Opinion issued June 6, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00438-CV ——————————— IN THE GUARDIANSHIP OF SAMANTHA LUGO, AN INCAPACITATED PERSON
On Appeal from Probate Court No. 4 Harris County, Texas Trial Court Case No. 382193
MEMORANDUM OPINION
Appellant, Guadalupe Lugo (“Guadalupe”), the mother of Samantha Lugo, an
incapacitated person (“Samantha”), challenges the trial court’s order granting the
amended motion in limine of appellee, Regions Bank, the Trustee of the Section
1301 Management Trust for Samantha (the “Bank”), and finding that Guadalupe had
an interest adverse to Samantha such that she had no standing to participate in the guardianship proceeding. In three issues, Guadalupe contends that the trial court
erred in granting her counsel’s motion to withdraw without giving her time to find
new counsel to defend against the Bank’s motion in limine and in appointing
appellee, Ginger Lott, as successor third-party private professional guardian of
Samantha’s person.1
We reverse and remand.
Background
Samantha, in infancy, suffered a brain injury which left her permanently
incapacitated, and the settlement of a medical malpractice lawsuit filed by
Samantha’s parents led to the creation of a trust for her care.
In 2016, Samantha’s sister, Guadalupe Leticia Lugo (“Tish”), was appointed
as the guardian of Samantha’s person. Four years later, in June 2020, the Bank filed
an application to remove Tish as guardian. Among other things, the Bank alleged
that Tish had “create[d] unnecessary costs and financial drain on [Samantha’s]
finances,” citing various conflicts between Tish and the Bank.2 Eventually, the Bank
agreed not to pursue Tish’s removal in exchange for her resignation as guardian of
Samantha’s person. After Tish’s resignation as guardian, the trial court heard
1 See TEX. EST. CODE ANN. § 1055.001. 2 The history of this dispute is set forth in detail in our previous opinion in In re Guardianship of Lugo, No. 01-21-00403-CV, 2022 WL 17835520, at *1–5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op.).
2 testimony concerning the appointment of Guadalupe as her daughter’s guardian of
the person but made no ruling at that time as to whether Guadalupe should be
appointed successor guardian. It appointed Marissa Garcia to serve as Samantha’s
guardian ad litem pending contest.
On May 14, 2021, Guadalupe filed a written application for appointment as
guardian of Samantha’s person.3 She alleged that she “ha[d] been providing daily
care and life decisions” for Samantha, who lived with her, since Samantha was an
infant. Guadalupe also pointed out that under the Texas Estates Code, she was
qualified to accept letters of guardianship and had priority over other applicants to
serve as Samantha’s guardian.4
On February 11, 2022, the Bank filed an amended motion in limine
challenging Guadalupe’s interest in the guardianship proceeding. The Bank
acknowledged that Guadalupe “ha[d] lovingly cared for her daughter, Samantha, for
years, and continue[d] to do so.” But the Bank alleged that “[Guadalupe] and Tish
[we]re one and the same” and that “[t]hrough her attorney and [Guadalupe], Tish
continue[d] to create drama and unnecessary expense.” And the Bank argued that
Guadalupe had an interest adverse to Samantha because “of her defiance to repay
funds” to the trust “and the influence over her by and involvement of [Tish] and
3 See TEX. EST. CODE ANN. § 1203.102(a). 4 See id. § 1104.102.
3 Tish’s attorneys in the[] guardianship proceeding[].” According to the Bank,
Guadalupe owed the trust $40,055.14 because Samantha had to “vacate her home
and move into a condominium” when Guadalupe’s home was damaged during the
extreme cold weather in Texas during Winter Storm Uri in February 2021. Since
then, the trust “ha[d] been paying the nearly $9,000 rental on the condominium.”
And the Bank observed that although the trial court had ordered Guadalupe “to pay
$40,055.14 to the trust, she ha[d] not made the payment.” Thus, the Bank asserted
that Guadalupe had “a financial interest which [wa]s adverse to Samantha and [the
trust] . . . such that she lacked standing under Texas Estates Code section 1055.001
to apply for or contest an application for guardianship.” The Bank requested that
the trial court “(i) intervene on behalf of Samantha, (ii) find that the application for
guardianship and the original petition seeking the removal of trustee” filed by
Guadalupe “should be dismissed due to lack of standing, and (iii) award all other
relief to which [the] trustee [wa]s entitled.”
Three days later, on February 14, 2022, Bryan Sample, Guadalupe’s
then-attorney, filed a motion for withdrawal as counsel. As grounds for withdrawal,
Sample asserted that Guadalupe was “unable effectively to communicate with [him]
in a manner consistent with good attorney-client relations” and “ha[d] not complied
with the terms” of their attorney-client agreement. Sample also reported in the
motion that a “Trustee’s Motion to Enforce Court’s Order” filed by the Bank was
4 set for hearing on March 3, 2022 at 9:30 a.m. But Sample, who had not filed a
response on behalf of Guadalupe to the Bank’s amended motion in limine, did not
identify any other pending motions or hearing settings. A copy of Sample’s motion
to withdraw was “delivered to the last known address of Applicant [by] certified
mail.” The motion for withdrawal was set for hearing at 1:30 p.m. on March 3, 2022,
the same date as the trustee’s motion to enforce.
The March 3, 2022 hearing was held remotely. The trial court first addressed
Sample’s motion to withdraw. At the trial court’s request, Sample clarified that he
represented only Guadalupe, and he did not represent Tish. The trial court then
stated that it would sign Sample’s proposed order granting the motion to withdraw
and told Sample to “make sure that it says [Guadalupe] on it.”5 The record, though,
does not contain a signed order granting Sample’s motion to withdraw.
Next, the trial court proceeded to hear the Bank’s amended motion in limine.6
The Bank called Guadalupe as its first witness. Guadalupe, who was attending the
5 The record does not affirmatively show whether Guadalupe participated the portion of the hearing addressing Sample’s motion to withdraw. She is not listed in the “appearances” portion of the reporter’s record, was not announced as present, did not speak, and was not addressed by counsel or the trial court until she was sworn in as a witness for the later portion of the hearing addressing the Bank’s amended motion in limine. 6 The “Trustee’s Motion to Enforce Court’s Order” was not addressed at the March 3, 2022 hearing.
5 hearing by telephone, confirmed that she needed an interpreter.7 She also stated to
the trial court that she “d[id]n’t have an attorney.” The trial court responded that
Guadalupe “d[id]n’t have an attorney because [she] d[id]n’t have an attorney,” that
she “ha[d] the right to have an attorney, and [she] d[id]n’t have one.” Guadalupe
replied that she “need[ed] one.” The trial court told her that she “should have hired
one before.”
Technical problems ensued during the hearing, and Guadalupe was placed in
an electronic waiting room. While Guadalupe was in the electronic waiting room
and thus unable to hear or participate, the trial court, the Bank’s counsel, and Garcia
engaged in a discussion about the pending amended motion in limine. The Bank’s
counsel proposed that the trial court grant the motion as unopposed because
Guadalupe had not filed a response. He also informed the trial court about what the
Bank expected the evidence would show. The Bank’s counsel suggested that if
Guadalupe was “not willing to put on any evidence,” he was “willing to put on
evidence” and then request that the trial court grant the Bank’s amended motion in
limine “because [Guadalupe] didn’t meet her burden” and “didn’t file a response.”
And the Bank’s counsel requested that the trial court “find that [Guadalupe]
7 A Spanish-English interpreter was present for at least the portion of the hearing in which the Bank elicited testimony from Guadalupe. But because of the frequent technical problems, it is unclear from the reporter’s record how much of the rest of hearing was interpreted for Guadalupe and how much her responses relied on her apparently limited ability to understand and speak English.
6 ha[d] . . . an interest that was adverse to Samantha.” The trial court asked Garcia
whether she objected to the Bank’s proposal, and she responded that she did not.
Guadalupe was then brought back into the hearing and sworn in to testify.
Guadalupe interjected that she “need[ed] somebody [to] interpret” and “need[ed] a
lawyer.” The trial court pointed out that Guadalupe had had a month to find new
counsel, and Guadalupe responded, “Yeah, only one month.” When the Bank’s
counsel began questioning Guadalupe, she stated again that she “need[ed] lawyer,
please in Spanish.”
After another technical interruption, the Bank’s counsel asked Guadalupe to
provide her address. Guadalupe provided it, then repeated that she “need[ed] an
attorney” and complained that it was “not fair for [her] not to have one.” In response
to continued questioning, Guadalupe protested that she “[did]n’t understand
anything of what’s going on” and repeated that she “need[ed] an attorney.” The trial
court again told Guadalupe that she had been notified that her attorney intended to
withdraw nearly a month earlier and thus had “an opportunity to hire an attorney,
and [she] chose not to.” Guadalupe responded that she had “looked a lot” for an
attorney, but “nobody wanted to help [her] because of the [B]ank. They [we]re
afraid of the [B]ank.” Throughout the hearing, Guadalupe continued to protest that
she needed counsel and did not understand the proceeding.
7 Before the Bank’s counsel finished questioning Guadalupe, additional
technical problems occurred that resulted in Guadalupe not being able to hear the
interpreter. The trial court proposed that the Bank’s counsel stop examining
Guadalupe and present the rest of the Bank’s evidence, after which the trial court
would recess the hearing and allow the Bank to present the rest of Guadalupe’s
testimony in person on a later date. The Bank then presented its remaining witness.
When the Bank finished questioning its remaining witness, the trial court had
the interpreter tell Guadalupe that the hearing would be reconvened four days later,
on March 7, 2022. Guadalupe responded that “nobody [wa]s translating” the
testimony of the Bank’s remaining witness for her and she did not understand
anything. She also stated that reconvening the hearing so soon would not give her
enough time to find new counsel.8 The trial court nevertheless scheduled the hearing
to be reconvened on March 7, 2022.
When questioned about the circumstances of Sample’s withdrawal at the
March 7, 2022 reconvened hearing, Guadalupe clarified that it was not that she had
“allow[ed]” Sample to withdraw, but that “he didn’t want to continue” representing
her. She did not remember Sample being present at the March 3, 2022 hearing. And
8 In indicating that it was not receptive to moving the reconvened hearing to a later date, the trial court responded to Guadalupe that she had had “ten attorneys.” Testimony elicited at the reconvened hearing showed that Sample had been Guadalupe’s third attorney in the guardianship proceeding since the guardianship was created in 2016.
8 she denied that she had “chos[en] to proceed to trial without an attorney.” Guadalupe
also explained that her “problem” in finding another attorney was “because [she]
[did]n’t speak English” and could not “communicate directly with them.” And she
stated that she could not ask Tish to help her find an attorney right then because she
and Tish were “always fighting.” Throughout the remainder of the hearing,
Guadalupe continued to protest that she needed counsel, and she refused to answer
the Bank’s questions. The trial court stated that if Guadalupe “refuse[d] to answer”
the Bank’s questions, it was “going to presume that her refusal mean[t] that it [wa]s
against [Samantha’s] best interest.”
At the close of the March 7, 2022 reconvened hearing, the trial court granted
the Bank’s amended motion in limine and found that Guadalupe had an interest
adverse to Samantha. On March 9, 2022, the trial court signed an order granting the
amended motion in limine, and on March 23, 2022, the trial court signed an order
appointing Ginger Lott as the successor guardian of Samantha’s person. In its order
appointing Lott, the trial court reiterated its ruling on the amended motion in limine,
finding that “[Guadalupe] ha[d] adverse interests to [Samantha] and thus lack[ed]
standing to pursue her application” for appointment as successor guardian of
Samantha’s person.
9 Also on March 23, 2022, attorney Denyse Ward entered an appearance on
behalf of Guadalupe, and on April 6, 2022,Guadalupe filed a motion for new trial,
which the trial court denied.
Appellate Jurisdiction
We first address the Bank’s argument that we lack appellate jurisdiction over
Guadalupe’s appeal from the trial court’s order granting Sample’s motion to
withdraw and the order appointing Lott as successor guardian because Guadalupe’s
notice of appeal references only the trial court’s ruling on the amended motion in
limine.9
“[C]ourts always have jurisdiction to determine their own jurisdiction,” and
“[a]ppellate jurisdiction is never presumed.” Heckman v. Williamson Cnty., 369
S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); Florance v. State,
352 S.W.3d 867, 871 (Tex. App.—Dallas 2011, no pet.); see also Royal Indep. Sch.
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (jurisdiction fundamental in nature and cannot be ignored). Whether we have
jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).
9 In her notice of appeal, Guadalupe “appeal[ed] from the [trial court’s] order of March 9, 2022, granting the [a]mended [m]otion in [l]imine filed by [the] Bank, together with all written orders, oral rulings, and rulings by operation of law, including all pre-trial rulings and orders, and [the trial court’s] orders or rulings on all post-verdict and post-judgment motions.”
10 A motion in limine in a probate or guardianship proceeding is an evidentiary
hearing to determine whether a litigant has standing to participate in the proceeding.
TEX. EST. CODE ANN. § 1055.001(c); see, e.g., Estate of Johnson, 631 S.W.3d 56, 60
(Tex. 2021) (describing motion in limine procedure in context of will contest); In re
Guardianship of Benavides, No. 04-19-00801-CV, 2020 WL 7365454, at *4 (Tex.
App.—San Antonio Dec. 16, 2020, no pet.) (mem. op.) (explaining nature of
challenge to standing in guardianship proceeding).
Generally, parties may appeal only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001). However, appeals from
probate proceedings involve an exception to the final-judgment rule because
multiple final judgments may be rendered on discrete issues before an entire probate
proceeding is concluded. See Trevino v. Reese, No. 01-10-00717-CV, 2011 WL
2436523, at *2 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.);
Young v. First Cmty. Bank, N.A., 222 S.W.3d 454, 456 (Tex. App.—Houston [1st
Dist.] 2006, no pet.).
Two categories of probate court orders are considered final for purposes of
appeal even when they do not dispose of all pending parties and claims. See
Crowson v. Wakeham, 897 S.W.2d 779, 781–83 (Tex. 1995); SJ Med. Ctr., L.L.C.
v. Estahbanati, 418 S.W.3d 867, 870–71 (Tex. App.—Houston [14th Dist.] 2013,
no pet.). First, if a statute expressly declares that the particular phase of the probate
11 proceedings is final and appealable, that statute controls. Estate of Brazda, 582
S.W.3d 717, 723 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see also
Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Second,
in the absence of a statute, an order is final if it disposes of all parties and all issues
in “the phase of the proceeding for which it was brought.” Mackie, 193 S.W.3d at
578.
The Texas Estates Code provides that an order appointing a guardian of the
person is appealable. See TEX. EST. CODE ANN. § 1152.001 (party may “appeal from
an order or judgment appointing a guardian”); see, e.g., In re Phillips, No.
01-14-01004-CV, 2016 WL 3391249, at *3 (Tex. App.—Houston [1st Dist.] June
16, 2016, no pet.) (mem. op.) (appeal of appointment of permanent guardian). The
interlocutory order granting the Bank’s amended motion in limine was in the same
phase of the guardianship proceeding that resulted in Lott’s appointment and thus
merged into the appointment order. See Bonsmara Nat’l Beef Co. v. Hart of Tex.
Cattle Feeders, 603 S.W.3d 385, 387 (Tex. 2020) (noting long-settled rule that party
against whom interlocutory order has been rendered will have right of appeal when
interlocutory order is merged into final judgment disposing of whole case); see also
Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied) (reference in notice of appeal to interlocutory order instead of final
judgment is not jurisdictional error).
12 We may treat a case that is appealed before the judgment is final as a
prematurely filed appeal. City of Houston v. Spann, No. 01-22-00848-CV, 2023 WL
5615801, at *3 n.1 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, no pet.) (mem.
op.); see also TEX. R. APP. P. 27.1(a), 27.2; Fusion Indus., LLC v. Edgardo Madrid
& Assocs., LLC, 624 S.W.3d 843, 849 (Tex. App.—El Paso 2021, no pet.). If the
trial court signs a final judgment before the appellate court dismisses a prematurely
filed notice of appeal, the jurisdictional defect is cured, and the appellate court has
jurisdiction over the case. Fusion Indus., 624 S.W.3d at 849. The notice of appeal
is deemed filed on the day of the trial court’s final judgment—here, the order
appointing Lott as successor guardian of Samantha’s person. Id. We also note that
the trial court reiterated its ruling on the amended motion in limine in its order
appointing Lott, finding that “[Guadalupe] ha[d] adverse interests to [Samantha] and
thus lack[ed] standing to pursue her application” for appointment as guardian of
Samantha’s person. And we observe that because the trial court found that
Guadalupe had no standing in its order granting the amended motion in limine,
Guadalupe was precluded from asserting an interest in any subsequent proceedings
in the guardianship.
The Bank also asserts that to the extent that the notice of appeal encompasses
the trial court’s ruling on Sample’s motion to withdraw, it is untimely. Generally, a
notice of appeal is due within thirty days after the judgment is signed. See TEX. R.
13 APP. P. 26.1. The appellate timetables run from the signing date of whatever order
makes the judgment final and appealable, i.e., whatever order disposes of any parties
or issues remaining in the appeal. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496
(Tex. 1995); Noorian v. McCandless, 37 S.W.3d 170 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied); see also TEX. R. CIV. P. 329b; TEX. R. APP. P. 26.1. Here,
not only is there no signed order granting the motion to withdraw, a trial court’s
order granting a motion to withdraw is not an appealable interlocutory order. See
Davis v. Tex. Dep’t of Family & Protective Servs., No. 03-10-00624-CV, 2010 WL
4367076, at *1 (Tex. App.—Austin Nov. 5, 2010, no pet.) (mem. op.); see also TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014. But because allowing the withdrawal
affected the later rulings challenged by Guadalupe, including the appealable order
appointing Lott as successor guardian, we hold that we have jurisdiction over this
appeal and thus may consider the trial court’s ruling granting Sample’s motion to
withdraw.
Motion to Withdraw
In her first issue, Guadalupe argues that trial court erred in granting Sample’s
motion to withdraw because the trial court granted the motion without ensuring that
Guadalupe’s rights were protected and there was no evidence that Guadalupe
received a copy of the motion to withdraw. In her second issue, Guadalupe argues
that the trial court erred in not continuing the hearing on the Bank’s amended motion
14 in limine because Guadalupe was not given time to secure new counsel prior to the
hearing.
We review a trial court’s ruling granting a motion to withdraw as counsel for
an abuse of discretion. Jackson v. Jackson, 556 S.W.3d 461, 467 (Tex. App.—
Houston [1st Dist.] 2018, no pet.). An attorney “may withdraw from representing a
party only upon written motion for good cause shown.” TEX. R. CIV. P. 10; Harrison
v. Harrison, 367 S.W.3d 822, 827 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied). When another attorney is not being substituted, the motion to withdraw
must state that a copy of the motion has been delivered to the party, 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; Jackson, 556 S.W.3d at 467. A trial court abuses its
discretion if it grants a motion to withdraw that does not satisfy these requirements.
Jackson, 556 S.W.3d at 467.
Before the trial court allows an attorney to withdraw from representation, it
also should confirm that the attorney complied with the professional responsibilities
owed to the client. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also
Jackson, 556 S.W.3d at 467. Texas Disciplinary Rule of Professional Conduct 1.15,
entitled “Declining or Terminating Representation,” states that an attorney shall not
withdraw from representing a client unless:
15 (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;
(5) 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;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
TEX. DISCIPLINARY R. PROF’L CONDUCT R. 1.15(b), reprinted in TEX. GOV’T CODE
ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9).
As to the requirements of Texas Rule of Civil Procedure 10, Sample, in his
motion to withdraw, informed Guadalupe only that the Bank’s “[m]otion to [e]nforce
[c]ourt’s [o]rder” was set for a hearing on March 3, 2022. Assuming that Sample
had notice that the amended motion in limine was also set for March 3, 2022, his
motion to withdraw did not comply with the requirement that he inform his client of
16 all pending settings in his motion.10 See TEX. R. CIV. P. 10 (motion shall state “all
pending settings and deadlines”).
Further, although the motion to withdraw notified Guadalupe that she did not
have to agree to her counsel’s withdrawal, it did not state whether Guadalupe agreed
to the motion, and the record does not show that Guadalupe was asked whether she
agreed to the motion before the trial court granted it at the March 3, 2022 hearing.
An attorney who seeks to withdraw from representing a client who has not secured
substitute counsel is required to state in the motion whether the client consents to the
motion. See TEX. R. CIV. P. 10; Jackson, 556 S.W.3d at 467. Thus, we hold that the
trial court erred in granting Sample’s motion to withdraw because the motion did not
comply with these requirements of Texas Rule of Civil Procedure 10. See Caddell
v. Caddell, 597 S.W.3d 10, 15 (Tex. App.—Houston [14th Dist.] 2020, no pet.);
10 The record does not contain a notice setting the amended motion in limine for hearing. Thus, there is nothing in the record showing that the Bank complied with Texas Rule of Civil Procedure 21, which requires the movant to serve notice of the hearing at least three days before the time specified for the hearing. See TEX. R. CIV. P. 21. The Bank notes that on February 18, 2022, the trial court coordinator sent an email to the parties’ counsel informing them that a hearing on the amended motion in limine was set for March 3, 2022. The Bank included a copy of that email with its appellee’s brief. Although the email does not appear in the record, we note that the clerk has no duty to record the mailing of the notice. See TEX. R. CIV. P. 165a(1); Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004). But whether Sample knew of scheduled hearing or not, he did not inform Guadalupe of the amended motion in limine’s setting in his motion to withdraw. The motion to withdraw states only that the Bank’s motion to enforce was set for a hearing on March 3, 2022.
17 However, we note that such error may be harmless if the trial court allows the
party time to secure new counsel and time for new counsel to investigate the case
and prepare for trial. Jackson, 556 S.W.3d at 467. But here, the trial court, despite
its awareness that Guadalupe did not have substitute counsel, did not continue the
hearing on the Bank’s amended motion in limine so that Guadalupe could retain new
counsel. And the trial court spent no time exploring whether Sample had good cause
for terminating his attorney-client relationship with Guadalupe or whether he had
complied with the professional responsibilities that he owed her before it granted the
motion to withdraw. Significantly, the trial court failed to explore with Sample
whether he had determined that his withdrawal could be accomplished without
material adverse effect on Guadalupe’s interests. See Villegas, 711 S.W.2d at 626;
Harrison, 367 S.W.3d at 827. The failure to make such inquiry is particularly
problematic when, as in this case, the withdrawing attorney has not filed a response
to a pending motion, requested a continuance, or notified his client of the immediacy
of a hearing on an adversary’s motion that could be dispositive of his client’s interest
in the proceeding.
The record shows that allowing counsel’s withdrawal without continuing the
hearing on the Bank’s amended motion in limine had a materially adverse effect on
Guadalupe’s interest. In its ex parte discussion with the trial court following
Sample’s withdrawal, the Bank noted that Guadalupe had not filed a response to the
18 Bank’s amended motion in limine, and it anticipated that Guadalupe would not be
able to satisfy her evidentiary burden to show her interest was not adverse to
Samantha. Given the circumstances, the result anticipated by the Bank was a
foregone conclusion. In summarily granting Sample’s motion to withdraw and
refusing to continue the hearing on the amended motion in limine without ensuring
that Guadalupe had proper notice of the hearing or continuing the hearing to give
Guadalupe additional time to secure new counsel, the trial court prevented
Guadalupe from properly being able to present her case. See Caddell, 597 S.W.3d
at 15; see also TEX. R. APP. P. 44.1(a). Accordingly, we hold that the trial court
erred in refusing to continue the hearing on the Bank’s amended motion in limine to
allow Guadalupe time to secure new counsel.
We sustain Guadalupe’s first and second issues.
Appointment of Successor Guardian
In her third issue, Guadalupe argues that the trial court erred in appointing
Lott as successor third-party private professional guardian of Samantha’s person
because the appointment prejudiced and harmed Guadalupe. Specifically,
Guadalupe asserts that in finding in that she “ha[d] adverse interests to [Samantha]
and thus lack[ed] standing to pursue her application” for appointment as successor
guardian of Samantha’s person, the trial court prevented Guadalupe from proceeding
19 with her application despite her statutorily preferential status. See TEX. EST. CODE
ANN. § 1104.102(2).
Because the trial court allowed Sample’s withdrawal based on a defective
motion, failed to ensure that Sample had complied with his legal duties to Guadalupe
before granting his motion to withdraw, and refused to continue the hearing on the
Bank’s amended motion in limine, Guadalupe was unable to properly defend herself
against the motion. And because the trial court granted the amended motion in
limine, concluding that Guadalupe lacked standing, Guadalupe was unable to
advance her own application for appointment as successor guardian of Samantha’s
person or participate in any way in the proceedings that culminated in Lott’s
appointment as successor guardian. Thus, the trial court’s error in granting the
Bank’s amended motion in limine likewise infects its order appointing Lott as
successor guardian. See TEX. R. APP. P. 44.1(a).
For these reasons, we hold that the trial court erred in appointing Lott as
successor guardian of Samantha’s person.
We sustain Guadalupe’s third issue.
Conclusion
We reverse the trial court’s orders granting Sample’s motion to withdraw,
granting the Bank’s amended motion in limine as to Guadalupe, and appointing Lott
20 as successor guardian of Samantha’s person, and we remand the case for further
proceedings consistent with this opinion.
Julie Countiss Justice
Panel consists of Justices Goodman, Countiss, and Farris.