                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00047-CV


RAMON RUIZ                                                            APPELLANT

                                         V.

SELENE PEREGRINO RUIZ                                                   APPELLEE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2012-30679-211

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                         MEMORANDUM OPINION 1

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      Appellant Ramon Ruiz appeals from a final divorce decree. In four points,

he argues that the trial court abused its discretion by denying his motion for new

trial, by mischaracterizing property owned by neither party as community

property resulting in an inequitable division of the parties’ community property, by



      1
       See Tex. R. App. P. 47.4.
denying his motion for a continuance to obtain new counsel, and by permitting

his counsel to withdraw on the day of trial. We affirm.

                                Background Facts

      Appellant and appellee Selene Peregrino Ruiz married in 1990 and have

one child. In August 2012, appellee filed for divorce. After initially representing

himself, appellant retained counsel. During discovery, appellant did not respond

to a request for disclosures and a request for production. Additionally, appellant

failed to attend a scheduled mediation and consented to the withdrawal of two

attorneys before the case was set for trial.

      Eight days before trial, appellant’s third counsel filed a motion to withdraw,

claiming he was “unable to effectively communicate with [appellant] in a manner

consistent with good attorney-client relations.” With appellant’s agreement, the

trial court granted counsel’s motion immediately prior to trial. At trial, appellant

refused to testify or present any evidence without a lawyer present. After the trial

court signed the decree, appellant retained new counsel and filed a motion for

new trial in which he challenged the property division in the decree. After a

hearing, the trial court denied appellant’s motion for new trial, and this appeal

followed.

                                Property Division

      In his first point, appellant argues that the trial court abused its discretion

by denying his motion for new trial because he presented clear and convincing

evidence proving that the trial court improperly considered property owned by


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neither party as community property, thus resulting in an inequitable division of

the marital estate. See Tex. R. Civ. P. 320. In his third point, appellant argues

that the trial court reversibly erred by mischaracterizing property owned by

neither party as community property, thus failing to divide the parties’ community

property in a “just and right” manner.

Standard of Review and Applicable Law

       We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. In re United Scaffolding, Inc., 377 S.W.3d 685, 687 (Tex. 2012) (orig.

proceeding). A new trial may be granted upon a showing of good cause. Tex. R.

Civ. P. 320; In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290

S.W.3d 204, 210 (Tex. 2009) (orig. proceeding). Although the Texas Rules of

Civil Procedure do not define “good cause,” courts have interpreted the term to

mean not just any cause. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d

at 210 n.3.    For example, mistakes made by a party or his attorney in trial

strategy do not constitute good cause for the granting of a new trial. Malooly

Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Similarly, an appellant’s

failure to fully develop or use available evidence does not constitute good cause.

See White v. Wah, 789 S.W.2d 312, 320 (Tex. App.—Houston [1st Dist.] 1990,

no writ).

       The trial court enjoys great latitude when dividing the estate of the parties.

Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). Because the trial court enjoys

the presumption of propriety, any party opposing the partition bears a heavy


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burden of proof. Id. at 699; Wilson v. Wilson, 44 S.W.3d 597, 600 (Tex. App.—

Fort Worth 2001, no pet.). Thus, a property division should only be disturbed on

appeal when an appellant can prove an abuse of discretion. Wilson, 44 S.W.3d

at 600.   While legal and factual sufficiency are relevant factors in assessing

whether the trial court abused its discretion, they are not independent grounds of

error. Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex. App.—Fort Worth 2003, no

pet.) (op. on reh’g).

Application

      Appellant’s motion for new trial identifies twenty-seven automobiles and

one tract of residential real property awarded to him in the decree that he claims

he does not own.        Appellant attempted to introduce certified copies of deed

records and motor vehicle records at the new-trial hearing to prove that he did

not own this property, but the trial court refused to admit the evidence because

appellant had not responded to discovery requests seeking information about his

business and personal assets. The trial court did admit the evidence for record

purposes, however.

      Appellant contends that the trial court reversibly erred by not considering

the evidence he proffered at the motion for new trial hearing. However, even

considering this evidence, appellant has not shown that the resulting property

division was inequitable.

      The trial court awarded appellee the parties’ residence, valued at

approximately $201,040, all personal items and accounts in her possession and


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under her control, and a 2007 vehicle valued at about $3,000. The trial court

awarded appellant three tracts of real property:      2800 Mistywood valued at

approximately $114,000, 1843 Castille Drive valued at approximately $130,403,

and 1010 Audra Lane, valued at approximately $62,414. The trial court also

awarded appellant, in addition to personal items and accounts in his possession,

(1) a 2008 truck valued at approximately $5,000, (2) “[a]ll the motor vehicles

listed on the DPS website registered in [his] name,” (3) “[o]ne hundred (100%) of

the business, Shar Custom Homes, LLC,” and (4) “[a]ll property, profits, interest,

[and] banking accounts associated with Shar Custom Homes, LLC.”

      At trial, appellee testified that although appellant had sold the property on

Mistywood, he had provided owner financing and was receiving monthly

payments on the loan. She also provided evidence showing that Shar Custom

Homes, LLC owned the property on Audra Lane and that appellant was the

owner, sole officer, and registered agent of Shar Custom Homes, LLC, formed on

August 13, 2004. Appellee additionally testified that appellant had an auto sales

business, and she presented evidence that either he or Shar Custom Homes

owned at least seventeen vehicles, as well as evidence that either he or Shar

Custom Homes was a first or second lienholder on at least thirty-two vehicles.

Appellee also testified that she was seeking ownership of the parties’ residence

because she was the person who would have primary custody of their son.

      At the new-trial hearing, appellant presented evidence that a different

Ramon Ruiz owned the property on Castille.         However, he did not present


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evidence refuting appellee’s testimony that he received a monthly income stream

from the sale of Mistywood, nor did he challenge his ownership of Shar Custom

Homes or its ownership of the property on Audra Lane.           Additionally, while he

presented evidence that he was no longer an owner or lienholder of eight of the

vehicles registered with the State, he did not refute appellee’s evidence that he

still owned at least ten vehicles and was a first lienholder on at least thirty-one. 2

      Further, appellee testified that she disclaimed any interest in Shar Custom

Homes, appellant’s automobile business, and any property owned by those

businesses. The clear intent of appellee’s proposed property division was that,

having primary custody of their son, she be awarded the house. In exchange,

she disclaimed any interest in any property––owned by appellant outright or from

which he was obtaining income––related to his business ventures. Accordingly,

we conclude and hold that––even considering the evidence that the trial court

refused to consider at the new trial hearing––appellant did not show that the

property division was unjust or inequitable.         Thus, he has not shown any

reversible error by the trial court related to the property division in the decree.

See Tex. R. App. P. 44.1(a).

      Accordingly, we overrule appellant’s first and third points.




      2
       Appellant’s own new-trial evidence confirmed that he owned two vehicles
that appellee had claimed he owned and was a first lienholder on nineteen.


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                            Motion for Continuance

      In his second point, appellant complains that the trial court abused its

discretion by denying his motion for continuance to obtain new counsel.

Appellant explains that although he never formally requested a continuance—

either orally or in writing—and although he consented to his counsel’s

withdrawal, the trial court erred by refusing to delay proceedings so that he could

hire new representation.

      We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800

(Tex. 2002). When the ground for continuance is the withdrawal of counsel, the

movant must show that the failure to be represented at trial was not due to his or

her own fault or negligence. Tex. R. Civ. P. 253; Villegas v. Carter, 711 S.W.2d

624, 626 (Tex. 1986); Zetune v. Jafif-Zetune, 774 S.W.2d 387, 391 (Tex. App.—

Dallas 1989, writ denied), cert. denied, 498 U.S. 813 (1990). When considering

a motion for continuance, the trial court may take into account the entire

procedural history of the case. See Qurashi v. Jabeen, No. 14-12-00858-CV,

2013 WL 2644182, at *3 (Tex. App.—Houston [14th Dist.] June 11, 2013, pet.

denied) (mem. op.).

      Before filing a motion to withdraw, appellant’s third attorney had filed a

motion for continuance, which the trial court denied, giving the parties ten days to

prepare for trial. Counsel filed his motion to withdraw two days later, eight days

before trial. In the good cause for withdrawal section, appellant’s attorney stated


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that “[appellant] no longer wishes to retain [his attorney] and wishes to represent

himself. Alternatively, [appellant’s attorney] is unable to effectively communicate

with [appellant] in a manner consistent with good attorney-client relations.”

Although counsel also represented in the motion that appellant had not

consented to the withdrawal, appellant signed an agreed order granting the

motion to withdraw on the day of trial. The agreed order recited that the motion

was delivered to appellant and that he “consented to the motion.”

      When the trial court asked appellant at trial, “What is it you want me to do

today,” appellant responded as follows:

      I don’t have an attorney because I didn’t -- I didn’t have money to
      pay this attorney. After the last minute he asked me for $4,000,
      which I don’t have. I just started work. And then I’m just waiting for
      a -- a bunch of people. If you can please give me a chance to get a
      lawyer, good lawyer, because here is some evidence where the --
      where they -- they are proving something false . . . .

At that point, the trial court stopped appellant and asked him what he wanted

awarded and what he wanted to happen regarding custody. Because appellant

appeared to be having trouble understanding the trial court, an interpreter began

interpreting for appellant.

      The trial court filed written findings of fact and conclusions of law, in which

it found that on the day of trial, appellant was present with his attorney, that




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appellant requested the trial court to allow his attorney to withdraw, and that

appellant elected to represent himself. 3

      This case is similar to State v. Crank. 666 S.W.2d 91, 94 (Tex.) (op. on

reh’g), cert. denied, 469 U.S. 833 (1984).      Crank had already received two

continuances when he asked for a third continuance on the day of an

administrative hearing seeking time to voluntarily substitute new legal counsel.

Id. at 93. The supreme court held that the denial of the third continuance was not

an abuse of discretion because Crank had ample notice of the date of the

hearing and yet failed to present his motion for continuance until the day of the

hearing.   Id. at 94.   Here, the trial court could take into consideration that

appellant had already consented to the withdrawal of two prior attorneys, that he

had had at least a week to obtain new counsel after his third attorney filed a

motion to withdraw, that he had acquiesced to the granting of the third motion to

withdraw on the day of trial, and, thus, that appellant’s lack of representation was

due to his own fault or negligence. We conclude and hold that the trial court did

not abuse its discretion by denying the motion for continuance. See id.; Qurashi,

2013 WL 2644182, at *4–5; In re Marriage of Roberson, No. 05-07-01061-CV,

2008 WL 4868345, at *4 (Tex. App.––Dallas Nov. 12, 2008, no pet.) (mem. op.).

      Therefore, we overrule appellant’s second point.


      3
       To the extent that the trial court communicated with appellant or
appellant’s counsel about the motion before signing the agreed order, those
communications are not included in the reporter’s record of the trial.


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                             Withdrawal of Counsel

      In his final point, appellant argues that the trial court abused its discretion

by allowing his counsel to withdraw on the day of trial.        Although appellant

agreed to the withdrawal order, he now contends that the trial court should not

have granted it because the withdrawal adversely affected his interests.

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). The objecting party must also get a ruling, either express or implied,

from the trial court. Tex. R. App. P. 33.1(a)(2), (b); Frazier v. Yu, 987 S.W.2d

607, 610 (Tex. App.—Fort Worth 1999, pet. denied). If the trial court refuses to

rule, an objection to the refusal to rule is sufficient to preserve error. Tex. R.

App. P. 33.1(a)(2). However, if a party fails to do this, error is not preserved, and

the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op.

on reh’g).

      Appellant failed to preserve his final point for appeal. Although appellant

did remark several times at trial that he wanted an attorney, at no point did he

object to the trial court’s allowing his attorney to withdraw and, in fact, agreed to

the withdrawal immediately before the trial began. Similarly, appellant failed to

argue in his motion for new trial or during the hearing on his motion for new trial

that the trial court had erred by approving and signing the agreed withdrawal


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order. Appellant’s complaint at trial was that he did not want to go to trial without

a new attorney, not that the trial court incorrectly allowed his third counsel to

withdraw. Accordingly, we conclude and hold that appellant did not preserve this

complaint for our review, and we overrule appellant’s fourth point.         See id.;

Bonacci v. Bonacci, 420 S.W.3d 294, 299–300 (Tex. App.––El Paso 2013, pet.

denied).

                                    Conclusion

      Having overruled all four of appellant’s points, we affirm the trial court’s

judgment.


                                                    /s/ Terrie Livingston

                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: September 4, 2014




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