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Villegas v. Carter

Supreme Court of Texas
Jun 18, 1986
711 S.W.2d 624 (Tex. 1986)

Summary

holding trial court's denial of a motion for continuance will not be disturbed absent clear abuse of discretion

Summary of this case from Schneider Nat. Carriers, Inc. v. Bates

Opinion

No. C-4776.

June 18, 1986.

Appeal from the District Court, El Paso County, Fashing, J.

Jose Montes, Jr., El Paso, for petitioner.

Edwards, Belk, Hunter and Kerr, J. Crawford Kerr, El Paso, for respondents.


This case involves the trial court's discretion to deny a motion for continuance after allowing the attorney to withdraw two days before trial. As a result of the denial, the petitioner Villegas appeared pro se and prosecuted his case unsuccessfully. In an unpublished opinion, the court of appeals affirmed the judgment. We reverse the court of appeals judgment and remand to the trial court for a new trial.

In June, 1982, Jaime Lara Villegas bought a home in El Paso from Wilmot and Alicia Carter. Villegas assumed a first lien and executed a second lien for approximately $38,000. He defaulted in July 1983, and the Carters accelerated the note. Villegas and the Carters then worked out an agreement, with Villegas executing a new note for $47,000 that included accrued interest, expenses, and a higher interest rate. In January 1984, the Carters' trustee informed Villegas that he owed $1,350 in delinquent payments. Villegas paid the Carters $5,000 on March 2nd to cure the default, pay the attorney's fees, and provide a credit on future payments. On April 9th the Carters' trustee posted the property for foreclosure. On June 5th, the trustee sold the property at public auction back to the Carters.

Villegas filed suit in county court on June 25, 1984, alleging that: (1) the second promissory note was void for usury; (2) the sale was for an inordinately low amount; (3) he had not received notice of the foreclosure sale; and (4) there were other irregularities in the public sale of the property. He was represented by Paula Thomas and Miguel Cervantes. The court set the cause for trial on October 25, 1984. On October 3rd, Thomas moved to withdraw as counsel, and the motion was granted that day. Cervantes moved to withdraw as counsel on October 5th, alleging irreconcilable differences. The court granted his motion to withdraw on October 23rd.

Two days later, Villegas appeared for trial without an attorney and told the court that he wanted time to get an attorney; that he first learned about Cervantes' attempt

to withdraw only six days before at his deposition; that Cervantes would not turn over his file and important evidence to him although Cervantes had not presented him with a bill; that he wanted to hire a new attorney, Jose Montez, Jr., but that Montez would not take the case until he could see the file, look over the facts, and determine the fee; and that Montez had called Cervantes to obtain the file but that Cervantes would not return his call.

The court refused Villegas' request for a continuance to obtain an attorney and his papers. The case was then tried to the court. The court denied Villegas' claim and awarded the Carters restitution of their property and a deficiency judgment of $19,700.

Tex.R.Civ.P. Rule 253 provides:

[A]bsence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of judge to be stated on the record.

The granting or denial of a motion for continuance is within the trial court's sound discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex. 1963). The trial court's action will not be disturbed unless the record discloses a clear abuse of discretion. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence. State v. Crank, 666 S.W.2d at 94. Generally, when movants fail to comply with Tex.R.Civ.P. 251's requirement that the motion for continuance be "supported by affidavit," we presume that the trial court did not abuse its discretion in denying the motion. Garcia v. Tex. Emp. Ins. Ass'n, 622 S.W.2d 626, 630 (Tex.App. — Amarillo 1981, writ ref'd n.r.e.). It would be unrealistic, however, to apply this presumption to lay movants who without fault have their attorney withdrawn. Robinson v. Risinger, 548 S.W.2d 762, 765 (Tex.Civ.App. — Tyler, 1977, writ ref'd n.r.e.).

The right to counsel is a valuable right; its unwarranted denial is reversible error. See State v. Crank, 666 S.W.2d at 94; Stefanov v. Ceips, 395 S.W.2d 663, 665 (Tex.Civ.App.-Amarillo, 1965, no writ). Therefore, when 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. Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App. — Fort Worth 1970, writ ref'd n.r.e.); Stefanov v. Ceips, 395 S.W.2d at 665; Leija v. Concha, 39 S.W.2d 948, 950 (Tex.Civ.App.-El Paso 1931, no writ). See Robinson v. Risinger, 548 S.W.2d 762 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Before a trial court allows an attorney to withdraw, it should see that the attorney has complied with the Code of Professional Responsibility:

[A] lawyer should not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.

Supreme Court of Texas, Rules Governing the State Bar of Texas art. XII, § 8 (Code of Professional Responsibility) DR 2-110(A)(2); Smith v. State, 490 S.W.2d 902, 909-910 (Tex.Civ.App.-Corpus Christi 1972, writ ref'd n.r.e.).

In this case, the trial court abused its discretion because the evidence shows that Villegas was not negligent or at fault in causing his attorney's withdrawal. The court granted Villegas' attorney's motion to voluntarily withdraw two days before trial — too short a time for Villegas to find a new attorney and for that new attorney to investigate the case and prepare for trial. In addition, Villegas could not obtain a new attorney or present his case because the former attorney refused to turn over Villegas' files with his papers and evidence. 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.

The trial court should either have denied the attorney's motion to withdraw or granted the party's motion for continuance; it did neither. Therefore, we reverse the court of appeals judgment and remand for a new trial.


Summaries of

Villegas v. Carter

Supreme Court of Texas
Jun 18, 1986
711 S.W.2d 624 (Tex. 1986)

holding trial court's denial of a motion for continuance will not be disturbed absent clear abuse of discretion

Summary of this case from Schneider Nat. Carriers, Inc. v. Bates

holding that two days to secure new counsel was inadequate

Summary of this case from Spiller v. Tex. A&M Univ. Sys.

holding after counsel withdrew only six days before client's deposition and two days before trial, court erred in not allowing that party time to obtain new counsel

Summary of this case from In re Commitment of Wirtz

holding that when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for new counsel to investigate and prepare for trial

Summary of this case from Jordan-Nolan v. Nolan

holding that party who lacked counsel was not negligent or at fault when court had permitted his attorney to withdraw two days before trial

Summary of this case from Thurman v. Buy George Resale, L.L.C.

holding that a trial court abused its discretion by denying a motion for continuance when a party's attorney withdrew two days before trial, which was "too short a time" for the party to find a new attorney

Summary of this case from Mote Res., Inc. v. Gardner

holding that a trial court must afford new counsel reasonable time to prepare for trial

Summary of this case from In Interest of P.M.

holding that trial court's denial of motion for continuance will not be disturbed unless record demonstrates clear abuse of discretion

Summary of this case from Soto v. Drefke

finding abuse of discretion in denying motion for continuance where counsel withdrew two days before trial, and withdrawal was not caused by client's negligence or fault

Summary of this case from In re Sakyi

finding abuse of discretion in denying motion for continuance where counsel withdrew two days before trial, and withdrawal was not caused by client's negligence or fault

Summary of this case from In re Rodriguez

finding it unrealistic to apply presumption of no abuse of discretion, arising because lay litigant's motion for continuance was not sworn, when lay litigant's attorney was permitted to withdraw two days before trial through no negligence of client

Summary of this case from In re A. R.

finding court abused its discretion in allowing attorney to withdraw two days before trial and not granting continuance

Summary of this case from Holt v. D'Hanis State Bank

ruling granting or denying a motion for continuance will not be disturbed unless the record discloses a clear abuse of discretion

Summary of this case from MWM Helotes Ranch, Ltd. v. White

ruling on a motion for continuance

Summary of this case from Gittinger v. Progressive Co Mut

reversing trial court's denial of continuance and granting of motion to withdraw two days' before trial and holding that "[t]he right to counsel is a valuable right; its unwarranted denial is reversible error"

Summary of this case from In re C.M.D.

reversing denial of continuance where counsel withdrew shortly before trial and failed to take reasonable steps to avoid prejudice to the client

Summary of this case from In Interest of S.D.A.

recognizing presumption that trial court does not abuse discretion in denying motion for continuance if motion not supported by affidavit

Summary of this case from Nassar v. Houston Ind. Sc.

In Villegas, counsel moved to withdraw twenty days before trial, and the trial court granted counsel's motion to withdraw two days before trial.

Summary of this case from Ennadi v. Ennadi

In Villegas, a party appeared at trial without an attorney and requested time to obtain an attorney after the trial court allowed his attorney to withdraw two days before trial.

Summary of this case from Tex. REIT, LLC v. Mokaram-Latif W. Loop, Ltd.

In Villegas, reviewing a trial court's denial of a motion for continuance due to absence of counsel, the court noted that the right to counsel is a valuable right and its unwarranted denial is reversible.Id.

Summary of this case from Tex. REIT, LLC v. Mokaram-Latif W. Loop, Ltd.

In Villegas, the plaintiff learned his counsel planned to withdraw six days before trial and the trial court allowed counsel to withdraw two days before trial on the basis there were irreconcilable differences between plaintiff and his counsel. Id.

Summary of this case from Felt v. Bailey

stating proposition and citing Garcia v. Texas Employers' Ins. Assn., 622 S.W.2d 626, 630 (Tex. App.—Amarillo 1981, writ ref'd n.r.e)

Summary of this case from Winegardner v. Hughes

In Villegas, the Supreme Court's decision hinged on the fact that Villegas was not negligent or at fault in causing his attorney's withdrawal.

Summary of this case from In re Interest of E.Y.H.

stating that "[t]he right to counsel is a valuable right; its unwarranted denial is reversible error," and holding trial court should have either denied counsel's motion to withdraw two days before trial or granted party's motion for continuance to give "time to secure new counsel and time for the new counsel to investigate the case and prepare for trial"

Summary of this case from In re V.I.P.

In Villegas, the Texas Supreme Court held that when a motion for continuance is not sworn or supported by a proper affidavit, a reviewing court generally presumes the trial court did not abuse its discretion in denying the continuance.

Summary of this case from Ortiz v. Plano Indep. Sch. Dist.
Case details for

Villegas v. Carter

Case Details

Full title:Jaime Lara VILLEGAS, Petitioner, v. Wilmot R. CARTER et al., Respondents

Court:Supreme Court of Texas

Date published: Jun 18, 1986

Citations

711 S.W.2d 624 (Tex. 1986)

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