Ramon Ruiz v. Selene Peregrino Ruiz ( 2014 )

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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