discretion. Based on the record, there was sufficient evidence for the trial court to decide, despite Susan=s new monthly income, she still could not meet her minimum reasonable needs. A spouse=s mere employment does not preclude an award of spousal maintenance. Trueheart, 2003 WL 22176626, at *3 (citing In re Marriage of Hale, 975 S.W.2d 694, 698 (Tex. App.CTexarkana 1998, no pet.)); see In re Gonzalez, No. 07-05-0205-CV, 2006 WL 3102303, at *4 (Tex. App.CAmarillo Nov. 2, 2006, no pet.) (mem. op.) (rejecting husband=s contention that his wife=s gainful employment during their separation before divorce precluded an award of spousal maintenance). The trial court could reasonably have decided Susan=s monthly income from TJ Max, which would be approximately $870 before taxes, was still insufficient to meet her minimum needs considering her prior testimony that her monthly expenses totaled at least $1,700 per month. Furthermore, there was sufficient evidence for the trial court to decide Susan was still mentally or physically incapacitated and, therefore, still eligible for maintenance indefinitely. Along with the testimony during the original trial, Susan testified at the motion for new trial hearing she was unable to work more than thirty hours per week due to her conditions. We cannot say the trial court=s refusal to grant the new trial or reform the judgment was a manifest abuse of discretion or a violation of a clear legal right. Accordingly, we overrule appellant=s fifth issue.

Conclusion

We affirm the trial court's grant of spousal maintenance for an indefinite period of time, and we affirm the trial court's denial of a motion for new trial or to reform the judgment. We overrule appellant's argument that the divorce decree is contrary to the Texas Family Code and therefore voidable. We sustain appellant's argument regarding the medical expenses and, therefore, reverse the $6,569.60 portion of the trial court's judgment against appellant representing medical expenses incurred by Susan and remand for a new trial to determine whether the expenses were reasonable and necessary.

/s/ John S. Anderson Justice

Judgment rendered and Memorandum Opinion filed November 13, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] While the trial court found certain community liabilities existed, it did not specify in either the Final Divorce Decree or the Findings of Fact which party was liable for the debt.
[2] In his brief, appellant states: AAppellee Susan Dunaway admits to having three affairs during the marriage. Yet the Court, in its Findings of Fact regarding the issue of spousal maintenance, does not even mention the three affairs Appellee admitted. Appellant[=s] requests for additional findings of fact were ignored by the Court.@
[3] Appellant breaks down his second issue into three sub-issues: (1) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating mental disability, (2) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating physical disability, and (3) the evidence is legally and factually insufficient to show Susan=s alleged physical or mental disabilities caused her to be incapacitated. We find the sub-issues are similar enough to address together.
[4] Within this issue, appellant also argues the trial court only implicitly found Susan had an incapacitating physical or mental disability. Appellant argues the trial court=s Findings of Fact do not include a specific finding that Susan had an incapacitating mental or physical disability. We disagree with this contention. In the court=s Finding of Fact number 5, it states A[t]he court finds that during the marriage MAVIS CLIFTON DUNAWAY was the primary wage-earner and by agreement of the parties, SUSAN DAWN DUNAWAY, was a Astay-at-home@ wife with certain known mental and to some extent physical limitations/disabilities.@ The court also states in Finding of Fact number 12 Susan was eligible to receive maintenance based on direct testimony from her mother regarding her mental disabilities and Susan=s physical and emotional condition. Furthermore, the court=s explanation for awarding a disproportionate division of the estate in Finding of Fact number 11 states Susan suffered mental disabilities resulting from brain damage at birth and certain physical disabilities limited her ability to maintain gainful employment. In its Conclusion of Law number 11 the court concludes Athat if a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues.@ Based on these findings, we do not agree with appellant that the trial court only implicitly found an incapacitating mental or physical disability.
[5] This was the portion of the judgment awarded to Susan for medical costs incurred after appellant cancelled health insurance in violation of the court=s temporary orders.
[6] In his motion for new trial, appellant also argued a new trial was warranted because (1) the evidence at trial failed to support a finding of physical or mental disability; (2) Susan admitted to three affairs during the marriage; (3) Susan offered no medical records or medical testimony to support her claim of mental incapacitation; and (4) the court failed to appoint an attorney ad litem to represent Susan. On appeal, however, appellant failed to brief any of these issues as they relate to the motion for new trial and only raises the newly discovered evidence issue. We, therefore, find all of the other issues relating to the motion for new trial have been waived and the only issue before us is whether the trial court erred by denying the motion for new trial based on newly discovered evidence. See Tex. R. App. P. 38.1; McIntyre, 50 S.W.3d at 682.

Divorce Court Judge Georgia Dempster found to have signed order that was impossible to comply with; petition for mandamus granted

First Court of Appeals, in memo opinion by Justice Elsa Alcala, orders family court judge to set aside retro-active discovery order, finding it was impossible to meet its conditions. Date of written order conrols, not docket entry.

In re Barner (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Alcala)
(retroactive order, impossible to comply, sanctions order; also see -> contempt of court)
Disposition: GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala; Before Chief Justice Radack, Justices Alcala and Bland01-07-00603-CV In re Celious Barner, III Appeal from 308th District Court of Harris County (Hon. Georgia Dempster)

MEMORANDUM OPINION BY JUSTICE ELSA ALCALA

By petition for writ of mandamus, relator, Celious Barner III, challenged the trial court’s June 20, 2007 order compelling discovery and granting sanctions. [1 The underlying case is In the Interest of T.A.B. and C.J.B, Children, No. 2006-22902, in the308th District Court of Harris County, Texas, the Honorable Georgia Dempster, presiding.]

We conditionally grant the petition for writ of mandamus.

Background

The underlying case is for modification of the parent-child relationship and for enforcement of a child support order, brought by Juanita J. Barner, the real party in interest. On June 20, 2007, the district court signed an “Order on Motion to Compel Discovery and Sanctions.” This order required the relator to respond to certain interrogatories and requests for production “by 5 p.m. on May 16, 2007.” In addition, it required the relator to pay attorney’s fees of $700 by May 16, 2007. Finally, the order stated,

Should CELIOUS BARNER, III fail to provide the above discovery as ORDERED by this court on the date and at the time specified, the pleadings of CELIOUS BARNER III will be stricken and judgment will be granted in favor of JUANITA J. BARNER, together with all attorney’s fees for which let execution issue.

Relator petitioned for writ of mandamus, asserting that the trial court abused its discretion because it is impossible for him to comply with an order that requires performance in the past. The real party in interest argues that the motion to compel was initially granted by an associate judge at a hearing on May 11, 2007, and entered onto the court’s docket sheet. The real party in interest alleges that the signing of the order after its entry on the docket sheet was a purely ministerial act and that the operative date of the order was May 11, 2007.

Standard of Review

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law only where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The writ of mandamus will not lie to correct merely an erroneous or voidable order, but will lie to correct one which the trial court has no power to render. U.S. Fire Ins. Co. v. Millard, 838 S.W.2d 935, 938 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex.1986). If the trial court’s order was one within its discretionary power, the relator must show that it is a clear abuse of discretion. Id. In general, as long as the court has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the order is not void. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). Errors other than lack of jurisdiction, such as “a court’s action contrary to a statute or statutory equivalent,” merely render the order voidable so that it may be corrected through the ordinary appellate process or other proper proceedings. Id.

For an order to be effective, it must be entered of record in writing or in open court, transcribed by the court reporter. In re Bill Heard Chevrolet, 209 S.W.3d 311, 314–15 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Docket-sheet entries form no part of the court’s record, nor are they a substitute for that record. Id.

Discussion

The relator asserts that the order in question is void for impossibility of performance. Because the court has subject-matter jurisdiction and jurisdiction over the parties, the order is not void. See Reiss, 118 S.W.3d at 443. Therefore, we will grant mandamus in this case only if the court’s order was a clear abuse of discretion.

The real party in interest asserts that it was not a clear abuse of discretion because the order was effective on May 11,2007, when the associate judge orally rendered his decision and an an notation was made on the docket sheet. The docket-sheet entry from May 11, 2007 is no substitute for the court’s record. See Bill Heard Chevrolet, 209 S.W.3d at 314–15. The appendix before us does not show that the order was made on May 11. We have no reporter’s record or written order that shows an operative date of May 11.

Instead, the trial court ordered sanctions contingent upon relator’s failure to produce certain forms of discovery “as ORDERED by this court on the date and at the time specified,” when such date and time occurred in the past. We hold that the court abused its discretion by ordering relator to provide discovery answers in the past, which is an impossibility. See Walker, 827 S.W.2d at 839.

Conclusion

We conditionally grant the petition for writ of mandamus, and we direct the trial court to vacate its June 20, 2007 “Order on Motion to Compel Discovery and Sanctions.” We are confident that the trial court will promptly comply, and our writ will issue only if it does not.

Also see: Justice Bland Grants Habeas Corpus Relief to Free Mother Held in Contempt and Denied Visitation by Houston Family Court Judge.

Sunday, November 11, 2007

Expert report in health care liability case found adequate -

Houston court of appeals affirms denial of doctor's motion to dismiss in medical malpractice suit.

Patel v. Williams No. 14-07-00328-CV (Tex.App.- Houston [14th Dist.] Nov. 6, 2007)(Seymore)(HCLC, medical malpractice, sufficiency of expert report, interlocutory appeal)
Full style: Anil B. Patel, M.D. v. George H. Williams, On Behalf of the Estate of Frances M. Mitchell and on behalf of All Wrongful Death Beneficiaries
Appeal from 240th District Court of Fort Bend County (Hon. Thomas Ralph Culver)

OPINION BY JUSTICE CHARLES SEYMORE

This appeal pertains to a health care liability suit brought by appellee, George H. Williams, on Behalf of the Estate of Frances M. Mitchell and on Behalf of all Wrongful Death Beneficiaries, against appellant, Dr. Anil B. Patel. The trial court denied appellant's motion to dismiss, and this interlocutory appeal followed. In his sole issue, appellant contends the trial court erred in denying his motion to dismiss because appellee's expert report was insufficient as a matter of law.[1]

I. Background

On February 11, 2005, Frances Mitchell, who suffered from dementia related to Alzheimer's Disease, was hospitalized after she fractured and displaced her left hip. On March 8, 2005, Dr. Anil Patel discharged her to the Sugar Land Health Care Center where he would be Mitchell's treating physician. To treat Mitchell's dementia, Dr. Patel prescribed Risperdal, a psychotropic drug with side effects including restlessness or a need to keep moving. Dr. Patel continued the Risperdal treatment after George Williams, a family member of Mitchell's, withheld consent to the use of the drug.

While at the Sugar Land Health Care Center, Mitchell received nutrition through a gastrostomy tube. On March 27, 2005, nurses noted that Mitchell was very agitated and pulling on her gastrostomy tube, which she eventually dislodged. Sugar Land Health Care Center nurses improperly reinserted the tube. Mitchell suffered leakage of gastric contents into the peritoneum as a direct consequence of the improperly inserted gastrostomy tube. This leakage resulted in the formation of an abscess. Mitchell required multiple operations to address the abscess and infection stemming from the improperly inserted tube. She died on May 22, 2005. The death certificate identified the cause of death as small cut gangrene with the underlying cause of mesenteric artery thrombosis.

George Williams filed suit against Dr. Patel and Sugar Land Health Care Center asserting that their negligence and gross negligence resulted in Mitchell's death. Pursuant to section 74.351 of the Civil Practice and Remedies Code, Williams served Dr. Michael Zeitlin's expert report on Dr. Patel and Sugar Land Health Care Center. Dr. Patel filed a motion to dismiss, contending Dr. Zeitlin's report was not sufficient to fulfill the requirements of section 74.351. The trial court denied the motion, and this appeal followed.

II. Analysis

In one issue, Dr. Patel contends Dr. Zeitlin's report failed to state the applicable standard of care and is conclusory and speculative regarding the element of causation. We disagree.

We review a trial court's ruling regarding the adequacy of an expert report for abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court commits an abuse of discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We may not substitute our judgment for that of the trial court when reviewing matters committed to the trial court's discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

Under section 74.351 of the Civil Practice and Remedies Code, health care liability claimants must provide an expert report to the defendant no later than 120 days after filing the original petition. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp. 2006). A defendant may file a motion challenging the adequacy of the report, and the trial court "shall grant" the motion only if it appears that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. '' 74.351(a), (l) (Vernon Supp. 2006). In determining whether the report represents a good faith effort, the trial court's inquiry is limited to the four corners of the report, and no inferences may be drawn from information outside the report. See Palacios, 46 S.W.3d at 878. An expert report is defined as a written report by an expert that provides a fair summary of the expert's opinions regarding: (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6) (Vernon Supp. 2006); Palacios, 46 S.W.3d at 878-79. In compliance with these standards, the expert report must incorporate enough information to fulfill two purposes: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question; and (2) the report must provide a basis for the trial court to conclude the claims are meritorious. Palacios, 46 S.W.3d at 879. A report merely expressing the expert's conclusions about the standard of care, breach, and causation fails to fulfill these purposes. Id. The expert must explain the basis for his statements and must link his conclusions to the facts. Wright, 79 S.W.3d at 52. However, to avoid dismissal, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Palacios, 46 S.W.3d at 879. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary-judgment proceeding or at trial. Id. Moreover, the expert is not required to express the causal relationship in terms of any "magical" words. Wright, 79 S.W.3d at 53.

A. Standard of Care

Dr. Patel first contends the report did not comply with section 74.351 because Dr. Zeitlin did not state the applicable standard of care. Although Dr. Zeitlin's report could have been more artfully written, we conclude it provided Dr. Patel with a fair summary of the standards of care applicable to him. We acknowledge that Dr. Zeitlin did not segregate his statements regarding standards of care from the other section 74.351 elements. However, no particular format is required under section 74.351. The statute simply requires that the report provide a fair summary of the expert's opinion as to the applicable standard of care. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6). Throughout the report, Dr. Zeitlin imbedded a number of standards of care directly applicable to Dr. Patel. First, Dr. Zeitlin stated, "[t]he standard of care requires the family to consent to the prescription of psychotropic drugs." This standard sets out a simple rule whereby a reasonable physician may not continue a course of treatment using psychotropic drugs if the patient's family fails to give its consent to the treatment. Additionally, Dr. Zeitlin stated, "Risperdal was not the appropriate drug for Ms. Mitchell. The FDA approved Risperdal to treat schizophrenia . . . . Risperdal was not approved by the FDA to treat dementia related to Alzheimers." Similar to statements of causation, there is nothing in section 74.351 requiring standards of care to be described using any specific terms, phrases, or magic words. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6); see also Wright, 79 S.W.3d at 52 (stating an expert report need not contain certain magical words to satisfy section 74.351's causation requirement). Although Dr. Zeitlin's statement did not include any words or phrases such as "the standard of care is," this statement described standards of care under which a reasonable physician should not, as a general proposition, prescribe the wrong drug for his patients; nor should a reasonable physician prescribe the drug Risperdal, specifically, to treat dementia related to Alzheimer's Disease. This standard was applicable to Dr. Patel as Mitchell's treating physician.

To find an abuse of discretion, we must conclude the trial court acted in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Wright, 79 S.W.3d at 52. Reasonable people may differ in determining what is required to provide a fair summary of the applicable standard of care, or any other section 74.351(r)(6) element. As such, unless the trial court's decision is arbitrary or unreasonable, we may not substitute our judgment for that of the trial court when reviewing matters committed to the trial court's discretion. See Walker, 827 S.W.2d at 839B40. While we might disagree as to whether Dr. Zeitlin's report provided a fair summary regarding each applicable standard of care, we cannot conclude the trial court's decision was arbitrary or unreasonable. Therefore, the trial court did not abuse its discretion in finding that appellee satisfied the standard of care requirement of section 74.351.

B. Causation

Dr. Patel further contends Dr. Zeitlin failed to comply with section 74.351 because his opinions regarding the causal relationship between Dr. Patel's breach of the standard of care and the alleged injuries were conclusory and speculative. We disagree. It is our considered opinion the trial court did not abuse its discretion in finding that Dr. Zeitlin sufficiently outlined the required causal facts.

In his report, Dr. Zeitlin presented a chain of events beginning with Dr. Patel's prescription of Risperdal to Mitchell and ending with her death. Dr. Zeitlin stated that Dr. Patel prescribed Risperdal to a patient for whom the drug was not appropriate and continued the medication after the family refused to consent to the treatment. He referenced nurses notes dated March 27, 2005 that described Mitchell as agitated and pulling on her gastrostomy tube, behavior consistent with the side effects of Risperdal. Dr. Zeitlin noted, after Mitchell removed her gastrostomy tube, nurses, without consulting the treating physician, improperly re-inserted the tube. The nurses' actions caused formula to enter Mitchell's body but fail to enter her stomach. This formula leakage led to abscess and infection, requiring surgery. Although not stated with absolute clarity, Dr. Zeitlin concluded that Mitchell's death from small cut gangrene and mesenteric artery thrombosis resulted from either the earlier abscess and infection or complications from multiple surgeries. It is Dr. Zeitlin's opinion that Dr. Patel's decision to treat Mitchell's dementia with Risperdal began a chain of events ultimately culminating in Mitchell's death. While there are many links in this chain of causation, we cannot conclude that Dr. Zeitlin's report is insufficient to fulfill the requirements of section 74.351.

The two-fold purpose of an expert report under section 74.351 is to inform the defendant of the specific conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit. See Palacios, 46 S.W.3d at 878B79. Pursuant to this standard, we hold Dr. Zeitlin's report was sufficient to notify Dr. Patel regarding the specific conduct complained of, and provided a basis for the trial court to conclude the claims have potential merit. Therefore, we conclude the trial court acted within its discretion in finding that Dr. Zeitlin's report sufficiently addressed the element of causation.

Appellant's sole issue is overruled. Accordingly, the trial court's order signed March 29, 2007 is affirmed.

/s/ Charles W. Seymore
Justice

Judgment rendered and Opinion filed November 6, 2007.
Panel consists of Chief Justice Hedges, and Justices Anderson and Seymore.

[1] Appellee sued Dr. Patel and Sugar Land Health Care, LP D/B/A Sugar Land Health Care Center, however, Sugar Land Health Care, LP did not challenge the sufficiency of appellee's expert report in the trial court. Therefore, this opinion pertains to Dr. Patel alone.

Sovereign immunity bars wrongful death suit by inmate's estate

Chief Justice Adele Hedges affirms dismissal of suit by survivors of inmate electrocuted by downed power line on prison grounds.

Smith v. TDCJ, No. 14-07-00064-CV ((Tex.App.- Houston -14th Dist.] Nov. 6, 2007)(Hedges)(governmental entity law, wrongful death, electrocuted inmate, TTCA, sovereign immunity bars claim)
Full style: Alice Smith, Individually and on behalf of Donald Ray Smith, Deceased v. Texas Department of Criminal Justice
Appeal from 412th District Court of Brazoria County (Hon. W. Edwin Denman)
Disposition: Order of Dismissal Affirmed

MEMORANDUM OPINION BY CHIEF JUSTICE ADELE HEDGES

In this wrongful death case, appellant challenges an order granting a plea to the jurisdiction in favor of the Texas Department of Criminal Justice, appellee. We affirm.

I. BACKGROUND

Donald Smith ("decedent"), was an inmate with the Texas Department of Criminal Justice ("TDCJ") and was assigned to a crew responsible for repairing power lines for the State. Decedent was trained and accredited to work on power lines while he was incarcerated at TDCJ.

On May 6, 2005, decedent was called out as part of a crew to repair a downed power line in a horse pasture on TDCJ's property. Decedent's supervisor, Clifford Guant, arrived at the scene around 5:00 p.m. to assess the damaged power line. The rest of the crew, which included supervisor Anthony Allen, inmate Lemons, and decedent, arrived around 5:50 p.m. in trucks equipped with the supplies necessary to repair the downed line. When the crew arrived, they were informed that the power lines were still energized and were told not to go near the line. The power line was hanging three feet off the ground in the open pasture, about 40 feet away from where the trucks were parked.

The crew was then told that the power would be shut off, and they began to unload equipment from the truck. Supervisor Guant notified the TDCJ unit that they were cutting the power. He then directed inmate Millard, another crew member, to pull the power switches. Decedent began unspooling wire from the truck into the open pasture. At this time, supervisor Allen turned his back on the crew to take a personal phone call. While unspooling the wire from the truck, decedent backed into the dangling power line that was still energized with 7200 volts of power. Decedent received an electric shock and, as a result, died three days later.

Alice Smith, decedent's mother, brought this suit individually and on behalf of his estate for wrongful death and survival damages. The trial court granted TDCJ's plea to the jurisdiction, dismissing the case with prejudice for lack of subject matter jurisdiction on the ground that appellant failed to allege facts demonstrating waiver of TDCJ's immunity from suit under the relevant provisions of the Texas Tort Claims Act (the "Act"). Appellant raises two issues in this appeal: (1) the trial court erred in dismissing the case because appellant's evidence raised a fact issue as to whether decedent had actual knowledge of the dangerous condition, a fact that would waive TDCJ's sovereign immunity; and (2) TDCJ was not entitled to an exclusion under the Act because the method by which TDCJ supervised decedent's work on the high voltage lines should be characterized as implementing policy, not a discretionary function of formulating policy.

II. ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). Governmental immunity from suit defeats subject matter jurisdiction. Dallas Area Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mogayzel v. Tex. Dept. of Transp., 66 S.W.3d 459, 463 (Tex. App.-Fort Worth 2001, pet. denied). In performing this review, we do not consider the merits of plaintiff's case, but focus instead on the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). The pleadings are to be construed in favor of the plaintiff, and the court must look to the pleader's intent. Brown, 80 S.W.3d at 555; Tex. Dept. of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App.-Fort Worth 2001, pet. denied). Nevertheless, a waiver of immunity must be clear and unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex. 2006). In sum, we determine whether the plaintiff has pleaded a claim for which a governmental unit has waived immunity by reading the pleadings broadly and the alleged waiver narrowly.

Here, the parties do not dispute that TDCJ is a governmental unit under the Act. Therefore, we will review appellant=s pleadings and jurisdictional evidence to determine if her claims fall within a waiver of immunity under the Act.

B. Waiver of Immunity Under the Act

In appellant's first issue, she alleges that the trial court erred in dismissing the case because her evidence raised a fact issue as to whether TDCJ waived immunity under the Act. Specifically, appellant argues that TDCJ waived its sovereign immunity under section 101.021(2) because: (1) the condition of the premises presented an unreasonable risk of harm to decedent, a licensee; (2) TDCJ, the landowner, knew of the dangerous condition; (3) decedent did not have actual knowledge of the hazardous condition; (4) TDCJ failed to exercise ordinary care to protect decedent from danger; and (5) TDCJ's failure to exercise ordinary care was the proximate cause of decedent's death. See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To support this argument, appellant relies on the deposition testimony of crew members stating that (1) decedent was called out by TDCJ to repair a downed power line energized with 7200 volts of power on its property; (2) decedent was told that the power was going to be cut by inmate Millard; (3) decedent waited a sufficient amount of time before backing into the downed power line; (4) inmate Millard only pulled the power on two switches; and (5) supervisors Allen and Guant knew that one line remained energized but failed to warn decedent. According to appellant, this evidence is sufficient to overcome TDCJ's plea to the jurisdiction because it raises a fact issue as to whether TDCJ waived immunity under section 101.021(2) of the Act.

Under the doctrine of sovereign immunity, a governmental unit is immune from suit and liability in the absence of a constitutional or statutory provision creating such liability. See Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.-San Antonio 1999, no pet.). The Act creates a limited waiver of sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). In order for immunity to be waived under the Act, the claim must arise under one of three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exclusions from waiver. Medrano, 989 S.W.2d at 144. The three specific areas of liability for which immunity has been waived are (1) injury caused by an employee's use of a motor-driven vehicle, (2) injury caused by a condition or use of tangible personal or real property, and (3) claims arising from premise defects. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021(1), 101.021(2), 101.022 (Vernon 2005); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.CHouston [1st Dist.] 1999, pet. denied).

Appellant's pleadings below and appeal before this Court does not reflect that this suit was prosecuted on an ordinary premise defect theory under section 101.022. See City of Baytown v. Townsend, 548 S.W.2d 935, 939 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). Therefore, appellant's only claim to waiver in the instant appeal is grounded in an injury arising from the condition of real property under section 101.021(2). We now examine the pleadings and jurisdictional evidence appellant offers to support her jurisdictional argument under 101.021(2).

If decedent's injury arose out of the condition of TDCJ's property, it owed decedent the same duty a private landowner owes a licensee. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2). An owner, such as TDCJ, must avoid injuring a licensee by willful, wanton, or grossly negligent conduct. See Payne, 838 S.W.2d at 237. However, when the owner has actual knowledge of a dangerous condition and the licensee does not, the owner's duty is to warn the licensee or make the premises reasonably safe. Id. The elements of proof required to establish liability in the instant case are (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner had actual knowledge of the condition; (3) the licensee did not have actual knowledge of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner's failure was a proximate cause of injury to the licensee. See id.

TDCJ does not dispute the first two elements of liability. However, the third element, that the licensee did not have actual knowledge of the dangerous condition, is key to appellant's first issue. Actual knowledge embraces those things which a reasonably diligent inquiry and means of information at hand would have disclosed. City of San Benito v. Cantu, 831 S.W.2d 416, 425 (Tex. App.-Corpus Christi 1992, no writ); see also Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26-27 (Tex. App.-Dallas 1988, writ denied) (stating that a licensee is also imputed with knowledge of those conditions perceptible to him, or the existence of which can be inferred from the facts within his present or past knowledge). We must now examine the pleadings and jurisdictional evidence to determine whether decedent had actual knowledge of the hazard.

The live power line was hanging three feet from the ground in an open horse pasture when decedent and the rest of his crew arrived. The crew was told that because the downed power line was still energized, they needed to stay away from it. This shows that each member of the crew, including decedent, had actual knowledge of the danger. Even if decedent believed that the power had been cut after he had actual knowledge of the danger, as alleged by appellant, appellant cites no controlling authority that allows an injured party to subsequently lose actual knowledge once that party has been made award of the dangerous condition. See Smith v. Radam, Inc., 51 S.W.3d 413, 415-16 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (stating that a reviewing court will not conduct an independent review of the record and applicable law to determine whether error complained of occurred when appellant fails to cite any controlling authority on that point of error). There were no affirmative representations of fact made by TDCJ that it was safe for decedent to make contact with the downed power line. Instead, decedent assumed that the condition of the property became safe within a matter of one minute after being informed that the power would be cut off. In fact, the usual and customary safety operation employed by TDCJ prior to working on a downed power line was to (1) notify the unit affected by the outage that power would be shut down, (2) cut the power, (3) check the power with a meter to verify the power was down, and (4) ground the conductors. On the day in question, decedent did not follow this procedure.

Crew members testified that they knew the downed line was still energized. If the danger of approaching the downed power line was apparent to supervisors Guant and Allen and inmate Lemons, then there is no reason to assume or believe that decedent, who was a trained lineman and had access to the same information, did not have actual knowledge of the same danger. The conspicuousness of the danger was apparent to all, including decedent. See Cantu, 831 S.W.2d at 425. Therefore, TDCJ was relieved of its duty to further warn or make safe the condition of the real property. Id. Because decedent had actual knowledge of the dangerous condition, and the record is void with evidence of willful, wanton, or grossly negligent conduct on behalf of TDCJ, we find that TDCJ did not breach its duty to decedent under section 101.021(2). Therefore, TDCJ did not waive its sovereign immunity under the Act. We overrule appellant's first issue.
Having concluded that TDCJ's sovereign immunity was not waived, we do not reach appellant's second issue addressing whether TDCJ's conduct fell under one of the Act's exclusions from waiver. Accordingly, we affirm the trial court's judgment.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed November 6, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).

Justice Hanks affirms dismissal of prisoner's civil rights complaint

Inmate's pro se suit was not accompanied by detailed disclosure of prior law suits.

Jemmerison v. Officer Salazar, No. 01-06-00633-CV (Tex.App.- Houston [1st Dist.] Nov. 8, 2007 (Hanks)(pro se prisoner suit)

Appeal from 412th Judicial District Court of Brazoria County
Disposition: Affirm dismissal of suit without hearing
Full style: Thomas Jemmerison v. Officer I. Salazar

MEMORANDUM OPINION BY JUSTICE GEORGE C. HANKS, JR.

In this pro se appeal, appellant, Thomas Jemmerison, challenges the trial court’s dismissal of his petition, in which he claimed Officer I. Salazar violated his rights under the Eighth Amendment and the Texas Department of Criminal Justice-Institutional Division (“TDCJ-ID”) Civil Rights Act. We affirm the trial court’s judgment.


Background


On May 19, 2006, Jemmerison filed a suit pro se and in forma pauperis against Salazar, a Darrington Trusty Camp correctional officer, claiming that she had violated his rights under the Eighth Amendment and TDCJ-ID Civil Rights Act while he was an inmate at the Darrington Trusty Camp. Specifically, Jemmerison accused Salazar of “harassing me, discriminating against me, retaliating against me, jeopardizing my safety, having malice against me, abusing her authority against me, showing favoritism against me, showing prejudices against me, being racism [sic] against me, and . . . [making] untrue allegations against me that I . . . tried to solicitate [sic] her.” In Jemmerison’s petition, he requested a pre-trial Spears [Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds, Neitzke v. Williams,490 U.S. 319, 324, 109 S. Ct. 1827, 1831 (1989).] hearing in order to present evidence and answer the trial court’s questions concerning his accusations. Jemmerison claims to have tried numerous times to inform various personnel about Salazar’s behavior and also claims to have filed many grievances against her.


In his complaint, Jemmerison sought to have Salazar relieved of her duties as a correctional officer. He included an affidavit seeking to press criminal charges against her. He also motioned for injunctions to be granted against various prison officials, including Salazar, to prevent them from retaliating against him by having him transferred. Despite this request, he claims on appeal that he was the victim of a retaliatory transfer to the Wynne Trusty Camp in April 2006.

Salazar never responded to Jemmerison’s petition, and the trial court, without granting Jemmerison any hearing, dismissed the suit. At the time of filing his appeal, Jemmerison was incarcerated at the Kyle Correctional Center. Jemmerison challenges the trial court’s dismissal and, along with claiming trial court error, seeks declaratory and injunctive relief and compensatory and punitive damages for emotional and mental injuries.In his first issue, Jemmerison argues that the trial court was wrong in dismissing his cause. He alleges that the trial court failed to follow the proper procedures concerning his request for a Spears hearing. He also asserts that his petition is not frivolous, because he proved that Salazar violated his Eighth Amendment rights by exposing him to an substantial risk of serious harm.


In his second issue, Jemmerison asserts various reasons why Salazar should be denied immunity in this action. He essentially alleges that, because Salazar was aware of her unprofessional behavior, she should be denied sovereign immunity, as well as judicial and quasi-judicial immunity.


In his third and fourth issues, Jemmerison brings factual and legal sufficiency complaints. His factual sufficiency complaints center on situations where Salazar allegedly made him use Clorox Bleach without the implementation of proper safety precautions. In his legal sufficiency argument, Jemmerison claims that Salazar violated his right to be free from cruel and unusual punishment under the Eighth Amendment.


Order of Dismissal


Jemmerison first attacks the trial court’s dismissal of his claim. In its order of dismissal, the trial court dismissed the suit for being “frivolous or malicious because [Jemmerison] has failed to state a claim that has an arguable basis in law or in fact as required by Section 13.001 (b) (2) Civ. Prac. Rem. Code and/or Section 14.003, Civ. Prac. Rem. Code, and/or [Jemmerison] failed to follow the provisions of Section 14.004, Civ. Prac. Rem. Code.” On appeal, Jemmerison makes a series of claims to address this dismissal. He asserts that the reasons for dismissal set out by the trial court are not true because the trial court erred by failing to follow the proper procedures regarding his motion for a Spears hearing. Jemmerison claims that he complied with Chapters 13 and 14 of the Texas Civil Practice and Remedies Code before filing his suit. He further alleges that the trial court committed a clear error in judgment. He also asserts that his claims are not frivolous or malicious because he first attempted to use Darrington Unit Grievance Procedures and informed Darrington Unit administrative personnel and TDCJ-ID Region III directors about his allegations.


We begin our analysis by examining the reasons given by the trial court for its dismissal. We review a dismissal under Chapter 14 for abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court commits an abuse of discretion if it acts arbitrarily, capriciously, and without reference to guiding rules or principles. Id.


Jemmerison states that he asserted his claim under Chapters 13 and 14 before he filed his complaint. Under Section 14.004, an inmate filing an affidavit or unsworn declaration of an inability to pay costs shall also file a separate affidavit or declaration identifying previous pro se actions brought by the inmate. Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002). This separate affidavit or declaration must describe the former actions specifically by: “(A) stating the operative facts for which relief was sought; (B) listing the case name, cause number, and the court in which the suit was brought; (C) identifying each party named in the suit; and (D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.” Id. § 14.004(a)(2). The purpose of the Section 14.004 requirements is to assist the trial court in determining whether the inmate’s current suit is malicious or frivolous under Section 14.003(a). Gowan v. Tex. Dep’t. of Crim. Justice, 99 S.W.3d 319, 321 (Tex. App.—Texarkana 2003, no pet.).


In Jemmerison’s unsworn declaration of previous civil litigation, he described his past pro se actions as follows:


I, Jemmerison’s the offender claim in civil action # H-00-2272 was dismissed with prejudice on September 27, 2001, and my claim in civil action # P-00-CA-034 was dismissed without prejudice on May 14, 2002, and I did not appeal neither the above case’s.

This description is insufficient to meet the requirements of 14.004(a)(2). Jemmerison did not state the operative facts for which relief was sought, the case names, the courts in which he brought the suits, the parties named in the suits, or the results of the suits, including whether the suits were dismissed as frivolous or malicious under Section 13.001, Section 14.003, or otherwise. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(2).

Therefore, the trial court did not abuse its discretion in dismissing Jemmerison’s complaint for his failure to comply with 14.004. Having found that Jemmerison failed to comply with the requirements of 14.004, we need not address whether his claim was frivolous. We also need not discuss whether the trial court erred in failing to follow the correct procedures concerning Jemmerison’s motion for a Spears hearing.


Conclusion


We affirm the judgment of the trial court.

George C. Hanks, Jr.
Justice


Panel consists of Justices Taft, Hanks, and Higley.

Wedding didn't warrant continuance - Chief Justice affirms district court's decision to go forward with trial

Chief Justice Radack finds no abuse of discretion in denial of motion for continuance where case had been on file for several years and compelling excuse for party's absence was not offered. Plaintiff's counsel did not support motion with strong evidence and had not been diligent in bringing case to trial. Judge Brady G. Elliott acted within his discretion in denying continuance. Trial court may take entire history of case into consideration when deciding whether to grant a trial reset. Opinion also cites local rule regarding procedures for calling cases for trial, and obligations of parties and counsel.

Elberger v. Ford Motor Co., No. 01-06-00926-CV (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Radack)(dismissal docket, motion for continuance)
Elberger v. Ford Motor Company, Inc., Dub Miller Ford, Inc. and Daryl Waterwall
Appeal from 268th District Court of Fort Bend
Disposition: Trial court's judgment for Defendants affirmed

MEMORANDUM OPINION BY CHIEF JUSTICE SHERRY RADACK

After this case had been set on the dismissal docket and subsequently retained, the trial court denied the motion for continuance that appellants, Robert and Mona Elberger, filed because they were unavailable on the date of trial. In two issues on appeal, appellant acontends that the court (1) gave inadequate notice of a trial reset date and (2) abused its discretion in denying appellants' motion for continuance. We affirm.

Factual Background

Appellants filed their original petition against appellees, Ford Motor Company, Inc., Dub Miller Ford, Inc., and Daryl Waterwall, on August 22, 2002 alleging that they suffered damages because of appellees' failure to repair their vehicle. On September 9, 2002, appellees filed their answer and Rule 194 Request for Disclosure, and appellants responded to the request for disclosure on October 11, 2002.

After October 11, 2002, there was no action taken on the case until 2006. On February 22, 2006, the trial court sent a letter to counsel notifying them that the case had been set on the dismissal docket for May 31, 2006 unless a motion to retain was filed by May 24, 2006.

Appellants filed their motion to retain on May 31, 2006, stating that they were "ready to go to trial." Even though the motion to retain was filed after the deadline set by the court, the court granted the motion on June 15, 2006, and sent a letter to counsel initially setting trial on July 21, 2006 and stating that there would "be no continuances or passes granted." The letter further stated that a hearing could be passed by agreement of the attorneys. The letter also stated that "failure to comply might result in [the] case being dismissed for want of prosecution."

Appellants claim in their motion for a new trial that they contacted the trial court coordinator on July 20, the day before the trial was initially set, to determine whether the case was going to be called to trial on Friday, July 21. Appellants' counsel was involved in a trial in another district, and preferred that the case be heard Monday, July 24. The trial court coordinator initially complied with appellants' request and set the case to be called on July 24, but then called appellants on July 21 to notify appellants that appellees had a conflict with July 24 and that trial was, at that point, set for Friday, July 28. The trial court also sent written notice on July 21 that the trial was set for July 28. Appellants had been scheduled to fly to Atlanta that day to attend a family wedding. Appellants decided, based on the trial court coordinator's recommendation, to file a motion for continuance and have it heard on July 28. Appellants filed their motion for continuance on July 26, 2006, stating that they would be "unavailable for trial because of a pre-planned trip." They also attached an affidavit to the motion, which contained a statement by appellants that said only, "I verify that the facts contained in the attached Motion for Continuance are true and correct."

Appellants' counsel was present in court on July 28th. However, appellants were not present. The court denied the motion for continuance. Appellants' counsel did not proceed with the case because he did not have any witnesses, and the court rendered a judgment in favor of appellees.
On August 8, 2006, appellants filed a motion for new trial. The motion asked only that the court "reconsider its entry of default and grant this motion for new trial." It did not allege lack of, or inadequate, notice of the trial setting.

Notice of Trial Date

In this first issue, appellants argue that the notice assigning the case to trial on July 28, 2006 was not reasonable under Rule of Civil Procedure 245, which provides in part:

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; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Tex. R. Civ. P. 245 (emphasis added).

Appellants do not argue that they did not receive the 45 days' notice required for an initial trial setting under rule 245. Nor do they argue that moving the case from July 21, 2006 to July 24, 2006 was unreasonable. However, they do contend that moving the case to July 28, 2006 was unreasonable because they had already made travel plans on that date. We disagree.

Rule 3.4.2 of the Local Rules for the District Courts of Fort Bend County provides:
Cases shall be set for trial for a date certain. If a case is not assigned to trial by the Friday after the date it was set, the case will be reset. Unless all parties agree otherwise, the original setting must comply with all requisites of T.R.C.P. 245.

By its very terms, rule 3.4.2 provides notice that any case set for trial in a Fort Bend district court is subject to assignment for trial any day before the Friday after the date it is originally set. In this case, trial was set for Friday, July 21, 2006 and notice was given in accordance with rule 245. At appellants' request, the trial date was moved to Monday, July 24, 2006, and, at appellees' request, the trial date was moved to Friday, July 28, 2006. The July 28, 2006 trial date was on the first Friday after the initial setting--within the time period in which rule 3.4.2 provides for assigning a case to trial. As such, appellants had reasonable notice of the July 28, 2006 trial setting.

Accordingly, we overrule point of error one.

Motion for Continuance

In their second issue, appellants argue that the trial court abused its discretion in denying appellants' motion for continuance. The decision of the trial court in denying a motion for continuance will not be disturbed unless there is a showing of a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Retzlaff v. Texas Dep't of Criminal Justice, 135 S.W.3d 731, 745 (Tex. App.--Houston [1st Dist.] 2003, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Barkhausen v. Craycom, Inc., 178 S.W.3d 413 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).

Under Rule of Civil Procedure 251, a continuance will not be granted unless there is sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law. Tex. R. Civ. P. 251; Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 (Tex. App.--El Paso 2003, no pet.).

The mere absence of a party does not entitle him to a continuance. Vickery v. Vickery, 999 S.W.2d 342, 363 (Tex. 1999); Briscoe, 130 S.W.3d at 169. The motion for continuance based on absence of testimony must be supported with an affidavit showing: (1) the substance of the testimony, (2) the materiality of the testimony, and (3) the movant's due diligence to procure such testimony. See Tex. R. Civ. P. 252; Briscoe, 130 S.W.3d at 169; Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

Appellants' motion for continuance did not comply with the requirements of rule 252. Appellants argued that they would be "unavailable for trial because of a pre-planned trip," that this trip was planned "with much time in advance," and that they had "already made their travel arrangements and purchased their tickets." However, the motion did not include any information regarding the substance and materiality of their planned testimony.

On the record before us, we cannot say that the trial court abused its discretion in refusing to grant appellants' request for a continuance. Trial courts are to take the entire procedural history of a case into account when making a decision, and are to look at the entire record, not just the sworn motions. See Waste Water, Inc. v. Alpha Finishing and Developing Corp., 874 S.W.2d 940, 944 (Tex. App.--Houston [14th Dist.] 1994, no writ); Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.--Beaumont 1992, no writ).

Given that this case had been on the trial court's docket for almost four years, that appellants had been warned that this was a "try or dismiss date," and that appellants showed little diligence in pursuing the case and chose to be away on the day of trial, the trial court was within its discretion to deny appellants' motion for continuance.

Accordingly, we overrule appellants' second issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.