597 S.W.3d 10
Tex. App.2020Background
- Six days before trial Amy’s attorney moved to withdraw and set the motion to be heard at the same time as the trial; the motion was presented the morning of trial.
- At the hearing counsel admitted he was not prepared, had minimal contact with Amy, and did not know whether she was ready to proceed.
- The trial court granted the motion, excused Amy’s counsel, and then refused Amy’s request for a continuance so she could obtain new counsel.
- Amy, a layperson, objected and explained she could not properly try the case pro se; the court nevertheless proceeded to trial.
- Trial occurred with Amy unrepresented; Jeffrey testified about asset values, and the court awarded the marital residence to Jeffrey.
- The appellate court found the record lacked proof counsel had taken the protective steps required before withdrawal and that Amy was prejudiced by lack of time to secure new counsel.
Issues
| Issue | Amy's Argument | Jeffrey's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by permitting counsel to withdraw on the morning of trial | Counsel failed to take required steps (no notice, no time to retain replacement, no delivery of papers); withdrawal last-minute caused foreseeable prejudice | Trial court has discretion to allow withdrawal; prior delays and procedural history justified actions | Court held abuse of discretion: counsel did not show required steps, and granting withdrawal on trial day was improper |
| Whether the trial court abused its discretion by denying a continuance after withdrawal | Withdrawal was not Amy’s fault; she needed reasonable time to retain counsel and was prejudiced by being forced to proceed pro se | Amy was at fault for lacking counsel due to prior events (bankruptcy, prior withdrawals); movant failed to file written motion/affidavit | Court held abuse of discretion in denying continuance; denial was reversible error because trial-court-authorized withdrawal (without proper showing) caused Amy’s lack of counsel |
Key Cases Cited
- Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986) (sets withdrawal requirements: notice, time to hire counsel, delivery of client papers).
- Thompson v. Thompson, 387 S.W.3d 769 (Tex. App.—El Paso 2012) (trial court abuses discretion if withdrawal does not comply with rules).
- Jackson v. Jackson, 556 S.W.3d 461 (Tex. App.—Houston [1st Dist.] 2018) (court should allow reasonable time to secure counsel after improper withdrawal).
- In re Marriage of Harrison, 557 S.W.3d 99 (Tex. App.—Houston [14th Dist.] 2018) (trial court may consider procedural history when ruling on continuance).
- Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277 (Tex. App.—Houston [14th Dist.] 2009) (appellate courts cannot consider evidence outside the record).