Willie Porter v. Marvin C. Hopkins and Stacey Hopkins

NO. 12-00-00293-CV

  IN THE COURT OF APPEALS  

  TWELFTH COURT OF APPEALS DISTRICT

  TYLER, TEXAS

WILLIE PORTER,

§ APPEAL FROM THE 241ST

APPELLANT

• § JUDICIAL DISTRICT COURT OF

  MARVIN C. HOPKINS AND

STACEY J. HOPKINS,

APPELLEES

§ SMITH COUNTY, TEXAS  

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PER CURIAM  

Willie Porter ("Porter") appeals the trial court's judgment rendered in favor of Appellees, Marvin C. Hopkins and Stacey J. Hopkins ( collectively "Hopkins"). The judgment is based, in part, on admissions deemed against Porter following the withdrawal of his attorney. In two issues, Porter contends that the trial court wrongfully permitted his trial counsel to withdraw and that the trial court wrongfully refused to undeem his admissions. We affirm.

Background  

Hopkins filed the underlying suit against Porter alleging violations of the Texas Deceptive Trade Practices Act ("DTPA") and breach of contract related to Porter's alleged failure to complete certain necessary improvements related to Hopkins's purchase of a home. On June 24, 1997, Porter's trial counsel filed a motion to withdraw based on alleged non-payment of attorneys fees and lack of cooperation by Porter. The motion to withdraw stated that Porter was advised by letter dated June 23, 1997 and sent by certified and regular mail to his last known address, of his attorney's intent to withdraw. The motion, which was enclosed with the letter to Porter, further stated that Porter was advised that a hearing would be conducted on July 2, 1997 and that any objection to the motion should be made to the trial court in writing before that time. The trial court signed an order granting the motion to withdraw on July 7, 1997. ⁽¹⁾

On September 11, 1997, Hopkins served Porter with Plaintiffs' First Request for Admissions. Porter failed to timely respond to Hopkins's request. On November 12, 1997, Porter filed a motion to amend response to petitioner's request for admissions, in which he alleged that his failure to answer was due to a lack of understanding regarding the document and his attendance to his wife's cancer treatment. ⁽²⁾ The trial court denied Porter's motion to amend on January 15, 1998 finding that Porter had not shown good cause for his failure to timely respond. On May 28, 1998, Porter filed a motion to undeem admissions based on the same grounds as his motion to amend, which was also denied.

The Hopkins abandoned their DTPA claim and proceeded on breach of contract. On August 22, 2000, based in part on Porter's deemed admissions, the trial court entered a final judgment against Porter on the breach of contract claim awarding Hopkins $50,000.00 in damages and $10,000.00 in attorney's fees.

Withdrawal of Counsel  

In his first issue, Porter contends that the trial court wrongfully permitted his trial counsel to withdraw. The standard of review on a trial court's grant of an attorney's motion to withdraw is abuse of discretion. See Williams v. Bank One Texas, N.A., 15 S.W.3d 110, 114 (Tex. App.- Waco 1999, no writ). Withdrawal of counsel is governed by Texas Rule of Civil Procedure 10. Rule 10 requires that in order for an attorney to withdraw from representing a party where another attorney will not be substituted, the attorney must (1) file written motion for good cause shown, which states that (2) a copy of the motion has been delivered to the party, (3) that the party has been notified in writing of his right to object to the motion, (4) whether the party consents to the motion, (5) the party's last known address and (6) all pending settings and deadlines. See Tex. R. Civ. P. 10. A trial court abuses its discretion when it grants a motion to withdraw which does not comply with the mandatory requirements of Rule 10. See Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.- Tyler 1994, writ denied) (op. on reh'g). However, the court can render such error harmless by giving "the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial." Id., quoting Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

In the case at hand, Porter's trial counsel filed a motion to withdraw based on alleged non-payment of attorneys fees and lack of cooperation by Porter. The motion to withdraw stated that Porter was advised by letter dated June 23, 1997 and sent by certified and regular mail to his last known address, of his attorney's intent to withdraw. The motion, which was enclosed with the letter to Porter, further stated that Porter was advised that a hearing would be conducted on July 2, 1997 and that any objection to the motion should be made to the trial court in writing before that time. However, neither the motion, nor the attached letter, which were sent to Porter, contained any notice of all pending settings and deadlines. ⁽³⁾ As Porter points out, the record reflects that a pre-trial docket control order was signed on May 21, 1996, which set forth certain deadlines and setting dates. However, at the time that Porter's attorney filed his motion to withdraw, all of the setting dates and deadlines on the trial court's docket control order had passed, including the date of trial. Hopkins had filed multiple discovery requests, which were, as of the date Porter's attorney filed his motion to withdraw, long overdue. The trial court did not send out notice of the new trial setting until September 4, 1997, almost two months after Porter's attorney's motion to withdraw had already been granted. Thus, the record reflects that at the time Porter's attorney filed his motion to withdraw, and for almost two months following the date the motion to withdraw was granted, there were no pending settings or deadlines. Therefore, since the motion to withdraw satisfies the requirements of Rule 10, the trial court did not abuse its discretion. ⁽⁴⁾ Porter's first issue is overruled.

Undeeming Admissions  

Requests for admission are automatically deemed admitted as a matter of law on the day after the answers are due if service of the requests was perfected and no answers, objections, or assertions of privilege have been filed. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). The trial court has broad discretion to permit or deny the withdrawal of deemed admissions. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); see also Texas Capital Securities, Inc. v. Sandefer, No. 01-99-01238-CV, 2001 WL 522032, at 9 (Houston [14th Dist.] May 17, 2001, no pet.). An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. See Stelly, 927 S.W.2d at 622. A party may withdraw deemed admissions upon a showing of good cause if the trial court finds the parties relying upon the responses would not be unduly prejudiced and the presentation of the merits of the action will thereby be observed. See Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 806-07 (Tex. App.- Houston [1st Dist.] 1999, pet. denied). In order to undeem admissions, a party must state good cause, explaining why it did not timely serve its answers to the request for admissions. See City of Houston v. Riner, 896 S.W.2d 317, 319 (Tex. App.- Houston [1st Dist.] 1995, writ denied). Good cause is established when the failure to respond is accidental or the result of a mistake, rather than intentional or the result of conscious indifference. See Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998).

In the case at hand, in his brief to the trial court on allowing amendment of deemed admissions, Porter argued that (1) he was not fully aware of what the requests for admissions were, and (2) that he had not attended to them because of his attentiveness to his wife's health problems. In other words, although Porter acknowledges receipt of the request for admissions, the meaning of which he did not understand, he chose not to retain an attorney and further chose to disregard the document in the interest of his wife's medical needs. While Porter's decision to attend to his wife's medical problems is undoubtedly a reasonable and admirable one, it nonetheless does not establish that Porter's failure to answer was the result of an accident or a mistake. Rather, Porter's actions amount to a conscious disregard of his legal responsibilities, which cannot, as a matter of law, constitute good cause. See Deggs, 968 S.W.2d at 356. Thus, we conclude that the trial court did not act without reference to guiding rules or principles, nor did it act arbitrarily or unreasonably. It follows that the trial court did not abuse its discretion by refusing to undeem Porter's admissions. Porter's second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Opinion delivered July 25, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1.

There is no indication in the record whether or not a hearing was held on July 2, 1997 as advised in the motion to withdraw.

2.

This motion was filed by the same attorney who had previously withdrawn. This attorney subsequently filed a motion to withdraw and substitute counsel, which the trial court granted on July 16, 1998.

3.

Although the motion to withdraw does not state whether Porter had consented to the withdraw, we believe a reasonable inference can be drawn that Porter had not given his consent to the withdrawal, given that the cause for the motion to withdraw was Porter's failure to communicate with his attorney and Porter's failure to respond to his attorney's correspondence.

4.

Even if we had determined the trial court had abused its discretion in granting Porter's attorney's motion to withdraw, such error would have been harmless. See Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 148 (Tex. App.- El Paso 2000, no writ) (error was harmless when trial court granted a withdrawal and party had 50 additional days before for trial); see also Williams, 15 S.W.3d at 114 (error was harmless when trial court granted a withdrawal and party had 42 days in which to secure new counsel and prepare for summary judgment hearing). In the case at hand, following the trial court's granting the motion to withdraw, Porter had ninety-five days to secure counsel before a response to Hopkins's requests for admission were due.