in the Estate of Earle Stanton

• Court: Court of Appeals of Texas
• Decided: February 15, 2006
• Docket: 12-05-00041-CV
• Status: Published

Opinion

                                           NO. 12-05-00041-CV

              IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

                             TYLER, TEXAS

                                                                             '     APPEAL FROM THE

IN RE: ESTATE OF                                         '     COUNTY COURT AT LAW NO. 3 OF

EARLE STANTON,

DECEASED

                                                                             '     SMITH COUNTY, TEXAS

                                                     MEMORANDUM OPINION

Carnegie H. Mims, Jr., individually and as former temporary administrator of the Estate of Earle Stanton (the AEstate@), appeals the trial court=s award of $7,459.10 to J. Scott Killough, the attorney ad litem for the unknown heirs of the Estate.  Mims, in two issues, contends that the trial court abused its discretion by denying his motion for continuance and by approving the attorney ad litem=s application for fees and expenses.  We affirm.

                                                               Background

Earle Stanton, an only child, died without a will as a resident of Smith County.  He was unmarried with no children, and his heirs were the descendants of his parents= siblings.  See Tex. Prob. Code Ann. ' 38(a)(3) (Vernon 2003).  The trial court appointed Killough as the attorney ad litem for the unknown heirs of the Estate and Mims as the temporary administrator of the Estate.  Mims=s appointment later expired by operation of law.  Id. ' 131A(a).

On November 9, 2004, Killough filed an Application for Payment of Attorney Ad Litem Fees and Expenses with an attached affidavit (the AApplication@) requesting payment in the amount of $7,459.10.  Mims filed an objection to the Application.  On December 2, 2004, the trial court set Killough=s Application for hearing on January 7, 2005 at 10:00 a.m.  On January 5, 2005, Mims faxed a motion for continuance to the Smith County Probate Auditor requesting that the January 7 hearing be continued due to the deaths of both a close friend and his brother-in-law.  The probate auditor declined to file Mims=s motion because she was not approved to accept facsimile filings.  According to Killough, he attempted to file a written response to Mims=s motion for continuance.  However, the clerk of the court refused to file his response because Mims=s motion was unfiled.

On January 7, the trial court took up Mims=s motion for continuance and Killough=s Application.  Killough appeared in person and Mims appeared by telephone.  The trial court denied Mims=s motion for continuance because it was not properly or timely filed.  The trial court informed Mims that he would be allowed to present his objections to the Application.  Mims responded Aforget you@ and hung up on the trial court.  After Mims=s emphatic  refusal to continue to participate in the hearing, the trial court heard Killough=s Application and approved payment of ad litem fees and expenses in the amount of $7,459.10.  This appeal followed. 

                                                  Motion for Continuance

In his first issue, Mims contends that the trial court abused its discretion when it denied his motion for continuance.  AThe granting or denial of a motion for continuance is within the trial court=s sound discretion.@  General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).  An appellate court may reverse a trial court for an abuse of discretion only if, after searching the record, it is clear that the trial court=s decision was arbitrary and unreasonable.  Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987).  We only find an abuse of discretion when the trial court=s decision is arbitrary, unreasonable, and without reference to guiding principles.  MercedesBBenz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).  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.BDallas 2000, pet. denied).  Parties who file a motion for continuance must show that they have exercised diligence in prosecuting the case under all applicable procedural rules.  See id.; Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). 

Mims attempted to file his motion for continuance by facsimile.  The Smith County Probate Auditor refused to file the motion because she did not have the authority to accept facsimile filings.  See Tex. Gov=t. Code '' 51.803, 51.807 (Vernon 2005); see also Loc. Smith County R. of Civ. Trial (Judicial District Courts and County Courts at Law) 1-10.  Further, Mims did not confer with Killough prior to filing his motion and did not file his motion timely.  See id. at 2.1 (requiring certificate of conference on all motions), 2.8(1) (requiring all motions for continuance to be filed in writing at least seven days prior to the hearing, except for good cause shown).  Trial courts are authorized to adopt local rules governing practice before them.  See Tex. R. Civ. P. 3a.  Litigants are charged with knowledge of local rules.  See Mayad v. Rizk, 554 S.W.2d 835, 839 (Tex. Civ. App.BHouston [14th Dist.] 1977, writ ref=d n.r.e.).  Moreover, Mims did not file an affidavit with the motion for continuance.  No application for continuance may be granted without an affidavit explaining the reason for the continuance.  See Tex. R. Civ. P. 251.

Mims did not follow the procedures established by the Texas Rules of Civil Procedure and the Smith County Local Rules in filing his motion for continuance.  Therefore, the trial court did not abuse its discretion in denying Mims=s motion for continuance.  See Dallas Indep. Sch. Dist., 27 S.W.3d at 236.  Mims=s first issue is overruled.

                                                Approval of Fee Application

In his second issue, Mims contends that the trial court abused its discretion by approving Killough=s Application for attorney=s fees and expenses.  The amount of an attorney ad litem=s fee is within the trial court=s sound discretion and, absent evidence illustrating a clear abuse of discretion, a reviewing court will not set aside the allowance.  Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 738 (Tex. App.BTexarkana 1996, no writ) (citing Simon, 739 S.W.2d at 794).  The affidavit attached to Killough=s Application provided the trial court with probative evidence necessary to substantiate the award.  See Rio Grand Valley Gas Co. v. Lopez, 907 S.W.2d 622, 626 (Tex. App.BCorpus Christi 1995, no writ). 

Because there was uncontroverted probative evidence in the record to support the attorney ad litem=s request for fees and expenses, the trial court did not abuse its discretion in granting Killough=s Application.  Mims=s second issue is overruled.

                                                                    Disposition

Having overruled both Mims=s issues, the judgment of the trial court is affirmed.

     JAMES T. WORTHEN   

     Chief Justice

Opinion delivered February 15, 2006.

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

                                                                       (PUBLISH)