Wednesday, July 2, 2008

Caveat Counsel: Oral Motion for Continuance Won't Do

Consequences of noncompliance with rules of procedure can be dire. Motion for Continuance must be in wrting and sworn. Error must be preserved for appellate review. Court of Appeals here enforces requirements in a termination of parental rights appeal:

In his sole issue, Orosco asserts that the trial court abused its discretion when it did not grant his oral motions for continuance. We conclude that Orosco failed to preserve error for appellate review.

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *4 (Tex. App.- Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).

Both of Orosco's motions for continuance were oral, and the record does not contain a written motion for continuance or an affidavit. The record also does not reflect that the parties consented to a continuance, nor does Orosco assert that a continuance should have been granted by operation of law.

Because Orosco did not comply with Rule 251, the trial court did not abuse its discretion by failing to grant a continuance. See In the Interest of B.S.W., 2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434, 436B37 (Tex. App.- Houston [14th Dist.] 1986, no writ).

In addition, Orosco failed to preserve error under Texas Rule of Appellate Procedure 33.1, which generally requires a party complaining on appeal to have obtained an adverse ruling on the appellate complaint in the trial court. See Tex. R. App. P. 33.1(a). The appellate record reflects that the trial court did not rule on Orosco's motions for continuance, either expressly or implicitly. Orosco did not request the trial court to rule on these oral motions, nor did he object to any alleged refusal of the trial court to rule on them. See Clarke v. Hunter's Glen Comty. Ass'n, No. 14-03-00971-CV, 2004 WL 1313294, at *1 (Tex. App.- Houston [14th Dist.] June 15, 2004, no pet.) (mem. op.). By failing to do so, Orosco waived the complaint. See id.

The Texas Supreme Court has ruled that a person in Orosco's position does not have an absolute right to be present at trial. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Orosco's counsel did not preserve error regarding Orosco's request for a continuance.

In addition, Orosco does not argue or brief on appeal, and the record does not reflect, that had he been present at trial, the trial court's judgment probably would have been different.Because Orosco failed to preserve error on the only issue he asserts on appeal, we affirm the trial court's judgment.

In the Interest of TDN (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost)(termination of parental rights, denial of oral motion for continuance) Concurring Opinion by Justice Seymore

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