Monica F. Jackson v. Jamere Jackson , 556 S.W.3d 461 ( 2018 )

Opinion issued July 31, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00410-CV
———————————
MONICA F. JACKSON, Appellant
V.
JAMERE JACKSON, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Case No. 2015-61110
OPINION
In this divorce case, the trial court dissolved the marriage of appellant Monica
F. Jackson and appellee Jamere Jackson and awarded a disproportionate share of the
marital estate to Jamere. Monica raises seven issues on appeal, mostly centered
around the trial court’s ruling allowing her counsel to withdraw from representation
on the morning of trial. Monica contends that the trial court erred by (1) granting the
motion to withdraw on the morning of trial because it was procedurally defective
and she received insufficient notice; (2) granting the motion to withdraw because
there was insufficient evidence to support good cause for the withdrawal;
(3) granting the motion to withdraw without sua sponte granting a continuance to
allow Monica time to secure new counsel; (4) granting the motion to withdraw,
which substantially prejudiced her rights; (5) mischaracterizing separate property as
community property and making other errors in the division of the marital estate;
(6) denying Monica an in camera hearing in connection with her motion for new
trial; and (7) denying her motion for new trial.
We affirm in part and reverse and remand in part.
Background
Monica and Jamere, both of whom have held several high-level corporate
positions, married in California in 2010. Over the next several years, job
opportunities took the couple to Ohio and then to Houston. In early 2014, Jamere
received an executive-level job offer in Connecticut, which he accepted. Monica,
who had quit her corporate job and was focusing on running a business she had
started, remained in Houston.
2
Shortly after moving to Connecticut, Jamere proposed that the parties obtain
a divorce. Jamere filed for divorce in Connecticut in August 2015, and Monica,
represented by Sam “Trey” Yates, filed for divorce in Texas in October 2015. After
the trial court denied Jamere’s special appearance, the parties agreed to proceed in
Texas, and Jamere filed a counter-petition for divorce in March 2016. Monica hired
her second counsel, J. Lindsey Short, in March 2016, and the trial court discharged
Yates as Monica’s attorney of record.
In August 2016, at a hearing before the associate judge, Short informed the
trial court that the case would be a “four-day jury trial.” No jury fee had been paid
at that time. Short subsequently filed, on Monica’s behalf, a fourth amended petition
for divorce. This petition included a request for a jury trial and a statement that the
jury fee would be paid. It is undisputed that no jury fee was ever paid during the
pendency of this case.
On August 29, 2016, the trial court substituted Monica’s third counsel, Wendy
Burgower, for Short and discharged Short as Monica’s attorney of record. Burgower
represented Monica up to the day of trial, filing, among other things, a fifth amended
petition on Monica’s behalf on January 6, 2017. This petition, like Monica’s fourth
amended petition filed by Short, requested a jury trial and stated that the jury fee
would be paid.
3
Trial in this case was set to begin on Monday, January 30, 2017. At 7:51 a.m.
on January 30, the morning of trial, Burgower moved to withdraw as Monica’s
counsel. The motion stated:
Good cause exists for withdrawal of Wendy S. Burgower as counsel, in
that she is unable to effectively communicate with MONICA F.
JACKSON in a manner consistent with good attorney-client relations.
Counsel has prepared for and is ready for trial. Significant conflicts
have arisen as to how the case is to be presented and what issues to raise
to this Judge, to the point where the undersigned counsel cannot
proceed. This counsel cannot resolve the differences.
The motion further stated that it had been delivered to Monica “who is hereby
notified in writing of her right to object to this motion.” The motion recited Monica’s
last known address, the settings and deadlines—including a statement that trial was
scheduled for January 30, 2017, through February 2, 2017—in the case, the
discovery that had been served in the case, and the oral depositions that had occurred.
The motion also notified Monica that the motion was set for hearing at 9:30 a.m. on
January 30. The motion stated, “You do not have to agree to this motion. If you wish
to contest the withdrawal of Wendy S. Burgower as your attorney, you should appear
at the hearing. If you do not oppose Wendy S. Burgower’s withdrawal as your
attorney, you may notify Wendy S. Burgower in writing of your consent to this
motion.”
4
The trial court held a hearing on Burgower’s motion to withdraw immediately
prior to the scheduled start of trial. Monica was present and refused to waive her
attorney-client privilege with regard to conversations she had had with Burgower.1
Burgower presented a copy of a text message she had sent to Monica at 6:56
a.m. that morning, notifying her that Burgower was terminating her contract, that
Burgower’s motion to withdraw was set for hearing that morning, and that Monica’s
valuation expert and her exhibits would be ready for trial. Burgower also offered a
copy of her contract with Monica into evidence. Burgower stated:
I had to cancel my contract with Ms. Jackson this morning, as
you can see at 6:56 a.m. Without discussing what I consider to be
privileged matters, I made my client aware of concerns that I might
have to do that, based upon conversations we had starting Thursday
[four days before trial]. And my contract specifically, Your Honor, on
Page 3 says that I may withdraw from my representation—and by that,
I mean my contract with her; I realize that I need the Court’s
permission—if I believe that, A, she’s insisting on presenting a claim
or defense not warranted under existing law which cannot be supported
by a good faith argument for extension or reversal for such law, if, B—
I don’t want to say an illegal course of conduct, but I believe to get what
she wants might involve something that’s highly unethical on my part
in my judgment.
No. 3, that she asked me to pursue a course of conduct which is,
I believe, possibly prohibited under the disciplinary rules. Obviously,
D, I feel that she has rendered it very difficult for us to carry out
employment with her. And more importantly, E, that she insists that I
engage in conduct which is contrary to my judgment or my advice.
1
Jamere’s attorney offered to stipulate that, during the hearing on Burgower’s motion
to withdraw, she would not inquire into conversations between Burgower and
Monica except those that pertained to the motion to withdraw. The trial court asked
Monica if she would be willing to waive the attorney-client privilege for that limited
purpose, but Monica responded that she was not willing to do so.
5
This is not about money, Your Honor. This is about presentation
of her case. This came up between the two of us for the first time on
Thursday. I thought it had been resolved yesterday. I assert to the Court
that, obviously, my hands are tied to [talk] specifically about it. I have
a feeling that she’ll probably say something that might open the door. I
don’t want to even go there.
But as this case stands right now, I believe I have properly
presented her issues to the Court. I think that I have properly done
everything I should. I also believe that—if a carrier needs to go, I think
that I have no malpractice.
I think she has issues with what she feels may have been a
malpractice, even though I have told her repeatedly I do not believe that
her issue is before the Court. I don’t know what else to do.
I will assert to the Court that Ms. Jackson spent all day yesterday
preparing for me. I would represent to the Court that [Jamere’s
attorney] and my office have agreed on joint exhibits, proposed division
and stipulation of many facts, and even, I think, admission of exhibits.
I brought with me to the Court today everything Ms. Jackson needs.
I think—I don’t know what Ms. Jackson thinks. She knows when
she raised the ongoing issue of contention with me this morning, I told
her, Done. Because I had told her yesterday, If this comes up again, I
cannot continue.
The trial court asked Burgower, “It is [Monica’s] conduct that has forced your
withdrawal, or your request to withdraw, so that you can comply with your ethical
requirements pursuant to the State Bar of Texas, correct?” Burgower responded,
“Yes, ma’am.”
Upon questioning from Burgower, Monica agreed that, on the previous
Thursday, she and Burgower had discussed “an issue in [the] case about whether
something will occur or not that [Monica] want[s] brought to the Court’s attention.”
6
Monica also agreed that, on the previous day when they were preparing for trial,
Burgower told her that if Monica “continue[d] to want to press that issue,
[Burgower] was going to quit” and that Monica brought the issue up again earlier
Monday morning.
The trial court also asked Monica several questions. Monica told the court that
she did not agree with Burgower’s withdrawal, and she admitted that she did not
understand how the issue that arose between them “compromises [Burgower’s]
ethics.” The trial court and Monica had the following exchange:
The Court: If, indeed—because I certainly don’t know what the issue
is. But if, indeed—Ms. Burgower has been licensed for
quite a long time and certainly I trust her judgment as to
knowing what her ethical duties are by the State Bar of
Texas. If, indeed, it is a conflict for her, do you have a
request of this Court regarding her motion to withdraw?
Monica: So, you’re saying if it is a true conflict?
The Court: Correct. For which she would have to withdraw.
Monica: Do I have a request of the Court?
The Court: Correct. I understand you’re requesting this Court deny
her motion. I’m asking you in the alternative, if this Court
were going to grant her motion—I’m not saying I am—
but do you have an alternative request?
Monica: I’m not aware of what my options would be; so, it’s a little
difficult to answer that in the affirmative right now.
The Court: Let me ask you this: Do you agree that Ms. Burgower has
on a number of occasions advised you that if you engaged
in whatever pursuit or the conduct in which you were
engaging that she would have to withdraw?
Monica: Yes. Yes. Absolutely.
7
The Court: And did you continue to engage in that conduct or that
pursuit?
Monica: I did.
Monica further agreed with Burgower that their communications involved Monica
insisting on “a right” that Burgower did “not believe is supported by the law” and
that Burgower informed Monica that insisting on this right is “contrary to [her]
advice.”
Jamere testified that he had spoken with Monica by phone in the days leading
up to the trial. He stated that Monica told him on the Thursday before trial that she
had an issue proceeding with trial because “she expected trial to last longer than two
days because we had to do jury selection.” Jamere stated that he responded by telling
her that he “was not aware that they were having a jury.” Jamere’s counsel
represented to the trial court that there were no property characterization issues that
needed to be tried and that the only thing the court needed to hear were “two
relatively small issues on values of real property.” Jamere’s counsel stated that “this
is very prejudicial” to Jamere, as he was ready for trial.
Prior to ruling on the motion to withdraw, the parties had the following
exchange with the trial court:
Burgower: Judge, and my position is that there is no motion for
continuance on file. With those stipulations, Ms. Jackson
can present her case. Because, quite frankly, I can’t go
forward. What am I supposed to do?
8
The Court: I haven’t heard a motion for continuance—
Burgower: That’s my point.
The Court: —at this point. I’ve asked if there were any alternative
requests. I didn’t hear any. So as far as that issue is
concerned, that is not before the Court at this time.
Anything further, Ms. Cothrun [Jamere’s attorney], on the
motion to withdraw?
Cothrun: No, Your Honor.
The Court: Okay. After having heard the argument and the testimony
in evidence, the Court is going to grant the withdrawal and
the Court is going to sign the order of withdrawal. And,
Ms. Burgower, you are excused. Thank you very much.
Burgower: I would also represent to Ms. Jackson that all of her
exhibits are over there, Judge. They’ve all been marked
and exchanged with counsel, as well as her proposed
division. All local rules have been satisfied. I have extra
copies of her exhibit list and Jamere’s. And I’d ask that I
be excused.
The trial court granted Burgower’s motion to withdraw and excused her from the
proceedings. The trial court immediately proceeded to trial on the merits of the
divorce, with Monica representing herself. The trial court pronounced the parties
divorced on January 30, 2017, and informed the parties that it would take the division
of the community estate, which totaled approximately $8 million, under advisement.
After the trial court signed the final divorce decree on March 10, 2017,
Monica retained her fourth attorney, Sallee Smyth, to represent her. At Monica’s
request, the trial court issued amended findings of fact and conclusions of law on
May 3, 2017. The trial court concluded that the property division was “just and right,
9
having due regard for the rights of each party, with Jamere Jackson being awarded
a disproportionate share of the community estate.”
Smyth moved for a new trial on Monica’s behalf. Among other things, Monica
argued that the trial court erred by granting Burgower’s motion to withdraw on the
morning of trial because the motion did not comply with the requirements for
motions to withdraw as set out in the Texas Rules of Civil Procedure and because
Monica did not receive reasonable notice of the motion. Monica further argued that
good cause did not support Burgower’s motion to withdraw and that, upon Monica’s
statement that she would not waive attorney-client privilege, the trial court should
have held an in camera hearing outside the presence of Jamere and his counsel so
the court could fully understand the context of the issue that had arisen between
Burgower and Monica. Monica also requested an in-camera hearing in connection
with her motion for new trial. Monica further argued that the trial court erred when,
after granting Burgower’s motion to withdraw, it failed to grant a continuance on its
own motion to allow Monica time to secure new counsel.
The trial court denied Monica’s motion for new trial. This appeal followed.
Withdrawal of Counsel
In her first, second, third, and fourth issues, Monica contends that the trial
court erred by granting Burgower’s motion to withdraw. Specifically, Monica
contends that the motion was defective and that she did not receive sufficient notice
10
of the filing and hearing. She contends that Burgower offered insufficient evidence
to support “good cause” justifying her withdrawal. And she also contends that the
trial court should have sua sponte granted a continuance under its inherent authority
to manage its docket and to ensure that Burgower’s withdrawal would not prejudice
Monica. She also argues that the decision to permit withdrawal without granting a
continuance prejudiced her rights by placing her at a severe disadvantage during the
ensuing trial proceedings.
A. Standard of Review and Governing Law
We review the trial court’s ruling granting a motion to withdraw as counsel
for an abuse of discretion. Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied). A trial court abuses its discretion if it acts
unreasonably or arbitrarily without reference to guiding rules or principles. Id. at
826–27; see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985).
The Texas Rules of Civil Procedure provide that an attorney “may withdraw
from representing a party only upon written motion for good cause shown.” TEX. R.
CIV. P. 10; Harrison, 367 S.W.3d at 827. In the situation, as here, when another
attorney is not to be substituted, the motion to withdraw shall state: that a copy of
the motion has been delivered to the party; that the party has been notified in writing
of her right to object to the motion; whether the party consents to the motion; the
11
party’s last known address; and all pending settings and deadlines. TEX. R. CIV. P.
10; Integrated Semiconductor Servs., Inc. v. Agilent Techs., Inc., 346 S.W.3d 668,
671 (Tex. App.—El Paso 2009, no pet.). “Notice or delivery to a party shall be either
made to the party in person or mailed to the party’s last known address by both
certified and regular first class mail.” TEX. R. CIV. P. 10.
Rule 10 does not define “good cause.” Harrison, 367 S.W.3d at 827.
However, the Texas Disciplinary Rules of Professional Conduct set out relevant
factors that should be considered when determining Rule 10 motions. Id.; In re
Posadas USA, Inc., 100 S.W.3d 254, 257 (Tex. App.—San Antonio 2001, orig.
proceeding).
Disciplinary Rule 1.15, entitled “Declining or Terminating Representation,”
states that a lawyer shall not withdraw from representing a client unless:
(1) withdrawal can be accomplished without material adverse effect
on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes may be criminal or
fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or
fraud;
(4) a client insists upon pursuing an objective that the lawyer
considers repugnant or imprudent or with which the lawyer has
fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services, including an obligation to pay
the lawyer’s fee as agreed, and has been given reasonable
12
warning that the lawyer will withdraw unless the obligation is
fulfilled;
(6) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the
client; or
(7) other good cause for withdrawal exists.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(b), reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9).
Rule 1.15 also provides that, upon termination of the representation, the
lawyer “shall take steps to the extent reasonably practicable to protect a client’s
interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to which the client
is entitled and refunding any advance payments of fee that has not been earned.” Id.
R. 1.15(d).
In addition to its text, Disciplinary Rule 1.15 also has several comments,
including three relevant here. Comment 3 states:
When a lawyer has been appointed to represent a client and in certain
other instances in litigation, withdrawal ordinarily requires approval of
the appointing authority or presiding judge. Difficulty may be
encountered if withdrawal is based on the client’s demand that the
lawyer engage in unprofessional conduct. The tribunal may wish an
explanation for the withdrawal, while the lawyer may be bound to keep
confidential the facts that would constitute such an explanation. The
lawyer’s statement that professional considerations require termination
of the representation ordinarily should be accepted as sufficient.
13
Id. cmt. 3. Comment 8 provides that withdrawal pursuant to Rule 1.15(b)(2)–(7) “is
optional with the lawyer even though the withdrawal may have a material adverse
effect upon the interests of the client.” Id. cmt. 8. Comment 9 states, “In every
instance of withdrawal and even if the lawyer has been unfairly discharged by the
client, a lawyer must take all reasonable steps to mitigate the consequences to the
client.” Id. cmt. 9. Before the trial court allows an attorney to withdraw, it should
“see that the attorney has complied with the Code of Professional Responsibility.”
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Harrison, 367 S.W.3d at 827.
A trial court abuses its discretion if it grants a motion to withdraw that does
not satisfy the requirements of Rule 10. Thompson v. Thompson, 387 S.W.3d 769,
771 (Tex. App.—El Paso 2012, no pet.); Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex.
App.—Dallas 2001, pet. denied) (stating that Rule 10’s requirements are
mandatory). However, this error may be harmless if the court allows the party time
to secure new counsel and time for new counsel to investigate the case and prepare
for trial. Thompson, 387 S.W.3d at 771.
B. Analysis
Here, trial was set for Monday, January 30, 2017. On the preceding Thursday,
four days before trial, Monica and Burgower had a disagreement concerning a right
to which Monica believed she was entitled. Burgower told Monica that she was not
entitled to this right and that, if she continued to insist on it, Burgower would
14
withdraw from representation. On the Sunday before trial, Burgower and Monica
spent the day preparing for trial. Early the next morning, on the day of trial, Monica
again asked about the right to which she believed she was entitled, and Burgower
responded by notifying Monica via text message at 6:56 a.m. that she was
terminating their contract and that her motion to withdraw would be set for hearing
that morning. Burgower filed a written motion to withdraw at 7:51 a.m.
The motion stated that good cause existed for Burgower’s withdrawal because
she was “unable to effectively communicate with MONICA F. JACKSON in a
manner consistent with good attorney-client relations” and because “[s]ignificant
conflicts have arisen as to how the case is to be presented and what issues to raise to
this Judge, to the point where the undersigned counsel cannot proceed.” The motion
stated that a copy had been delivered to Monica, and it listed Monica’s last known
address, the pending trial date of that morning, the previous hearings that had been
held, and the discovery that had been exchanged. The motion notified Monica that
she did not have to agree to the motion, although it did not state whether Monica
consented to the motion. See TEX. R. CIV. P. 10 (providing that if another attorney is
not to be substituted, motion to withdraw “shall” state whether party consents to
motion). The motion stated that it would be heard at 9:30 that morning.
At the hearing on the motion, Monica did not waive her attorney-client
privilege, so Burgower’s discussion of the dispute between them remained general,
15
and she did not discuss the specifics of her conversations and disagreements with
Monica. Burgower did not request an in camera hearing outside the presence of
Jamere and his counsel so that she and Monica could discuss their disagreement
before the trial court without waiving Monica’s attorney-client privilege. After
Burgower represented to the trial court that Monica’s preferred course of action
“might involve something that’s highly unethical on [Burgower’s] part in [her]
judgment” and was “possibly prohibited under the disciplinary rules” and was
“contrary to [her] judgment or [her] advice,” the trial court questioned Monica about
whether Burgower “has on a number of occasions advised you that if you engaged
in whatever pursuit or the conduct in which you were engaging that she would have
to withdraw” and whether Monica “continue[d] to engage in that conduct or that
pursuit[.]” Monica responded in the affirmative to both questions. The court did not
ask any questions regarding the substance of the dispute.
Monica did not request a continuance, nor did Burgower request a
continuance on Monica’s behalf. The trial court asked Monica if she “ha[d] a request
of this Court” should the court grant the motion to withdraw. Monica responded,
“I’m not aware of what my options would be; so, it’s a little difficult to answer that
in the affirmative right now.” Before the trial court ruled on her motion to withdraw,
Burgower pointed out that there was “no motion for continuance on file” and so “Ms.
Jackson can present her case.” The court affirmed, stating, “I haven’t heard a motion
16
for continuance,” and “I’ve asked if there were any alternative requests. I didn’t hear
any. So as far as that issue is concerned, that is not before the Court at this time.”
The trial court did not grant a continuance to allow Monica time to secure new
counsel. Instead, the trial court granted Burgower’s motion to withdraw, excused her
from the proceedings, and then immediately proceeded to trial on the merits, with
Monica representing herself.
In Villegas v. Carter, counsel moved to withdraw twenty days before trial,
and the trial court granted counsel’s motion to withdraw two days before trial. 711
S.W.2d at 625. Villegas appeared at trial and stated that he had learned about the
motion to withdraw six days previously and that he had attempted to hire a new
attorney, but the other attorney would not accept representation until he could review
the file, which the withdrawing attorney refused to turn over. Id. at 625–26. Villegas
requested a continuance to obtain a new attorney and his file, but the trial court
denied the request and immediately proceeded to trial. Id. at 626.
The Texas Supreme Court stated, “The right to counsel is a valuable right; its
unwarranted denial is reversible error.” Id. It held that when a trial court allows an
attorney to voluntarily withdraw from representation, the court must give the party
time to secure new counsel and time for the new counsel to investigate the case and
prepare for trial. Id. The court also stated that before a trial court allows an attorney
to withdraw, it should “see that the attorney has complied with the Code of
17
Professional Responsibility” and cited the precursor to Disciplinary Rule 1.15(d),
which required that, upon termination of representation, lawyer should take
“reasonable steps to avoid foreseeable prejudice to the rights of his client,” such as
giving reasonable notice to the client and allowing time for employment of other
counsel. Id. The supreme court ruled that the trial court abused its discretion in
denying Villegas’ motion for continuance because the evidence demonstrated that
Villegas was not negligent or at fault in causing his attorney’s withdrawal. Id. The
court reasoned, “The attorney did not give Villegas time to employ new counsel or
deliver to Villegas the papers and property to which Villegas was entitled. In short,
Villegas’ attorney did not take reasonable steps to avoid foreseeable prejudice to the
client.” Id. at 627. The court concluded that the trial court should have either denied
the motion to withdraw or granted Villegas’ motion for continuance, but instead it
did neither, which constituted reversible error. Id.
On appeal, Jamere argues that Villegas is distinguishable from the present
case because, unlike in Villegas, in which the client requested a continuance and the
Texas Supreme Court held that the client was not negligent or at fault in causing his
attorney’s withdrawal, Monica’s conduct caused Burgower’s withdrawal and
Monica did not request a continuance. It is undisputed that Monica did not request a
continuance after Burgower moved to withdraw. Indeed, when the trial court asked
her if she had any “request of this Court regarding [Burgower’s] motion to
18
withdraw,” Monica responded, “I’m not aware of what my options would be.” When
Burgower called the fact that no motion for continuance was on file to the trial
court’s attention, the trial court responded, “I’ve asked if there were any alternative
requests. I didn’t hear any. So as far as that is concerned, that is not before the Court
at this time.” The court promptly granted the motion to withdraw.
Burgower did not file a motion for continuance on Monica’s behalf, nor did
she, when Monica chose not to waive the attorney-client privilege, request an in
camera hearing to allow Monica and herself the opportunity to fully apprise the trial
court of the disagreement that had arisen between them. Nor did the trial court call
sua sponte for such a hearing. Instead, Burgower stated generally that Monica had
“insisted” that she pursue a course of conduct that Burgower considered “highly
unethical” and “contrary to [her] judgment.” The trial court then made its decision
to allow Burgower’s withdrawal based on Burgower’s representations and
Burgower’s and the trial court’s cursory questioning of Monica.
Burgower had an independent duty under Disciplinary Rule 1.15(d), upon
termination of her representation of Monica, to “take reasonable steps to the extent
reasonably practicable to protect a client’s interests, such as giving reasonable notice
to the client [and] allowing time for employment of other counsel.” TEX.
DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d); see id. cmt. 9 (“In every instance
of withdrawal and even if the lawyer has been unfairly discharged by the client, a
19
lawyer must take all reasonable steps to mitigate the consequences to the client.”).
Moreover, the trial court, before allowing an attorney to withdraw, “should see that
the attorney has complied with the Code of Professional Responsibility.” Villegas,
711 S.W.2d at 626. That did not occur in this case. Rather, Burgower moved to
withdraw on the morning of trial, providing a mere hour and a half interval between
the filing of her written motion seeking withdrawal and the scheduled start of trial,
and she took no steps to ensure that Monica had time to seek representation by other
counsel in this case involving a multimillion dollar community estate, claims of
reimbursement and waste, and at least some valuation disputes. Nor did the trial
court take any steps to assure that Burgower had complied with her duties under the
Disciplinary Rules of Professional Conduct. The court did not seek to discover the
substance of the dispute, nor did it require notice sufficiently in advance to permit
Monica to secure other counsel to investigate the case and prepare for trial. See id.;
Harrison, 367 S.W.3d at 827; see also Downer, 701 S.W.2d at 241–42 (stating that
trial court abuses its discretion when it acts without reference to guiding rules and
principles).
A trial court has the authority to continue a case sua sponte, and this decision
“rests within the discretion of the trial court.” Dell Dev. Corp. v. Best Indus. Uniform
Supply Co., 743 S.W.2d 302, 303 (Tex. App.—Houston [14th Dist.] 1987, writ
denied). But the trial court abuses its discretion when it acts without reference to any
20
guiding rules and principles, i.e., when it acts arbitrarily and unreasonably. See
Downer, 701 S.W.2d at 241–42. The trial court here noted that it had not heard a
motion for continuance, and, after granting Burgower’s motion to withdraw, it
immediately proceeded to trial.
We hold that, under the circumstances presented in this case, the trial court
erred by granting Burgower’s motion to withdraw—a motion filed the morning trial
was scheduled to begin that did not state whether Monica consented to the motion,
that did not seek a continuance on Monica’s behalf, and that did not take into account
the foreseeable material adverse effects of self-representation on Monica’s
interests—without ascertaining the substantive basis of the dispute between Monica
and Burgower and, therefore, without determining whether Burgower had good
cause to withdraw, and without providing adequate time for Monica to secure other
representation and for her new counsel to investigate the case and prepare for trial.
See Villegas, 711 S.W.2d at 626 (“[W]hen a trial court allows an attorney to
voluntarily withdraw, it must give the party time to secure new counsel and time for
the new counsel to investigate the case and prepare for trial.”); Moss v. Malone, 880
S.W.2d 45, 50 (Tex. App.—Tyler 1994, writ denied) (holding that trial court errs by
allowing party’s counsel to withdraw when motion is deficient under Rule 10 and
no steps are taken to protect party’s “valuable right” to be represented by counsel of
21
choice); see also Harrison, 367 S.W.3d at 827 (setting out relevant factors to
consider in determining good cause).
We therefore sustain Monica’s third issue concerning the trial court’s failure
to grant a continuance on its own motion after it allowed Burgower to withdraw on
the morning of trial.2
Conclusion
We affirm the trial court’s divorce decree to the extent that it grants the
divorce and dissolves the marriage of the parties, but we reverse the remainder of
the decree as it relates to the division of the marital estate and remand for a new trial.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
2
In light of our disposition of this issue, we need not address Monica’s remaining
issues. See TEX. R. APP. P. 47.1 (requiring appellate court to hand down opinion that
addresses every issue raised and necessary to final disposition of appeal).
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