In Re Estate of Avy I. Gost, Deceased--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION
No. 04-03-00784-CV
IN RE ESTATE OF Avy I. GOST
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2003-PC-0091
Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

Patricia Lawren ("Lawren") appeals an order dismissing her as a party to the underlying suit. On appeal, Lawren contends: (1) the trial court's granting of the motion to withdraw filed by her attorney was erroneous and harmful; and (2) the trial court erred in striking Lawren's pleadings for failure to meet a deadline that was not listed in the motion to withdraw. We affirm the trial court's order.

Background

Chakiris filed an application to probate Avy I. Gost's will on January 9, 2003. Contests to the application were filed by Lawren and by Peter and Linda Parenti. On March 11, 2003, the case was set for trial on June 30, 2003. Apparently, the case was subsequently re-set because the trial did not begin until July 16, 2003.

On April 28, 2003, Chakiris filed a motion to compel Lawren to respond to discovery. The motion was heard on May 5, 2003, and Lawren was ordered to respond to specific requests for production and interrogatories on or before May 30, 2003. (1) On May 12, 2003, Chakiris filed a notice of intention to take Lawren's deposition on June 11, 2003. On June 4, 2003, Lawren's attorney filed a motion to withdraw as attorney, stating irreconcilable differences had developed between he and Lawren necessitating his withdrawal. The trial court granted the motion to withdraw on June 10, 2003. (2)

On June 18, 2003, Chakiris filed a motion for sanctions based on Lawren's failure to comply with the trial court's discovery order. Chakiris also filed a motion for sanctions based on Lawren's failure to appear for deposition. A hearing on the motions was held on June 30, 2003; however, Lawren failed to appear. The trial court granted the motions, struck Lawren's pleadings, and dismissed her as a party to the lawsuit.

On July 14, 2003, two days before trial was to commence, Lawren filed a motion to reconsider the trial court's order granting sanctions. The trial court set the motion for a hearing on July 16, 2003. (3) After the hearing, the trial court denied the motion, noting that the order granting sanctions did not preclude Lawren from filing another contest. The trial court proceeded to trial and denied the Parentis' opposition to the will filed by Chakiris. Lawren timely filed this appeal.

Discussion

We review a trial court's ruling on a motion to withdraw under an abuse of discretion standard. Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex. App.--Dallas 2002, pet. denied). A trial court abuses its discretion when it grants a motion to withdraw that does not comply with the mandatory requirements of rule 10. Gillie, 65 S.W.3d at 221; Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114 (Tex. App.--Waco 1999, no pet.). Nevertheless, such error may be harmless if the court allows the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 148 (Tex. App.--El Paso 2000, no pet.); Williams, 15 S.W.3d at 114.

Rule 10 requires a motion to withdraw to state that the party has been notified of his right to object and whether the party consented to the motion. Tex. R. Civ. P. 10. The motion also is required to list all pending settings and deadlines. Tex. R. Civ. P. 10. The motion to withdraw filed in the instant case does not meet any of those requirements. (4) Accordingly, we must determine if the granting of the motion to withdraw resulted in harm.

In this case, any harm to Lawren must stem from the order granting the motion for sanctions because after that order was entered, Lawren was no longer a party to the pending controversy and would not need counsel to investigate and prepare for the pending trial setting. At the hearing on the motion to reconsider sanctions, Chakiris's attorney stated that Lawren's attorney told him that he would have to withdraw because Lawren was not cooperating with the discovery she was required to produce. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding statements by attorneys constitute evidence if party fails to object). Lawren's attorney told Chakiris's attorney that Lawren would not return his phone calls or provide the information needed to complete the discovery. The trial court's sanctions order was based on two grounds: (1) Lawren's failure to appear at the scheduled deposition; and (2) Lawren's failure to comply with the trial court's order compelling discovery. Even assuming that Lawren was unaware of the deposition, she was clearly aware of the need to comply with the discovery order because her failure to cooperate was the reason her attorney filed the motion to withdraw. Because Lawren's failure to comply with the discovery order was due to her own fault or negligence, the trial court properly granted the sanctions and did not abuse its discretion in denying Lawren a continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (noting movants must show that the failure to be represented at trial was not due to their own fault or negligence when the ground for the continuance is the withdrawal of counsel). Furthermore, as noted by the trial court, Lawren was not precluded from refiling her opposition to the probate of the will produced by Chakiris because the order striking her pleadings was without prejudice. Accordingly, the trial court's granting of the motion to withdraw was harmless.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

1. The written order was not signed until June 4, 2003.

2. At the hearing on the motion to reconsider sanctions, Chakiris's attorney stated that the trial court previously advised him "that at the time of the hearing on the withdrawal, that Ms. Lawren had indicated that she was losing steam, she wasn't interested, she'd like to get her attorneys['] fees back, she was sick of the whole thing."

3. Lawren was represented by counsel at the hearing.

4. Chakiris asserts that the failure of the motion to comply with Rule 10 has not been preserved for our review because it was not mentioned as a ground in the motion to reconsider. The reporter's record from the hearing on the motion to reconsider, however, contains extensive discussion regarding the motion's failure to comply with the requirements. Accordingly, this issue was before the trial court and has been preserved for our consideration.