Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 141st District Court Tarrant County, Texas
Trial Court No. 141-291001-17
Kerr, Birdwell, and Bassel, JJ.
Elizabeth Kerr Justice.
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.
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.
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).
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.
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
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
Motion to Withdraw
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.
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 ...