Thursday, May 3, 2012

Partition suit exceeded jurisdictional dollar-limit ($200K) of Harris County Court at Law


Suit for partition of real property brought in CCCL#1 dismissed because amount in controversy was more than $200,000; - actually much more. The jurisdictional limit used to be $100,000, but was raised to $200,000 by the Texas Legislature. First Court of Appeals dismisses the case because the county court lacked jurisdiction. Court of Appeals also holds, in opinion by Justice HarveyBrown, that the Harris County Civil Court at Law (No. 1) would have had jurisdiction over partition action if it had been within the amount-in-controversy range over which Harris County courts at law have concurrent jurisdiction with district courts. The argument that district courts have exclusive jurisdiction over such types of suits is  rejected.

  
Eris v. Giannakopoulos, No. 01-11-00029-CV (Tex.App.- Houston [1st Dist.] May 3, 2012, no pet. h.)
  

OPINION


Bill Eris appeals from the Harris County Civil Court at Law Number One’s judgment partitioning certain properties between Eris and Ilias Giannakopoulos. Because we hold that the amount in controversy in the partition action exceeded the civil court at law’s jurisdiction, we reverse and dismiss for lack of jurisdiction.



Background



Eris and Giannakopoulos purchased three separate but adjacent and contiguous properties, which they subsequently transferred to a corporation named H.G.B.E., Inc. Eris and Giannakopoulos each own 50% of H.G.B.E., and the properties are H.G.B.E.’s only assets. Eris and Giannakopoulos paid $275,000 to purchase the properties in 1997; over recent years, they have received purchase offers on the properties between $700,000 and $950,000.



After Eris allegedly failed to pay his share of the 2007 property taxes on the properties, Giannakopoulos brought this action for partition of the properties and to recover expenses he incurred in paying Eris’s share of property taxes and insurance costs. Giannakopoulos subsequently supplemented his pleadings to add a breach of fiduciary duty claim and to request dissolution of H.G.B.E.



The trial court granted a partition of the properties, dividing the properties into two equal-sized lots and awarding one lot to Eris and the other to Giannakopoulos. The trial court later severed the partition claim from Eris’s other claims, making its partition order a final judgment. Eris appeals from the partition judgment.



Issues Raised



On appeal, Eris asserts that the trial court erred in entering its judgment on four grounds: (1) the trial court lacked jurisdiction over the partition action because district courts have exclusive jurisdiction over partition actions and because the value of the property exceeded the maximum amount in controversy over which the trial court had jurisdiction; (2) the trial court failed to follow the rules governing the procedure for partition of real property; (3) the properties belonged to H.G.B.E., which was not a party to the lawsuit; and (4) partition is not practical under the circumstances of this case. We hold that the trial court lacked jurisdiction over the partition action and therefore do not reach Eris’s remaining contentions.



Jurisdiction



“Whether a court has subject matter jurisdiction is a question of law that we review de novo.” City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). Harris County Civil Court at Law Number One is a statutory county court, and its jurisdiction over civil cases is concurrent with that of a constitutional county court. See Tex. Gov’t Code Ann. §§ 25.0003(a) (West 2012) (“A statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts.”), 25.1032(a) (West 2012) (granting Harris County statutory county courts jurisdiction over “all civil matters and causes, original and appellate, prescribed by law for county courts,” in addition to other specifically attributed jurisdiction). When, as here, a statutory county court has concurrent civil jurisdiction with a constitutional county court, it also has concurrent jurisdiction with the district court in civil cases in which the matter in controversy exceeds $500 but not $200,000.[1] Id. § 25.0003(c)(1). Thus, the Government Code “grant[s] Harris County civil courts at law concurrent jurisdiction with district courts in civil cases in which the amount in controversy falls within a certain jurisdictional dollar limit for statutory county courts.” Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 448 (Tex. 1996).



A.      The county court’s jurisdiction does not exclude partition actions



Chapter 23 of the Property Code governs suits to partition real property. Section 23.002, titled “Venue and Jurisdiction,” provides that a “joint owner or a claimant of real property or an interest in real property may bring an action to partition the property or interest in a district court of a county in which any part of the property is located.” Tex. Prop. Code Ann. § 23.002(a) (West 2000). Eris asserts that this statute gives district courts exclusive jurisdiction over partition actions. We disagree.



The language of section 23.002 does not indicate a legislative intent that district courts have exclusive jurisdiction over partition actions; rather, the use of the word “may” demonstrates a permissive, rather than mandatory, procedure.[2] See id.; see also Cazarez, 937 S.W.2d at 447–48 (holding that Harris County statutory county court had jurisdiction over certain Labor Code violations when statute provided that such suits “may” be brought in district court); Nueces Cnty. v. Thornton, No. 13-03-011-CV, 2004 WL 396608, at *2 (Tex. App.—Corpus Christi Mar. 4, 2004, no pet.) (mem. op.) (holding that Nueces county court had jurisdiction over certain civil service appeals under statute providing that employee “may” file appeal in district court but lacked jurisdiction over decisions beyond scope of jurisdictional grant to district courts). A statute merely providing that an action “may” be brought in district court “does not express an intention to grant exclusive jurisdiction to district courts,” but rather, “to the extent that statutory courts share concurrent jurisdiction with district courts, nothing in [such a] statute limits or excludes that concurrent jurisdiction.” Cazarez, 937 S.W.2d at 447.



The Dallas Court of Appeals reached the same conclusion we reach here. See Schuld v. Dembrinski, 12 S.W.3d 485, 489 (Tex. App.—Dallas 2000, no pet.). In Schuld, the Dallas court held that, because the Property Code grants district courts jurisdiction over partition actions and because the Government Code grants Dallas County courts at law jurisdiction concurrent with district courts, a Dallas County court at law has jurisdiction over partition actions. Id. at 489. The same analysis applies here. Harris County courts at law have jurisdiction concurrent with district courts, within a specified amount-in-controversy range. Tex. Gov’t Code Ann. § 25.0003(c)(1). Thus, because section 23.002 of the Property Code grants district courts jurisdiction over partition actions, Harris County courts at law also have jurisdiction over partition actions, so long as the amount in controversy falls within the specified range. See Tex. Prop. Code Ann. § 23.002(a); Tex. Gov’t Code Ann. § 25.0003(c)(1).



We hold that the trial court had jurisdiction over this partition action so long as the action is within the amount-in-controversy range over which Harris County courts at law have concurrent jurisdiction with district courts.



B.      The trial court lacked jurisdiction over this action because the amount in controversy exceeded its jurisdictional maximum



Eris next contends that the amount in controversy in this action is outside the trial court’s jurisdiction because the properties that Giannakopoulos asked the trial court to partition were worth “somewhere between $700,000 and $950,000.” Eris bases this fair market value on recent purchase offers made on the properties. Giannakopoulos responds that he is not seeking actual damages in excess of the trial court’s jurisdictional limit, and therefore the trial court had jurisdiction.



Because the trial court’s jurisdiction over this case arises from the grant of jurisdiction in section 25.003 of the Government Code—i.e., jurisdiction concurrent with that of Harris County district courts—its jurisdiction is bound by the statute’s amount-in-controversy limitations. See Tex. Gov’t Code Ann. § 25.0003(c)(1). The trial court thus had jurisdiction over this partition action only if the amount in controversy was more than $500 but not more than $200,000. Id. To determine the amount in controversy, courts of appeals generally look to the allegations in the plaintiff’s petition. Gulf Coast Waste Disposal Auth. v. Four Seasons Equip., Inc., 321 S.W.3d 168, 178 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989)). But Giannakopoulos’s petition does not contain a statement of jurisdiction or otherwise identify the amount in controversy. Cf. Tex. R. Civ. P. 47.



A plaintiff’s failure to state a jurisdictional amount of controversy in his petition, alone, will not deprive a trial court of jurisdiction; even if the pleadings fail to establish the amount in controversy, the plaintiff may prove the jurisdictional amount at trial. Peek, 779 S.W.2d at 804−05.[3] Here, however, we cannot conclude that the evidence at trial proved an amount in controversy within the trial court’s jurisdiction.



Generally, when a suit is for an interest in real property, rather than damages, the value of the property interest at issue determines the amount in controversy.[4] See Tune v. Tex. Dept. of Pub. Safety, 23 S.W.3d 358, 361−62 (Tex. 2000) (“It has long been the law that the phrase ‘amount in controversy,’ in the jurisdictional context, means ‘the sum of money or the value of the thing originally sued for . . . .”) (quoting Gulf, C. & S.F. Ry. Co. v. Cunnigan, 67 S.W. 888, 890 (Tex. 1902) (emphasis added in Tune)); see also AIC Mgmt. v. Crews, 246 S.W.3d 640, 644 (Tex. 2008) (holding that county court at law had jurisdiction over eminent domain proceedings even though value of property exceeded court’s amount-in-controversy jurisdiction because specific statutory grant of jurisdiction over eminent domain proceedings was not subject to amount-in-controversy limitation in grant of general jurisdiction); Red Deer Oil Dev. Co. v. Huggins, 155 S.W. 949, 950 (Tex. Civ. App.—Amarillo 1913, writ ref’d) (recognizing rule that “amount in controversy” in suit to foreclose lien on real property is determined by value of property covered by lien). Eris cites evidence in the record supporting his contention that the fair market value of the properties is in the area of $700,000 to $950,000.[5] Giannakopoulos has not identified any evidence to the contrary; nor have we found any.



In response to Eris’s jurisdictional argument based on the amount in controversy, Giannakopoulos stated:



Appellant Eris is focusing on the value of the Property rather than the remedy Giannakopoulos seeks. Appellee Giannakopoulos merely seeks to partition the Property in kind; a partition action is an equitable remedy. Giannakopoulos is not seeking actual damages that exceed $100,000. In fact, the only amount in controversy at issue in this suit is for the reimbursement of Eris’ portion of the property taxes Giannakopoulos paid, as well as reimbursement for a portion of the maintenance of the Property. And, the afore-mentioned amounts do not exceed $100,000. Therefore the Trial court has subject matter jurisdiction over the suit.



Giannakopoulos cites no authority to support his contention that we should exclude the value of the property at issue in this case in determining the amount in controversy, and we have found none. The authorities cited above dictate the opposite conclusion. Giannakopoulos also cites no authority to support his implication that the trial court had equitable jurisdiction over the partition action independent of its amount-in-controversy jurisdictional limits.



Statutory county courts are not courts of general jurisdiction “with the power to ‘hear and determine any cause that is cognizable by courts of law or equity.’” Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) (describing general jurisdiction of district courts and quoting Tex. Gov’t Code §§ 24.007–.008). We therefore may not assume jurisdiction in the county court at law when Giannakopoulos provides no statutory or other basis for the equitable jurisdiction he asserts. See Medina v. Benkiser, 262 S.W.3d 25, 27 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that, while statutory county courts have authority to enter injunctions, they lack jurisdiction to do so unless they have jurisdiction over the controversy, “either because of the subject matter or because of the amount in controversy.”); see also Martin v. Victoria Indep. Sch. Dist., 972 S.W.2d 815, 818 (Tex. App.—Corpus Christi 1998, pet. denied) (“The power to issue mandamus or equitable relief, as exercised by county courts, must be conferred by a statutory grant; usually the plaintiff must rely on the county court’s concurrent jurisdiction and plead an amount in controversy sufficient to trigger the county court's jurisdiction.”).



We therefore hold that the amount in controversy in this action was outside the trial court’s jurisdictional limits.



Conclusion



We hold that the Harris County Civil Court at Law Number One lacked jurisdiction over this partition action.[6] We therefore vacate its judgment and dismiss the partition action for lack of jurisdiction.



                                                                   Harvey Brown



                                                                   Justice





Panel consists of Chief Justice Radack and Justices Higley and Brown.



 --------------------------------------------------------------------------------



[1]           Under the Government Code, a county court may not have jurisdiction over specifically enumerated types of lawsuits even when a district court has jurisdiction over such suits. See Tex. Gov’t Code Ann. § 26.043 (listing cases over which constitutional county court lacks jurisdiction). The parties have not identified any provision specifically carving out partition actions from a Harris County court at law’s jurisdiction.



[2]           Eris cites Miller v. Fenton, 207 S.W. 631, 632 (Tex. Civ. App.—Texarkana 1918, no writ.), for the proposition that “[a] county court does not have jurisdiction to partition real estate.” Miller does not address this issue. See id.



[3]           This rule applies when the defendant fails to object to the defective pleadings and the pleadings do not affirmatively disprove jurisdiction. See Peek, 779 S.W.2d at 804. Eris does not claim to have objected to Giannakopoulos’s pleadings, and Giannakopoulos’s pleadings do not affirmatively demonstrate that the properties have a value in excess of the trial court’s jurisdiction.



[4]           Although Giannakopoulos also sought damages relating to property taxes and insurance, the trial court severed those claims from the partition action.



[5]           Giannakopoulos’s pleadings do not limit his claims to a one-half interest in the properties. Moreover, even if we treat the amount in controversy as the one-half interest in the properties granted to Giannakopoulos by the trial court, one-half of $700,000 exceeds the trial court’s jurisdiction in this action.



[6]           This appeal does not concern the portions of the original suit that the trial court severed from the partition action, nor does our holding.




Tuesday, May 1, 2012

When the divorce attorney gets off the case just in time for trial...


ATTORNEY WITHDRAWAL UNDER TRCP 10 ON THE EVE OF TRIAL  .... Is it a valid ground to postpone (continue) the trial?
Family court judge found to have abused discretion by denying wife's motion for continuance after permitting her trial counsel to withdraw from representing her -- over her objection -- shortly before trial based on nonpayment of an unspecified fee amount. Wife went through a series of lawyers in contested divorce case and ended up pro se, with a list of attorneys who wouldn’t take the case at the last minute.    


EXCERPT FROM SUBSTITUTE OPINION BY JUSTICE BOYCE
  
[names of parties replaced with “WIFE” and “HUSBAND”]
  
Standards Governing Withdrawal and Continuance  

An attorney may withdraw from representing a party only upon written motion for good cause shown. See Tex. R. Civ. P. 10. Texas Rule of Civil Procedure 10, entitled "Withdrawal of Attorney," does not define "good cause." Id. However, the Texas Disciplinary Rules of Professional Conduct articulate considerations relevant to the consideration of Rule 10 motions. See Tex. Disciplinary Rules Prof'l Conduct R. 1.15, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 2005); In re A.R., 236 S.W.3d 460, 474 (Tex. App.-Dallas 2007, no pet.) (op. on rehearing); In re Posadas USA, Inc., 100 S.W.3d 254, 257 (Tex. App.-San Antonio 2001, orig. proceeding). Thus, "[b]efore a trial court allows an attorney to withdraw, it should see that the attorney has complied with the Code of Professional Responsibility." Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
   
Texas Disciplinary Rule of Professional Conduct 1.15, entitled "Declining or Terminating Representation," provides, among other things, that a lawyer shall not withdraw from representing a client "unless withdrawal can be accomplished without material adverse effect on the interests of the client;" the client "fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;" and the representation "will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client." Tex. Disciplinary Rules Prof'l Conduct R. 1.15(b)(1), (5), (6).
  
When the ground for a continuance is the withdrawal of counsel, the movant must show that the failure to be represented at trial was not due to her own fault or negligence. Villegas, 711 S.W.2d at 626. Because the right to counsel is a valuable right, its unwarranted denial is reversible. Id. "[W]hen a trial court allows an attorney to withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial." Id.
  
Relying on Villegas, WIFE argues that the trial court should have (1) denied Nass's motion to withdraw; or (2) granted her motion for continuance after allowing Nass to withdraw. She contends that failure to be represented by counsel at trial was not due to her own fault or negligence.
  
Relying on Texas Disciplinary Rule of Professional Conduct 1.15 and In re Daniels, 138 S.W.3d 31, 33-35 (Tex. App.-San Antonio 2004, orig. proceeding), HUSBAND argues that the trial court acted within its discretion when it granted Nass's motion to withdraw because (1) WIFE failed to pay Nass's fees; (2) continuing "representation through a trial would have been financially burdensome" to Nass; (3) WIFE did not show she had tried to borrow funds to pay Nass; and (4) "[o]ver the course of two full years, from February 11, 2008, to February 10, 2010, neither WIFE nor Nass presented a motion to the trial court seeking the payment of fees beyond the $91,000 Nass had already received."
  
HUSBAND argues that the trial court acted within its discretion in denying a continuance after Nass withdrew as WIFE's counsel because (1) WIFE had 55 days' notice of Nass's motion to withdraw, the trial court granted Nass's motion to withdraw 40 days before trial, and WIFE received her file from Nass after his withdrawal; (2) WIFE never made a motion for interim fees or showed any effort that she attempted to borrow money to pay the fees; (3) the trial court was allowed to consider the history of this case and the fact that WIFE had retained six attorneys, including Nass, and "was not a novice at hiring lawyers;" and (4) WIFE was not deprived of her right to be represented by counsel at trial, but simply failed to secure counsel.
 
III. Application of Standards
 
A. Withdrawal of Representation

  
Nass filed a motion to withdraw as WIFE's counsel on January 26, 2010, asserting that "[g]ood cause exists for withdrawal" because WIFE "represents that she does not have the financial resources to satisfy the contractual obligation to pay the firm." On February 10, 2010, the trial court held a hearing on Nass's motion to withdraw. HUSBAND appeared at this hearing with his counsel, as did amicus attorney Hughes. Nass did not appear at the hearing. Instead, a firm associate, Courtney Hoff, appeared at the hearing to argue Nass's motion.
  
Hoff argued that the Nass firm had not been paid attorney's fees since February 2008, and stated that the firm was not in a position to continue representing WIFE. HUSBAND did not object to Nass's withdrawal, provided that the case proceeded to trial as scheduled on March 22, 2010. Amicus attorney Hughes also did not oppose Nass's motion to withdraw "provided it does not delay the trial setting."
 
WIFE strenuously opposed Nass's motion throughout the hearing. WIFE argued that she and HUSBAND had attempted to reconcile and had agreed that all attorneys would be paid. She stated that HUSBAND paid his attorney and WIFE's attorney from a joint account; according to WIFE, HUSBAND paid Nass about $90,000 for representing WIFE between January 19, 2007, and February 11, 2008. She stated that $5,000 remained to be paid to Nass.
 
WIFE also stated that, when she spoke to Nass in January 2010, he asked her to appear before the trial court and request that fees be awarded so he "would continue" to represent her. WIFE stated that "Nass was supposed to appear" at the withdrawal hearing and question her before the court. WIFE asked the trial court to award her interim fees from a Wells Fargo joint account so she could pay Nass. HUSBAND opposed the request for interim fees at the hearing because no motion for interim fees had been filed before the hearing; he asserted that the parties are "in the middle of trial" and fees "can be handled at the time of trial."
  
Hoff stated that she did not believe HUSBAND had paid the firm $90,000; she recalled that the parties entered into a Rule 11 agreement and believed that HUSBAND had paid the firm approximately $30,000. Relying on a docket sheet entry, the trial court stated that payment of $40,000 was ordered to Nass on February 5, 2008. HUSBAND confirmed that, on or before February 20, 2008, his attorney's fees were paid and WIFE's fees also were paid based on the invoices Nass submitted. HUSBAND stated he had not "heard anything about the fees until now."
  
The trial court asked WIFE if she disputed Nass's contention that she had not followed "the fee agreement or fee contract with Mr. Nass and his firm." WIFE responded that (1) she believed she had "followed" the agreement; (2) Nass "just wants money;" (3) HUSBAND had "total access and control to all our money, and that has kept [WIFE] from gaining counsel in a way that [HUSBAND] is able to;" (4) she had to borrow $40,000 from a friend to pay one attorney and had to borrow money from another friend to pay another attorney; (5) the parties "should have a level field of being able to pay our attorneys so hopefully we can bring finality to his case;" and (6) not having counsel "a month or six weeks before trial would gravely prejudice" her and the parties' children.
  
HUSBAND contended that "there has been a level playing field." He noted that Nass was WIFE's sixth attorney, and asserted that the case could not be resolved if WIFE was allowed to retain "a new lawyer and then that new lawyer obviously needs an opportunity to get brought up to speed." WIFE responded, "[HUSBAND]'s answer, that's what I'm arguing. I'm actually arguing [HUSBAND's] argument, that a new attorney not be placed on this case. Mr. Nass has an overwhelming amount of knowledge; and, again, I believe it's around about $90,000 that he was paid for three weeks . . . And it hasn't been a level playing field because I haven't had the money to hire my — to pay attorneys."
  
Hoff contended that the firm had not received payment from WIFE in two years, and that Nass did not want to withdraw sooner because "the case was put on hold for a period of time" and the firm wanted to give WIFE the "opportunity to figure out if she was going to be able to find the funds for us or if she was going to find another lawyer." Hoff did not know the exact amount WIFE owed the firm, but claimed that WIFE owed more than $5,000. Hoff did not present any unpaid invoices reflecting fees owed to Nass, nor did Hoff indicate what sum, if any, Nass had requested in order to continue representing WIFE in the divorce action.
  
The trial court granted Nass's motion to withdraw and ordered the parties to attend mediation. The trial court signed the order allowing Nass's withdrawal on March 2, 2010; the trial court expressly found that good cause existed for Nass's withdrawal as counsel.

To support his contention that the trial court did not abuse its discretion by granting Nass's motion to withdraw, HUSBAND argues that Disciplinary Rule 1.15 allows an attorney to withdraw for nonpayment of fees "even though the withdrawal may have a material adverse effect upon the interests of the client." However, Rule 1.15 addresses more than the nonpayment of fees; Rule 1.15 also provides that an attorney "shall not withdraw from representing a client unless the client fails substantially to fulfill an obligation" to pay an attorney for services. Tex. Disciplinary Rules Prof'l Conduct R. 1.15(b)(5) (emphasis added).
  
For two reasons, this record raises significant questions about whether WIFE substantially failed to fulfill her obligation to pay Nass.
  
First, it is unclear how much Nass had been paid at the time of the February 10, 2010 hearing. WIFE claimed that HUSBAND had paid Nass approximately $90,000 for services performed between January 19, 2007 and February 8, 2008. Hoff could not state the amount Nass had been paid, but stated that she "believed" HUSBAND's counsel "was saying that they had given my office" about $30,000. The trial court stated, "I see a docket sheet entry from February 5th, '08 ordering that Mr. Nass be paid $40,000 from some specific account." HUSBAND agreed with the trial court at the time and stated that he paid Nass according to the invoices Nass's office submitted. HUSBAND asserts on appeal that Nass already had received $91,000 at the time of the withdrawal hearing.
  
Second, it is unclear how much WIFE still owed to Nass and how much he required to continue participating in the case. WIFE claimed that she owed Nass $5,000. Hoff disputed that amount. When the trial court questioned her regarding the amount Nass was owed, Hoff answered, "I don't have the exact number with me." Hoff did not present any invoices. Hoff did not state how much money, if any, Nass requested for continued representation.
  
Again relying on Disciplinary Rule 1.15, HUSBAND contends that the trial court acted within its discretion by granting Nass's motion to withdraw because continuing the representation through a trial "would have been financially burdensome." Disciplinary Rule 1.15(b)(6) provides that an attorney "shall not withdraw from representing a client unless the representation will result in an unreasonable financial burden" on the attorney. Id. 1.15(b)(6) (emphasis added). Nass did not argue in his motion to withdraw that continuing to represent WIFE would result in an unreasonable financial burden. Nor did Hoff argue that continuing to represent WIFE would result in an unreasonable financial burden.
  
HUSBAND further argues that WIFE "provided absolutely no testimony of any nature indicating efforts she had made to borrow funds to pay Nass the fees he required for continued representation." He emphasizes that WIFE had borrowed money in the past from friends and family to pay attorney's fees. HUSBAND also emphasizes that neither WIFE nor Nass had presented a motion for payment of fees since February 11, 2008.
   
The case was called to trial on February 11, 2008; however, WIFE and HUSBAND almost immediately asked the trial court for a recess to attempt reconciliation. On May 11, 2009, WIFE and HUSBAND agreed to reset trial to March 22, 2010. During this period, the parties technically remained "in trial." The record is unclear as to how long the parties actually attempted to reconcile, whether Nass provided any services between February 2008 and February 2010, and what fees were owed for such services. Hoff argued that the firm had not "received any money from [WIFE] in two years; and since that time the case was put on hold for a period of time, and that's why we didn't withdraw sooner. We were giving her the opportunity to figure out if she was going to be able to find the funds for us or if she was going to find another lawyer."
   
Nass bore the burden to show good cause for withdrawal. See Tex. R. Civ. P. 10. Nothing in the record suggests that WIFE was unwilling to pay attorney's fees or was able to borrow funds for fees but unwilling to do so. WIFE argued that she had no access to funds because HUSBAND "has total access and control to all our money." Although the trial court had awarded interim fees on February 5, 2008, Nass did not file a motion requesting interim fees in connection with the March 2010 trial setting. The record indicates that instead of filing a motion for interim fees, Nass instructed WIFE to ask the trial court to award fees at the February 10, 2010 withdrawal hearing. HUSBAND opposed the request for an award of interim fees at the hearing because no motion for interim fees was before the court; he asserted that the parties are "in the middle of trial" and fees "can be handled at the time of trial."
   
The record does not reveal why no request for interim fees was filed. The trial court did not order interim fees on its own motion. See Tex. Fam. Code Ann. § 6.502(a)(4).
   
The upshot is that Nass was allowed to withdraw after invoking WIFE's lack of "financial resources to satisfy the contractual obligation to pay the firm" 40 days before a recessed trial was scheduled to resume in a highly contentious divorce involving substantial assets and a custody dispute. Neither the amount already paid to Nass nor the amount still owed to Nass ever was clearly established. No motion seeking interim fees was filed before the February 2010 hearing. While we are not prepared to say that allowing Nass to withdraw under these circumstances was an abuse of discretion, we note that allowing withdrawal in this instance approaches the outer limits of discretion.
   
The trial court's exercise of discretion in allowing Nass's withdrawal under these circumstances informs our review of the accompanying decision to deny a continuance following Nass's withdrawal — and, in particular, the analysis of whether WIFE was at fault for the withdrawal of her attorney shortly before the trial was scheduled to resume.
  
B. Continuance   
  
WIFE argues that allowing Nass to "withdraw from representing her 40 days before trial against her wishes, and denying her subsequent motion for continuance" was an abuse of discretion. She contends that the trial court should have granted her motion for continuance because she demonstrated that Nass's withdrawal was not her fault or caused by her negligence.
  
After the trial court granted Nass's motion to withdraw over WIFE's objection on February 10, 2010, WIFE filed a motion for continuance on March 2, 2010. In her motion, she asserted that (1) she is a stay-at-home mom, and that HUSBAND had sole access and control over the couple's financial accounts out of which he paid his own attorney; (2) she "was astonished that Mr. Nash failed to appear at the [withdrawal] hearing after he informed her that he would personally appear so that he could petition the court by questioning [her] for additional fees;" (3) she requested interim attorney's fees at the withdrawal hearing but HUSBAND objected to her request and the trial court did not award her attorney's fees; (4) HUSBAND claimed that she delayed the February 2008 trial date but in fact HUSBAND asked for the trial date to be reset from February 2008 to September 2008 and then to June 2009; (5) she "counseled with several attorneys in an effort to retain representation before the March 22, 2010 trial date" but no attorney was willing to represent her without at least a six-month continuance; (6) good cause existed for a continuance because the absence of her attorney was not caused by WIFE or by her negligence; and (7) forcing her to represent herself at trial would impede her right to a fair trial.
   
In her motion for continuance, WIFE also recounted the list of attorneys who had represented her since HUSBAND filed for divorce. WIFE was represented by (1) Robert Piro from January 2006 to November 2006 for the purpose of obtaining a protective order; (2) Bobby Newman from November 2006 to March 2007; (3) Joan Jenkins from March 2007 to September 2007; (4) Michael Phillips from October 2007 to December 2007; (5) Bucky Allshouse from December 2007 to January 2008; and (6) Joel Nass from January 18, 2008, until the trial court granted Nass's motion to withdraw on February 10, 2010, and signed its order on March 2, 2010.
  
WIFE filed her first amended motion for continuance on March 8, 2010. In addition to asserting her previously asserted grounds for a continuance, WIFE argued that she had a right to be represented by qualified counsel and that she was not qualified to represent herself because she never practiced family law and "never participated in a trial as a lawyer." The trial court held a hearing on WIFE's motion for continuance on March 9, 2010. During the hearing, WIFE asked the trial court to grant her motion because she "fervently" had objected to Nass's withdrawal and had asked the trial court to award interim fees to pay Nass so he could remain her counsel and the case could proceed with trial as set. WIFE stated she had been unable to find another attorney to represent her on the eve of trial because the attorneys she contacted were afraid to "place themselves in a malpractice liability position" by taking her case.
  
HUSBAND opposed WIFE's motion for continuance, arguing that (1) it was not his fault that WIFE "has been through six lawyers;" (2) he and his counsel as well as amicus attorney Hughes had cleared their schedules to proceed with trial as scheduled; and (3) his witnesses and experts were ready to appear. Amicus attorney Hughes also opposed WIFE's continuance motion, arguing that the parties and the children needed finality. The trial court denied WIFE's motion for continuance and ordered the parties to attend mediation before the scheduled trial.
  
WIFE points to Villegas in arguing that she was entitled to a continuance to secure new counsel after the trial court allowed Nass to withdraw over objection shortly before trial because she was not at fault for causing Nass's withdrawal. See Villegas, 711 S.W.2d at 626. In that case, Villegas was represented by two attorneys; one attorney withdrew 22 days before trial and the second attorney was allowed to withdraw two days before trial. Id. at 625. Villegas asked for a continuance so he could retain a new attorney to represent him at trial, but the trial court refused Villegas's request for a continuance. Id. at 625-26. The supreme court held that "the trial court abused its discretion because the evidence shows Villegas was not negligent or at fault in causing his attorney's withdrawal" and too little time remained for Villegas to "find a new attorney and for that new attorney to investigate the case and prepare for trial." Id. Concluding that "the trial court should either have denied the attorney's motion to withdraw or granted the party's motion for continuance," the supreme court reversed and remanded for a new trial. Id.
   
HUSBAND emphasizes that trial counsel in Villegas withdrew two days before trial and refused to turn over the client's case file. According to HUSBAND, the "circumstances are not comparable to WIFE's case" because WIFE had 55 days' notice of Nass's motion to withdraw; the motion was granted 40 days before trial; WIFE received her file from Nass after his withdrawal; WIFE never made a motion for interim fees; and WIFE showed no efforts to borrow money from friends to pay her fees as she had done in the past. HUSBAND supports his argument by citing State v. Crank, 666 S.W.2d 91, 95 (Tex. 1984), Gillie v. Boulas, 65 S.W.3d 219, 223 (Tex. App.-Dallas 2001, pet. denied), and Van Sickle v. Stroud, 467 S.W.2d 509, 511 (Tex. Civ. App.-Fort Worth 1971, no writ).
  
Crank does not support HUSBAND's argument. The supreme court held that the trial court acted within its discretion when it denied Crank's motion for continuance after he "voluntarily discharged his attorney and reaffirmed the discharge after his requested continuance was denied." Crank, 666 S.W.2d at 94-95. The supreme court noted that counsel had not withdrawn voluntarily due to an emergency; rather, Crank knew of the scheduled hearing but waited until the morning of the hearing to discharge his attorney and ask for a continuance. Id. at 94. Here, in contrast, WIFE did not discharge Nass; she strenuously opposed Nass's withdrawal and filed a motion for continuance after trying without success to retain another attorney.
  
Relying on Gillie, HUSBAND argues that "WIFE was not deprived of her right to be represented by counsel at trial; rather WIFE failed to secure counsel." He misplaces his reliance on this case. In Gillie, the court of appeals held that the trial court did not abuse its discretion by denying Gillie's motion for continuance after allowing his counsel to withdraw because the "trial court allowed almost four months for Gillie to obtain new counsel and for the new counsel to investigate the case and prepare for trial." 65 S.W.3d at 222. Here, in contrast, the trial court did not allow WIFE four months to secure new counsel after allowing Nass to withdraw; WIFE had 40 days to secure new counsel.
  
Van Sickle does not support HUSBAND's contention that the trial court acted within its discretion by denying WIFE's motion for continuance "even assuming WIFE's claim of lack of fault." Van Sickle's trial counsel withdrew ten days before the case was called for trial. 467 S.W.2d 509, 511. Van Sickle failed to appear at trial. Id. Van Sickle later retained new counsel who filed a motion for new trial but never complained of the absence of counsel at trial. Id. The court noted that Van Sickle had been represented by four sets of attorneys and concluded he knew how to obtain counsel; yet, Van Sickle presented no evidence about why he "failed to make arrangements for counsel" once his trial counsel was allowed to withdraw. Id. The court concluded that, in the absence of evidence showing that Van Sickle was not at fault for his trial counsel's withdrawal and was diligent in finding new counsel, the trial court acted within its discretion in denying Van Sickle's motion for continuance. Id. Here, in contrast, WIFE unsuccessfully attempted to retain new counsel; none of the multiple attorneys she contacted would agree to represent her.
  
Nothing in the record suggests that WIFE was able to pay Nass's fees but refused to do so. Nothing in the record suggests that she was able to borrow money to pay Nass's fees but refrained from doing so. In assessing WIFE's level of fault, we note that a mechanism was available to allow Nass to seek attorney's fees and address the circumstances he invoked to justify his withdrawal. This mechanism was not used. The record contains no indication that this mechanism could not have been utilized and no explanation as to why this mechanism was unavailable. Nass filed a motion to withdraw claiming nonpayment of fees shortly before trial was scheduled and — according to WIFE — instructed WIFE to ask for fees at the withdrawal hearing. Nass did not appear at the withdrawal hearing.
   
The record does not reveal why a motion for interim fees was not filed in connection with the March 2010 trial setting even though the trial court had awarded interim fees in February 2008. See Tex. Fam. Code Ann. § 6.502(a)(4). When WIFE asked for an award of interim fees during the February 10, 2010, hearing, HUSBAND objected on grounds that no motion requesting such fees had been filed. This objection prompted the trial court to state: "Well, I can't consider a Motion for Fees at this time."
    
If fault is to be assigned for the failure to seek interim fees under these circumstances, we do not believe that such fault properly can be assigned to the client. We are not persuaded that WIFE was at fault because she failed to file a written motion for interim fees before the February 10, 2010, withdrawal hearing.[1] WIFE was represented by counsel before the hearing. WIFE stated that she followed Nass's instructions and asked the trial court for interim fees at the withdrawal hearing. She stated that she was "astonished that Mr. Nass failed to appear at the [withdrawal] hearing after he informed her that he would personally appear so that he could petition the court" for additional fees by questioning WIFE. These statements are uncontroverted on this record. Because nonpayment of fees was the stated reason for Nass's withdrawal on the eve of trial and because there is no contention that interim fees were unavailable, the absence of a motion for interim fees indicates that reasonable steps to avoid prejudice to WIFE were not taken. See Villegas, 711 S.W.2d at 626.
   
We are not persuaded by an argument that WIFE had more notice of her attorney's intent to withdraw and more time to find new counsel than Villegas did. Villegas requires that a party be given "time to secure new counsel and time for the new counsel to investigate the case and prepare for trial." Villegas, 711 S.W.2d at 626. Arguably, the circumstances here were even more prejudicial than the circumstances in Villegas; if the parties really were "in trial" during the February 10, 2010, hearing, then Nass was allowed to withdraw in the middle of trial. In any event, the timing causes concern even if March 22, 2010, is the operative date.
  
Forty days is a substantially shorter period than the almost four months allowed the client in Gillie to find a new attorney. See Gillie, 65 S.W.3d at 222. Unlike the client in Crank, 666 S.W.2d at 94-95, WIFE did not fire her attorney. Unlike the client in Van Sickle, 467 S.W.2d at 511, WIFE detailed her unsuccessful efforts to find a new attorney. Being mindful of the Texas Supreme Court's observation that "Villegas' attorney did not take reasonable steps to avoid foreseeable prejudice to the client" when he withdrew, we conclude that the holding in Villegas applies with equal force here: "The trial court should either have denied the attorney's motion to withdraw or granted the party's motion for continuance; it did neither." Villegas, 711 S.W.2d at 627.
  
HUSBAND also argues that the trial court was allowed to consider the history of this case and the fact that WIFE had retained six attorneys, including Nass. During the February 10, 2010, hearing, HUSBAND argued that an attorney substitution occurs "every time we get down here and get ready for trial."
   
Serial hiring and firing of attorneys for dilatory purposes would be a legitimate concern to be balanced against a requested continuance in appropriate circumstances. However, this record reveals no evidence that the case was delayed because WIFE had hired five attorneys before Nass. Nothing in the record establishes that a continuance was granted or requested in connection with the withdrawal of any of her prior attorneys. The record does not reflect that WIFE used the withdrawal of her attorneys as a dilatory tactic. The primary source of delay in this case appears to be an attempted reconciliation. WIFE's history of prior representation by other attorneys indicates that she could find attorneys to represent her under the circumstances in which they were retained; this history says nothing about her ability to retain a new attorney on the eve of trial after the withdrawal of her attorney based on the asserted nonpayment of fees.
   
Conclusion  
   
Based on the record before us, we conclude that the trial court abused its discretion by denying WIFE's motion for continuance after allowing her trial counsel to withdraw over her objection shortly before trial based on nonpayment of an unspecified fee amount. Following Villegas, 711 S.W.2d at 627, we sustain WIFE's first issue. We affirm the trial court's divorce decree in so far as it grants the divorce, but we reverse the remainder of the trial court's divorce decree and remand for a new trial.[2]
   
[1] WIFE filed a written motion for interim fees on March 12, 2010, asking the trial court to award her interim fees because she is not "in control of sufficient community assets to pay attorney's fees and anticipated expenses." The trial court declined to consider the motion.
[2] In light of our disposition of WIFE's first issue, we need not address WIFE's remaining issues.

Statute governing permissive interlocutory appeal has changed


Under prior rule, all parties had to agree to interlocutory appeal if it was not otherwise authorized. No longer so, but older cases may fall under the rule in effect at the time, as seen in short per curiam opinion handed down by the Fourteenth Court of Appeals last week.  
   
MEMORANDUM OPINION 
   
This is an attempted discretionary interlocutory appeal of an order signed February 28, 2012, permitting an interlocutory appeal from partial summary judgment orders.
  
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).
  
Section 51.014(d)-(f) of the Texas Civil Practice and Remedies Code, as amended in 2011, provides for appeals from orders that are not otherwise appealable when permitted by the trial court. The 2011 amendments to the statute explicitly apply only to cases commenced on or after September 1, 2011. See Act of May 25, 2011, 82nd Leg. R.S., ch. 203, §§ 3.01, 6.01 2011 Tex. Gen. Laws 758, 761. Before the 2011 amendments, the statute required that all parties agree to the interlocutory appeal. See Act of May 27, 2005, 79th Leg. R.S., ch. 1051, §§ 102, 2005 Tex. Gen. Laws 3512, 3512-13 (former Tex. Civ. Prac. & Rem. Code §. 51.014(d).
  
This suit commenced in 2009; therefore, it is governed by the prior version of the statute requiring the agreement of all parties before an interlocutory appeal may be taken. On April 2, 2012, this court received notice that appellee, Main Street Parking, Ltd, objects to an interlocutory appeal in this case.
  
On April 3, 2012, this court notified the parties that it would dismiss the appeal for want of jurisdiction unless any party filed a response within ten days demonstrating that this court has jurisdiction over the appeal. No response was filed.
  
Accordingly, the appeal is ordered dismissed.
  
SOURCE: 14TH COURT OF APPEALS - HOUSTON - No. 14-12-00262-CV – 4/24/12 
CASE STYLE: ACE PARKING MANAGEMENT, INC. v MAIN STREET PARKING, LIMITED