Harrison v. Harrison
| Decision Date | 26 April 2012 |
| Docket Number | No. 14–10–00759–CV.,14–10–00759–CV. |
| Citation | 367 S.W.3d 822 |
| Parties | Connie Vasquez HARRISON, Appellant, v. Clifford Layne HARRISON, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Kevin Graham Cain, Houston, for appellant.
Patricia A. Wicoff, Houston, for appellee.
Panel consists of Justices FROST, BROWN, and BOYCE.
SUBSTITUTE OPINION
We grant the motion for rehearing in part and overrule in part; we withdraw our opinion dated March 13, 2012, and issue the following substitute opinion.
Connie Vasquez Harrison appeals from the trial court's divorce decree on numerous grounds. Most of the parties' appellate arguments focus on the circumstances surrounding the withdrawal of Connie's attorney, over Connie's objection, 40 days before the parties picked a jury, and the trial court's subsequent denial of Connie's motion to continue the trial in light of her attorney's withdrawal. We affirm in part and reverse and remand in part.
Analysis of the dispositive issues in this case requires a detailed chronology of the events leading up to a jury trial that began on March 22, 2010, and concluded on April 13, 2010.
Connie and Clifford Harrison married on February 26, 2000, and ceased living together as husband and wife in January 2006. They have a son who was born in 2000 and a daughter who was born in 2004. Clifford is a lawyer and at all relevant times he was represented by counsel in the divorce proceedings. Connie has a law degree but never has practiced law.
Clifford filed his original petition for divorce on October 30, 2006, asserting that the “marriage has become insupportable because of discord or conflict of personalities between [Clifford] and [Connie] that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”
At the time Clifford filed for divorce, Connie was represented by attorney Robert J. Piro in connection with a prior request for a protective order against Clifford. She filed a motion on December 7, 2006, asking the trial court to sign an order substituting Bobby K. Newman as her attorney of record and discharging Piro. The trial court granted Connie's motion on December 8, 2006, finding that the substitution was “not sought for delay only.”
Connie filed a second motion for substitution of counsel on March 30, 2007, asking the trial court to discharge Newman and substitute Joan F. Jenkins as her attorney of record. The trial court granted Connie's motion on the same day and found that the substitution was “not sought for delay only.”
Connie filed a motion for interim fees on April 3, 2007, asking the trial court to order Clifford to “pay reasonable interim attorney's fees and expenses, including but not limited to fees for appraisals, accountants, actuaries, and so forth, in an amount not less than $25,000” because Connie is “not in control of sufficient community assets to pay attorney's fees and anticipated expenses.”
The trial court signed temporary orders on May 15, 2007; among other things, the temporary orders addressed attorney's fees. The trial court ordered Clifford to pay: (1) “$10,000.00 to the Bobby Newman Trust Account ... which sum represents interim attorney fees on behalf of [Connie] and is acknowledged as having already been paid;” (2) “$10,000.00 to Ann Knight ... which sum is acknowledged as having already been paid and which sum is to be used to pay in full the promissory note executed by [Connie] to Ann Knight for payment of attorney fees;” and (3) “$40,000.00 to Joan F. Jenkins on or before June 1, 2007.” The trial court also appointed Heather Hughes as amicus attorney and ordered Clifford to pay her $10,000 by June 1, 2007.
Jenkins filed a motion to withdraw as Connie's attorney on July 25, 2007, stating that good cause existed for her withdrawal “in that she is unable to effectively communicate with Connie [ ] in a manner consistent with good attorney-client relations.” Connie consented to Jenkins's motion to withdraw; Clifford and amicus attorney Hughes did not oppose it. The trial court granted Jenkins's motion on August 15, 2007.
Michael Phillips announced his appearance as Connie's attorney of record on October 5, 2007. According to one of Connie's filings, Phillips ceased to represent Connie in December 2007; Connie hired J.D. Bucky Allshouse to represent her in December 2007.
On January 10, 2008, Connie filed a motion for substitution of counsel asking the trial court to “enter an order substituting herself pro se and discharging J.D. Bucky Allshouse as attorney of record.” The trial court granted Connie's motion on January 11, 2008, finding that the substitution was “not sought for delay only.”
Clifford filed his first amended original petition for divorce on January 15, 2008. Joel A. Nass made his appearance as Connie's counsel on February 4, 2008. On the same day, Connie filed her second amended counter-petition for divorce alleging, among other things, claims for waste and breach of fiduciary duty, assault, battery, and intentional infliction of emotional distress.
The trial court called the case to trial and swore in the parties on February 11, 2008. Shortly after Clifford began testifying, the proceedings were recessed when Clifford and Connie asked the trial court not to go forward with the trial because they wanted to attempt reconciliation. The case remained largely dormant for almost two years.
On May 11, 2009, Connie and Clifford entered into a Rule 11 agreement to “reset the jury trial setting to the period of March 22, 2010 through March 26, 2010.” The trial court signed the agreement. At a subsequent hearing, Clifford took the position that the parties continued to be “in trial” during the period between May 2009 and March 2010. The record is largely silent about events that transpired between May 2009 and January 2010.
Nass filed a motion to withdraw as Connie's counsel on January 26, 2010. Nass stated in his motion that “[g]ood cause exists for withdrawal” because Connie “represents that she does not have the financial resources to satisfy the contractual obligation to pay the firm.” The trial court held a hearing on Nass's motion to withdraw as Connie's counsel on February 10, 2010. Connie opposed Nass's motion at the hearing and asked for interim attorney's fees. SeeTex. Fam.Code Ann. § 6.502(a)(4) (Vernon 2006) (“While a suit for dissolution of marriage is pending and on the motion of a party or on the court's own motion after notice and hearing, the court may render an appropriate order ... ordering payment of reasonable attorney's fees and expenses.”)
The trial court did not award interim fees. Instead, it granted Nass's motion to withdraw and ordered the parties to attend mediation. The trial court signed the order allowing Nass to withdraw on March 2, 2010, finding that good cause existed for withdrawal.
Connie filed a motion for continuance on March 2, 2010, requesting that the trial court reset the case for trial in September 2010. On March 8, 2010, Connie filed a first amended motion for continuance. The trial court held a hearing on Connie's motion for continuance on March 9, 2010, denied Connie's motion, and ordered the parties to attend mediation.
Connie filed a motion for interim fees on March 12, 2010; she asked the trial court to award no less than $75,000 for interim attorney's fees and expenses because she lacked “control of sufficient community assets to pay attorney's fees and anticipated expenses.” On the same day, Connie also filed a motion for reconsideration of the trial court's ruling denying her motion to continue the March 22, 2010 trial setting.
Connie and Clifford appeared in the 311th District Court on March 22, 2010, to resume the recessed trial that began more than two years earlier on February 11, 2008.
At that time, Connie asserted that she was not ready; she was not representing herself; she did not have legal representation; she had asked for legal counsel; and her due process rights were being violated because she had no legal counsel. Connie gave the trial court an emergency motion for temporary relief and advised the trial court that she would file a petition for writ of mandamus regarding the trial court's denial of her motion for continuance and motion for interim fees. Connie also argued her motion to reconsider the motion for continuance “so that [she] may be legally represented in a trial.” Clifford, through counsel, opposed Connie's motion to reconsider, and amicus attorney Hughes stated that she had no position on the request to reconsider “other than I am prepared and ready to go to trial.” The trial court denied the motion to reconsider. The trial court refused to “entertain any other requests for temporary or pretrial relief by either party.”
Because the parties signed a Rule 11 agreement to reset the February 2008 bench trial as a jury trial, the trial court ordered a mistrial as to “the trial that was commenced in this case on February 11, 2008.” The trial court requested that a jury panel be seated, and Clifford, through counsel, and Connie conducted voir dire. Trial continued on March 23, 2010.
The next day, on March 24, 2010, Connie filed an emergency motion for temporary relief asking the First Court of Appeals to stay proceedings in the trial court while relator's petition for writ of mandamus was being considered. Connie simultaneously filed a petition for writ of mandamus arguing that the trial court abused its discretion by (1) granting Nass's motion to withdraw after trial had commenced; (2) forcing Connie to attend mediation without legal representation; (3) denying Connie's continuance and motion for attorney's fees; and (4) denying Connie's right to a jury trial. The court of appeals granted a stay; it later lifted the stay and denied Connie's petition for writ of mandamus. Trial resumed on March 26, 2010.
In the meantime, Connie filed mandamus papers in the Supreme Court of Texas. The...
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