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Wilborn v. Life Ambulance Services, Inc.

Court of Appeals of Texas, Eighth District, El Paso

April 14, 2005


          Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 99-1971-B)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.



         This is an appeal from the denial of a continuance of a hearing on Motions for Summary Judgment filed by Appellee and the corresponding granting of the Motions for Summary Judgment. For the reasons stated, we affirm the judgment of the trial court.


         Appellants 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 Appellee for claims related to the life support, resuscitation and transport of the deceased. 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.

         Two 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.

         On 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, Appellee 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 Appellee. 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.

         Appellants 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 Summary 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."


         In 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. Tex.R.App.P. 38.1(h).

         A. Standard of Review-Abuse of Discretion

         The 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 ...

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