Sims v. Sims
| Decision Date | 08 April 2021 |
| Docket Number | No. 08-19-00193-CV,08-19-00193-CV |
| Citation | 623 S.W.3d 47 |
| Parties | Trenesha Danyal Biggers SIMS, Appellant, v. Ephram SIMS, Appellee. |
| Court | Texas Court of Appeals |
ATTORNEY FOR APPELLANT: Troy Brown, 1074 Country Club Rd. Ste. B4, El Paso, TX 79932.
ATTORNEY FOR APPELLEE: Ismael Pease, Pease & Associates Law Office, 401 E. Main St., Ste. 415, El Paso, TX 79901.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
YVONNE T. RODRIGUEZ, Chief Justice Appellant Trenesha Danyal Biggers Sims appeals a final divorce decree entered in favor of Appellee Ephram Sims, specifically on the matter of conservatorship of their minor child. On appeal, Appellant raises seven issues where she contends the trial court abused its discretion and erred, warranting reversal. The crux of her issues stem from the trial court's decision to allow her attorneys to withdraw prior to trial, in combination with its decision to deny the motion for continuance she made shortly before trial in order for her to retain new counsel.
We overrule Appellant's first six issues and affirm the judgment of the trial court on those points. As to Appellant's seventh issue disputing the trial court's award of attorney's fees to Appellee, we reverse and remand.
The procedural history of this case leading up to trial is date-intensive, but relevant to the trial court's decisions and our review.
On January 24, 2017, Appellee filed a petition for divorce. He later amended, seeking sole managing conservatorship of his child with Appellant. Appellant filed a counterpetition, also seeking appointment as sole managing conservator. She was initially represented by attorney Stephanie James.
On May 25, 2017, James filed a motion to withdraw as Appellant's attorney, which the court granted.
On July 12, 2017, Ouisa Davis entered her appearance as Appellant's second attorney. On August 9, 2017, Davis filed a motion to withdraw.
On August 4, 2017, Appellant filed her first jury request, which she withdrew on October 12, 2017.
On December 5, 2017, Bruce Tharpe took over as Appellant's counsel after Ouisa Davis withdrew.
On December 13, 2017, Tharpe filed a motion for continuance of the existing bench trial setting, and made another jury demand, which was Appellant's second jury request.
On December 20, 2017, Tharpe filed another motion for continuance, which the trial court granted.
On February 12, 2018, Tharpe filed a motion to withdraw as counsel, citing a conflict of interest and inability to reach his client. The trial court granted the withdrawal six days before the February 26, 2018 trial date, and subsequently entered a final divorce decree on March 9, 2018, appointing Appellee as sole managing conservator.
On March 26, 2018, Appellant filed a pro se motion for new trial, claiming a medical emergency kept her from appearing at the trial setting. The trial court granted the motion for new trial on May 8, 2018.
On August 23, 2018, Theola Hagger appeared on behalf of Appellant and filed a motion for continuance of the existing August 24, 2018 trial setting. In the same pleading, Hagger renewed Appellant's request for a jury trial.
On August 31, 2018, Tharpe re-entered his appearance as co-counsel for Appellant.
On October 8, 2018, Hagger and Tharpe filed a motion for new trial and for sanctions and, in the alternative, motion to disqualify counsel. In that motion, counsel argued the trial court improperly required Appellant to appear pro se at "trial," despite being aware Appellant was represented by counsel and in spite of her counsel filing a motion for continuance. Other motions were made contemporaneously with the motion for new trial; however, no order regarding any of the motions was entered by the trial court.
On February 7, 2019, Tharpe filed a motion to withdraw as co-counsel, again citing conflicts of interest. The trial court granted his motion the following day.
On March 20, 2019, Hagger filed an agreed motion to withdraw as co-counsel, citing communication difficulties and a conflict of interest, which bore Appellant's signature indicating her consent to the withdrawal. At the hearing on the motion to withdraw, Appellant appeared in person and verbally consented to the withdrawal on the record. The trial court granted the withdrawal on March 22, 2019.
On April 5, 2019, Appellant filed a pro se motion for continuance, asking the court to first hear her request for a protective order and for additional time to find an attorney. She also filed a request to remove her jury demand.
On April 8, 2019, Appellant filed an amended motion for continuance indicating she had an attorney she wished to retain but who required additional time to prepare for trial.
The final hearing on the case occurred on April 9, 2019. Appellant stated she was not ready to proceed. The trial court heard her motion for continuance. Appellant's basis for the continuance was discovery matters outstanding, her protective order had not been heard or ruled upon, and she wanted additional time to retain a new attorney. The trial court denied her motion for continuance. It likewise declined to hear her motion for protective order. Appellant then renewed her request for a jury trial. The trial court denied her request for a jury trial noting she had not filed a timely request prior to trial. Appellant asked the trial judge to recuse herself which the trial judge denied.
Appellee testified first. The substance of his testimony is discussed later in this opinion. Following his direct and cross-examinations, the trial court recessed for lunch. Prior to adjourning, Appellant stated she needed to "leave and come back" so she could "go grab some stuff." The trial court told the parties it would recess from 11:57 to 1:15. At 1:20, the trial court resumed but Appellant was not present. Appellee testified on re-direct. After his testimony, Appellee moved for a directed verdict. The trial court waited an additional six minutes, until 1:30, to see if Appellant would return. While waiting for Appellant, the trial court heard testimony from Appellee's counsel regarding his request for attorney's fees.
When Appellant had not returned by 1:30, Appellee renewed his request for judgment in Appellee's favor, specifically for sole managing conservatorship. The trial court issued its ruling from the bench:
The trial court outlined the remainder of its ruling, which is not relevant to this appeal.
On April 18, 2019, the trial court entered its final decree of divorce. The only issue on appeal is the award of sole managing conservatorship of the child to Appellee. Appellant was named possessory conservator.
That same day, Teresa Caballero and Troy Brown entered their appearances as counsel for Appellant. Contemporaneous with the filing of their appearances, they filed a motion to recuse the trial court judge. The trial court judge filed an order of referral, and the case was transferred to County Court at Law No. 5. It was subsequently transferred to the 388th District Court.
On May 17, 2019, Appellant filed her motion for new trial, or, alternatively, motion to vacate, which, in part, forms the basis of this appeal. On July 25, 2019, Appellant's motion for new trial was denied.
Issue One: Whether the trial court abused its discretion when it allowed Appellant's attorneys to withdraw shortly before trial.
The granting or denial of a motion to withdraw is reviewed under an abuse of discretion standard. In re Marriage of Harrison , 557 S.W.3d 99, 115 (Tex.App.—Houston [14th Dist.] 2018, pet. denied). A trial court's ruling on a motion to withdraw will only be overturned where the trial court "acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles." Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 211 (Tex. 2002). "A trial court does not abuse its discretion when some evidence reasonably supports its decision." Harrison , 557 S.W.3d at 112, (citing Butnaru , 84 S.W.3d at 211 ). "A court abuses its discretion by granting a motion to withdraw that fails to satisfy the requirements of Rule 10 of the Texas Code of Civil [P]rocedure." Integrated Semiconductor Services, Inc. v. Agilent Technologies, Inc. , 346 S.W.3d 668, 671 (Tex.App.—El Paso 2009, no pet.).
Rule 10 of the Texas Rules of Civil Procedure provides the requirements for any attorney wishing to withdraw from representing his or her client. See TEX.R.CIV.P. 10 ; See Rogers v. Clinton , 794 S.W.2d 9, 10 n.1 (Tex. 1990). First, a motion must set forth good cause for the withdrawal. See TEX.R.CIV.P. 10. If another attorney will be substituted for the withdrawing attorney, the motion must state the contact information for the substituting attorney; whether the party approves of the substitution; and the withdrawal is not sought for delay. TEX.R.CIV.P. 10. If another attorney is not being substituted, the motion must state whether a copy of the motion was delivered to the party; the party has been informed in writing of their right to object to the withdrawal; whether the party consents to the withdrawal; the party's last known address; and a listing of all pending settings and deadlines. Id.
Appellant first asserts Tharpe's motion did not comply with Rule 10 because it did not state (1) whether a copy of the motion was delivered to Appellant; (2) whether Appellant was notified of her right to object; (3) whether she consented; (4) her last known address; or (5) a list of pending settings and deadlines. Appella...
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