López v. Rocky Creek Partners
| Decision Date | 31 March 2021 |
| Docket Number | No. 04-19-00722-CV,04-19-00722-CV |
| Parties | Eric LÓPEZ, Appellant v. ROCKY CREEK PARTNERS, LLC, Appellees |
| Court | Texas Court of Appeals |
From the 288th Judicial District Court, Bexar County, Texas
Honorable Laura Salinas, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice
AFFIRMED IN PART, AND REVERSED IN PART
Appellee Rocky Creek Partners, LLC sued Appellant Eric López on a default of a promissory note. Rocky Creek filed a motion for summary judgment, to which López did not respond. The trial court granted the motion for summary judgment. López then filed a motion for new trial, which was denied by operation of law. López now appeals, arguing that his trial attorney withdrew days before the hearing on the motion for summary judgment without proper notice to him, that the trial court abused its discretion by granting the withdrawal, and that the trial court improperly granted Rocky Creek's motion for summary judgment and attorney's fees. We affirm the trial court's order in part and reverse in part.
BACKGROUND
López and his business partner, Adrian Martínez, were members of and partners in a limited liability corporation that leased its premises from Rocky Creek. Martínez and López executed a promissory note payable to Rocky Creek in the amount of $56,000 for tenant improvements. Martínez and López defaulted on the promissory note, and Rocky Creek sued them pursuant to the terms of the note.1
A day before an answer to the petition was due, López and Martínez hired an attorney ("the trial attorney") to represent them and the business. The trial attorney filed a timely answer, which included affirmative defenses and verified denials. Subsequently, Rocky Creek served the trial attorney with interrogatories, requests for production and requests for admission, which went unanswered. Rocky Creek then filed a traditional motion for summary judgment against all defendants. Rocky Creek's motion relied on, among other evidence, the deemed admissions against López as evidence supporting its motion for summary judgment. Rocky Creek served the motion and the notice of hearing on the trial attorney.
Before the hearing on the motion for summary judgment, the trial attorney filed a motion to set aside deemed admissions and a motion to continue the summary judgment hearing. After hearing the arguments, the trial court granted the motion to set aside the deemed admissions and continued the summary judgment hearing to another day.
Six days before the newly scheduled summary judgment hearing, the trial attorney filed a motion to withdraw from the case. In his motion, the trial attorney gave two main reasons for hiswithdrawal: (1) that his clients refused to participate in the defense of the lawsuit, placing the attorney at risk of being sanctioned for failing to answer Rocky Creek's discovery requests, and (2) that they ignored his request to execute their employment contract and pay his retainer fee. The trial attorney avowed in his motion to withdraw that he notified his clients in writing of their right to object to the motion and that he provided their contact information to the court. After López and Martínez failed to file any objection or a response to the motion to withdraw, the trial court granted the motion. Neither López nor Martínez appeared at the hearing.
López later filed a timely motion for new trial arguing that he was unaware of the developments in the case until notified by the court. López's motion for new trial was not verified and did not contain supporting evidence. Further, the record does not show that a hearing on the motion for new trial was set. The motion was denied by operation of law. López then filed a timely notice of appeal.
ISSUES ON APPEAL
On appeal, López raises four issues: (1) that his trial attorney improperly pleaded his motion to withdraw and failed to provide López with adequate notice as required under Rule 10 of the Texas Rules of Civil Procedure, (2) that the trial court abused its discretion by granting the motion to withdraw and, because of his trial attorney's withdrawal, he suffered harm, (3) that the trial court erred in granting the motion for summary judgment on the attorney's fees, and (4) that the trial court erred in granting the motion for summary judgment because Rocky Creek failed to carry its burden to prove there was no issue of material fact given that López filed verified denials.
We start our analysis by addressing the first two issues as one.
MOTION TO WITHDRAW
López argues because his trial attorney failed to comply with the requirements under Rule 10 of the Texas Rules of Civil Procedure when he filed his motion to withdraw, the trial court abused its discretion by granting the motion, which resulted in harm to López.
Rocky Creek argues that López failed to preserve the Rule 10 argument in his motion for new trial and, in the alternative, that he showed no harm to warrant reversal.
We agree that López failed to preserve for review any argument relating to the motion to withdraw.
"We review the trial court's ruling granting a motion to withdraw as counsel for an abuse of discretion." Jackson v. Jackson, 556 S.W.3d 461, 467 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (citing Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)). An abuse of discretion "is a question of whether the court acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939)). A trial court does not abuse its discretion so long as it does not act in an arbitrary or capricious manner. Id. at 242 (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex. 1970)).
To preserve a complaint for review, an appellant must make a timely motion or objection to the trial court that "state[s] the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A); accord City ofSan Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 756 (Tex. 2003). If an appellant's motion for new trial is denied by operation of law, then the appellant's issue is only preserved if the complaint was properly made in the motion and no taking of evidence "was necessary to properly present the complaint in the trial court." TEX. R. APP. P. 33.1(b); Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 637 (Tex. App.—Texarkana 2016, no pet.); In re Marriage of Parker, 20 S.W.3d 812, 815 (Tex. App.—Texarkana 2000, no pet.).
The motion for new trial is devoid of any claim that the trial attorney's motion to withdraw should have been rejected by the trial court pursuant to Rule 10. Contra TEX. R. APP. P. 33.1(a)(1)(A); Gadberry Constr. Co., Inc. v. Raney, No. 02-18-00263-CV, 2019 WL 3244519, at *2 (Tex. App.—Fort Worth July 18, 2019, no pet.) (mem. op.) (citing Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990) (mem. op.)). Because López's motion for new trial failed to raise a Rule 10 complaint he did not preserve his claim of error for our review. Contra TEX. R. APP. P. 33.1(a)(1)(A); Gadberry Constr. Co., 2019 WL 3244519, at *2 (citations omitted). We overrule López's first and second issues.
We next address López's fourth issue relating to the summary judgment.
MOTION FOR SUMMARY JUDGMENT
López argues that, despite his failure to respond to Rocky Creek's motion for summary judgment, the evidence in the record was insufficient for the trial court to grant Rocky Creek's motion, including an award of attorney's fees.
Rocky Creek argues that the evidence was sufficient to support the trial court's ruling, and that López's verified denials from his original answer did not raise a genuine issue of material fact.
"We review the trial court's summary judgment de novo." Julka v. U.S. Bank Nat'l Ass'n, 516 S.W.3d 84, 87 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). In a traditional motion for summary judgment, the movant must produce summary judgment evidence that shows no genuine issue of material fact, and the movant must establish that he is entitled to judgment as a matter of law. SeaBright Ins. Co. v. López, 465 S.W.3d 637, 641 (Tex. 2015) (citing TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) . "If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment." Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)); accord López v. Ensign U.S. S. Drilling, LLC, 524 S.W.3d 836, 841 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Ballard v. Arch Ins. Co., 478 S.W.3d 950, 953 (Tex. App.—Houston [14th Dist.] 2015, no pet.)).
If the nonmovant fails to raise a genuine issue of material fact, summary judgment is proper. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989); Hamamcy v. Wyckoff Heights Hosp., 786 S.W.2d 32, 34 (Tex. App.—Fort Worth 1990, writ denied). To determine whether a...
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