Kyle Kirby v. Rhonda Marie Kirby
13-13-00718-CV
| Tex. App. | Nov 30, 2015Background
- Kyle Kirby (appellant) appealed a final divorce decree entered in Victoria County, Texas.
- Appellant filed two motions for continuance before a December 3, 2013 trial, claiming (1) he would be unavailable and (2) he needed more time for discovery related to reimbursement claims.
- The trial court denied the continuances, proceeded to trial, and entered a final divorce judgment.
- The decree awarded certain property that belonged to a non-party (appellee’s son) and ordered appellant to transfer registration of community-owned firearms to himself; it also required appellant to post a $3,500 bond related to the non-party property.
- Appellant moved to disqualify appellee’s trial counsel, alleging counsel had obtained confidential information in a prior (non-party) proceeding.
- On appeal, the Court of Appeals considered four issues: denial of continuance, jurisdiction to divest non-party property and order firearm registration, and denial of motion to disqualify counsel.
Issues
| Issue | Plaintiff's Argument (Kirby) | Defendant's Argument (Rhonda Kirby) | Held |
|---|---|---|---|
| 1. Denial of continuance for appellant's unavailability | Continuance required because appellant could not attend trial due to work | Trial court properly denied; appellant failed to show testimony was material or meet Rule 252 requirements | Denial not an abuse of discretion; issue overruled |
| 2. Denial of continuance for additional discovery | Needed more time to pursue reimbursement discovery | Appellant did not show due diligence or materiality; some claims abandoned by appellee | Denial not an abuse of discretion; issue overruled |
| 3. Division of property belonging to a non-party; $3,500 bond | Trial court had no jurisdiction to award non-party property or require bond | Appellee concedes error on awarding non-party property and bond | Court sustains this issue; reverses those portions and remands |
| 4. Order to transfer registration of community firearms to appellant | Trial court lacked jurisdiction and ordered an impossible transfer of firearm registration | Appellee concedes lack of jurisdiction to order such registration transfer | Court sustains this issue; reverses that portion and remands |
| 5. Motion to disqualify appellee’s trial counsel | Counsel previously obtained confidential information in a prior proceeding, creating a disqualification ground | No evidence of prior attorney-client relationship or that confidences would be used; motion was unsupported | Denial of disqualification not an abuse of discretion; issue overruled |
Key Cases Cited
- Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986) (standard for reviewing continuance rulings; abuse of discretion requires clear showing)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (factors for evaluating continuance for additional discovery)
- Chesapeake Operating, Inc. v. Denson, 201 S.W.3d 369 (Tex. App.—Amarillo 2006) (trial court lacks jurisdiction to enter judgment for a non-litigant)
- NCNB Texas Nat. Bank v. Coker, 765 S.W.2d 398 (Tex. 1989) (abuse of discretion when trial court applies improper legal standard to motion to disqualify counsel)
- McAleer v. McAleer, 394 S.W.3d 613 (Tex. App.—Houston 2012) (discretion review and limits on appellate substitution of judgment)
Conclusion: The court affirmed the divorce judgment except it reversed and remanded the portions awarding non-party property, imposing the $3,500 bond, and ordering transfer of firearm registrations, because the trial court lacked jurisdiction over those matters.