                              NUMBER 13-13-00718-CV

                                COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


KYLE KIRBY,                                                                     Appellant,

                                                 v.

RHONDA MARIE KIRBY,                                                              Appellee.


                     On appeal from the 24th District Court
                          of Victoria County, Texas.


                              MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
            Memorandum Opinion by Chief Justice Valdez

       Appellant, Kyle Kirby, appeals from a final divorce judgment. By four issues,

appellant contends that (1) the trial court abused its discretion when it denied his motion

for continuance, (2) the trial court lacked jurisdiction to divide property belonging to a non-
party,1 (3) the trial court lacked jurisdiction to order him to transfer the registration of

firearms belonging to the community estate, and (4) the trial court abused its discretion

by denying his motion to disqualify appellee, Rhonda Marie Kirby’s, trial attorney. We

reverse and remand in part and affirm in part.2

                                     I.      MOTION FOR CONTINUANCE

          By his first issue, appellant contends that he timely filed motions for continuance

when good cause existed and that the trial court improperly denied his motions.3

Specifically, appellant argues that his motions for continuance should have been granted

because (1) he could not be present at the December 3, 2013 divorce trial, and (2) he

needed more time to conduct discovery.

          We will reverse a trial court’s ruling on a motion for continuance if there is a clear

abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (explaining that

the record must show a clear abuse of discretion before the appellate court will disturb

the trial court’s action on a motion for continuance). A trial court abuses its discretion if it

acts in an arbitrary and unreasonable manner or without reference to guiding rules or

principles. McAleer v. McAleer, 394 S.W.3d 613, 617 (Tex. App.—Houston 2012, no

pet.); see State v. Crank, 666 S.W.2d 91, 93 (Tex. 1984). We may not substitute our own

judgment for that of the trial court in matters committed to the trial court’s discretion.



          1   The trial court ordered the distribution of property belonging to appellee’s son in the divorce
decree.
        2 As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them

here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See
TEX. R. APP. P. 47.4.
          3
         Appellant filed two motions for continuance in the trial court. On appeal, appellant generally
challenges the trial court’s denial of his motions. Thus, we have reviewed both motions for purposes of this
appeal.


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McAleer, 394 S.W.3d at 617. Texas Rule of Civil Procedure 251 provides that a motion

for continuance cannot 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.

       First, appellant argues that his motion for continuance should have been granted

because he was not able to attend the trial. When a continuance is sought because of

the unavailability of a party, the rules governing unavailability of witnesses apply. In re

Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 27 (Tex. App.—Corpus Christi 2010,

no pet.). Texas Rule of Civil Procedure 252 governs whether a continuance may be

granted on the basis that a party or witness will be absent. Id. “A trial court is not required

to grant a motion for continuance just because a party is unable to be present at trial.”

Id.; Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex. App.—Beaumont 1996, writ.

denied) (citing Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989,

no writ)). Texas Rule of Civil Procedure 252 states:

                If the ground of such application be the want of testimony, the party
       applying therefor shall make affidavit that such testimony is material,
       showing the materiality thereof, and that he has used due diligence to
       procure such testimony, stating such diligence, and the cause of failure, if
       known; that such testimony cannot be procured from any other source; and,
       if it be for the absence of a witness, he shall state the name and residence
       of the witness, and what he expects to prove by him; and also state that the
       continuance is not sought for delay only, but that justice may be done;
       provided that, on a first application for a continuance, it shall not be
       necessary to show that the absent testimony cannot be procured from any
       other source.

TEX. R. CIV. P. 252.

       Here, only appellant’s second motion for continuance stated that he sought a

continuance on the basis that he would not be able to attend the trial due to his work

schedule. However, appellant did not state that his presence and testimony at trial was



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material, he made no offering of what testimony or evidence he planned to present, and

he did not show that any such evidence could not be procured by means other than his

attendance at the trial. See In re Guardianship of Cantu de Villarreal, 330 S.W.3d at 27

(concluding that appellants had not shown that the trial court abused its discretion by

denying their motion to suppress because, although the appellants claimed that they were

unavailable for the proceeding, “appellants did not argue that their presence and

testimony at the [proceeding] was material, they made no offering of what testimony or

evidence they planned to present, and they did not show that any such evidence could

not be procured by means other than their attendance at [the proceeding]”). Accordingly,

we cannot conclude that the trial court clearly abused its discretion by denying appellant’s

motion for continuance on this basis.

        Next, appellant argues that the trial court should have granted his motion for a

continuance because he needed more time for discovery. In Joe v. Two Thirty Nine Joint

Venture, the Texas Supreme Court set out that, when deciding whether the trial court had

abused its discretion in denying a motion for continuance seeking additional time to

conduct discovery, it had considered a nonexclusive list of factors which included the

following: “the length of time the case has been on file, the materiality and purpose of the

discovery sought, and whether the party seeking the continuance has exercised due

diligence to obtain the discovery sought.”4 145 S.W.3d 150, 161 (Tex. 2004).




        4 Regarding further discovery in his first motion for continuance, appellant stated the following:
“Both Petitioner and Respondent have asserted claims for reimbursement. Discovery needs to be under
taken to determine the basis for these claims.” That is the extent of appellant’s discovery argument in his
motion.


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        In his first motion for continuance, appellant alleged that further discovery was

required because both he and appellee had filed claims for reimbursement. However, at

trial, appellee abandoned her claim for reimbursement, and the trial court did not award

her any reimbursement.                Therefore, discovery regarding appellee’s claim for

reimbursement was not material to the issues at the trial. See id. Appellant also sought

discovery of his own claims of reimbursement from appellee’s separate estate to his

separate estate, reimbursement from the community estate to his separate estate, and

reimbursement from appellee’s separate estate to the community estate. However, in his

first motion for continuance, appellant neither argued nor showed that he had exercised

due diligence to obtain the discovery sought.5 See id.; Grace v. Duke, 54 S.W.3d 338,

343 (Tex. App.—Austin 2001, pet. denied) (“A motion for continuance seeking time for

discovery must comply with rule 252, and must, among other things, describe the

evidence sought, explain its materiality, and show the party requesting the continuance

has used due diligence to obtain the evidence.”) (citing TEX. R. CIV. P. 252; Hatteberg v.

Hatteberg, 933 S.W.2d 522, 527 (Tex. App.—Houston [1st Dist.] 1994, no writ); Texas

Dep’t of Human Servs. v. Green, 855 S.W.2d 136, 147 (Tex. App.—Austin 1993, writ

denied)). Accordingly, we cannot conclude that the trial court clearly abused its discretion

by denying appellant’s first motion for continuance on that basis.

        Appellant did not allege in his second motion for continuance that he needed more

time for discovery. However, at a hearing held on his second motion for continuance,

appellant’s trial counsel orally stated that the parties’ claims for reimbursement required


        5 Appellee points out in her brief, and the record reflects, that on November 26, 2013, the trial court
held a hearing on appellant’s motion for continuance. However, appellant has not provided this Court with
a transcript of that proceeding.


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further discovery necessitating a continuance.                This argument was made without a

supporting affidavit, as required by the Texas Rules of Civil Procedure. See TEX. R. CIV.

P. 251 (requiring that a motion for continuance shall only be granted on sufficient cause

supported by affidavit). Accordingly, we cannot conclude that the trial court abused its

discretion by denying appellant’s oral motion for a continuance on that basis. Having

determined that the trial court did not abuse its discretion by denying appellant’s first and

second motions for continuance, we overrule appellant’s first issue.6

                                  II.     DIVISION OF THE PROPERTY

        By his second issue, appellant contends that the trial court lacked subject-matter

jurisdiction to award property that belongs to a non-party and to order him to post a $3500

bond until such property has been returned to the non-party. Appellee concedes that the

trial court erred and requests that we reverse the judgment on that basis. Accordingly,

we sustain appellant’s second issue. See Chesapeake Operating, Inc. v. Denson, 201

S.W.3d 369, 373 (Tex. App.—Amarillo 2006, pet. denied) (“A trial court lacks jurisdiction

to enter judgment for a non-litigant; to do so constitutes fundamental error on its part if

the error is apparent from the face of the record.”).7

                 III.    REGISTRATION OF FIREARMS OWNED BY THE COMMUNITY

        By his third issue, appellant contends that the trial court lacked jurisdiction to order

him to transfer the registration of firearms owned by the community estate to his name.




        6 On appeal, appellant has not argued that he exercised due diligence to obtain the discovery

sought. See TEX. R. APP. P. 38.1(i).
          7 We note that error is apparent from the face of the record because appellee’s son was not a party

or litigant in the divorce proceeding.


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Appellee concedes that the trial court had no jurisdiction and requests that we reverse

this portion of the judgment. Accordingly, we sustain appellant’s third issue.8

                                    IV.     MOTION TO DISQUALIFY

        By his fourth issue, appellant contends that the trial court abused its discretion by

denying his motion to disqualify appellee’s trial counsel. Specifically, appellant argues

that, although not a party, in a prior proceeding, appellee’s trial counsel acquired

confidential information from him.

        “[B]ecause disqualification is a severe remedy, the trial courts must adhere to an

exacting standard so as to discourage the use of a motion to disqualify as a dilatory trial

tactic.” In re Chonody, 49 S.W.3d 376, 379 (Tex. App.—Fort Worth 2000, no pet.). To

show entitlement to a motion for disqualification,

               the movant must prove by a preponderance of the evidence the
        existence of a prior attorney-client relationship in which the factual matters
        involved were so related to the facts in the pending litigation that it involved
        a genuine threat that confidences revealed to his former counsel will be
        divulged to his present adversary or used to his disadvantage.

Id.

        Here, appellant does not allege that a prior attorney-client relationship actually

existed and argues instead that an attorney “is disqualified in engaging in representation

against a person with whom that person believed an attorney-relationship existed.”

Appellant cites no authority, and we find none, supporting appellant’s argument.

Moreover, appellant points to no evidence in the record that the factual matters involved



        8 Appellant states that there is no mechanism in Texas which allows, directs, mandates, requires,
or enables a gun owner to transfer, register, or document a change of ownership of a firearm after an initial
purchase. Appellee agrees with appellant stating that the trial court lacked jurisdiction to order appellant
“to perform an impossibility, i.e., transfer the registration of certain firearms owned by the community into
[appellant’s] name only.”


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in the prior proceeding were so related to the facts in the pending divorce litigation that it

involved a genuine threat that confidences revealed to his former counsel would have

been divulged to his present adversary or used to his disadvantage. See id. Therefore,

we cannot conclude that the trial court abused its discretion in denying appellant’s motion

to disqualify appellee’s trial counsel. See NCNB Texas Nat. Bank v. Coker, 765 S.W.2d

398, 400 (Tex. 1989) (explaining that the trial court’s “failure to apply the proper standard

of law to the motion to disqualify counsel was an abuse of discretion”). We overrule

appellant’s fourth issue.

                                    V.      CONCLUSION

       We reverse in part those portions of the trial court’s judgment awarding property

to a non-party, requiring a $3500 bond, and requiring that appellant transfer the

registration of the firearms belonging to the community to himself and remand for entry of

a judgment consistent with this opinion. The judgment is affirmed in all other respects.



                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Delivered and filed the
30th day of November, 2015.




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