Muhammad Amir Qurashi v. Ismat Jabeen ( 2013 )

Affirmed and Memorandum Opinion filed June 11, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00858-CV
MUHAMMAD AMIR QURASHI, Appellant,
V.
ISMAT JABEEN, Appellee.
On Appeal from the 310th District Court
Harris County
Trial Court Cause No. 2011-52035
MEMORANDUM OPINION
In this appeal from a final decree of divorce, appellant Muhammad Amir
Qurashi contends that the trial court abused its discretion in denying his motion for
continuance and motion for new trial after his lawyer was allowed to withdraw just
before the start of trial. We affirm.
I
Qurashi and appellee Ismat Jabeen were both born in Karachi, Pakistan.
They married in New York in 2007, and the following year they had a child. In
2011, Jabeen filed for divorce in Harris County, citing irreconcilable differences,
cruelty, and adultery. Jabeen also requested that she be appointed sole managing
conservator of the child and that Qurashi be prohibited from having unsupervised
access to the child.
The trial court signed temporary orders appointing Jabeen sole managing
conservator of the child and Qurashi possessory conservator. The trial court also
found credible evidence of a potential risk of international abduction, and restricted
Qurashi’s access to the child to limited periods of supervised visitation through the
Harris County SAFE program. The trial court later modified the temporary orders
to allow Qurashi overnight visits with the child consistent with the parties’
agreement. Qurashi then answered and filed a counter-petition for divorce,
requesting that he and Jabeen be appointed joint managing conservators of their
child.
On May 18, 2012, seventeen days before trial, Qurashi’s counsel filed an
“Opposed Motion to Withdraw.” In the motion, Qurashi’s counsel asserted that
good cause existed for her withdrawal because Qurashi was “insisting on a course
of action that requires counsel to withdraw” and that Qurashi had failed to pay
reasonable and necessary attorney’s fees for her services. The motion, which
reflected that it was served on Qurashi by certified and first-class mail the same
day, informed Qurashi that the trial was set for 9:00 a.m. on June 4, 2012.
On June 4, the case was called to trial, but Qurashi was not present. Before
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the start of trial, Qurashi’s counsel presented her motion to withdraw.1 She
explained that Qurashi initially objected to the motion, but on May 22, she
received an email from Qurashi in which he informed her that he no longer
considered them to have an attorney-client relationship and he instructed her to not
to take any further action on his case. Qurashi’s counsel also stated that she had
received a text from her office about ten minutes earlier informing her that Qurashi
was in the courthouse. Counsel noted, however, that Qurashi had not yet arrived in
the courtroom. The trial court, after stating for the record that the parties were
notified to appear at 9:00 a.m., and it was now 9:30, granted counsel’s motion to
withdraw and excused her. Qurashi’s counsel did not request a continuance on
Qurashi’s behalf.
The trial commenced after a short break and Jabeen began presenting her
case. Jabeen testified that she had to flee Pakistan because Qurashi held her
hostage there, and that he has threatened to take her daughter to Pakistan to give
her to his second wife. She testified that he filed a fraudulent custody suit in New
York claiming residency in New York. Jabeen also testified that Qurashi had failed
to properly answer discovery, including failing to list his current employment, and
that he had troubles with the IRS. Additionally, Jabeen testified that Qurashi had
failed to follow the trial court’s order to turn over her daughter’s passport to her.
During Jabeen’s direct testimony, Qurashi entered the courtroom. The trial
judge informed Qurashi that he had been ordered to be in the courtroom at 9:00
that day, and she had already allowed his counsel to withdraw. Jabeen’s counsel
1
Although the motion to withdraw does not indicate when it was set to be heard, it does
reflect the trial date of June 4. Qurashi does not contend he had no notice of the hearing; he
complains only that he thought the trial date was two days later. The trial court’s order granting
the motion to withdraw reflects that both the hearing on the motion and the trial were scheduled
for June 4, 2012, at 9:00 a.m. On appeal, Qurashi does not contend that the trial court abused its
discretion in granting his attorney’s motion to withdraw.
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proceeded with her direct examination. After Jabeen’s counsel passed the witness,
the trial court asked Qurashi if he had any questions for Jabeen. Qurashi initially
replied that he did, but he then changed his mind and declined to cross-examine
Jabeen. Jabeen’s lawyer then testified concerning her attorney’s fees; Qurashi also
declined to cross-examine this witness. No other witnesses testified in Jabeen’s
case.
At the start of his case, Qurashi stated that he was not prepared and it was
his understanding that the hearing was set for June 6. He also stated that his
counsel had charged him “a lot of money,” but she did not represent him as he
desired.2 Qurashi then disputed Jabeen’s testimony and provided contradictory
testimony concerning his relationship with Jabeen and the child. Among other
things, Qurashi accused Jabeen of having a long-time affair, and he also claimed
that Jabeen had engaged in international abduction by taking their child from
Pakistan to Houston. Nevertheless, Qurashi maintained that he wanted the parties
to reach a mutually agreeable resolution of their dispute. Qurashi also testified
concerning his employment and finances.
During his testimony, Qurashi commented that he could present witnesses
and evidence to support his version of events, and he stated that he would hire an
attorney. Qurashi also reiterated later in his testimony that he was not prepared and
did not bring documents because he thought the hearing was set for another day.
Qurashi then stated that he needed time to retain an attorney. The trial court
responded, “And we’re in trial today, so I’m not going to give you any additional
time.” The trial continued with additional testimony from both Jabeen and Qurashi.
2
Later in the trial, Qurashi stated, “I should not say I fired my attorney. My attorney was
not attorney and then acted as my attorney and provided even my previous -- a lot of e-mails,
you know, to her that she has no right to send any document” and “I believe my client privilege
rights has been compromised.”
4
At the conclusion of the trial, the trial court rendered a judgment for divorce and
granted all relief requested by Jabeen.
On July 3, 2012, Qurashi filed his motion for new trial complaining of the
trial court's failure to “grant a continuance so that he could hire another attorney.”
Qurashi supported his motion for new trial with his affidavit stating inter alia that
he asked his former lawyer to request a continuance; that his former lawyer told
him that the trial setting was June 6, 2012; and that he had not been able to obtain a
new lawyer in such a short time.
II
On appeal, Qurashi contends that the trial court abused its discretion in
denying his motion for continuance when his lawyer had been allowed to withdraw
a few minutes before the trial began. For the same reason, Qurashi also argues that
the trial court should have granted his motion for new trial. Because Qurashi briefs
these issues together, we will likewise analyze them together.
A
We apply an abuse-of-discretion standard to the trial court’s rulings on
Qurashi’s motion for continuance and motion for new trial. See In re R.R., 209
S.W.3d 112, 114 (Tex. 2006) (per curiam); Villegas v. Carter, 711 S.W.2d 624,
626 (Tex. 1986); Aduli v. Aduli, 368 S.W.3d 805, 818 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). The test for determining whether a trial court abuses its
discretion is whether it acts unreasonably or in an arbitrary manner without
reference to any guiding rules or principles. Butnaru v. Ford Motor Co., 84 S.W.3d
198, 211 (Tex. 2002). Unless the record shows a clear abuse of discretion, we will
not reverse a trial court’s decision. Villegas, 711 S.W.2d at 626.
When the ground for continuance is the withdrawal of counsel, the movant
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must show that the failure to be represented at trial was not due to his own fault or
negligence. Id.; see also Tex. R. Civ. P. 253 (“[A]bsence of counsel will not be
good cause for a continuance . . . when called for trial, except it be allowed in the
discretion of the court, upon cause shown or upon matters within the knowledge or
information of the judge to be stated on the record.”). Because the right to counsel
is a valuable right, its unwarranted denial is reversible. Villegas, 711 S.W.2d at
626; Crank, 666 S.W.2d at 94. When considering a motion for continuance, the
trial court may take into account the entire procedural history of the case. See
Aduli, 368 S.W.3d at 818 (citing Waste Water, Inc. v. Alpha Finishing &
Developing Corp., 874 S.W.2d 940, 942 (Tex. App.—Houston [14th Dist.] 1994,
no pet.)).
B
Qurashi primarily relies on Villegas v. Carter to support his contention that
the trial court abused its discretion in failing to grant his oral request for
continuance.3 In that case, Villegas appeared at trial without an attorney and
requested time to obtain an attorney after the trial court allowed his attorney to
withdraw two days before trial. Villegas, 711 S.W.2d at 625. The Villegas court
held that the trial court abused its discretion in denying Villegas’s request for a
continuance, because the evidence showed that (1) Villegas was not negligent or at
fault for causing his attorney’s withdrawal, (2) two days was too short a time to
3
Rule 251 provides that a motion for continuance shall not be granted except for
“sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.”
Tex. R. Civ. P. 251. Generally, when a movant fails to comply with Rule 251’s requirement that
a motion for continuance be “supported by affidavit,” a reviewing court presumes the trial court
did not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626. In Villegas, the
supreme court reasoned, “It would be unrealistic, however, to apply this presumption to lay
movants who without fault have their attorney withdrawn.” Id. On appeal, Jabeen does not
dispute Qurashi’s contention that this exception to Rule 251’s requirement of a motion supported
by affidavit applies in this case.
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find a new attorney and for the new attorney to investigate the case, and (3)
Villegas was prevented from obtaining a new attorney because his former attorney
refused to turn over Villegas’s file. Id. at 626–27. Accordingly, the court held that
the trial court “should either have denied the attorney’s motion to withdraw or
granted the party’s motion for continuance; it did neither.” Id. at 627.
Qurashi contends that his counsel sought to withdraw based only on the
“vague statements” that Qurashi was “insisting on a course of action that requires
counsel to withdraw” and the assertion that Qurashi had failed to pay his legal fees,
even though counsel failed to mention how much Qurashi had already paid.
Qurashi also points out that the withdrawal motion was presented on the same day
the case was set for trial, and his counsel did not request a continuance or take
steps to protect Qurashi’s interests consistent with the rules of professional
conduct. Further, Qurashi argues that his motion for new trial shows that he would
have obtained relevant evidence that would have been probative of the issues
before the trial court if he had been given more time. Consequently, he maintains,
the trial court’s failure to give him more time to secure new counsel and to inquire
into the withdrawing counsel’s compliance with her duties to her client conflicts
with Villegas. See id. at 626 (“[W]hen a trial court allows an attorney to voluntarily
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.”).
The case law instructs that when the ground for the continuance is the
withdrawal of counsel, the controlling issue is whether the movant was left without
counsel through no fault of his own. See id.; Crank, 666 S.W.2d at 94. Thus, in
Villegas, the court concluded that it was error to deny the request for a continuance
when the evidence showed that Villegas: (1) did not learn of his lawyer’s
withdrawal until six days before the trial; (2) his former lawyer refused to turn over
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his file and important evidence even though the lawyer had not presented Villegas
with a bill; and (3) the attorney Villegas wanted to hire refused to take the case
until he could see the file, look over the facts, and determine his fee. See Villegas,
711 S.W.2d at 625–26.
In contrast, in State v. Crank, Dr. Crank had previously received two
continuances when, on the morning of his administrative hearing before the board
of dental examiners, he announced that he and his counsel had reached
“philosophical differences” in their approach to his case, and he requested a
continuance to substitute other attorneys. See Crank, 666 S.W.2d at 93. Despite
having notice of the scheduled hearing for over a month, it was not until the
morning of the hearing that Dr. Crank informed the board that he would no longer
be represented by his attorney of record and wanted more time to find other
attorneys. Id. at 93–94. Based on those facts, the supreme court found no abuse of
discretion in denying Dr. Crank’s motion for continuance. Id. at 94.
We conclude that the facts of this case are more akin to Crank than Villegas.
Here, Qurashi’s attorney filed her motion to withdraw on May 18 and notified
Qurashi of the motion by regular and certified mail. Qurashi’s attorney stated that
Qurashi was aware of the hearing date, and also pointed out that her motion to
withdraw informed him of the June 4 trial date. We also note that Qurashi’s motion
for new trial and accompanying affidavit are conspicuously silent concerning
Qurashi’s receipt of his attorney’s motion to withdraw—though the motion states
that a copy had been delivered to Qurashi and recites that the “final trial on the
merits is scheduled for June 4, 2012, at 9:00 a.m.” According to Qurashi’s
attorney, Qurashi informed her by email on May 22 that he no longer considered
them to have an attorney-client relationship and he instructed her to take no
additional action on his behalf. Thus, assuming the trial court credited the
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attorney’s representations, Qurashi had at least two weeks to obtain other counsel
and to file a motion for continuance before the start of trial. Moreover, the trial
court could have concluded that Qurashi’s instructions to his counsel precluded her
from filing a motion for continuance on his behalf.
On the trial date, Qurashi arrived late. He explained that he thought the trial
date was June 6, even though the motion to withdraw informed him of the correct
date. When considering the credibility of Qurashi’s representations, the trial court
could have taken into account Qurashi’s previous attempt to obtain an advantage in
the New York custody proceedings by misrepresenting the child’s residency. The
trial court also could have considered Jabeen’s testimony that the child was at risk
of international abduction by Qurashi, as well as Jabeen’s trial testimony that
Qurashi provided false information in discovery and failed to comply with the trial
court’s temporary orders. See Aduli, 368 S.W.3d at 818 (trial court did not abuse
its discretion in denying husband’s request for continuance when movant’s
attorney was permitted to withdraw on day of trial given movant’s nonspecific
representations and history of proceedings).
At trial, Qurashi did not maintain an opposition to his attorney’s withdrawal;
instead, Qurashi’s comments indicated that he considered his former attorney’s
representation to have been unsatisfactory. And although Qurashi stated that he
wanted time to get another attorney, he did not indicate how much time he would
need or what steps, if any, he had taken to obtain new representation. Nor did
Qurashi complain that his attorney’s actions somehow impeded his ability to obtain
other counsel. Qurashi simply appeared at trial late and informed the court that he
disapproved of his attorney and wanted time to find another. Based on this
evidence, the trial court was entitled to believe that Qurashi was aware that the
motion and the trial would occur on June 4, 2012, at 9:00 a.m., that Quarshi had
9
directed his lawyer to take no further steps on his behalf, and that Qurashi himself
had taken no steps to protect himself.
Qurashi cites as support this court’s recent opinion in Harrison v. Harrison,
367 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). In Harrison,
the court held that the trial court abused its discretion in failing to grant a
continuance when the wife’s counsel withdrew forty days before the trial date due
to the wife’s failure to pay an unspecified amount of attorney’s fees. Id. at 835. In
that case, however, the wife had strenuously objected to her counsel’s motion to
withdraw, she requested that the trial court award interim fees to pay her attorney
so that he could remain her counsel and the trial could go forward on the scheduled
date, and she detailed her unsuccessful efforts to find a new attorney. See id. at
831–32. Here, Qurashi did not object to his former counsel’s withdrawal and he
offered no explanation for his failure to obtain representation by the trial date.
Instead, Qurashi merely asserted that would retain an attorney if given more time.
Harrison does not support Qurashi’s appellate argument.4
Based on this record, we conclude that Qurashi has failed to show that his
lack of representation was not due to his own fault or negligence. See Crank, 666
S.W.2d at 94; Aduli, 368 S.W.3d at 818. We therefore hold that the trial court did
not abuse its discretion in denying Qurashi’s request for a continuance. We further
hold that the trial court did not abuse its discretion by refusing to grant Qurashi’s
motion for new trial, which was based on the trial court’s denial of his motion for
continuance.
4
Qurashi cites other authorities as well, but they are all factually or procedurally
distinguishable. Harrison and Villegas are his strongest cases, and as set forth above, they are
inapposite.
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***
We overrule Qurashi’s issues and affirm the trial court’s final decree of
divorce.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Brown, Christopher, and McCally.
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