David J. Moore v. Michael W. Dickey--Appeal from County Court of Ellis County

NO. 10-90-106-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DAVID J. MOORE,

Appellant

v.

MICHAEL W. DICKEY,

Appellee

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From the County Court at Law

Ellis County, Texas

Trial Court # C-1960

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OPINION

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We must decide if the court erred in starting a civil trial eighteen days after the defendant's answer was filed. Because we find an abuse of discretion in denying a motion for a continuance, we reverse and remand for a new trial. See Tex. R. Civ. P. 251.

Michael W. Dickey sued David J. Moore on a promissory note. Moore filed his general denial on February 26, 1990, even though his answer was not due until March 5. Dickey filed a "Notice of Trial" with the County Clerk on March 5, stating that the case would be tried on March 16, 1990, at 9:00 a.m. Moore paid a jury fee on March 6. On March 15, Moore filed (1) a "Cross Action" that included affirmative defenses and a counterclaim and (2) a motion for a continuance that alleged that he was seeking a jury trial, that no time for discovery or trial preparation had been allowed, and that it would be impossible to prepare for trial in such a short time. The court denied the request for a jury and the motion for a continuance and proceeded with a bench trial.

A motion for a continuance is addressed to the sound discretion of the trial judge, and his decision will not be reversed except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Greenstein, et al. v. Burgess Marketing, 744 S.W.2d 170, 179 (Tex.App. Waco 1987, writ denied). The court required Moore to proceed to trial over his objection, knowing that he wanted to exercise his right to discovery and to a jury trial. The trial was held eighteen days after he answered the suit. At the same time, the court found that Moore's attempts to avail himself of a jury trial came too late because they occurred less than thirty days before trial of the cause on the non-jury docket. See Tex. R. Civ. P. 216. Based upon the facts and circumstances of this case, we hold that the court abused its discretion in denying Moore's motion for a continuance because the error had the effect of denying him a jury trial and the pretrial discovery to which he was entitled under the rules of procedure. See Tex. R. Civ. P. 251.

We reverse the judgment and remand the cause for a new trial.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings

and Justice Vance

Reversed and remanded

Opinion delivered and filed June 6, 1991

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