Eva White v. Lee Ann Eikner--Appeal from 7th District Court of Smith County

NO. 12-05-00168-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EVA WHITE, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

LEE ANN EIKNER,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Eva White appeals a jury verdict in favor of Lee Ann Eikner. White raises one issue on appeal, contending that the trial court abused its discretion by denying her motion for continuance. We affirm.

Background

White brought suit against Lee Ann Eikner and Velvie Young (the defendants ) for personal injuries resulting from an automobile accident. During the months before trial, the defendants were unavailable for depositions, and defense counsel stipulated to liability. However, days before trial, defense counsel located the defendants, and they advised counsel that they were contesting liability.

While appearing at docket call on December 6, 2004, White s counsel was first informed that liability would be contested. At that time, White s counsel informed the court that he would need a chance to depose the defendants. On December 7, White filed a motion for continuance with a supporting affidavit. The trial court granted White s motion and scheduled the trial to begin on December 8.

The trial court s docket sheet shows that on December 8, the morning of the trial, White made an oral motion for continuance. The trial court denied the oral motion and called the case to trial.1 No written motion or supporting affidavit was filed with the trial court on December 8 in support of White s oral motion. The jury s verdict was against White and in favor of Eikner. This appeal followed.

Motion for Continuance

In her sole issue, White asserts the trial court abused its discretion when it denied her motion for continuance. The granting or denial of a motion for continuance is within the trial court s sound discretion. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). The trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to guiding principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). Rule 251 of the Texas Rules of Civil Procedure requires a trial court to grant a continuance for sufficient cause if the written motion is supported by affidavit. Tex. R. Civ. P. 251. A trial court is presumed to have correctly exercised its discretion when it denies a motion that does not comply with the rules governing continuances. Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 236 (Tex. App. Dallas 2000, pet. denied).

White filed a motion for continuance supported by affidavit on December 6. White received a favorable ruling on her motion and the trial court scheduled the trial to begin on December 8. No written motion or affidavit was filed to support White s oral motion for continuance on December 8. Thus, White did not follow the procedures established by the Texas Rules of Civil Procedure in filing her motion for continuance. Accordingly, the trial court did not abuse its discretion in denying White s motion for continuance. See id. We overrule White s sole issue.

Disposition

Having overruled White s sole issue, the judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered May 26, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

1 The trial court s docket sheet reflects that after White s motion for continuance was denied, White s counsel approached the bench and nonsuited Velvie Young. As a result, the trial court dismissed the case against Young. Therefore, Young is not a party to this appeal.