Kitten Strahan and Leopold Sister Properties, LLC v. Ignacio Larios D/B/A All Roofing & General Contrators Abry Brothers, L.P. James Deaver Services Inc. and James Deaver

Motion Granted; Order and Dissent to Order filed March 9, 2021.
In the
Fourteenth Court of Appeals
____________
NO. 14-20-00817-CV
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KITTEN STRAHAN AND LEOPOLD SISTER PROPERTIES, LLC,
Appellants
v.
JAMES DEAVER SERVICES, INC. AND JAMES E. DEAVER, JR.,
Appellees
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 20-CV-0531
DISSENT TO ORDER
The court grants appellees’ motion that requests (1) substitution of a law
firm (as opposed to individual counsel), (2) substitution of lead counsel,
(3) addition of another attorney, (4) and “removal” of a law firm.1 To the extent
1
The court states it is granting an “unopposed motion to substitute counsel.” Whatever
the court is granting, it is misleading to describe it as an unopposed motion to substitute counsel.
Substitution under the Texas Rules of Appellate Procedure only occurs “[i]f an attorney
that the first three requests need no motion, the “grant” is harmless. The fourth
request is not harmless.
It is not clear whether the court considers Texas Rule of Appellate Procedure
6, which governs a motion for leave to withdraw from representing a party in the
appellate court, to be merely “a suggestion” or to be “the law.” Generally, parties
and attorneys do not need court permission to terminate their attorney-client
relationship, but once an attorney appears in the appellate court to represent a party
as counsel, Rule 6 unambiguously requires the “attorney” to have the court’s leave
to withdraw from representing the party. Tex. R. App. P. 6.
Applying Rule 6.1(b), Attorney Burke is already lead counsel for appellees
as his signature first appeared on the first document filed in this court. Tex. R.
App. P. 6.1(b). The appearance of another attorney for appellees is governed by
Rule 6.2, and the motion can fairly be interpreted as sufficient notice of appearance
of Attorney Seffens as additional counsel for appellees. That Burke changed law
firms does not affect his existing status as counsel representing appellees in this
court, so the motion can fairly be interpreted as a notice to the clerk of this court to
update Burke’s contact information.
I disagree with the court on two matters. First, the court suggests that Burke
needs this court’s permission to change law firms after appearing as counsel in this
court. He does not; where he practices law is not this court’s business. Second, the
substitutes for a withdrawing attorney.” Tex. R. App. P. 6.5(d) (emphasis added). The motion
lists no attorneys withdrawing or substituting; instead, the motion requests that lead counsel’s
law firm substitute “as counsel in this matter.” Rule 6.5 requires that such a motion “must be
delivered to the party in person or mailed—both by certified and by first-class mail—to the party
at the party’s last known address,” and the motion’s certificate of service shows no indication
that the motion was delivered to the appellants. Tex. R. App. P. 6.5(b). The motion does not
request leave for any attorney (or law firm) to withdraw, but does request that lead counsel’s
“former firm . . . be removed from this matter.”
2
court suggests that Burke has standing to ask this court to “remove” his former law
firm from “representing” a client and that this court can grant that motion. Burke
has no such standing, and this court has no such authority. By its plain language,
Rule 6 does not contemplate the appearance or withdrawal of a law firm. Tex. R.
App. P. 6. The Rule unambiguously addresses the appearance of individual
attorneys. See, e.g., Tex. R. App. P. 6.1(c), 6.2 (requiring lead counsel and other
attorneys representing party in appellate court to provide State Bar of Texas
identification numbers).2 The Rule says that an “attorney” must file a Rule 6.5
motion for leave to withdraw. Tex. R. App. P. 6.5.
It is reasonable for people to question why this is worth a separate writing. It
matters for two reasons. First, another attorney from Burke’s original law firm
appeared as counsel representing appellees by adding his name and State Bar of
Texas identification number to a previous motion filed by appellees. If that
attorney seeks leave to withdraw from representing appellees in this court, then
that attorney must file a Rule 6.5 motion. Tex. R. App. P. 6.5. Rule 6.5 does not
allow anyone other than the attorney who seeks leave to withdraw to file that
motion.3
Second, the court should be efficient in ruling on motions. But the court
must also follow the law. While this could fairly be characterized as a minor
ruling, that does not mean the court is free to do whatever it thinks is “right.” What
process does the court follow to determine when to follow the law and when not
2
If the Clerk of the Supreme Court of Texas has ever issued a bar card to a law firm, that
is news.
3
Rule 6.5 permits “an attorney to withdraw” and specifically requires the motion to “be
delivered to the party” and state “that the party was notified in writing of the right to object to the
motion.” Tex. R. App. P. 6.5.
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to? The efficient way to conduct the court’s business on such nondiscretionary
motions is to simply follow the law and rule accordingly. Time spent deciding
whether to follow the plain language of statutes or rules is time wasted.
I concur in the portion of this court‘s order to the extent that it grants “relief”
on something for which the appellate rules do not even require a motion; at most
that part of the order is harmless. I dissent to the portion of the order that grants a
request from a party and/or its counsel to “remove” an entity that is not an
attorney—the law firm in this case—as counsel. This court has no authority to do
that. Only attorneys are licensed to practice law; law firms are not licensed. See
Tex. Gov’t Code Ann. §§ 82.001–.066. This court’s order “removing” a law firm
implies the previous automatic appearance of all attorneys at that law firm merely
because the law firm’s name appeared on a document filed in this court. That is not
the law and never has been.
/s/ Charles A. Spain
Justice
Panel Consists of Chief Justice Christopher and Justices Wilson and Spain. (Spain,
J., dissenting).
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