The opinion
JACKSON B. SMITH, Jr., Justice, 1
dissenting.
I respectfully dissent from the majority opinion because I believe the trial judge did not err in denying appellants’ motion for a continuance.
*491 Appellants, H.W. Higginbotham and Merle Lynette Higginbotham, have raised five points of error. The first two points of error complain of the trial court’s refusal to afford appellants a jury trial and its overruling their motion to grant a continuance. This latter action was taken by the court after the court had announced it would proceed to hear the case in a bench trial.
I agree with the majority opinion in holding that because the litigants had not filed their request for a jury trial with the district clerk, had not paid a jury fee to the district clerk, and a jury was not available, appellants had not met the statutory requirements of Tex.R.Civ.P. 216 to obtain a jury trial. Thus I am of the opinion that the majority opinion correctly overruled appellants’ first point of error. Appellants’ second point of error complains that the trial court abused its discretion in overruling its motion for a continuance. The majority opinion agrees with the appellants’ contention and reverses and remands the case to the trial court. I disagree with that decision.
It is well established that the granting or denial of a motion for continuance is within the trial court’s sound discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988). Further, unless the record shows a clear abuse of discretion by the trial court in its ruling for a continuance, the trial court will not be reversed. Id.
A general test to determine whether a trial court has abused its discretion is “whether the court acted without reference to any guiding rules or principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159 , 106 S.Ct. 2279 , 90 L.Ed.2d 721 (1986); Petitt v. Laware, 715 S.W.2d 688, 690 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). For many years, the Texas intermediate courts have applied a more specific standard in determining whether a trial court abused its discretion in denying or granting a motion for a continuance: a trial court should grant a motion for continuance only if (1) it would not cause injury to the adverse party through postponement of the trial; and (2) it would not disrupt the court’s docket or interfere with the handling of the court’s business. Lenamond v. North Shore Supply Co., 667 S.W.2d 283, 285 (Tex.App.—Houston [14th Dist.] 1984, no writ); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.); Henderson v. Youngblood, 512 S.W.2d 35, 37 (Tex.Civ.App.—El Paso 1974, no writ).
The burden of showing that a trial court abused its discretion is upon the party making such allegation. See Turk v. First Nat’l Bank, 802 S.W.2d 264, 266 (Tex.App.—Houston [1st Dist.] 1990, writ denied). We apply the above standard to the facts of the present case to determine whether appellants have met their burden.
Addressing first the question of whether the granting of a continuance would not harm the adverse party, we look at the evidence and the court’s findings of fact.
The court found in its judgment that to grant a continuance for the purpose of securing a jury would cause injury to ap-pellee, Collateral Protection, Inc., by postponing the trial, and that to grant a continuance for the purpose of securing a jury would disrupt the court’s docket and interfere with the efficient handling of the court’s business.
This suit was filed on July 19, 1990. After appellants were granted a continuance in December 1991, the court gave this suit preferential number one setting for trial on May 16, 1992. On the day of trial, after appellants’ announcement of “ready for a jury trial” and “not ready for a non-jury trial,” the court listened to arguments of counsel and advised the parties that it would proceed with a “bench trial.” Appellants’ motion for a continuance primarily addresses the topic of why they are entitled to a jury trial rather than why a continuance should be granted. There is no allegation in the motion that appellee would not be harmed by the granting of a continuance.
Appellee in pertinent part informed the court as follows:
*492 If a jury is not available then the granting of a jury trial will entail delay. My client has had this three million dollar claim hanging over its head and his company’s head since January of 1990, for over two years. It has impaired their ability to function. It has impaired their negotiations with respect to particular business transactions. My client wants to get this matter disposed of.
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Well, it’s certainly our position that the postponement of this trial would cause substantial prejudice to my client, and we are prepared to go forward and offer proof with respect to pendency of transactions, transactions which have been delayed and which they are unable to consummate because of the pendency of this claim. They furnished audited financial statements and the company that furnishes audited financial statements is required to disclose the pendency of contingent claims.
The record does not show that appellants attempted to rebut or negate appellee’s claim of harm or even addressed the issue of proving no harm to the adverse party. Thus, appellants failed to meet the first element of the standard applied in Lena-mond and Childs .
Appellants were also required to show that a continuance would not disrupt the court’s docket or interfere with the court’s handling of business.
Appellants’ only statement in their motion for continuance was: “Surely, it cannot be said that the granting of the continuance — would disrupt the court’s docket, as this case has been pending on the jury docket at least since January of 1992.” This statement belies the facts of the case.
The facts show that the case was set for trial in December 1991. The court granted appellants a continuance and at the same time set the case preferentially for trial in May 1992. When appellants filed their motion for continuance in May, the court gave the parties a lengthy explanation of how its multi-county dockets were set, why it could not give them another setting until sometime in 1993, and why this would be disruptive to the court’s docket since this case had been preferentially set for May 26, 1992.
It is self-evident from these facts that the trial court’s dockets are overloaded. The first continuance caused a delay in getting to trial of approximately five months. The second motion, if granted, would have caused a further delay of over seven months. In May 1992 the case had been on file approximately 22 months.
In the present case, appellants offered no evidence to sustain their burden of showing that the granting of their motion for continuance would not disrupt the court’s docket or interfere with the court’s handling of business. The evidence was to the contrary. Thus appellants have failed to meet the second element of the standard applied in Lenamond and Childs to obtain a continuance. The trial judge did not err in denying appellants’ motion for a continuance. I would overrule appellants’ point of error two.
The facts of this case are a good example of the dilemma the Texas trial judges face on a daily, weekly, and monthly basis. They are under mandates from the federal and state higher courts to afford litigants, criminal and civil, speedy trials while the trial courts case loads become heavier and heavier. It is manifest that if justice is to be served, all litigants must receive a speedy trial. In this case, the trial court properly followed the law and mandates of the higher courts.
As heretofore stated, I respectfully dissent to the majority opinion whereby it remands this case for a new trial. I would overrule appellants’ first two points of error and proceed to address their other points of error, thereby making a full disposition of the appeal of this case.
. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.