### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00091- CV

Ver onica L. Davis an d Jam es A. Davis, Appellants

v. State F arm Lloyd s Texas and Ge rald Kr ouse, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0172 4, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

The unde rly ing pr ocee ding, a suit filed by

Ver onica L

. Davis and her son J ames A. Davis ag ainst State Fa

rm L loy ds Texas and Ger ald Krouse, was dismiss ed afte r the Davises filed a notice of nonsuit. The Davises then filed a motion to reinstate the case , which the trial court denied. 1 I n this appea l, the Davises challeng e sever al order s signe d by the trial court during the course of the proce eding as we ll as the trial cour t’s order deny ing the ir motion to reinstate. We will affirm.

BACK GR OUND The Davises orig i n ally sued State Fa rm and Krouse, one of its policy holders, alleg ing that State Fa

rm mishandled three claims under an automobile insurance policy arising out

Ver onica Davis, an attorney licensed to prac tice law in the State of Texas, is repr esenting 1 herse lf and he r son.of t hree separ ate motor vehicle acc idents, only one of which invol ved Kro u s e. The Davises also 2

asser ted t h at State Fa

rm mishandled a claim for mold damag e under a homeowner s insurance policy

. State Farm fi led a motion to sever the automobile claims from the mold claim. After a h ea ri n g, t he trial court signed an order sever ing the claims under the automobile insurance pol i cy from the claim under the homeowner s insurance policy

. The sever ance order also abate d the brea ch of contra ct and contra ctual claims ag ainst State Fa rm until resolution of the tort claims to deter mine liability an d d am ages, if any , arising out of the automobile acc idents. The cler k of the court there afte r dockete d the auto claims separ ately and assig ned them cause number D-1-G N-13-001724, which is the proc eeding underly ing this appe al. 3

T h er ea ft er, the trial court signe d a scheduling order setting the case for trial on J uly 20, 2015. On the Davise s’ motion, filed five day s befor e the tria l se tting, the court continued the case and rese t it for trial on November 16, 2015. That day , the Davises filed a notice of nonsuit in which they stated that they wer e not r eady for trial and there fore had “no choice but to nonsuit.” Acc ording to the notice of nonsuit, on November 14 Vero n i ca Davis was informed by the court coordina tor that Krouse’ s counsel had announce d that he wa s re ad y for the November 16 trial. Davi s n o tified the court coordina tor that she was not rea dy and, acc ording to Davis, the court coordina tor advised her to file a motion for continuance

. Davis then “filed a fa x wi t h t he court coordina tor’s office that she was out of st ate.” The noti ce of nonsuit states t hat, on the day of t he

The other

acc idents were a re ar- end collision and a c ollisi on with a dee r. 2 The homeowner s claim, dockete d under cause number D-1-G N-12-004077, was resolved 3 by summary judgme nt in State Fa rm’s favor , and that judgme nt was aff irm ed o n ap p ea l. See Davis v. State Farm Lloyds Tex. , No. 03-14-00546-CV, 2016 WL 1084177 (Tex. App.—Austin Mar. 17, 2016, pe t. denied) ( mem. op.). 2trial, the Davises we re l at e for docket call and arr ived afte r counsel for Krouse had announce d

that the parties wer e rea dy for trial. Upon her arr ival, Davis told the court that she was not rea dy and
t h at s h e h ad filed a motion for continuance

. When the court stated that there was no motion fo r continuance in the rec ord, Davis showed the court her copy . The rec ord does not include a repor ter’s

rec ord of these proce eding s. Howeve r, acc ording to the Davises’ notice of nonsuit, the court denied the motion for continuance beca use it was not verifie d. The notice of nonsuit states that Davis then informed the court that J ames Davis could not be prese nt at trial on Thursday of that wee k beca use his attendanc e at school was mandatory that day

. Acc ording to the nonsuit, althoug h the co urt proposed a trial schedule to acc ommodate J ames’s schedule , Ver onica Davis could not “handle such

an arduous schedule ” beca use it would require too many trips betwee n the courthouse and her house, which was three and a half hours awa y . The nonsuit states that the court reminded the Davises that,

as plaintiffs, they

had chose n the forum; denie d the continuance ; a nd stated that the trial would g o forwa rd. The court also appar ently struck some late-f iled medical rec ords. The Davises then filed a notice of

nonsuit, and the trial cour t signe d an orde r dismissing the ca se. One month later, the Davises filed a motion to reinstate the case they had nonsuited, arg uing that the trial court abused its discretion by deny ing the reque st for a continuance on the day of trial. Acc ording to the Davises, once the continuance was denied they could not g o forwa rd with the trial—presuma

bly beca use they wer e not prepa

red to prese nt their case —and, conseque ntly , had “no choice ” but to nonsuit their case . For this rea son, the Davises ar gu ed that the court should reinstate the case . The trial c ourt denied the motion to reinstate. This appea l followed.

3DISCUSSIO N We first consider the Da v i s es ’ arg ument, broug ht in their first issue, that the trial court’s judgme nt is interlocutory and, conseque ntly , this Court should rema nd the cause to the trial court for trial on the meri t s an d fi n al dispositi on. Acc ording to the Davises, this case dealt only with the claim ag ainst Krouse and did not addre ss either the contra ct claims ag ainst State Fa rm

or the cl ai m s ar i sing out of the acc ident with the deer and the rea r-e nd collision. The Davises’ arg ument is based on their interpre tation of a sever ance order that this Court discussed at leng th in

a prior opinion, see Davis v. State F a r m L l o yd s T exas , No. 03-14-00546- CV, 2016 WL 1084177 (Tex. App.—Austin Mar. 17, 2016, pet. denied) (mem. op.), and on an order signe d b y t h e co u rt g ranting Krouse’ s specia l exceptions in which the court stated that the issue “in this c ause shall be the persona l injury claims” ag ainst Krouse and “a separ ate trial shall be had ag ainst State Fa rm for the UM/UI M claim afte r the judgme nt has been rende red in this cause , if liability is found in excess of Mr. Krouse’ s policy limit s.” Any dispute about which claims wer e actua lly sever ed into Docke t No

. D- G- GN-13- 001724 is, howeve r, of no conseque nce to the finality of the trial court’s order d i s m i ssing the case . The trial court signe d an order dismiss ing the case afte r the Davises filed a notice of nonsuit of the entire case . “A n order that disposes of all rema ining parties and claims, based on the rec ord in the case , is final reg ardle ss of its lang uag e.” See Lehmann v. Har-Con Corp. , 39 S.W .3d 191, 200 (Tex. 2001). The dismiss al order in this case was final beca u s e i t dismiss ed whateve r claims and p ar t i es we re before it in Cause No. D-1-G N-13-001724, irrespe ctive of how the Davises char acte rize those claims or wh o t h ey b el i eve was a party to the proce eding

. We

overr ule the Da

vises’ first issue.

4I n their second issue, the Davises arg ue that the trial court er red by deny ing their

motion to transfe r venue. As previously noted, the Davises filed a notice o f n o n s u i t o f all their claims. “One unique eff

ect of a nonsuit is that it c an vitiate cer tain interlocutory order s, rende ring them moot and unappea lable.” Villafani v. Trejo , 251 S.W .3d 466, 469 (Tex. 2008) ; University of Tex. Med. Branch at Galvest o n v. E s t a t e of Blackm on ex rel. Schultz , 195 S.W .3d 98, 101 (Tex. 2006) (interlo cu t o ry ap p eal of trial court’s denial of plea to jurisdiction must be dismiss ed afte r nonsuit of p ro ce ed i n gs i n trial court); In re Benne tt , 960 S.W .2d 35, 38 (Tex. 1997) (per curia m) (plaintiff’s nonsuit has eff ect of vitiating ear lier interlocutory order s, with cer tain notable exceptions including decision on merits such as summary judgme nt); Gene ral Land Office v. OXY U.S.A., Inc. , 789 S.W .2d 569, 571 (T ex . 1 9 9 0 ) (whe n underly ing action is dismiss ed, temporar y injunction is dissolved automatically and appea l of that temporar y injunction become s moot); Huan L e v. Kirkpatrick , 112 S.W .3d 631, 634 (Tex. App.—Ty ler 2003, no pet.) (holding that nonsui t vitiates order deny ing specia l appea ranc e beca

use such order does not “re flec t [] any judgme nt on the merits of t he case” ). A m otion to transfer ve nue does not ref lect any judgme nt on the m erits of the case,

nor does it constitute a defe ndant’s pending claim for aff irmative relief

. Consequently , the Davises’ nonsuit of t he case vit iated the trial court’s order on the motion to t ransf er, r ender ing it moot and, conseque ntly , unappeal ab l e. Paselk v. Rabun , 293 S.W .3d 600, 607 n.9 (Tex. App.—Texarkana 2009, pet. denied) (complaints about trial c ourt’s i nterlocutory order s conce rning cause s of action not disposed of in pa

rtial summary

judgme nt and voluntarily dismiss ed by

nonsuit are moot). We

overr ule the Da

vises’ sec ond issue. For the same rea son, w e o v e r rule the Davises’ third issue, in which they complain that the trial court err ed in g ranting a motion to revise an order on a motion to compel discovery and for 5sanctions that the Davises had filed ag ainst Krouse, and their seventh issue, in which they appea r to complain o f t he court’s evidentiar y ruling s on cer

tain medical rec ords. We also overr ule the Davises’ fifth issue, in which they arg ue that the trial cour

t erre d by ref using to g rant a

motion for continuance they filed on the eve of trial. We do note, howeve r, that althoug h the appellate rec ord d o es n o t i n cl ude a motion for continuance filed by the Davises, both the nonsuit and motion to reinstate ref

lect that the Davises’ motion for continuance was un v er i fi ed

. Rule 251 of the Texas Rules of Civil Procedur e g overns co ntinuances and provides that no continuance may be g rante d “except for

sufficie nt cause supported by aff idavit, or by

consent of the parties, or by opera tion of law.” Tex. R. Civ. P. 251. The supreme court has instructed that g ener ally , when the movant fails
to comply with the require ment that the motion for continuance be “supported by aff idavit,” we are to presume that the trial court did not abuse its discretion in deny ing the motion. Villegas v. Carter , 7 1 1 S. W. 2 d 6 2 4 , 6 2 6 ( T e x. 1 9 8 6 )

. Co n s e q u e n tl y , w e r e it b e f

o r e u s , w e w o u ld a

p p ly th a t p r e s u mp ti o n and conclude that the trial court did not abuse its discretion in den y i n g t h e Da v ises’ unverifie d motion for continuance

. See Zeifman v. Nowli n , 322 S.W .3d 804, 811-12 (Tex. App.—Austin 2010, no pet.). I n their fourth issue, the Davises complain that the trial court err ed in s u s taining the indige ncy contest as to appellant J ames A. Davis. After the trial court sustained the contest, 4 J ames A. Davis filed a “Notice of Appea l of t he C ourt’s Denial of I ndige nce” in which he soug ht
to challeng e t h e t ri al co urt’s order

. We trea ted his notice as a motion for appellate revie w under Rule 20.1(j) of the T exas Rules of Appe llate Proce dure. See Tex. R. App. P . 20.1(j) (if tr ial court

Ver onica Davis had also filed an aff idavit of indige nce, which was contested, but withdrew 4 it before the hea

ring on the contest. 6sustains contest, party claiming indige nce may seek revie w of cour t ’s o rder by filing motion

c h a ll e n g in g o r d e r w it

h a p p e ll a te c o u r t w it h o u t a d v a n c e p a y me n t o f c o s ts )

. A f

te r r e v ie w in g th e mo ti o n and the rec ord, we conclude d that the trial court did not abuse its discretion in sustaining the contest and issued an order deny ing the motion. Davis v. State Farm Lloyds Tex. , No. 03-16-00091- CV; 2016 WL 1305774, at *1 (Tex. A pp.—Austin Ma

r. 31, 2016, order ). Thus, this Court has alrea dy deter m ined that there was no err or in sustaining the indige ncy contest as to J ames A. Davis. The Davises’ fourth appe llate issue is overr uled. I n their six th issue, the Davises asser t that the trial court err ed by deny ing the motion
to reinstate that they filed one month after the y nonsuited their ca se. We revie w an or der de ny ing

a motion to reinstate under an abuse of discretion standard. See Smith v. Babcoc k & W ilcox Constr. Co. , 913 S.W .2d 467, 468 (Tex. 1995) (per curia m) (dec ision on motion to reinstate is revie wed for abuse of discretion). The trial court ref used to reinstate the case afte r the Davises filed a nonsuit on the day of trial. On appea l, the Davises arg ue that the actions of the trial court, specific ally its denial of their unverifie d motion for continuance , “for ced” the Davises to nonsuit their case such that the denial of the motion to reinstate constituted an abuse of discretion. The rec ord does not ref lect that the trial court was in any way responsible for the Davises’ lack of prepa ration for a trial setting that had been established four m o n t h s p re v i o usly in a case that had been on file for almost four y ear s. As set forth above, the trial court did not err in deny ing the Davises’ eleve nth- h o u r u n v er ified

mo ti o n f o r a c o n ti n

u a n c e . M o r e o v e r , th e tr ia l c o u r t d id n o t e r

r b y d is mi s s in g th e c a s e a f

te r th e D a v is e s filed a nonsuit of their claims. We conclude that the trial court’s ref usal to g rant the Davises’ motion to reinstate the c ase w as not an a buse of discr etion. We overrule the Davise s’ six th issue.

7CONCLUSION Having overr

uled eac h o f the Davises’ appellate issues, we aff irm the trial court’s judgme nt.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Nove mber 17, 2016

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