Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 5 Dallas County,
Texas Trial Court Cause No. CC-14-05211-E
Justices Francis, Fillmore, and Stoddart
Echendu appeals from a take-nothing judgment following a
bench trial in his suit against Gustavo Huerta and
Huerta's Body Shop. Echendu argues the trial court abused
its discretion by denying his oral motion for continuance,
sustaining objections to his evidence on damages, allowing
Huerta to dictate an answer into the record, and denying his
second motion for default judgment. We affirm.
vehicle was towed to Huerta's shop for transmission
repairs in October of 2012. Echendu tendered a check for $900
to cover the cost of parts and agreed to pay an additional
$300 for labor when the repairs were completed. According to
his testimony, over the course of the next two years, Echendu
repeatedly requested Huerta to complete the repairs and
return the vehicle, but was given multiple excuses why the
work was not completed. Huerta testified that after Echendu
left the vehicle, Huerta was unable to obtain the parts at
the price they agreed to and was unable to contact Echendu.
At some point, Huerta called the phone number he had for
Echendu and was told that Echendu left the country for an
extended period. Huerta believed the vehicle had been
abandoned and did not perform the work until he heard from
October 15, 2014, Echendu filed suit against Huerta for
damages for the loss of use of his vehicle for the two-year
period it was in Huerta's shop for transmission repairs.
He asserted claims under the Deceptive Trade
Practices-Consumer Protection Act ("DTPA"), Tex.
Bus. & Com. Code Ann. § 17.41-.63, and for
conversion. Huerta was served with citation on October 31,
2014. Huerta then repaired the vehicle. Echendu paid the $300
for labor and retrieved the vehicle on November 13, 2014.
However, Huerta did not file an answer to the lawsuit and a
default judgment was rendered on February 4, 2015.
timely filed a motion for trial, which was granted on April
27, 2015. The case was then set for trial beginning September
23, 2015 and ordered to mediation. Huerta served discovery
requests on Echendu on June 17, 2015, but Echendu did not
filed lists of his witnesses and exhibits on September 17,
2015 and served them on Huerta's attorney. The next day,
Echendu's attorney contacted Huerta's attorney and
discussed the upcoming trial setting. They discussed that
Huerta had not filed a written answer and that Echendu had
not responded to Huerta's discovery. Echendu's
attorney had not seen the discovery, but served a response
later that day after receiving another copy of the requests
from Huerta's attorney. Echendu's attorney later
located the June discovery requests in his file.
night before trial, September 22, 2015, Echendu filed a
second motion for default judgment. The motion contains a
certificate of service showing service on Huerta's
attorney, but does not indicate the motion was set for
parties and their attorneys appeared for trial on September
23, 2015 and announced ready. At the pretrial conference,
Huerta's attorney dictated a general denial into the
record. Echendu did not object to the form of the answer.
Rather, he orally requested a continuance based on "the
answer being filed in this court today[.]" The trial
court denied the request for a continuance.
trial, Echendu attempted to offer a copy of a receipt for the
seven or eight days he rented a car while his vehicle was at
Huerta's shop in November 2012. Huerta objected because
the document was not produced in response to his discovery
requests. Echendu's attorney explained that he responded
to the discovery once he learned of it shortly before trial,
but was unable to get this document until his client brought
it to trial. The trial court sustained the objection and
excluded the document. Echendu then attempted to offer a
printout from Enterprise Rent-A-Car. Huerta objected to the
document because Echendu could not authenticate it and no
witness from Enterprise was timely designated as a witness.
The trial court sustained the objection and excluded the
document. Echendu did not include either document in an offer
of proof or a formal bill of exception.
before he rested, Echendu orally moved for a continuance to
allow him to obtain a business records affidavit. The trial
court denied the motion. Huerta moved for directed verdict
after Echendu rested, which was granted. The trial court
rendered judgment that Echendu take nothing on his claims.
issues raised in this appeal are reviewed under an abuse of
discretion standard. See Villegas v. Carter, 711
S.W.2d 624, 626 (Tex. 1986) (motion for continuance); In
re Estate of Miller, 243 S.W.3d 831, 836-37 (Tex.
App.-Dallas 2008, no pet.) (admission or exclusion of
evidence); Resurgence Fin., LLC v. Taylor, 295
S.W.3d 429, 432-33 (Tex. App.-Dallas 2009, pet. denied)
(motion for default judgment). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-242 (Tex. 1985).
the motions for continuance, rule 251 states that no motion
for continuance will 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. Although Echendu's
attorney orally requested two continuances, he never filed a
written motion for continuance supported by an affidavit
showing sufficient cause. See Tex. R. Civ. P. 251,
252 (specifying requirements of application for continuance).
An oral motion for continuance does not satisfy the
requirements of rule 251. In re A.M., 418 S.W.3d
830, 838 (Tex. App.-Dallas 2013, no pet.); Favaloro v.
Comm'n for Lawyer Discipline, 13 S.W.3d 831, 838
(Tex. App.-Dallas 2000, no pet.). When a party represented by
counsel fails to comply with the requirements of rule 251, we
presume the trial court did not abuse its discretion by
denying the motion for continuance. Villegas, 711
S.W.2d at 626. Huerta did not agree ...