Thursday, May 15, 2008

Withdrawal of counsel for nonpayment of fees gets clients no sympathy

Denial of Motion for Continuance (made orally in mid-trial) was not error, court of appeals says.

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008) (Hanks)

In issue two, the Loftons argue that the trial court erred in refusing to allow them sufficient time to retain legal counsel by denying their request to continue the case.

We review the grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The Loftons’ attorney withdrew from the case. The Loftons contend that they were not notified of the withdrawal hearing or informed that the attorney had withdrawn. Once they were notified, the Loftons represent that they “sought diligently to secure legal representation in the rural and surrounding area where they reside.” They further assert that, due to their “extremely modest means, ethnicity, and lack of sophistication,” they should be given additional time to find competent counsel.

The record reflects that the Loftons’ attorney withdrew because the Loftons had not paid his fees.

It also reflects that the Loftons were aware of his withdrawal more than five months before the trial setting. Furthermore, the Loftons’ request for a continuance was made orally after Dyer had rested his case and after the Loftons had cross-examined two witnesses. Accordingly, we hold that the trial court did not abuse its discretion in denying the oral motion for continuance. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 917, 928 (Tex. App.—Dallas 2003, pet. denied).

We overrule issue two.

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