in Re Donald E. Price

In re Donald E. Price IN THE TENTH COURT OF APPEALS No. 10-99-221-CV IN RE DONALD E. PRICE Relator Original Proceeding O P I N I O N Donald Price was tried in the justice court and found guilty by a jury and ordered to pay a fine. He filed an affidavit of indigency and requested that he be allowed to appeal without any cost to himself. The just court would not allow the appeal in that manner and advised Price that he had to post an appeal bond. He filed a petition for writ of mandamus with the district court seeking to compel the justice of the peace to allow the appeal to go forward without an appeal bond. That petition was denied by the district court. Price filed a Petition for Writ of Mandamus with this Court asking us to compel the district court to order the justice court to allow him to proceed on appeal without paying the appeal bond. Price must first prove that a mandamus to this Court is the appropriate remedy. Mandamus issues only to correct a clear abuse of discretion or the violation of a duty the law imposes when there is no other adequate remedy at Law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A direct appeals is an adequate remedy at law. The person seeking extraordinary relief, like a mandamus, must show the lack of an adequate remedy by appeal Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Price has an adequate appellate remedy. He may bring a direct appeal of the district court's denial of his petition for writ of mandamus to this Court. Brazos River Conservation and Reclamation Dist. v. Belcher, 163 S.W.2d 183, 183, 139 Tex. 368 (1942); Salvaggio v. Davis, 727 S.W.2d 329, 331 (Tex. App.—Houston [1st Dist.] 1987, no writ). The appeal must be brought in a timely manner in accordance with the rules of appellate procedure. See Tex. R. App. P. 25.1, 26.1. Because Price has an adequate remedy by direct appeal, his petition for writ of mandamus is denied. TOM GRAY Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Petition denied Opinion delivered and filed 12, 1999 Publish December 20, 2002. He originally brought fourteen issues on appeal. While the appeal was pending, he filed a motion to dismiss those issues which deal with “the conservatorship provisions of the final decree.” His former wife, Valerie Taylor, filed a letter response stating that she did not oppose Taylor’s motion. Accordingly, we grant the motion and dismiss issues four, five, six and seven. Taylor has also filed a motion for leave to file a second notice of appeal pertaining to only those issues not dismissed. That filing is unnecessary because the notice of appeal already filed is sufficient to preserve the remaining issues for appellate review. Therefore we deny this motion. Taylor’s remaining issues are: 1. The trial court erred in denying his motion for continuance so he could conduct further discovery. 2. The trial court erred in denying his claims for relief, because Valerie Taylor presented no summary judgment evidence to defeat them. 3. The evidence of the grounds for divorce is legally and factually insufficient. . . . 8. The trial court erred by refusing to rule on his pretrial discovery motions. 9. The trial court erred in the division of debts and of the marital estate. 10. The trial court erred by awarding his separate property to Valerie. 11. There is a genuine issue of material fact, precluding summary judgment, about whether Valerie committed fraud concerning the marital estate. 12. The trial court erred in denying his request for a jury trial and personal appearance. 13. The trial court erred in denying his motion for new trial. 14. The trial court erred in ordering that the costs assessed against him be withheld from his prison trust fund account. By supplemental brief, Taylor raises a fifteenth issue which we will also address, i.e., that the trial court erred by not making findings of fact and conclusions of law. We will affirm the judgment. Standard of Review for Summary Judgment “Rule 166a provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine fact issue.” Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). The movant has the burden to prove by summary-judgment evidence that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion.” Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc., 997 S.W.2d at 222; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We review a summary judgment de novo. Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied). Issue 1: Continuance On December 11, 2002, Taylor filed a motion to continue a hearing set for December 20, 2002, at which various pending matters, including Valerie’s summary judgment motion, were to be considered. Grounds asserted in the motion were that “there lacks a substantial amount of discovery that [Valerie] has not provided [Taylor] either by objections or assertions of privilege. [Taylor] is unable to produce the evidence necessary to rebut the motion for summary judgment. . . . [Taylor], being incarcerated, is unable to expeditiously obtain affidavits from witnesses for a response to the motion for summary judgment . . . .” Taylor was not specific about what discovery had not been produced, what affidavits he intended to obtain, and why discovery had not been completed. On December 13, the trial court denied the motion, considering, inter alia, Taylor’s lack of specificity, that Taylor had not filed a response to the motion for summary judgment or a motion to late-file a response, and the length of time the case had been pending (since September 1999). Whether to grant a motion for continuance is within the trial court’s discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Generally, a trial court may grant a motion for continuance “for sufficient cause.” Tex. R. Civ. P. 251, 252. Specifically, a trial court may grant a motion for continuance to allow a party to a summary judgment proceeding to obtain affidavits or conduct discovery. Tex. R. Civ. P. 166a(g). However, the movant must explain how, not merely assert that, a continuance would enable him to obtain useful discovery. Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.—Houston [14th Dist.] 1994, no writ); Gabaldon v. General Motors Corp., 876 S.W.2d 367, 370 (Tex. App.—El Paso 1993, no writ); Martinez v. William C. Flores, M.D., P.A., 865 S.W.2d 194, 197-98 (Tex. App.—Corpus Christi 1993, writ denied). The movant should also explain why discovery was not obtained earlier which would have avoided the need for a continuance. Id. Taylor’s motion fails to meet either of these requirements; rather, it is general and conclusory. Therefore, the trial court did not abuse its discretion in denying the motion. Id. We overrule issue one. Issue 2: Taylor’s Claims for Relief Taylor complains that, in granting summary judgment, the trial court did not address some of the claims he made in his second amended counter-petition. Specifically, he complains about claims he made for the first time in the petition: (a) as grounds for divorce, Valerie committed adultery, (b) for a permanent injunction preventing Valerie “from communicating with the Texas Board of Pardons and Paroles or prison officials regarding false claims against [Taylor],” and (c) for reimbursement regarding his separate property that Valerie “took, sold, destroyed, damaged, and lost.” He says that Valerie’s motion for summary judgment and her summary judgment evidence did not address these claims, and that the trial court could not grant a final summary judgment without considering them. As for Taylor’s assertion that Valerie’s adultery is a ground for divorce which must be addressed, the trial court already had before it Valerie’s three grounds: insupportability, living apart, and felony conviction. Valerie presented summary judgment evidence of these grounds, and the divorce decree granted the divorce on the grounds of “insupportability, living apart and felony conviction.” Therefore, even if the trial court should have considered Taylor’s ground as well, which we do not hold, he cannot show harm. The divorce was supported on other grounds, and Taylor has not complained that the trial court abused its discretion because the property division was not just and right. See Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App.—Beaumont 2002, no pet.); Tate v. Tate, 55 S.W.3d 1, 10 (Tex. App.—El Paso 2000, no pet.). As for the request for injunctive relief, on November 26, 2002, the trial court issued an “Order for Pretrial Conference” set for December 20. The Order directed the parties to submit, before the conference, any documentary evidence and to be prepared to “[d]iscuss counsel’s theory of the case, the legal issues, and points of law that must be passed on by the Court, and the facts that are in dispute, the need for amendments to the pleadings, and the time within which they are to be made.” On December 16, 2002, Taylor filed his second amended counterclaim raising, for the first time, an issue about injunctive relief. Taylor filed no documentary evidence. He appeared at the hearing on December 20 by telephone. He first addressed his discovery motions and the trial court’s sua sponte motion for contempt. Then the court asked him: “Do you have one other parting situation that you feel like is – is exceedingly important to your position this morning?” Taylor responded by addressing his motion for continuance regarding Valerie’s summary judgment motion. At no time during the hearing did anyone mention injunctive relief. Based on the exchanges at the hearing, Taylor’s failure to respond to the motion for summary judgment, and the lack of any evidence supporting injunctive relief, the trial court did not err in denying “all relief requested” by Taylor including his request for injunctive relief. As for Taylor’s complaint about property, there was summary judgment evidence from Valerie about property and its ownership. Taylor presented no summary judgment evidence about property she “took, sold, destroyed, damaged, and lost.” The record supports the trial court’s disposition of the marital estate. We overrule issue two Issue 3: Sufficiency of the Evidence for Divorce Taylor complains that the summary judgment evidence is legally and factually insufficient to support the grounds for the divorce. Because this is a summary judgment case, we review for whether there is a “genuine issue as to any material fact” regarding the grounds. Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc., 997 S.W.2d at 222. The decree of divorce states that the divorce is granted due to “insupportability, living apart and felony conviction,” three grounds under the Family Code. Tex. Fam. Code Ann. §§ 6.001, 6.004, 6.006 (Vernon 1998). Thus, if there is no genuine fact issue as to any one of these grounds, we will overrule Taylor’s issue. Valerie’s summary judgment evidence establishes, without contradiction, that Taylor (1) had been convicted of a felony, (2) had been imprisoned for at least one year, and (3) had not been pardoned. This fulfills the requirements of section 6.004 of the Family Code. Valerie’s summary judgment evidence establishes, without contradiction, that she and Taylor had “lived apart without cohabitation for at least three years.” This fulfills the requirements of section 6.006 of the Family Code. We find that the summary judgment evidence conclusively proved at least two of the grounds pled, and therefore the trial court did not err in granting the divorce under either 6.004 or 6.006. We overrule issue three. Issue 8: Taylor’s Pretrial Discovery Motions Taylor complains that the trial court refused to hear and failed to rule on his pretrial discovery motions. However, the transcript of the hearing on December 20 at which Taylor appeared by telephone shows that the trial court heard extensive argument by Taylor and opposing counsel about the motions. Also, the record contains a “Pretrial Order” dated December 20, 2002, which denies the discovery motions. Therefore, the record does not support Taylor’s complaint. We overrule issue eight. Issue 9: Community Property Taylor contends that, contrary to the trial court’s finding, there is community property, and he is entitled to part of it. Valerie’s summary judgment evidence, which is the only summary judgment evidence, includes in her affidavit that “[n]o community property other than personal effects have been accumulated by the parties.” Taylor did not file objections to Valerie’s summary judgment evidence. In the divorce decree, the trial court found that “no community property other than personal effects has been accumulated by the parties. It is ordered and decreed that the personal effects of the parties are awarded to the party having possession.” The summary judgment evidence supports the trial court’s findings and its property division. Tex. R. Civ. P. 166a(c). We overrule issue nine. Issue 10: Separate Property Taylor complains that, by awarding each party the property in his or her possession, the court in effect awarded his separate property to Valerie. Again, we are limited in our review to the summary judgment evidence on file at the time of the summary judgment. Tex. R. Civ. P. 166a(c), (d). All property owned at the dissolution of marriage is presumed community property. Tex. Fam. Code Ann. § 3.003 (Vernon 1998). Taylor offered no summary judgment evidence to rebut this presumption. Under the summary judgment evidence, Taylor raised no genuine fact issue about Valerie’s possession of his separate property. Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc., 997 S.W.2d at 222. We overrule issue ten. Issue 11: Fraud by Valerie Taylor claims that an answer to requests for admissions given by Valerie conflicted with her summary judgment affidavit which said there was no community property. The request asked: “Is it true that you utilized that 1997 income tax refund, which [Taylor] released to you, to purchase a vehicle?” Valerie answered: “Admit in part. Some of the community property refund was used to purchase a vehicle and some was released to the incarcerated respondent.” Taylor claims this creates a fact issue about whether Valerie defrauded him regarding the marital estate, and thus creates an issue about how the estate should have been divided. He relies on section 3.003 (formerly 5.002) of the Family Code: “(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. (b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.” Tex. Fam. Code Ann. § 3.003. The answers to the requests, however, are not part of the summary judgment evidence. They are not a part of the clerk’s record, and we presume they were never filed. They do appear in the clerk’s record as an attachment to Taylor’s “Motion for Court Order Compelling Discovery in Regards to Request for Admissions” filed on December 6, 2002. A trial court, however, may consider “[d]iscovery products not on file with the clerk” only if the product or notice of them is “filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proof . . . .” Tex. R. Civ. P. 166a(d). Therefore, even if the answers might have created a fact issue, the trial court could not consider them, nor may we. Id. We overrule issue eleven. Issue 12: Denial of Jury Trial Taylor complains that, because there were genuine issues of material fact, summary judgment was improper, and therefore he should have been granted a jury trial. Furthermore, he should have been permitted to attend the trial in person. Because we have not found genuine issues of material fact, summary judgment was proper. Therefore, there was no need for a jury trial, nor for Taylor’s attendance. We overrule issue twelve. Issue 13: Motion for New trial Taylor contends that the trial court erred by not granting his motion for new trial. The motion was overruled by operation of law. The grounds in the motion are the same as the issues on which Taylor appeals, as well as a claim of new evidence. He attached various documents to the motion as new evidence. The trial court may grant a new trial. Id. The standard of review on appeal is abuse of discretion. Director, State Emp. Wkrs’ Comp. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (default judgment); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987) (default judgment); Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) (bench trial). Every reasonable presumption will be made on review in favor of orders of the trial court refusing new trials. Jackson, 660 S.W.2d at 809-10; Hartford Accident and Indemnity Co. v. Gladney, 335 S.W.2d 792, 795 (Tex. Civ. App.—Waco 1960, writ ref'd n.r.e.). Rule 166a requires the trial court to grant a motion for summary judgment if the court finds the movant is entitled to judgment as a matter of law. Because we have found no error, Valerie was entitled to judgment as a matter of law. This weighs heavily in favor of the trial court’s decision to not grant a new trial. For the same reasons we overrule Taylor’s issues on appeal, we find that the trial court did not abuse its discretion in denying the motion for new trial on these grounds. Addressing newly discovered evidence, the Texas Supreme Court has explained under what circumstances it may warrant a new trial: It is incumbent upon a party who seeks a new trial on the ground of newly discovered evidence to satisfy the court first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is not cumulative; fourth, that it is so material that it would probably produce a different result if a new trial were granted. New Amsterdam Casualty Co. v. Jordan, 359 S.W.2d 864 (Tex. 1962); Texas Employers Insurance Association v. Moser, 152 S.W.2d 390, 395 (Tex. Civ. App.—San Antonio 1941, writ ref'd); In Re Y, 516 S.W.2d 199 (Tex. Civ. App.—Corpus Christi 1974, writ ref'd n.r.e.). Jackson, 660 S.W.2d at 809. The attachments to the motion for new trial which are relevant to the summary judgment do not pertain to new evidence, but rather to (a) excerpts from the clerk’s record of discovery answers, (b) Taylor’s affidavit about matters he had known of before the summary judgment proceeding, and (c) correspondence and prison records dated before the summary judgment proceeding about which he had known before the proceeding. These do not meet the Jackson criteria. Thus, the trial court did not abuse its discretion in denying the motion on this ground. We overrule issue thirteen. Issue 14: Costs Taylor complains that the trial court erred in ordering that court costs assessed against him be withheld from his prison trust fund account. He says the trial court had no authority to do so, because the only statute allowing such action is under chapter fourteen of the Civil Practice and Remedies Code pertaining to frivolous inmate litigation. Tex. Civ. Prac. & Rem. Code Ann. § 14.006 (Vernon 2002). The divorce decree says: “On receipt of a copy of the Court’s order issued, the Coffield (CO) ID Prison shall withdraw money from the trust account in accordance with the above order. The Coffield (CO) ID Prison shall hold the money in a separate account and shall forward the money to the McLennan County District Clerk.” We have not found any authority that would allow the trial court to order what amounts to a garnishment of Taylor’s prison trust account. There are no administrative regulations of the Texas Department of Criminal Justice which address inmate trust funds. 37 T.A.C. pt. VI (West 1999). In addition, there is no statute authorizing the trial court’s order. Accordingly, we find an abuse of discretion and will delete that provision without disturbing the trial court’s assessment of costs. We sustain issue fourteen. Issue 15: Findings of Fact and Conclusions of Law In his final issue, Taylor complains that the trial court failed to file findings of fact and conclusions of law. The divorce decree was based on the summary judgment. A request for findings of fact and conclusions of law is not appropriate for summary judgment proceedings, and the trial court does not err by failing to file them. IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 441-42 (Tex. 1997); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994); Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.); West Columbia Nat'l Bank v. Griffith, 902 S.W.2d 201, 204 (Tex. App.—Houston [1st Dist.] 1995, writ denied). The trial court should not make, nor an appellate court consider, findings of fact and conclusions of law in connection with a summary judgment. IKB Industries, 938 S.W.2d at 441-42. We overrule issue fifteen. Conclusion We reform number “10" on page twenty-eight of the divorce decree on “Court Costs” by deleting all language after the first paragraph. As reformed, and having overruled Taylor’s other issues, we affirm the Final Summary Judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Judge Strother (Sitting by Assignment) Affirmed as reformed Opinion delivered and filed December 31, 2003 [CV06]