

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
ROSSANA THOMPSON,
 
                                   
  Appellant,
 
v.
 
JAMES L. THOMPSON,
 
                                    Appellee.
  
 


 
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                  No. 08-10-00279-CV
 
                         Appeal from
 
 109th District Court
 
of Crane County,
  Texas
 
(TC # 5970)




 
 


 
 


 
 



                                                                  O
P I N I O N
 
            Rossana Thompson appeals from a
final decree of divorce and the subsequent denial of her motion for new trial.  For the reasons that follow, we affirm. 
FACTUAL SUMMARY
            James L. Thompson filed an original
petition for divorce on November 2, 2009. 
On December 31, Rossana filed her original answer as well as a motion
for temporary orders.  On January 21,
2010, she filed an amended answer and a counter petition for divorce.  The trial court set a final hearing date for
February 4, 2010.  But the court did not
hold a final hearing on February 4.  Instead,
over the next few months, the trial court granted several continuances at
Rossana’s request.  The first was filed
on February 2, 2010 and requested a continuance because counsel had a setting
in federal court.  The trial court
granted the motion and the case was reset for February 18.  For reasons not apparent from the record, no
hearing was held on February 18.  There was
an order filed on March 16 setting a final hearing for March 18.  Also on March 16, Rossana asked that the
March 18 hearing address only temporary orders because James had failed to
respond to discovery requests.  On March
17, Rossana filed a motion to compel discovery. 
The trial court granted the motion to compel and the final hearing was
once again continued.  On April 26, James
filed a certificate of written discovery. 
On May 6, the trial court set the final hearing for June 24.
            On May 26, Rossana’s attorney, Luis
Chavez, filed a motion to withdraw as counsel, alleging that he believed there
had been a break down in the attorney-client relationship which could not be
reconciled due to a disagreement on the method of prosecution of the case.  That motion was not set for hearing.  Rossana filed another motion for continuance
on June 16, seeking to put off the June 24 trial date.  The record does not contain a written order
granting the motion, but on July 8, the court ordered mediation to be conducted
no later than the scheduled trial date of July 22.  Rossana failed to appear for mediation on
July 12 and Chavez filed yet another motion for continuance with regard to the
July 22 trial date.  James’ attorney
objected to the continuance and on July 15, he filed a motion for sanctions,
alleging that Rossana had failed to produce discovery, failed to comply with
court-ordered mediation, failed to provide a sworn inventory and appraisement,
and failed to litigate in good faith.  The
trial court granted Chavez’s motion to withdraw on July 16.
            On July 22, six days after granting
Chavez’s motion to withdraw, the trial court proceeded with a final hearing.  Rossana requested time to find another
attorney.  The court recognized this as an
oral request for continuance. 
            On appeal, Rossana complains that
the trial court abused its discretion by granting her attorney the right to
withdraw days before the hearing when the motion did not comply with the
requirements under Rule 10, and by denying her oral motion for continuance and
requiring her to proceed without an attorney. 

MOTION FOR WITHDRAWAL OF COUNSEL
            We review a trial court’s ruling on
a motion to withdraw for an abuse of discretion.  See
Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex.App.--Dallas 2002, pet. denied)(holding
trial court abuses its discretion when it grants motion to withdraw that does
not comply with requirements of Rule 10). 
Under Rule 10 of the Texas Rules of Civil Procedure, an attorney may
only withdraw from representing a party upon written motion, “for good cause
shown.”  See Tex.R.Civ.P. 10.  The rule does not define good cause, but
courts view the Texas Disciplinary Rules of Professional Conduct as guidelines
articulating considerations relevant to a “good cause” determination supporting
a Rule 10 motion to withdraw.  See In re Posadas USA, Inc., 100 S.W.3d
254, 257 (Tex.App.--San Antonio 2001, no pet.).  If another attorney is not to be substituted
as attorney of record for the party, then the motion shall state: 
(1) a copy of the motion to withdraw has been delivered to the party; 
(2) the party has been notified in writing of their right to object to
the motion; 
(3) whether or not the party consents to the motion; 
(4) the party’s last known address; and 
(5) all pending settings and deadlines for the case. 
See TEX.R.CIV.P.
10.  Chavez’s motion did not comply with
the rule other than to demonstrate good cause.
            Rossana directs us to Integrated Semiconductor Services Inc. v.
Agilent Technologies, Inc., 346 S.W.3d 668 (Tex.App.--El Paso 2009, no pet.)
for the proposition that a court abuses its discretion by granting a motion to
withdraw that fails to satisfy the requirements of Rule 10.  Id. at
671.  To this extent, we sustain Issue
One.  Nevertheless, such error may be
harmless if the court allows the party time to secure new counsel and time for
the new counsel to investigate the case and prepare for trial.  Walton
v. Cannon, Short & Gaston, 23 S.W.3d 143, 148 (Tex.App.--El Paso 2000, no
pet.).  It is not harmless, however, when
the court grants a motion to withdraw two days before trial and then denies a
motion for a continuance.  Villegas v. Carter, 711 S.W.2d 624,
626-27 (Tex. 1986).  When the ground for
the continuance is the withdrawal of counsel, a movant must show that the
failure to be represented at trial was not due to her own fault or negligence.  Id. at
626.
DENIAL OF MOTION FOR CONTINUANCE
            We
must now determine whether the denial of Rossana’s motion for continuance was
error.  She complains that Chavez was
allowed to withdraw a mere six days before trial.  James counters that the motion to withdraw
had been pending for fifty days.  We
would find this argument persuasive if the record confirmed that Rossana knew the motion had been filed.  That is precisely the purpose of Rule 10--to
give the client notice and allow her to object. 
Instead, the gravamen of our analysis is whether Rossana established
that her failure to be represented at trial was not due to her own fault of
negligence. 
In Villegas,
the trial court allowed an attorney to withdraw only two days before trial.  711 S.W.2d at 625.  Villegas appeared pro se at the trial and requested a continuance to obtain counsel.  He explained that he had learned of the
motion to withdraw only six days earlier, he wanted to hire a particular
lawyer, the lawyer would determine whether to take the case after examining the
file, and Villegas’ former attorney had not yet turned over the file or returned
telephone calls. The trial court denied the motion and
this court affirmed.  The Supreme Court
reversed, holding that the denial of the continuance constituted an abuse of
discretion because Villegas was not
negligent or otherwise
at fault in causing
his attorney’s withdrawal.
The court granted
the motion to withdraw within too short a time frame for
Villegas to find
a new attorney
and for that new attorney to investigate the case
and prepare for
trial.  Moreover, Villegas could not obtain
a new attorney
because his former counsel refused
to turn over the files.
 In short, Villegas’ former attorney did not take reasonable steps to
avoid foreseeable prejudice
to the client.  Simply stated, the trial
court should either
have denied the
motion to withdraw or granted
the motion for continuance.  Id. at 626-27.  It did neither.  Id.
This case is wholly distinguishable, but the most significant factor is this.  Chavez filed his motion alleging a breakdown
in the attorney-client relationship, yet he continued trying to work on his
client’s behalf.  It appears from the
record that the final straw was Rossana’s failure to appear for mediation
which, by the way, was ordered at her request. 
At trial, James’ attorney recounted a litany of Rossana’s misdeeds:
Mrs. Thompson
has failed to comply with discovery.  She
failed to attend mediation.  She’s failed
to provide a sworn inventory.  And I
believe she’s failed to provide a monthly expense and income.  Irregardless, we’re still ready to go.
 
A review of the record also indicates that while James filed a sworn
inventory, a proposed division of property, and a proposed parenting plan,
Rossana filed none.  It also appears that
Chavez was her second attorney, that a third attorney filed a motion for new
trial on her behalf, and that a fourth attorney has prosecuted this
appeal.  Because we cannot conclude that
the denial of the motion for continuance was error, we overrule Issue Two and
affirm the judgment of the trial court below. 

 
March 7, 2012                                     ________________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.

