Opinion
No. 05-03-01216-CV
Opinion Filed November 30, 2004.
On Appeal from the County Court at Law No. 4 Dallas County, Texas, Trial Court Cause No. cc-02-11364-d.
Affirmed.
Before Justices WRIGHT, O'NEILL and FRANCIS.
MEMORANDUM OPINION
Houda, Inc. appeals the trial court's judgment in favor of Stephenson Wholesale Company d/b/a Indian Nation Wholesale Company. In five issues, Houda generally contends the trial court erred in granting the motion to withdraw filed by the corporation's counsel, not allowing the corporation reasonable time to obtain new counsel, and proceeding to trial without calling in the hall three times for the defendant. We affirm.
Stephenson Wholesale Company filed suit on a sworn account against Houda, Inc. and Ghanem Ashkar, individually, as a guarantor of the account. Ashkar was the registered agent and authorized agent for Houda. Houda and Ashkar were represented by the same attorney, Craig Barlow. The trial was set for July 2, 2003. On May 16, 2003, Houda and Ashkar filed a motion for continuance because discovery was not complete. One month later, Barlow filed a motion to withdraw as attorney for Houda and Ashkar because they failed to cooperate with the preparation of the case and the court's mediation order. The trial court held a hearing on the two motions on June 26. Ashkar did not attend the hearing. The trial court granted the motion to withdraw and denied the motion for continuance.
On July 2, Ashkar appeared for trial, without counsel. The court informed Ashkar that he could represent himself, but not the corporation. Stephenson proceeded to trial on its claim. After Stephenson presented its case, Ashkar requested a continuance because he had not obtained the file from his former counsel. The trial court refused and signed a judgment granting Stephenson's claim against Houda, Inc. and Ashkar and denying the defendants' counterclaim. Subsequently, the trial court granted Ashkar's motion for new trial but denied Houda's. Houda appealed.
Pivotal to all of Houda's issues regarding the granting of the motion to withdraw is Houda's claim that it did not receive notice of the June 26 hearing. After reviewing the record, we cannot agree with Houda's assertion. The record shows that Ashkar is the registered agent for Houda, Inc. The motion to withdraw states:
Counsel would also show that a copy of this motion has been delivered to Defendants, that thereby Defendants have been notified in writing of their right to object to this motion, that Defendants' last known address is as follows: Ghanem Akshar [sic], individually and as representative of Houda, Inc., 5116 Water Haven, Plano, Texas 75093, as of 06/06/03. This case is currently set for trial on July 2, 2003.
Also attached to the motion was a certificate of service stating the motion to withdraw had been delivered to the defendants on June 6, 2003 by U.S. regular and certified mail. The motion shows it was served on the representative of the corporation. Further, Ashkar testified that he received Barlow's motion to withdraw "a couple of days before the hearing." Despite this evidence, appellant claims a June 13, 2003 letter shows that the motion was not mailed to Houda, Inc. However, the June 13, 2003 letter, introduced into evidence by Houda, shows that it was addressed and sent by regular and certified mail to Ghanem Ashkar at four different mailing addresses. The letter states that it is in regard to "Stephenson Wholesale Company d/b/a Indian Nation Wholesale Co. vs. Houda, Inc. and Ghanem M. Ashkar; Cause No. CC-02-11364-D." The letter notified Ashkar of the June 26, 2003 hearing on the motion to withdraw and warned that a default judgment could result if Ashkar did not appear at the hearing and object to the motion to withdraw.
Texas Rule of Civil Procedure Rule 21a states in relevant part: "Every notice required by these rules . . . other than the citation to be served upon the filing of a cause of action . . . may be served by delivering a copy to the party to be served, or the party's duly authorized agent . . . by certified or registered mail, to the party's last known address. . . ." Tex. R. Civ. P. 21a. Houda did not challenge that Ashkar is the registered agent for Houda, Inc. during the trial on the merits, the hearings on the two motions for new trial, or in its appellate brief. In this case, notice to Ashkar was notice to Houda, Inc. Consequently, we cannot agree that Houda, Inc. did not have notice of the June 26 hearing on the motion to withdraw.
Houda next complains a June 13, 2003 letter to Ashkar was not attached to the motion to withdraw as required by Dallas County Local Rule 4.02. He asserts that violation of the local rule requires reversal. Again, we disagree.
Rule 4.02 provides that if the client does not consent to the motion to withdraw, counsel must mail to the client "a letter advising that the motion will be presented to the Court on or after a certain hour not less than ten days after mailing the letter, and that any objection to such withdrawal should be made to the Court in writing before such time." Dallas (Tex.) Civ. Dist. Loc. R. 4.02. The clerk's record does not contain a copy of the June 13 letter attached to the motion to withdraw. However, the local rule does not require the letter to be filed with the clerk, but requires the letter be sent to the client. It would appear, by Houda's own introduction of the letter into evidence, that the letter was received by Houda. We conclude the trial court did not abuse its discretion in granting the motion to withdraw on the ground it did not comply with a local rule.
Appellant then argues the trial judge erred in allowing the corporation's counsel to withdraw so close to the trial date and abused its discretion by not allowing Houda time to secure new counsel. To support his claim, appellant relies on Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). In Villegas, the supreme court concluded the trial court abused its discretion in granting a motion to withdraw two days before trial because the evidence showed that Villegas "was not negligent or at fault in causing his attorney's withdrawal." Id. at 626.
As stated previously, Ashkar did not appear at the hearing on the motion to withdraw, and no reporter's record was made of the hearing. By written orders signed June 27, 2003, the trial court granted the motion to withdraw and denied the motion for continuance. In the order denying the motion for continuance, the trial court explained its reasons for denying the continuance and gave the background of the motion to withdraw. The order states:
On this 26th day of June, 2003, the Motion for Continuance filed by Defendants came to be heard by the Court. On review of the motion, and on hearing the evidence, the Court finds that the Defendants' counsel has attempted to contact Defendants by phone on multiple occasions and left messages with no response; the Defendants' counsel has written Defendants on multiple occasions over the past four months, without response; that Defendants received notice by certified mail of counsel for Defendant's Motion to Withdraw; and that Defendants failed to appear at the hearing on the Motion to Withdraw. Based on the evidence of Defendants' individual, personal neglect of this matter, the Court finds that there is no reason why the Motion for Continuance should be sustained. Accordingly, it is DENIED.
In the absence of a reporter's record, we must presume the evidence supported the trial court's decision to overrule the motion for continuance. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Brown v. Crockett, 601 S.W. 2d 188, 190 (Tex.Civ.App.-Austin 1980, no writ). The order indicates that Houda was at fault in causing the attorney's withdrawal. We conclude the trial court did not abuse its discretion in granting the motion to withdraw so close to trial, where the trial court found appellant's negligence was the basis for counsel's withdrawal. See Villegas, 711 S.W.2d at 626. Likewise, the trial court did not abuse its discretion in denying the motion for continuance where Houda's negligence of the case was the cause of counsel's withdrawal from representation. See State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984).
Finally, appellant asserts the trial court erred in proceeding to trial against Houda without the formality of calling in the hallway three times for the non-appearing party. Appellant offers no legal authority for this issue. Failure to cite any authority constitutes a waiver of the alleged error. See Bowles v. Clipp, 920 S.W.2d 752, 761 (Tex.App.-Dallas 1996, writ denied). Regardless, the record shows that Ashkar was present in the courtroom and confirmed there was no attorney in this case. In such circumstances, it would be pointless to see if counsel for Houda was in the hallway. We resolve all issues against Houda.
We affirm the trial court's judgment.