Opinion
03-21-00288-CV
06-28-2023
Luz Marie Mannas, Appellant v. Kenneth Mannas, Independent Executor of the Estate of Robert Walter Mannas, Appellee
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1-PB-16-001213, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING
Before Byrne, Chief Justice, Triana and Smith Justices
MEMORANDUM OPINION
Edward Smith, Justice.
In this probate matter, appellant Luz Marie Mannas appeals from the trial court's rejection of her will contest following a bench trial. She raises three issues on appeal, each relating to the trial court's ruling allowing her counsel to withdraw from representation shortly before trial. Mannas contends that the trial court erred by (1) granting the motion to withdraw days before trial, arguing that that the motion was procedurally defective, there was insufficient evidence to support good cause for the withdrawal, and she received insufficient notice; (2) denying her request for a continuance to secure new counsel; and (3) denying her motion for new trial. We reverse and remand.
BACKGROUND
This appeal concerns a dispute arising out of the probate of the will of Robert Mannas (Decedent) involving his brother, appellee Kenneth Mannas (Brother) and his widow, appellant Mannas. On June 23, 2016, Brother applied to probate the 2008 will of Decedent in the Probate Court of Travis County. The court admitted the will to probate on July 21, 2016, and issued letters testamentary authorizing Brother to serve as independent executor of Decedent's estate. On September 20, 2016, Mannas filed a petition contesting the validity of the probated will. Subsequently, she filed a First Amended Petition asserting an additional claim to quiet title to certain real property acquired before the marriage and seeking actual and exemplary damages resulting from Brother's allegedly malfeasant administration of the estate. After an initial exchange of motions, including an unsuccessful no-evidence summary-judgment motion filed by Brother, the probate court entered a scheduling order setting trial for March 22, 2021.
Following additional pleading and motions, including the filing of a Second Amended Petition and a successful Rule 91a motion by Brother to dismiss a number of Mannas's claims, Mannas's attorney, William F. Kemp, filed a one-page Motion to Withdraw as Mannas's counsel. The substantive portion of the motion, filed on February 21, 2021, is reproduced here in its entirety:
Now comes William F. Kemp, as attorney of record, for Contestant Luz Mannas herein and would respectfully move this Court that he be allowed to Withdraw from representation of Contestant herein and for the basis of this Motion would show the Court that he can no longer handle this case as the degree of cooperation between him and his client and the agreement of how to proceed has devolved to such an extent that the stress is too great for him to try to continue to represent Contestant, coupled with the fact that said attorney has recently lost almost twenty eight [sic] pounds (from 180 pounds to 152 pounds) that he could ill afford to lose, and for other reasons that said attorney really need not to have to state.
The court held a hearing on the motion to withdraw on Friday, March 12, 2021, at which Mannas did not appear, but at which Kemp represented that Mannas agreed to his withdrawal. Kemp further represented that Mannas understood trial was set for Monday, March 22, 2021, but stated that she "never quite understood" that it would be a bench trial as opposed to a jury trial. A brief colloquy ensued:
Although the hearing transcripts referred to herein were attached as appendices to Appellant's Brief and not made part of the record, nothing in the transcripts bears on our decision, and we refer to them solely for background and context.
THE COURT: Well, there was never a jury trial fee paid. I know that because we've looked for it.
MR. KEMP: I understand.
THE COURT: Okay. Well, it will be a [bench trial]. And she can come here and represent her [sic] pro se and prove up her lost will or whatever it is if she can. But I will grant the motion to withdraw. The order will also say you're entitled to withdraw and the hearing-and it's my understanding, Mr. Kemp, you're saying that she knows she has a case next-the 22nd, right?
MR. KEMP: I believe.
THE COURT: Okay. And I'm going to put that in that the case will proceed at 9:00 for the trial by the court on the 22nd of March, 2021. And we'll put that in Okay? Did you send a proposed order in? Okay. [To opposing counsel:] Mr. Putman, I'm letting him off. …
The court's Order Granting Motion to Withdraw, signed March 12, 2021, reads, in pertinent part, as follows:
After hearing and considering applicants [sic] Motion to Withdraw, together with the arguments of counsel, the Court finds the Motion should be GRANTED. counsel's [sic] evidence that Contestor has been notified both verbally and in writing of his intent to withdraw and that she is agreement [sic] to his withdrawal, is of the opinion that the motion is well taken, should be, and is hereby GRANTED.
The Court finds good cause for withdrawal based on William F. Kemp's current health issues and his inability to continue representation of Contestor. The Court finds based on William F. Kemp's representation, that Contestor has been notified of his intent to withdraw, has been presented with the motion, and that Contestor agrees to counsel's withdrawal. The Court finds, based on William F. Kemp's representation, that Contestor is aware of the setting of the case for trial before the Court on Monday March 22, 2021, at 9:00 am, and that her appearance, either pro-se or with representation, is required. The Court finds that no continuance will be granted.
The record contains what is represented to be an email from Kemp to Mannas notifying her of his withdrawal at 1:56 p.m. on Friday, March 19, 2021, the last business day before the trial. As indicated in the order granting the motion to withdraw, the will contest was called for trial on Monday, March 22, 2021. Mannas appeared pro se and announced not ready:
THE COURT: … So are you ready to proceed today, Ms. Mannas?
MS. MANNAS: No, Your Honor, I need attorney. …
THE COURT … So I'm not continuing the matter. You're on your own pro se. You'll have to proceed pro se. It's your time at this point to prove the only thing that you're-this-is before the Court is whether or not this original will that I probated is in some form or fashion not the original will.
MS. MANNAS: No, Your Honor, I need attorney. I need-I can't.
THE COURT: You may-ma'am, ma'am, you had an attorney, you may need an attorney, but we are four years down the road on this case and I'm going to trial today. Okay?
MS. MANNAS: Your Honor, I don't think it's fair because I need attorney. My-my attorney have problems, I-it wasn't my fault. … [T]he first attorney, he didn't do the representation for me because he take my money and he take vacation time. [My second attorney], her husband passed away and that why he [sic] didn't do the representation. And my third attorney had a heart attack. I need the right to have an attorney, please.
The court proceeded to try the case. Mannas's theory of the will contest was that her husband had executed a later will that superseded the will that had been admitted to probate, but that the later-executed will had fallen into the possession of the other heirs who declined to bring it forward or even acknowledge its existence. Mannas claimed to have witnesses who could attest to the later will's content, but none were present or available to testify at trial. The court rejected her will contest, and this appeal followed.
DISCUSSION
Jurisdiction
In his response to this appeal, Brother challenges our jurisdiction on the ground that the order appealed from was not a final judgment. Because jurisdiction is a threshold issue, we consider it first.
Brother recites the familiar rule that a final judgment is one that actually disposes of all issues and parties in a case, see, e.g., In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827 (Tex. 2005), and argues that, because the order appealed from here disposed only of issues relating to the will contest, the order is therefore interlocutory and unappealable. We disagree.
Probate proceedings are a well-settled exception to the "one final judgment" rule; in such cases, "multiple judgments final for purposes of appeal can be rendered on certain discrete issues." De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citations omitted). The need to review "controlling, intermediate decisions before an error can harm later phases of the proceeding" has been held to justify this rule. Id. (citing Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.-Austin 2000, pet. denied)).
Historically, the test for whether a probate court order was appealable looked to whether the probate court had adjudicated a "substantial right." Id. Expounding on that standard, the Texas Supreme Court has added that, "if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory." Id. Whether an order disposing of a will contest is final and appealable depends on whether the order disposes of the issues and parties of the phase of litigation of which it is a part. Compare Estate of Moreno, No. 04-19-00600-CV, 2020 WL 3259875, at *1 (Tex. App.-San Antonio June 17, 2020, no pet.) (mem. op.) (concluding that order granting no-evidence summary judgment on will contest was not final and appealable where contest claims were logically part of still-pending proceeding to admit will and codicil to probate and issue letters testamentary) with In re Estate of O'Neil, No. 04-11-00586-CV, 2012 WL 3776490, at *3 (Tex. App.-San Antonio Aug. 31, 2012, no pet.) (mem. op.) (concluding that order granting will proponent's traditional and no-evidence motions for summary judgment on will contest was final and appealable where question of testamentary capacity decided by order conclusively disposed of that phase of the proceedings and thus finally adjudicated substantial right).
Here, we hold that the order disposing of the will contest conclusively adjudicates a substantial right for purposes of the probate exception to the finality test. The record discloses no other issues or parties as to the phase of proceeding in which the will was admitted to probate. Moreover, the order denying the contest, if erroneous, could "harm later phases of the proceeding" because it would result in the expenditure of time and judicial resources in probating what may ultimately prove to be the wrong will. The logic and purpose of a probate exception to the final-judgment rule would be disserved by requiring a litigant in Mannas's posture to await the final disposition of the entire probate case. Accordingly, we reject Brother's challenge to our jurisdiction and proceed to consider the merits of Mannas's appeal.
Withdrawal of Counsel
Mannas contends that the trial court erred by granting Kemp's motion to withdraw as her attorney. Specifically, Mannas contends that the motion was defective, that Kemp offered insufficient evidence to support "good cause" justifying withdrawal, and that she did not receive sufficient notice before trial that the probate court granted the withdrawal motion. She further contends that the probate court should have granted a continuance to ensure that Kemp's withdrawal would not prejudice her. Finally, she argues that the decision to permit withdrawal without granting a continuance prejudiced her rights by placing her at a severe disadvantage during the ensuing trial proceedings and that the court should have granted her motion for a new trial.
We review the trial court's ruling granting a motion to withdraw as counsel for an abuse of discretion. Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). A trial court abuses its discretion if it acts unreasonably or arbitrarily without reference to guiding rules or principles. Id. at 826-27; see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
The Texas Rules of Civil Procedure provide that an attorney "may withdraw from representing a party only upon written motion for good cause shown." Tex.R.Civ.P. 10; Harrison, 367 S.W.3d at 827. When another attorney is not to be substituted, the motion to withdraw shall state that a copy of the motion has been delivered to the party; that the party has been notified in writing of her right to object to the motion; whether the party consents to the motion; the party's last known address; and all pending settings and deadlines. Tex.R.Civ.P. 10; see also Integrated Semiconductor Servs., Inc. v. Agilent Techs., Inc., 346 S.W.3d 668, 671 (Tex. App.-El Paso 2009, no pet.). "Notice or delivery to a party shall be either made to the party in person or mailed to the party's last known address by both certified and regular first class mail." Tex.R.Civ.P. 10.
In addition to Rule 10, the Texas Disciplinary Rules of Professional Conduct set out factors that have been held relevant to determining the propriety of withdrawal. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also Harrison, 367 S.W.3d at 827; In re Posadas USA, Inc., 100 S.W.3d 254, 257 (Tex. App.-San Antonio 2001, orig. proceeding). Disciplinary Rule 1.15, entitled "Declining or Terminating Representation," provides that, upon termination of the representation, the lawyer "shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned." Tex. Disciplinary Rules Prof'l Conduct R. 1.15(d), reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
A trial court abuses its discretion if it grants a motion to withdraw that does not satisfy the requirements of Rule 10. Thompson v. Thompson, 387 S.W.3d 769, 771 (Tex. App.- El Paso 2012, no pet.); Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex. App.-Dallas 2001, pet. denied) (stating that Rule 10's requirements are mandatory). It has been held, however, that the error may be harmless if the court allows the party time to secure new counsel and time for new counsel to investigate the case and prepare for trial. Jackson v. Jackson, 556 S.W.3d 461, 467 (Tex. App.- Houston [1st Dist.] 2018, no pet.).
Here, Kemp's motion did not comply with the procedural requirements of Rule 10. Specifically, the motion did not state that a copy of the motion had been delivered to Mannas, that Mannas had been notified in writing of her right to object to the motion, whether Mannas consented to the motion, Mannas's last known address, or pending settings and deadlines. The order granting Kemp's motion to withdraw provided that "[w]ithdrawal from representation [would] not be complete until" certain conditions were met, including the condition that "[t]he order and notice [were] to be served on [Mannas] via her email . . ., with confirmation of delivery to be e-filed with the [probate court]." Mannas's brief maintains, and Brother's brief does not dispute, that "[t]he email containing the signed order was not sent to [Mannas's] email until March 19, 2021"-a contention apparently supported by an email exhibited in the record-and that it was this email that "informed [Mannas] that trial was scheduled to commence on Monday, March 22, 2021, at 9 a.m."
We acknowledge that Kemp made some representations at the hearing that, had they been included in the motion proper, would have brought the motion into partial compliance with Rule 10. For example, Kemp orally represented to the probate court that Mannas had previously agreed to his withdrawal. Nevertheless, the terms of the order granting withdrawal make clear that it was to take effect when emailed, and the record before us contains no documentary evidence of Mannas receiving the order before the afternoon of March 19, 2021. According to the order, Kemp's withdrawal became effective just over three business hours before the trial setting, supporting the conclusion that Kemp did not "take steps to the extent reasonably practicable to protect [Mannas's] interests, such as giving reasonable notice . . . ., [and] allowing time for employment of other counsel . . . ." Tex. Disciplinary Rules Prof'l Conduct R. 1.15(d). Compare Jackson, 556 S.W.3d at 471 (holding that trial court erred in granting attorney's motion to withdraw on morning of trial and failing to continue case), with Thompson, 387 S.W.3d at 772 (finding no error in denial of continuance six days before trial). On these facts, when the motion to withdraw failed to state (1) that a copy of the motion had been delivered to the party; (2) that the party had been notified in writing of her right to object to the motion; (3) whether the party consents to the motion; (4) the party's last known address; and (5) all pending settings and deadlines, and the party asserts that the first notice she received of the withdrawal motion was approximately three business hours before trial was set to begin, it was error for the court to grant Kemp's motion to withdraw. We sustain Mannas's first issue on appeal.
Mannas asserts in her second issue that the probate court erred by failing to grant a continuance of the trial. Where a trial court errs by improperly granting counsel's motion to withdraw, "such error may be harmless if the court allows the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial." Thompson, 387 S.W.3d at 771 (citing Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 148 (Tex. App.-El Paso 2000, no pet)). "It is not harmless, however, when the court grants a motion to withdraw two days before trial and then denies a motion for a continuance." Id. (citing Villegas, 711 S.W.2d at 626-27). Although Mannas did not make a formal motion, her announcement of not ready, together with her urgent pleas for representation can only be construed as a request to continue, and, in any case, a formal motion is not required. See Jackson, 556 S.W.3d at 471 (holding error where trial court failed to continue case sua sponte). Moreover, Mannas made statements to the court to the effect that her failure to be represented at trial was not due to her own fault or negligence, Villegas, 711 S.W.2d at 626, and the record does not contradict or rebut those statements. Accordingly, we sustain Mannas's second issue on appeal.
As to her third issue, Mannas's motion for new trial argues that she was prejudiced by, among other factors, the probate court's failure to provide an interpreter (Mannas is a citizen of Venezuela whose first language is not English) and its failure to allow her to present evidence or call witnesses. Because we sustain Mannas's issues above, however, we need not and do reach her third issue.
Brother argues that "Permitting Kemp's withdrawal was not an abuse of discretion because [Mannas] was continuously represented by other counsel." Brother points out that "Lucie Jones Guajardo filed the Original Petition Contesting Will and Request for Bond, signing the pleading as Attorney for Luz Maria Mannas" and that "[t]he record does not contain any motions requesting or orders granting Lucie Guajardo's withdrawal from representation in the case" as required by Rule 8 of the Texas Rules of Civil Procedure," concluding that "[a]t the time of the hearing of the will contest that was originally filed by Lucie Guajardo, [Mannas] was still represented by Lucie Guajardo as lead counsel." Brother also argues that attorney Peter J. Bean made a "general appearance" at the hearing on the motion to withdraw, "although he did not participate." We disagree that the record reflects that these two attorneys were representing Mannas at the time Kemp withdrew.
If Brother's point is that Guajardo's signature on a pleading should be taken as evidence that she had an ongoing attorney-client relationship with Mannas, we find that evidence to be, at best, in tension with the numerous indications that she was in fact unrepresented. Neither court nor counsel for any party gave any indication at the hearing on Kemp's motion to withdraw that Mannas was represented by anyone other than Kemp. Rule 10 requires that "[i]f another attorney is to be substituted as attorney for the party, the motion shall state . . . that the party approves the substitution." Tex.R.Civ.P. 10. Kemp's motion made no mention of another attorney, and none was mentioned during the hearing on his motion to withdraw. At that hearing, the probate court remarked that "she [Mannas] can come here and represent her [sic] pro se," suggesting that the court was not aware of any other attorney who might be available to represent Mannas. Moreover, at the trial itself, Mannas appeared without counsel and announced not ready, stating "I don't think it's fair because I need attorney. My-my attorney have problems, I-it wasn't my fault. … I need the right to have an attorney, please."
If, on the other hand, Brother's point is that Guajardo's prior appearance and lack of subsequent formal withdrawal means that Mannas was represented as a matter of law, we find no support for that position in the case law. Whatever consequence may follow from attorney Guajardo's potential failure to comply with the strictures of Rule 8, Brother directs us to no authority requiring that Mannas be deemed represented by counsel for purposes of Kemp's motion to withdraw. Brother makes a similar argument with respect to attorney Bean. Again, Brother cites no authority to suggest that such an appearance requires us to deem Mannas to have been represented at the trial. Cf. Palkovic v. Cox, 792 S.W.2d 743, 744 (Tex. App.-Houston [14th Dist.] 1990, writ denied) (holding that signing amended petition or notation on docket sheet of attorney's appearance does not constitute substitution of counsel).
CONCLUSION
For the reasons set forth above, we reverse the trial court's order denying the will contest and remand this case to the probate court for a new trial on the will contest, with instructions that Mannas be allowed reasonable time in which to secure counsel.
Reversed and Remanded.