in the Matter of the Marriage of LaQuita Ann Loggins and Michael O`Neal Loggins

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00130-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF LAQUITA ANN LOGGINS AND MICHAEL O'NEAL LOGGINS On Appeal from the 6th Judicial District Court Red River County, Texas Trial Court No. CV00574 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION The trial court granted Michael O'Neal Loggins and LaQuita Ann Loggins a divorce, divided their property, and granted LaQuita a $25,000.00 judgment against Michael. The marriage was very brief—they married May 30, 2004, and separated about July 30, 2004. Likewise, the divorce hearing was brief—consisting of twenty-seven pages of transcribed testimony. Michael contends: (1) the evidence is factually insufficient to support a $25,000.00 judgment, (2) the trial court abused its discretion in the division of the community property, (3) the trial court erred in failing to grant a new trial based on newly discovered evidence, and (4) the trial court erred in failing to grant Michael a continuance. I. Factual Sufficiency to Support the $25,000.00 Judgment LaQuita was granted a $25,000.00 judgment against Michael. The judgment specified that the $25,000.00 award was granted for two reasons: (1) a just and right division of the community property and (2) damages caused by Michael to LaQuita. We will examine reasons specified by the trial court for the award. A. Judgment As a Division of the Community Property To disturb a trial court's division of property, it must be shown that the trial court clearly abused its discretion by dividing the property in a manner that is manifestly unjust and unfair. In making this determination, we look to whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Our analysis focuses on a two-pronged inquiry: (1) Did the trial court have sufficient information on which to exercise its discretion and (2) Did the trial court abuse its discretion by causing the property division to be manifestly unjust or unfair? A trial court abuses its discretion when it rules without supporting evidence. See O'Carolan v. Hopper, 71 S.W.3d 529, 532–33 (Tex. App.—Austin 2002, no pet.). We first note that, in the brief submitted to this Court, LaQuita defends the judgment only on the basis of the tort allegedly committed by Michael against LaQuita and does not argue that it is justified based on a division of community property. The divisible community property identified by the parties consisted of patio furniture, a computer, personal effects, and approximately $4,700.00 from a bank account. As will be discussed later, the trial court divided that property and ordered LaQuita to pay Michael $2,000.00 (by offset from her $25,000.00 judgment) of the $4,700.00 from the bank account. A trial court may order a judgment from one spouse to the other in an effort to effect an equitable division of the community property. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998). However, since the amount of the judgment is directly referable to the value of the community estate, the judgment may not exceed the entire community estate unless it is shown that one party committed fraud on the community by improperly disposing of property. See Lucy v. Lucy, 162 S.W.3d 770 (Tex. App.—El Paso 2005, no pet.). Here, the value of the entire community estate was substantially less than $25,000.00. There is no pleading or evidence that Michael committed fraud on the community estate or has depleted the community such that it is not possible to equitably divide the community property. Therefore, it was an abuse of discretion to award a $25,000.00 judgment for the purpose of effecting a fair and just division of the community estate. B. Judgment Based on Tort Damages In LaQuita's petition for divorce, she alleged Michael had intentionally and knowingly assaulted her on or about July 23, 2004, causing bodily injury. She also alleged such acts constituted an intentional infliction of emotional distress. At the divorce hearing, Michael was asked if he attempted to kill his wife in July 2004, to which he replied, "I would like to invoke my Fifth Amendment rights." He also invoked his right to remain silent to questions about allegations by other wives of physical abuse, violations of protective orders, a history of violence toward women, changing the locks on the house, and the description of any community property acquired during the marriage. LaQuita testified that, on July 24, 2004, Michael mixed a drink for her and she passed out. She alleges that it contained cocaine and Valium. She apparently was hospitalized and incurred $4,000.00–$5,000.00 in medical expenses. LaQuita further testified that, after the incident, she was "near death." As a result of that event, Michael has been indicted for aggravated assault. Based on these allegations, LaQuita argues the trial court properly granted her a tort recovery of $25,000.00. Michael argues that there is factually insufficient evidence to justify a finding of assault or a tort committed against his wife and also argues that the amount of the award is not supported by factually sufficient evidence. In a factual sufficiency review, we review all of the evidence to determine whether the evidence supporting the finding is so weak or the evidence to the contrary so overwhelming that the finding should be set aside and a new trial granted. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965). There were pleadings and proof that Michael committed the tort—the testimony of LaQuita is some evidence she was injured as a result of consuming the drink he prepared for her. Additionally, Michael elected to invoke his Fifth Amendment right to remain silent when asked about the incident. While Michael has the right to invoke his privilege not to incriminate himself, in civil cases invoking that right may have negative consequences. A fact-finder may draw an adverse inference against a party who pleads the Fifth Amendment. Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1975)); see also Tex. R. Evid. 513(c). Refusal to answer questions by asserting the privilege is relevant evidence from which the finder of fact in a civil action may draw whatever inference is reasonable under the circumstances. Lozano v. Lozano, 983 S.W.2d 787, 791 (Tex. App.—Houston [14th Dist.] 1998), rev'd on other grounds, 52 S.W.3d 141 (Tex. 2001). Therefore, based on LaQuita's testimony and the inference that may reasonably be drawn by the trier of fact by Michael's invocation of his Fifth Amendment right, there is factually sufficient evidence to prove the assault. Therefore, we will review the evidence to determine if it is factually sufficient to support the amount of the award. It is established that a tort claim may be joined in a divorce action. Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993). We must examine the evidence to determine if it is factually sufficient, just as we would any other tort action. In this case, the evidence concerning the tort is very scant. LaQuita's evidence on this subject is contained on three pages of the trial record. She testified that, after consuming the drink prepared by Michael, she passed out and thereafter incurred medical expenses of $4,000.00–$5,000.00 as a result of her "hospital stay." When asked her condition after the incident, she replied "near death." She also stated she was afraid of Michael. The evidence raises elements of damages for medical expenses, physical pain, and mental anguish. The medical expenses are unchallenged as being $4,000.00–$5,000.00. That would necessarily mean that the additional $20,000.00–$21,000.00 was awarded for LaQuita's physical pain and mental anguish. The only direct evidence that may relate to the pain she suffered is her statement that she was "near death." The existence of conscious pain and suffering may be established by circumstantial evidence. Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.—Texarkana 2005, no pet.). Mental anguish damages generally require a showing of direct evidence of the nature, duration, and severity of the mental anguish, thus establishing a substantial disruption in the daily routine. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997); Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Penny, 160 S.W.3d at 251. Historically, some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish. Generally, qualifying events have demonstrated a threat to one's physical safety or reputation or involved the death of, or serious injury to, a family member. Penny, 160 S.W.3d at 251 (citing Parkway Co. v. Woodruff, 925 S.W.2d 434, 445 (Tex. 1995)). We find the evidence of conscious pain and mental anguish is extremely meager. LaQuita testified she was unconscious after consuming the drink. Since the injury is an objective one for which she was hospitalized, it may be inferred or presumed that she endured some pain as a consequence. Penny, 160 S.W.3d at 248. However, no other evidence was presented concerning conscious pain and suffering. As to mental anguish, the evidence is altogether lacking concerning its nature, duration, or severity. We find that the evidence is factually insufficient to support the award for pain and mental anguish, and we suggest a remittitur of $10,000.00 from the $25,000.00 judgment. II. Division of Community Property As discussed, the trial court granted the $25,000.00 judgment for two reasons: 1) division of the property and 2) tort damages. We have found that it was proper to award a judgment for tort damages, though the evidence is factually insufficient to support the entire damage award. We now turn to the trial court's division of the community property (without regard to the tort damages award). These parties were married for a short time and had acquired very little community property. LaQuita was awarded the patio furniture and the computer. The testimony showed that LaQuita received approximately $4,700.00 from a bank account of the parties. Consequently, she was ordered to pay Michael $2,000.00 as an offset from the $25,000.00 judgment awarded to her. It was established that the home she lived in was her separate property and that the automobile she was driving was a "Mary Kay" lease car. Apparently, there was some property that allegedly was missing (shirts, a press, and Iraqi money), but no evidence explained the loss. Michael was awarded all property that he possessed. The trial court had broad authority to divide the community property in a manner that is just and right, but there is no requirement that it be divided equally. See Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Lucy, 162 S.W.3d 770. In this case, there was very little community property to divide. We find no abuse of discretion in the division of the community estate. III. Motion for New Trial—Newly Discovered Evidence Michael next urges that the court erred by overruling his motion for new trial based on newly discovered evidence. David Hamilton, the attorney for Michael, filed an affidavit with the motion for new trial in which Hamilton stated he had recently spoken with the attorney representing Michael in the criminal case. Michael's attorney for the criminal case advised Hamilton about reports of scientific tests showing only Valium was present in the glass from which LaQuita drank on July 23, 2004, and there was no evidence that cocaine was also present. Based on this affidavit, he argues the trial court erred in denying the motion for new trial. A party seeking a new trial on the ground of newly discovered evidence must show (1) admissible, competent evidence has been discovered since the trial, (2) the failure to discover the evidence before trial was not because of lack of due diligence, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. See Ricks v. Ricks, 169 S.W.3d 523, 528 (Tex. App.—Dallas 2005, no pet.) (citing Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 240 (Tex. App.—Dallas 2000, pet. denied)). For several reasons, we overrule this point. First, the evidence is the affidavit of Michael's attorney quoting statements of another attorney. This is inadmissible hearsay evidence, not competent admissible evidence reflecting the personal knowledge of the affiant. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004). Second, there is no explanation as to why this evidence could not have been discovered before trial. Finally, the evidence suggests only that one drug was in the drink, rather than two. There is no evidence this substance (Valium) was alone insufficient to render LaQuita unconscious and require her hospitalization. The evidence is not so material as to require a different result on retrial. We find the trial court did not abuse its discretion in denying the motion for new trial. IV. The Failure to Grant a Continuance Michael contends the trial court erred in denying his oral motion for continuance presented immediately before the divorce hearing. The granting or denial of a motion for continuance is within the discretion of the trial court and will not be reversed unless the record shows a clear abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). "In deciding whether a trial court abused its discretion, the appellate court does not substitute its judgment for that of the trial court, but only decides whether the trial court's action was arbitrary and unreasonable." Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986) (citing Landry v. Travelers Ins. Co., 458 S.W.2d 649 (Tex. 1970)). Thus, we must determine whether the trial court's denial of the request for a continuance was done without reference to any guiding principles. Higginbotham v. Collateral Protection, Inc., 859 S.W.2d 487, 490 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Rule 251 of the Texas Rules of Civil Procedure states, "No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251. Here, Michael never filed a written motion for continuance supported by an affidavit as required by the applicable rule. When the rule concerning motions for continuance is not satisfied, it is presumed the trial court did not abuse its discretion in denying the oral motion for continuance. Green v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 213 (Tex. App.—El Paso 2000, no pet.); Metro Aviation, Inc. v. Bristow Offshore Helicopters, Inc., 740 S.W.2d 873, 874 (Tex. App.—Beaumont 1987, no writ). Michael explains his failure to file a written motion—he and his counsel received "false information" that the case would be tried in Bowie County by Judge Miller. Michael attached to his motion for new trial a written motion for continuance, which was never filed, that he alleges was prepared for presentation to Judge Miller. When Michael and his counsel appeared for trial in Judge Lovett's court, only an oral motion was presented. Michael alleges that the motion was prepared for Judge Miller, not Judge Lovett. However, we note that the caption for the motion is directed to the Sixth Judicial District Court, over which Judge Lovett presides, not the 102nd Judicial District Court, which we judicially notice is the court in which Judge Miller presides. See Tex. R. Evid. 201(f) (judicial notice may be taken at any stage of proceeding); In re Estate of Head, 165 S.W.3d 897, 898 n.2 (Tex. App.—Texarkana 2005, no pet.). Further, the major portion of the written motion alleges the deposition of LaQuita, taken only the day before, had not been transcribed, which prevented counsel from exploring financial matters discussed at the deposition. This same argument was presented orally to Judge Lovett, but the written motion for continuance was never filed in the Sixth Judicial District Court. Further, even the unfiled written motion was not supported by an affidavit as required by Rule 251. It is presumed that the trial court did not abuse its discretion in denying a motion for continuance when the motion does not comply with the rule's requirement that the motion be supported by affidavit. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Wilborn v. GE Marquette Med. Sys., Inc., 163 S.W.3d 264 (Tex. App.—El Paso 2005, pet. denied). For the foregoing reasons, we find the trial court did not abuse its discretion in denying the motion for continuance. V. Conclusion We suggest a remittitur of $10,000.00 from the $25,000.00 judgment. If LaQuita, within fifteen days from the date of this opinion, files a remittitur of $10,000.00 from the total damages, we will award LaQuita a recovery of $15,000.00 subject to the $2,000.00 offset as ordered by the trial court, and affirm the judgment of the trial court in all other respects. If LaQuita fails to remit as suggested, the judgment will be reversed and the cause remanded for a new trial. Jack Carter Justice Date Submitted: May 4, 2006 Date Decided: July 25, 2006