Court of Appeals of Texas, Eighth District, El Paso
CHARLOTTE R. WILBORN, INDIVIDUALLY AND AS THE ADMINISTRATRIX OF THE ESTATE OF EDWARD E. WILBORN, DECEASED, EDE R. WILBORN, JA'MILLE WILLIAMS WILBORN, AND ESTHER O. MORRIS, Appellants
GE MARQUETTE MEDICAL SYSTEMS, INC. AND MARQUETTE ELECTRONICS, INC., Appellees.
from the County Court at Law No. 7 of El Paso County, Texas
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
RICHARD BARAJAS, CHIEF JUSTICE
an appeal from the denial of a continuance of a hearing on
Motions for Summary Judgment filed by Appellees and the
corresponding granting of the Motions for Summary Judgment.
For the reasons stated, we affirm the judgment of the trial
FACTUAL AND PROCEDURAL HISTORY
filed a lawsuit against multiple defendants arising out of an
accident that occurred on April 6, 1998 that resulted in the
death of Edward Wilborn. Edward Wilborn was electrocuted
while performing duties in the course and scope of his
employment. Appellants sued various Defendants for various
claims related to the incident and Appellees for claims
related to allegations that a defibrillator used on Edward
Wilborn was defective. At the time that Appellants filed
their Original Petition, June 9, 1999, they were represented
by two attorneys, Jose Montes, Jr. and Michael D. Volk.
subsequent petitions were filed, and were entitled
Appellant's First Amended Original Petition and Second
Amended Original Petition, respectively. Each reflected that
Appellants were represented by both Mr. Montes and Mr. Volk.
A Third Amended Original Petition was filed on April 6, 2000
which was signed only by Mr. Jose Montes, Jr. The appellate
record reveals that the case remained pending for several
years and included one abatement of the case due to the
filing of bankruptcy by one of the Defendants.
March 25, 2003, Michael D. Volk filed a Motion to Withdraw as
attorney of record notifying the court that "there has
been a breakdown in cooperation and communication with
counsel in the handling of their case." The trial court
signed the Order allowing for the withdrawal of Mr. Volk on
April 9, 2003. Mr. Montes remained the attorney of record and
Mr. Volk's motion specifically informs the court that Mr.
Montes "will remain as counsel." The motion also
includes a paragraph referencing various pending deadlines,
including notice that all dispositive motions were to be
filed by May 8, 2003 and a trial setting of June 23, 2003. On
April 17, 2003, Appellees filed two Motions for Summary
Judgment, a traditional motion and a "no evidence"
motion, setting both for hearing on May 8, 2003. On April 30,
2003, Appellants filed a Motion for Continuance of the
dispositive motions hearing, contending that at the April 9,
2003 hearing on the Motion to Withdraw, the trial court
allowed Appellants thirty days, until May 9, 2003, to obtain
new counsel to represent them in pursuing their claims
against Appellees. We note for the record that neither the
Motion for Continuance nor the Order denying same are
included in the clerk's record though Appellants attach a
copy of the motion in the appendix to their brief. The Motion
for Continuance was apparently considered at the dispositive
motions hearing held May 8, 2003 and denied. At that hearing,
the trial court judge orally denied Appellant's motion
but indicated that he would consider the pending motions for
summary judgment "under submission" and would rule
on them after the May 9, 2003 deadline. We also note that the
Order allowing the withdrawal of Mr. Volk makes no reference
to allowing Appellants any time limit to retain new counsel.
The matter appears to have been discussed at the April 9,
2003 hearing, but any order or agreement was never reduced to
writing and a transcript of that hearing is not included in
the appellate record. The trial court granted the motions for
summary judgment and severance of the case on May 12, 2003.
filed a Motion for New Trial and Notice of Appeal. Appellants
have raised one issue, complaining that the "trial court
erred in denying Appellant's Motion for Continuance
because the time period to secure new counsel had not yet
expired prior to the trial court's granting of
Appellee's . . . Motion for Summary Judgment."
DISCUSSION OF ISSUE
their sole complaint, Appellants assert that the trial court
abused its discretion in denying Appellants' Motion for
Continuance of the summary judgment hearings. We note that
Appellants' brief appears to include a complaint about
the "granting of Appellee's . . . Motion for Summary
Judgment" in a brief reference contained in its
preliminary statement of the case. We also note for the
record that Appellants do not brief the issue regarding the
granting of the summary judgments and do not reference it in
the body of the brief. Because Appellants do not argue or
brief the issue, and do not cite any authority or make any
references to the record, we consider that issue waived.
Standard of Review-Abuse of Discretion
granting or denial of a motion for continuance is within the
trial court's sound discretion. Villegas v.
Carter,711 S.W.2d 624, 626 (Tex. 1986); State v.
Crank, 666 S.W.2d 91, 94 (Tex. 1984); Hernandez v.
Heldenfels, 374 S.W.2d 196, 202 (Tex. 1964). 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. Villegas, 711
S.W.2d at 626; 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.
Villegas, 711 S.W.2d at 626; Garcia v. Tex. Emp.
Ins. Ass'n, 622 S.W.2d 626, 630 (Tex.App.--Amarillo
1981, writ ref'd n.r.e.). The right to counsel is a
valuable right; its unwarranted denial is reversible error.
Villegas, 711 S.W.2d at 626; see 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. Villegas, 711 S.W.2d at 626; Lowe v. City
of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App.--Fort
Worth 1970, writ ref'd n.r.e.); Stefanov, 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 ...