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Gadberry Construction Company, Inc. v. Raney

Court of Appeals of Texas, Second District, Fort Worth

July 18, 2019

Gadberry Construction Company, Inc., Appellant
v.
Robert Raney d/b/a Stamped Concrete, Appellee

          On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141-291001-17

          Before Kerr, Birdwell, and Bassel, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr Justice.

         In two issues, Gadberry Construction Company, Inc. challenges the trial court's order granting its prior counsel's withdrawal motion and denying its continuance motion seeking to reopen discovery and to postpone an upcoming summary-judgment hearing and bench trial. We will affirm.

         Background

         This case arises from Gadberry's alleged failure to pay Robert Raney d/b/a Stamped Concrete for work Raney did on a commercial-construction project. In March 2017, Raney sued Gadberry for breach of contract, quantum meruit, promissory estoppel, and theft of service. Gadberry counterclaimed for breach of contract and for violations of the Texas Deceptive Trade Practices Act.

         On April 2, 2018, Raney moved for no-evidence summary judgment on Gadberry's counterclaims and set the motion for hearing on April 27. See Tex. R. Civ. P. 166a(i). Thus, Gadberry's summary-judgment response would have been due on April 20. See Tex. R. Civ. P. 166a(c).

         On April 11, 2018, Gadberry's counsel moved to withdraw because she was "unable effectively to communicate with Gadberry in a manner consistent with good attorney-client relations" and because Gadberry had not paid the additional retainer that she had requested. Neither Gadberry nor Raney opposed the motion. As the only pending settings and deadlines, the motion listed Gadberry's corporate representative's upcoming deposition scheduled for April 18 and a May 21 trial setting; it did not list the summary-judgment-response deadline or the summary-judgment-hearing setting. See Tex. R. Civ. P. 10 (requiring a withdrawal motion filed without designating a substitute attorney to state, among other things, all pending settings and deadlines). The trial court granted the motion on April 13.

         Gadberry hired new counsel four days later on April 17, 2018, and Raney agreed to postpone Gadberry's corporate representative's deposition to April 19. Even though Gadberry had retained counsel, it did not file a response to the summary-judgment motion on April 20. Instead, on April 23, it moved to continue the summary-judgment hearing, to extend its deadline to respond to the motion, to reopen discovery, and to continue the trial setting. The trial court heard Gadberry's continuance motion and Raney's summary-judgment motion on April 27. The trial court denied the continuance motion and granted the summary-judgment motion, ordering that Gadberry take nothing on its counterclaims.

         After a day-long bench trial on May 22, the trial court rendered judgment for Raney against Gadberry for $15, 371.35, plus trial and conditional appellate attorney's fees. Gadberry has appealed.

         The Motion to Withdraw

         In two issues, Gadberry complains that the trial court erred by granting a noncompliant withdrawal motion and that such error was rendered harmful when the trial court refused to grant Gadberry a continuance to allow its new counsel time to investigate the case and to prepare for trial.

         An attorney may withdraw from representing a client only if the attorney satisfies civil-procedure rule 10's requirements. Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990). Rule 10 permits counsel to withdraw only upon written motion showing good cause. Tex.R.Civ.P. 10. When, as here, another attorney is not substituting for the withdrawing attorney, the withdrawal motion must state

that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known ...

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