Opinion
No. 04-04-00240-CV
Delivered and Filed: March 2, 2005.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-00335, Honorable Rebecca Simmons, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
In this appeal of a final divorce decree, Richard Keenan contends that the trial court abused its discretion in denying his motion for continuance.
In addition to addressing the trial court's ruling on the continuance, Tatiana Keenan also contends that the appeal should be dismissed for lack of jurisdiction because Richard failed to serve her with a copy of his motion for new trial and notice of appeal. A timely-filed motion for new trial extends the deadlines for filing a notice of appeal even if the motion for new trial is defective. Vasquez v. Carmel Shopping Center Co., 777 S.W.2d 532, 534 (Tex.App.-Corpus Christi 1989, writ denied) (holding defective motion for new trial extends appellate deadlines); Neily v. Aaron, 724 S.W.2d 908, 911 (Tex.App.-Fort Worth 1987, no writ) (same). Furthermore, although the failure to properly serve a notice of appeal can result in dismissal, the appellant must be given notice of the defect and an opportunity to cure prior to dismissal. See Tex.R.App.P. 25.1(b), 42.3(c); Seifullah v. Heaton, No. 12-04-00339-CV, 2004 WL 2820932, at *1 (Tex.App.-Tyler Dec. 8, 2004, no pet.) (appeal dismissed where defective service not corrected after notice from clerk); Newborn v. Averheart, No. 10-04-00193-CV, 2004 WL 2066826, at *1 (Tex.App.-Waco Sept. 15, 2004, no pet.) (same). Because a timely notice of appeal was filed and the parties have fully briefed the issue presented, we address the merits of the issue raised.
We affirm the trial court's judgment.
On January 9, 2003, Richard filed his original petition. Richard sought an annulment or, in the alternative, a divorce from Tatiana. On January 24, 2003, agreed temporary orders were entered. The case was set for a non-jury trial on October 2, 2003, by agreement of the parties.
On September 30, 2003, Richard filed a motion for continuance because Tatiana had not completely responded to discovery and the case had been set on the ADR docket for October 10, 2003. Although an order is not contained in our record, Richard's second motion for continuance states that the case was reset for November 6, 2003.
On November 4, 2003, Richard filed a second motion for continuance asserting: (1) he had been unable to obtain Tatiana's INS records; (2) he needed additional time to obtain financial information regarding the community estate; (3) no ADR had been attempted; and (4) he was unable to effectively work with counsel and needed time to retain new counsel. Richard's second motion for continuance was granted, and the case was reset to November 26, 2003. The trial court's order states, "No more continuances."
On November 21, 2003, Richard filed a third motion for continuance asserting: (1) his counsel was newly retained and insufficiently prepared; (2) he was scheduled for dialysis treatment and would be unable to attend court and he was not in good health; and (3) discovery was not complete. The trial court denied the continuance and granted the divorce.
On appeal, Richard contends that the trial court abused its discretion in denying his continuance because of his ill health.
The trial court's ruling on a motion for continuance may not be reversed unless an appellant shows a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). A motion for continuance based on the absence of testimony must be supported with an affidavit showing: (1) the substance of the testimony; (2) the materiality of the testimony; and (3) the movant's due diligence to procure such testimony. See Tex. R. Civ. P. 252. In addition, a trial court does not abuse its discretion in denying a motion for continuance on the basis of a party's health absent a supporting affidavit from medical personnel stating it was impossible, from a medical standpoint, for the party to appear in court or that it would endanger the party's health to appear in court. Olivares v. State, 693 S.W.2d 486, 490 (Tex.App.-San Antonio 1985, writ dism'd). In this case, Richard's third motion for continuance was not supported by an affidavit regarding the substance and materiality of his testimony or by an affidavit from medical personnel regarding the reason his health prevented him from appearing in court. Accordingly, the trial court did not abuse its discretion in denying the continuance.
The trial court's judgment is affirmed.