Robert James Henry v. Tax Appraisal District of Bell County ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00075-CV
Robert James HENRY,
Appellant
v.
Tax Appraisal District of Bell
TAX APPRAISAL DISTRICT OF BELL COUNTY,
Appellee
From the 169th Judicial District Court, Bell County, Texas
Trial Court No. 233,829-C
The Honorable Gordon G. Adams, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 18, 2013
AFFIRMED
After denying a motion for continuance filed by appellant Robert James Henry, the trial
court subsequently entered an in rem judgment in favor of appellee Tax Appraisal District of Bell
County (“the District”). Henry appeals, contending the trial court abused its discretion by denying
his motion for continuance and that such denial was so arbitrary as to violate due process. We
affirm the trial court’s judgment.
04-13-00075-CV
BACKGROUND
On January 9, 2009, the District sued Valencia T. Henry and Athela R. Henry seeking to
collect delinquent taxes owed on real property located in Bell County, Texas for tax years 2003
through 2007. A second amended petition filed on January 25, 2011, named appellant Henry as a
defendant and sought to collect delinquent taxes owed on the same piece of property for tax years
2004 through 2010. Trial on the matter was initially set for November 17, 2011.
On the day of the first trial setting, Henry filed a motion for continuance claiming he was
unable to attend trial due to hospitalization, and that ownership of the property was currently in
dispute and awaiting a ruling from the Texas Third Court of Appeals in the case styled Henry v.
Henry, No. 03-11-00253 1. The trial court granted the continuance and the case was initially reset
for trial on June 21, 2012, but later reset at the District’s request for trial on July 19, 2012.
On the day of the third trial setting, Henry filed his second motion for continuance, again
asserting additional time was necessary based on the appeal pending before the Third Court of
Appeals. The trial court granted Henry’s second motion for continuance and a new trial date was
set for November 15, 2012.
On November 15, 2012, the day of the fourth trial setting, Henry filed his third motion for
continuance with the trial court. In this third motion, Henry claimed a continuance was necessary
because he was unable to appear at trial due to his incarceration in the Williamson County Jail.
He also reasserted the claim that the result of the appeal from the Third Court of Appeals was still
pending. The trial court denied the motion explaining:
1
Henry v. Henry is an appeal from the divorce decree in Henry’s divorce from Gay N. Henry. No. 03-11-00235-CV,
2013 WL 4056221 (Tex. App.—Austin Aug. 9, 2013, no pet. h.) (mem. op.). In a decision released after the events
in this case, the Third Court abated the appeal and remanded the cause to the trial court for the entry of necessary
findings of fact and conclusions of law concerning the characterization and division of the parties’ real and personal
property. Henry, 2013 WL 4056221, at *1.
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I don’t really see the point in dragging this out. I mean we’re talking about taxes
from back in ’05. It seems like with Mr. Henry, if it’s not ‘he needs more time for
the Third Court,’ it’s ‘he needs more time because he’s in jail,’ and the next time –
This is not a comment on [counsel]; you’re just representing your client, I
understand – but it’ll just be something else. So I’m not sure I see the point. And
besides that, I’ve done it at least twice before.
After the motion was denied, the District introduced, without objection, the certified tax affidavit
showing the amount of taxes, penalties, and interest due on the subject property. Henry did not
present a defense. The trial court then entered judgment in rem in favor of the District for amounts
owed pursuant to the tax affidavit. Henry subsequently perfected this appeal.
ANALYSIS
Henry contends the trial court abused its discretion by denying his third motion for
continuance. Henry claims the trial court’s action was not only harmful to his case, but so arbitrary
as to violate his due process rights.
A motion for continuance is appropriate where there is “sufficient cause supported by
affidavit, or by consent of the parties, or by operation of law.” TEX. R. CIV. P. 251. We review a
trial court’s denial of a motion for continuance for abuse of discretion. McGrede v. Coursey, 131
S.W.3d 189, 197 (Tex. App.—San Antonio 2004, no pet.) (citing Carpenter v. Cimarron
Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or acts without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In
deciding whether a trial court abused its discretion, we do not substitute our judgment for the trial
court’s judgment and will not reverse the ruling unless the record clearly shows a disregard of a
party’s rights. Valdez v. Robertson, 352 S.W.3d 832, 834 (Tex. App.—San Antonio 2011, no pet.);
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).
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In his third motion for continuance, Henry asked for a ninety-day delay on the grounds
that: (1) he was unable to attend trial due to incarceration; (2) prior to his incarceration, he was
involved in negotiations to secure funds to pay his tax obligation, but those negotiations could not
be completed due to his incarceration; and (3) the trial court should await the decision of the Third
Court of Appeals. After reviewing the record and the applicable law, we hold the trial court did
not abuse its discretion in denying Henry’s third motion for continuance.
Ground for Continuance –Absence of Party
The decision to grant or deny a motion for continuance because of the absence of a party
to the suit is a matter addressed to the sound discretion of the trial judge. Garza v. Serrato, 699
S.W.2d 275, 284 (Tex. App.—San Antonio 1985, writ. ref’d n.r.e). The trial court is not required
to grant a motion for continuance just because a party is unable to be appear at trial. Hawthorne
v. Guenther, 917 S.W.2d 924, 929 (Tex. App.—Beaumont 1996, writ denied); Humphrey v.
Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ). Here, there was no
suggestion Henry’s testimony was needed at trial to counter the District’s tax claim. Rather, in his
motion Henry contended “fairness and due process entitle Movant to be present at all proceedings.”
Given the trial court is not required to grant a motion for continuance merely because a party is
unable to appear at trial, we reject this portion of Henry’s argument. See Hawthorne, 917 S.W.2d
at 929. Accordingly, absent any other justification for why the trial court should postpone
proceedings so Henry could attend, we hold the trial court did not abuse its discretion based on
this ground. Garza, 699 S.W.2d at 284.
Ground for Continuance – Prior Negotiations to Obtain Funds
In Henry’s motion for continuance and during the argument at the hearing, Henry claimed
that immediately before his arrest, he was involved in negotiations with a lender to secure funds
to pay his tax obligation and that, but for the arrest, he would have had the funds to take care of
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the tax obligation. Because Henry’s motion for continuance is verified and its factual allegations
are uncontroverted, we must accept the factual allegations as true. Kahanek v. Rogers, 900 S.W.2d
131, 133 (Tex. App.—San Antonio 1995, no writ.). However, even if it is true that with a ninety-
day continuance Henry would have obtained funds to satisfy the tax obligation, it is equally true
this was his third motion for continuance and he had nearly two years from the instigation of suit
to obtain funds to satisfy the obligation. The trial court did not “really see the point in dragging
this out” any longer over “taxes from back in ’05” and was convinced that after two previous
continuances, a third was not warranted. Given the record, we hold the trial court did not abuse
its discretion in denying the continuance based on this assertion. See McGrede, 131 S.W.3d at
197.
Ground for Continuance – Pending Decision from Third Court of Appeals
In his third ground for continuance, Henry argued the trial court should have stayed the
trial until the Third Court of Appeals rendered a decision in Henry v. Henry, which was pending
at the time of trial. Henry v. Henry, according to the motion and argument at the hearing, is a
divorce case involving Henry and his ex-wife that affects the ownership rights in the property
subject to the underlying tax suit. Henry presents no authority in support of his claim that by not
waiting for the decision of the Third Court of Appeals, the trial court abused its discretion.
Although a trial court may decide, in some instances, to await the decision of a court of appeals,
we have found no authority holding that a trial court is required to wait – particularly after having
previously stayed the trial proceedings for almost an entire year. A trial court would have no idea
how long it might take for the appellate court to render its decision, and then, if the party moving
for the continuance decides to seek petition for review, the matter could be pending for years. 2
2
As noted above, the Third Court of Appeals did ultimately render a decision, but that decision involved a remand,
thereby continuing the matter without a full resolution.
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A trial court cannot abuse its discretion by denying a motion for continuance in the absence
of authority to show it acted without reference to any guiding rules or principles. See McGrede,
131 S.W.3d at 197. Even if this court would have granted the continuance to await the results of
Henry v. Henry, the mere fact that this court in similar circumstances would use its discretionary
authority differently does not demonstrate that an abuse of discretion has occurred. Downer, 701
S.W.2d at 242. Accordingly, we hold that the trial court did not abuse its discretion by denying
the motion for continuance based on this ground. See McGrede, 131 S.W.3d at 197.
Due Process
It is possible that the denial of a motion for continuance is so arbitrary as to violate due
process. State v. Crank, 666 S.W.2d 91, 95 (Tex. 1984); see Ungar v. Sarafite, 376 U.S. 575, 589
(1964). Whether denial is so arbitrary as to violate due process depends on the circumstances of
the case. Crank, 666 S.W.2d at 95. Because we have held that the trial court did not abuse its
discretion by denying Henry’s motion for continuance, we hold the denial was not a violation of
due process. See id.
CONCLUSION
Based on the foregoing, we overrule Henry’s sole issue and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
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