                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
           ___________________________
                No. 02-18-00263-CV
           ___________________________

GADBERRY CONSTRUCTION COMPANY, INC., Appellant

                           V.

ROBERT RANEY D/B/A STAMPED CONCRETE, Appellee



        On Appeal from the 141st District Court
                Tarrant County, Texas
            Trial Court No. 141-291001-17


          Before Kerr, Birdwell, and Bassel, JJ.
         Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       In two issues, Gadberry Construction Company, Inc. challenges the trial court’s

order granting its prior counsel’s withdrawal motion and denying its continuance

motion seeking to reopen discovery and to postpone an upcoming summary-

judgment hearing and bench trial. We will affirm.

                                         Background

       This case arises from Gadberry’s alleged failure to pay Robert Raney d/b/a

Stamped Concrete for work Raney did on a commercial-construction project. In

March 2017, Raney sued Gadberry for breach of contract, quantum meruit,

promissory estoppel, and theft of service. Gadberry counterclaimed for breach of

contract and for violations of the Texas Deceptive Trade Practices Act.

       On April 2, 2018, Raney moved for no-evidence summary judgment on

Gadberry’s counterclaims and set the motion for hearing on April 27. See Tex. R. Civ.

P. 166a(i). Thus, Gadberry’s summary-judgment response would have been due on

April 20. See Tex. R. Civ. P. 166a(c).

       On April 11, 2018, Gadberry’s counsel moved to withdraw because she was

“unable effectively to communicate with Gadberry in a manner consistent with good

attorney-client relations” and because Gadberry had not paid the additional retainer

that she had requested. Neither Gadberry nor Raney opposed the motion. As the only

pending    settings   and   deadlines,     the   motion   listed   Gadberry’s   corporate

representative’s upcoming deposition scheduled for April 18 and a May 21 trial
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setting; it did not list the summary-judgment-response deadline or the summary-

judgment-hearing setting. See Tex. R. Civ. P. 10 (requiring a withdrawal motion filed

without designating a substitute attorney to state, among other things, all pending

settings and deadlines). The trial court granted the motion on April 13.

       Gadberry hired new counsel four days later on April 17, 2018, and Raney

agreed to postpone Gadberry’s corporate representative’s deposition to April 19.

Even though Gadberry had retained counsel, it did not file a response to the

summary-judgment motion on April 20. Instead, on April 23, it moved to continue

the summary-judgment hearing, to extend its deadline to respond to the motion, to

reopen discovery, and to continue the trial setting. The trial court heard Gadberry’s

continuance motion and Raney’s summary-judgment motion on April 27. The trial

court denied the continuance motion and granted the summary-judgment motion,

ordering that Gadberry take nothing on its counterclaims.

       After a day-long bench trial on May 22, the trial court rendered judgment for

Raney against Gadberry for $15,371.35, plus trial and conditional appellate attorney’s

fees. Gadberry has appealed.

                               The Motion to Withdraw

       In two issues, Gadberry complains that the trial court erred by granting a

noncompliant withdrawal motion and that such error was rendered harmful when the

trial court refused to grant Gadberry a continuance to allow its new counsel time to

investigate the case and to prepare for trial.
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      An attorney may withdraw from representing a client only if the attorney

satisfies civil-procedure rule 10’s requirements. Rogers v. Clinton, 794 S.W.2d 9, 10 n.1

(Tex. 1990). Rule 10 permits counsel to withdraw only upon written motion showing

good cause. Tex. R. Civ. P. 10. When, as here, another attorney is not substituting for

the withdrawing attorney, the withdrawal motion must state

      that a copy of the motion has been delivered to the party; that the party
      has been notified in writing of his right to object to the motion; whether
      the party consents to the motion; the party’s last known address and all
      pending settings and deadlines.

Id. (emphasis added). A trial court abuses its discretion by granting a withdrawal

motion that does not comply with rule 10’s mandatory requirements. Gillie v. Boulas,

65 S.W.3d 219, 221 (Tex. App.—Dallas 2001, pet. denied); Williams v. Bank One, Tex.,

N.A., 15 S.W.3d 110, 114 (Tex. App.—Waco 1999, no pet.). But “such error may be

harmless if the [trial] court allows the party time to secure new counsel and time for

the new counsel to investigate the case and prepare for trial.” Anoco Marine Indus., Inc.

v. Patton Prod. Corp., No. 2-08-073-CV, 2008 WL 4052927, at *2 (Tex. App.—Fort

Worth Aug. 29, 2008, no pet.) (per curiam) (mem. op.).

      As Raney points out, Gadberry is challenging the order granting its former

counsel’s withdrawal motion for the first time on appeal. On appeal, Gadberry

complains that the withdrawal motion did not comply with rule 10 because it did not

list all pending settings and deadlines, namely Gadberry’s deadline to respond to

Raney’s no-evidence summary-judgment motion and the date of the summary-

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judgment hearing. But Gadberry did not raise these complaints in the trial court.

Accordingly, Gadberry has not preserved these complaints for our review, and thus

error, if any, has been waived. See Tex. R. App. P. 33.1(a); In re A.W.L., No. 05-16-

00916-CV, 2018 WL 446421, at *6 (Tex. App.—Dallas Jan. 17, 2018, no pet.) (mem.

op.) (holding appellant waived complaint that trial court violated his due-process

rights by granting his first attorney’s “facially-deficient motion” because he did not

raise complaint regarding the withdrawal in the trial court); In re A.T., No. 05-16-

00539-CV, 2017 WL 2351084, at *6–7 (Tex. App.—Dallas May 31, 2017, no pet.)

(mem. op.) (holding appellant failed to preserve complaint that “substantively

defective” withdrawal motion did not comply with rule 10’s requirements by not

presenting the complaint to the trial court); Guerrero v. Mem’l Turkey Creek, Ltd., No.

01-09-00237-CV, 2011 WL 3820841, at *4 (Tex. App.—Houston [1st Dist.] Aug. 25,

2011, no pet.) (mem. op.) (concluding that appellant waived challenge to trial court’s

granting counsel’s withdrawal motion by failing to raise complaint in the trial court);

O’Kane v. Chuoke, No. 01-05-00523-CV, 2007 WL 926494, at *2 (Tex. App.—Houston

[1st Dist.] Mar. 29, 2007, no pet.) (mem. op.) (concluding that failure to state pending

settings or deadlines in withdrawal motion may violate a client’s due-process rights,

but concluding that any such error was not fundamental and that party’s failure to

object to withdrawal motion in the trial court waived error).




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       Because Gadberry failed to preserve error regarding the trial court’s alleged

error in granting the withdrawal motion despite its claimed deficiencies, we overrule

Gadberry’s first issue and the part of its second that is based on this alleged error.

                          Gadberry’s Continuance Motion

       Because the statement of an issue is treated as covering every subsidiary

question that is fairly included, we broadly construe Gadberry’s argument in its

second issue as including a challenge to the trial court’s order denying Gadberry’s

continuance motion that is independent from the trial court’s claimed error in

granting the allegedly deficient withdrawal motion. See Tex. R. App. P. 38.1(f), (i). In

his second issue, Gadberry argues that the trial court’s denial of its continuance

motion deprived its new attorneys of adequate time to investigate the case and to

prepare for the summary-judgment hearing and the trial.

       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). A

trial court abuses its discretion if it acts without reference to any guiding rules or

principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

       Here, Gadberry consented to its former counsel’s withdrawal and secured new

counsel within days. Rather than attempting to respond to Raney’s no-evidence

summary-judgment motion on its counterclaims, Gadberry moved to reopen

discovery and to continue the summary-judgment hearing and the trial, claiming that
                                            6
it needed additional time to “discover and marshal” evidence in support of its

counterclaims and to seek further discovery from Raney and from nonparties because

its former counsel had failed to do so. See Tex. R. Civ. P. 251, 252, 166a(g).

      A trial court may order a continuance of a summary-judgment hearing if it

appears “from the affidavits of a party opposing the motion that he cannot for

reasons stated present by affidavit facts essential to justify his opposition.” See Tex. R.

Civ. P. 166a(g). A motion for continuance asking to continue a summary-judgment

hearing or a trial to allow more time for discovery must be supported by an affidavit

describing the evidence sought, explaining its materiality, and showing that the party

requesting the continuance has used due diligence to obtain the evidence. Tex. R. Civ.

P. 251, 252; see Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston

[1st Dist.] 2008, no pet.) (op. on reh’g); Pape v. Guadalupe-Blanco River Auth., 48 S.W.3d

908, 914 (Tex. App.—Austin 2001, pet. denied); see also Tenneco Inc. v. Enter. Prods. Co.,

925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends that it has not had an

adequate opportunity for discovery before a summary judgment hearing, it must file

either an affidavit explaining the need for further discovery or a verified motion for

continuance.”). A litigant who fails to diligently use the rules of civil procedure for

discovery purposes is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751

S.W.2d 863, 865 (Tex. 1988); D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416

S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.). In deciding whether a trial

court abused its discretion by denying a motion for continuance seeking additional
                                            7
time to conduct discovery, we consider such factors as the length of time the case has

been on file, the materiality and purpose of the discovery sought, and whether the

party seeking the continuance has exercised due diligence to obtain the discovery

sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).

         At the time Gadberry moved for a continuance, Raney’s claims had been

pending for over a year, and Gadberry’s counterclaims had been pending for ten

months. Gadberry’s motion and a supporting affidavit from its chief executive officer

stated that Gadberry needed more time (1) to “discover and marshal evidence”

supporting its counterclaims, (2) to locate documents related to its counterclaims,

(3) to calculate and articulate its damage model, (4) to secure testimony from

subcontractors to defend against Raney’s claims, (5) to marshal “documents from its

own files,” and (6) to seek supplemental discovery from Raney. But Gadberry failed to

describe with any specificity the evidence it needed or to explain exactly how such

evidence would be material to its defense. Gadberry also failed so show that it had

used due diligence to obtain additional discovery from third parties and supplemental

discovery from Raney. Gadberry did not explain its failure to conduct discovery and

pursue its own claims other than stating that it had relied on its former counsel to

handle the case. Based on these facts, we conclude that the trial court did not abuse its

discretion by denying Gadberry’s continuance motion. See Tex. R. Civ. P. 166a(g),

251, 252; Joe, 145 S.W.3d at 161. We overrule the remainder of Gadberry’s second

issue.
                                            8
                                 Conclusion

      Having overruled both of Gadberry’s issues, we affirm the trial court’s

judgment.



                                               /s/ Elizabeth Kerr
                                               Elizabeth Kerr
                                               Justice

Delivered: July 18, 2019




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