Jerry Lavone Lively Jr. v. Michelle Anne Lively

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00317-CV

Jerry Lavone Lively Jr., Appellant

v.

Michelle Anne Lively, Appellee

FROM THE 274TH DISTRICT COURT OF COMAL COUNTY

NO. C2017-1208C, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Jerry Lavone Lively Jr. appeals from a final decree of divorce. In seven

issues, he challenges the trial court’s (1) grant of his counsel’s motion to withdraw, (2) award of

sanctions against him for discovery abuse, and (3) failure to rule on his request for temporary

orders awarding him community funds to retain counsel. For the reasons explained below, we

affirm in part and reverse and render in part.

BACKGROUND

In July 2017, appellee Michelle Lively filed an original petition for divorce. 1 Jerry

filed his original answer in March 2018. On July 5, 2018, Michelle filed a certificate of written

discovery, certifying that she had propounded upon Jerry requests for production and inspection,

written interrogatories, Rule 194 requests for disclosure, and requests for admissions. By Rule 11

1 Because the parties share the same last name, we will refer to them by their first names.

agreement filed with the trial court, the parties extended the deadline for Jerry’s discovery

responses to August 22, 2018. On August 22, Jerry filed a written certificate of discovery stating

that he had served upon Michelle his responses to her requests for discovery. 2

On October 29, Jerry’s counsel, Gina Jones, filed a motion to withdraw as counsel,

alleging that she was “unable to effectively communicate with Jerry . . . in a manner consistent

with good attorney-client relations.” The motion stated that there were no pending settings or

deadlines, including discovery deadlines, in this case and that there had not been any hearings in

the case. On October 31, the motion to withdraw was set to be heard on November 28, 2018.

On November 8, Michelle filed a motion to compel discovery and for sanctions,

asserting that Jerry’s discovery responses were inadequate because he had produced no documents

at all and had not objected to the time and manner of production or inspection and because his

responses to certain of her interrogatories were nonresponsive. The motion to compel was set for

hearing on November 16, but after Jerry filed a motion for continuance due to a scheduled medical

procedure, the parties filed a Rule 11 agreement documenting their agreement to have Michelle’s

motion to compel and for sanctions heard along with Jones’s motion to withdraw on November 28.

At the hearing, the trial court proceeded to hear both attorneys’ arguments on the

motion to compel and for sanctions. In the course of that argument, Jones also briefly described

her communication issues with Jerry. After hearing Jones’s argument on behalf of Jerry

responding to the motion to compel and for sanctions, the trial court granted Jones’s motion to

withdraw and gave Jerry, now acting pro se, the opportunity to argue further on his own behalf.

2 Jerry also propounded discovery requests upon Michelle. She filed written certificates

of discovery documenting her service of responses upon Jerry. No motion to compel was ever

filed related to Michelle’s discovery responses and they are not at issue in this appeal, so we will

not recite the particulars of Michelle’s discovery-related filings here.

2

After hearing his argument, the trial court orally granted the motion to compel and for sanctions,

ordering that Jerry provide documents and discovery responses by January 2, 2019, at 5:00 p.m.,

awarding $2,000 in attorneys’ fees payable to Michelle’s counsel on or before January 2, and

providing that Jerry was prohibited from propounding any additional discovery. The trial court

memorialized its oral rulings in an order signed on December 7, 2018. On January 2, 2019, Jerry

filed pro se notices of appeal in this Court from the trial court’s orders granting the motion to

withdraw and the motion to compel and for sanctions. Those appeals were dismissed for want of

jurisdiction in February 2019. See Lively v. Lively, Nos. 03-19-00005-CV & 03-19-00006-CV,

2019 WL 988275, at *1 (Tex. App.—Austin Feb. 28, 2019, no pet.) (mem. op.).

In December 2018, Michelle filed a motion for temporary restraining order and set

a hearing for January 9, 2019. On January 8, 2019, new counsel, Kimbrel Brown, made an

appearance on Jerry’s behalf and requested a continuance of the January 9 hearing. The trial court

subsequently granted an ex parte temporary restraining order, restraining Jerry from threatening

Michelle and from various forms of harassment of Michelle. On April 2, Michelle filed a motion

for mediation, a motion for temporary orders, and a motion for sanctions. Michelle’s motions

were set for hearing on April 17.

On April 8, Brown filed a motion to withdraw, asserting that good cause existed for

his withdrawal “because he is unable to effectively communicate with Jerry . . . in a manner

consistent with good attorney-client relations.” Jerry did not consent to the motion, stating in a

letter to the court that he believed it was improper for the court to allow Brown to withdraw because

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he had never consented to Brown’s representation of him. 3 On April 17, 2019, the trial court

granted Brown’s motion to withdraw and Michelle’s motion for temporary orders.

On January 29, 2020, Michelle filed a motion to waive mediation, asserting that she

would be requesting that a final hearing be set, and that mediation should be waived because there

was a pending felony charge alleging that Jerry assaulted Michelle and a pending case against

Jerry alleging that he violated Michelle’s protective order more than 2 times within 12 months.

The trial court granted her motion on March 4, 2020.

On February 6, 2020, Jerry filed a motion for temporary orders, seeking an award

of funds from the community estate under Texas Family Code Section 6.502(a)(4) to secure

counsel and pay attorney’s fees and expenses and seeking temporary support and living expenses

as provided by Texas Family Code Section 6.502(a)(2). See Tex. Fam. Code § 6.502(a)(2), (4).

Jerry further requested a stay of all proceedings until the funds under Section 6.502(a)(4) could be

paid and he could retain an attorney. The record does not reflect that this motion was ever set for

hearing prior to February 3, 2021.

On February 3, 2021, at a hearing on Michelle’s and Jerry’s motions for temporary

orders, the parties settled the case. After Jerry and Michelle testified that they agreed to the terms,

the trial court orally granted the divorce and rendered it effective immediately. The court

conducted another hearing on May 12, 2021, on additional motions filed by the parties, including

3 According to Jerry, Brown “apparently had a payment contract with a third party for

services,” but Jerry asserted that he never consented to the representation as required by Rule 1.06

of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary Rules Prof’l

Conduct R. 1.06 cmt. 12, reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (Tex. State Bar R.

art. X, § 9) (“A lawyer may be paid from a source other than the client, if the client is informed of

that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty to

the client.”).

4

Michelle’s motion to enter a final decree of divorce and Jerry’s motion for relief from the

December 7, 2018 sanctions order. The court denied Jerry’s motion for relief. The trial court

signed the final decree of divorce on July 12, 2021. This appeal followed.

ANALYSIS

On appeal, Jerry challenges the trial court’s grant of Jones’s motion to withdraw,

its award of sanctions against him for discovery abuse, and its failure to rule on his request for

temporary orders awarding him community funds to retain counsel.

I. Motion to Withdraw

Jerry raises several issues related to Jones’s motion to withdraw and seeks to have

this Court reverse the trial court’s ruling granting counsel’s motion to withdraw and remand the

case for a new trial. Jerry contends that the trial court abused its discretion by granting the motion

to withdraw because (1) the motion did not comply with the requirements of Texas Rule of Civil

Procedure 10; (2) the court failed to ensure that counsel’s withdrawal would not have a material

adverse effect on Jerry’s interests in violation of Texas Disciplinary Rule of Professional Conduct

1.15; (3) the trial court failed to allow Jerry to oppose counsel’s withdrawal at the hearing, which

violated Jerry’s due-process rights; and (4) the trial court should not have proceeded to hear the

motion to compel after granting counsel’s motion to withdraw. We consider and address these

issues together.

We review a trial court’s ruling on a motion to withdraw for an abuse of discretion.

Thompson v. Thompson, 387 S.W.3d 769, 770 (Tex. App.—El Paso 2012, no pet.). While a trial

court abuses its discretion when it grants a motion to withdraw that does not comply with Rule

10’s requirements, “such error may be harmless if the court allows the party time to secure new

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counsel and time for the new counsel to investigate the case and prepare for trial.” Gillie v. Boulas,

65 S.W.3d 219, 221 (Tex. App.—Dallas 2002, pet. denied) (citing Walton v. Canon, Short &

Gaston, 23 S.W.3d 143, 149 (Tex. App.—El Paso 2000, no pet.)); see also Villegas v. Carter,

711 S.W.2d 624, 626 (Tex. 1986) (“Therefore, when 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.”).

A. Texas Rule of Civil Procedure 10

Under Rule 10 of the Texas Rules of Civil Procedure, an attorney may only

withdraw from representing a party upon written motion, “for good cause shown.” See TEX. R.

CIV. P. 10. Although Rule 10 does not define “good cause,” courts look to the Texas Disciplinary

Rules of Professional Conduct for guidance when considering motions to withdraw because “they

articulate considerations relevant to the merits of such motions.” In re Posadas USA, Inc.,

100 S.W.3d 254, 257 (Tex. App.—San Antonio 2001, orig. proceeding). If another attorney is not

to be substituted as the party’s attorney, Rule 10 requires that the motion state the following:

• a copy of the motion to withdraw has been delivered to the party,

• the party has been notified in writing of their 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.

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Jerry asserts that the motion to withdraw did not comply with the requirements of

Rule 10 of the Texas Rules of Civil Procedure because it did not “properly indicate whether the

party consents to the motion.” See Gillie, 65 S.W.3d at 221 (holding trial court abuses its discretion

when it grants motion to withdraw that does not comply with Rule 10’s requirements). Jerry does

not dispute that the motion complied with all other requirements of Rule 10. The motion stated

that Jerry “has consented to the motion as evidenced by his signature on this motion.” Jerry did

not sign the motion. Thus, the absence of Jerry’s signature indicates that he did not consent to the

motion. While the better practice might be to explicitly state that the party does not consent to the

motion, we cannot conclude that counsel’s motion in this case did not comply with Rule 10’s

requirements.

B. Rule 1.15 of Texas Disciplinary Rules of Professional Conduct

Jerry asserts that the trial court abused its discretion by granting the motion to

withdraw because the court failed to ensure that his counsel had complied with the rules of

professional conduct. Specifically, Jerry complains that his attorney should not have been allowed

to withdraw because withdrawal could not be “accomplished without material adverse effect on

the interests of the client.” Tex. Disciplinary Rules Prof’l Conduct R. 1.15(b)(1), reprinted in Tex.

Gov’t Code, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). Jerry argues that although his

attorney represented in her motion to withdraw that “discovery was essentially complete,” in his

opinion, Michelle’s responses were incomplete, and his attorney had not taken any action to

address those incomplete responses. He further argues that the trial court’s grant of Jones’s motion

to withdraw at the hearing had a material adverse effect on his interests, asserting that his counsel

failed to argue that Jerry “had already produced everything possible that had been requested,” that

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Michelle “already had the requested discovery items within her possession,” and that “significant

discovery issues were still in question,” leading to the trial court’s granting of the motion to

compel, which precluded him from further discovery and required him to pay $2,000 in attorneys’

fees as sanctions.

Based on our review of the timing of the motion to withdraw, which was filed

before the motion to compel, and our review of the transcript from the hearing on both motions,

we conclude that the trial court did not fail to ensure that Jones complied with the rules of

professional conduct. Jones’s motion to withdraw was filed and served on Jerry and on Michelle’s

counsel on October 29, 2018. The motion was set for hearing on November 28, 2018. Michelle

subsequently filed the motion to compel discovery and for sanctions, which she originally set for

November 16 but agreed to move—at Jerry’s request—to the November 28 motion-to-compel

setting. At the hearing, Jones requested that the motion to withdraw be heard and ruled upon first,

in part because Jerry had begun communicating directly with Michelle’s counsel’s office after

Jones filed her motion to withdraw. Michelle’s counsel, Barbara Ancira, requested that the motion

to compel be heard first “because of the tenor of the communications that I’ve gotten directly from

[Jerry], even though Ms. Jones has been representing him” and because the discovery motion

concerned in part records that Jones “clearly has possession of.”

Jones represented to the court that she had informed Ancira that the only documents

she had in her possession were Jerry’s contract with Jones and billing statements, which she had

not turned over because Jerry “was not comfortable,” but that she had brought copies with her so

that they could be redacted to give to Ancira. She further represented to the court that she had

“been trying to get the documents as part of the [motion to] compel. [Jerry] and I have been unable

to communicate for well over a month. And then that’s when he also start[ed] cc’ing Ms. Ancira’s

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office into a lot of those communications.” She asked to be allowed to withdraw first since that

motion was filed first. Ancira responded that while she had not responded to Jerry’s direct

communications with her, she requested that the court hear the motion to compel and for sanctions

with Jones still representing him and being able to respond because the tenor of Jerry’s

communications included a letter threatening Michelle with criminal prosecution, “trying to turn

her in, trying to ruin her job, and that sort of thing.” The trial court proceeded to ask questions and

allow argument from both attorneys related to the motion to compel and for sanctions.

During her argument, Ancira explained to the court that Jerry had made no

objections and had not asserted attorney-client privilege to support redacting the contract or the

billing statement, so she requested that the court compel Jones and Jerry to produce those

documents “as is.” Ancira represented to the court that no documents had been produced in

response to the motion to compel, even though Jerry’s response had indicated that he would

produce documents, including documents that would be in Jerry’s possession or control, such as

his employment and tax information, bank account information, retirement account information

(including records related to a $450,000 retirement account withdrawal), debt information, and

credit-report information. She requested that the court compel Jerry to produce the documents or

strike his pleadings, that it not take into consideration any of Jerry’s debt in the property division

because he refused to provide any information about his debt, and that Jerry not be allowed to

make a claim against the community property because his only response to the interrogatories

about what property he believed to be community property was that Michelle “has possession of

all of that and knowledge of all of that.” Ancira further requested that Jerry be compelled to

provide answers to the interrogatories identified in the motion and that he be prohibited from

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further discovery while the case is pending and that he pay Ancira’s attorneys’ fees in the amount

of $2,500.

Jones asserted that because Jerry withdrew the retirement money before the divorce

was filed, Michelle “knows full well that she got her fair share of that” because they split it in

anticipation of the divorce. Ancira responded that even if Jerry was claiming the funds were evenly

disbursed, Michelle was entitled to see account statements to verify the amount that was cashed

out and where it was deposited. Jones responded to Ancira’s argument by stating, “[F]or response,

as far as those interrogatories, it goes back to my motion to withdraw. I can only deal with the

information I’m given from my client. And so those are the answers that were provided.” Jones

further pointed out that no final hearing date had been set, that “[t]here is plenty of time to

supplement those items,” and that Michelle has “similar access to the majority” of the requested

documents because the parties had been married for almost 20 years and had only been separated

for the prior eighteen months. Jones argued that Jerry should only be compelled to produce

documents for accounts for which he was the sole owner or accounts from July 2016 forward

because that is the only information Michelle would not already have access to.

Ancira rebutted these arguments by pointing out that Jerry needed to respond to the

interrogatories with an inventory of what items he believed to be part of the community-property

estate (both assets and debts) if he wanted any of that property to be part of the property division.

Moreover, she argued that even if Jerry thought Michelle had possession of certain documents, he

should produce them if he has possession of them because he did not timely object to the requests

for production. See Tex. R. Civ. P. 193.2(a) (party must make any objection to written discovery

in writing within time for response), (b) (party must comply with as much of request to which

party has made no objection unless unreasonable under circumstances to do so before obtaining

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ruling on objection), (e) (objection not made within time required is waived); id. R. 196.2 (written

response and objections to requests for production and inspection due within 30 days after service

of request); id. R. 197.2 (written response and objections to interrogatories due within 30 days

after service of interrogatories). At this point, Jerry requested that he be allowed to speak and

asked if he could talk to the judge, to which the judge responded, “Not really right now.” Jones

reurged her motion to withdraw so that Jerry could go ahead and represent himself pro se. She

further stated that there had been “an insinuation that there’s both going to be a grievance and a

lawsuit filed against me,” so she wanted to reurge the motion to withdraw so that Jerry “can

proceed as he sees fit at this hearing since we have covered most of the issues in the sanctions.”

The court did not rule at that point but it stated:

Before I go any further, I am going to say that if there’s not been objections to the

discovery, then—that have been timely filed such that the other side, in accordance

with the rules of procedure, move[s] forward in regard to those objections to the

extent they see fit—if there’s not been timely objections, nor production to this

date, that ultimately one of two things happen: Either those are produced in short

order; or if not produced within a reasonable short order period of time, then any

claims regarding responsive answers to that discovery to which there was not an

objection is ultimately going to be prohibited or precluded.

. . . [M]y point in saying that is that before I do anything else or go any further, are

you satisfied with the record as is here today . . . Ms. Jones . . .?

Jones reiterated that “we have been trying to get the documents . . . if I could go through them with

[Jerry], because he has lived in Tennessee, and see if there are actual objections to be made . . . ,”

at which point the court interjected, “Well, it’s too late to make the objections.” Jones then

requested that Jerry be given at least a month to supplement the answers. Ancira pointed out that

the responses had been served on August 22, and the motion to compel had been on file since

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November 8, arguing, “He’s had plenty of time.” The court responded, “I’m not going to open the

door to objections.”

Jones again asked the court to give Jerry 30 days to produce the documents, arguing

that “this is such a large amount of things, I think he does need 30 days,” and also asserting that

Michelle had provided them very limited documents at this point as well. Ancira pointed out that

no discovery motion had been filed against Michelle and that Michelle had “not gotten any

information from [Jerry] or documentation from him,” so she suggested that the court give him

two weeks to produce the requested documents and adequately answer the interrogatories, and if

he did not, to set the case for trial and move forward. She also asked for her attorneys’ fees for

preparing and arguing the motion to compel.

The court stated that it would grant the motion to withdraw and that it wanted to

review in camera the documents (Jerry’s representation contract and Jones’s billing statement) that

Jones had in her possession before producing them to Michelle. After Jones was excused from the

hearing, the court asked Jerry if he wished to respond briefly, to which Jerry responded, “Well, I

actually had planned on opposing her motion to withdraw, but I wasn’t allowed to speak, so I guess

now I’m pro se.” He further stated, “I definitely object,” asserting that he did not have the

documents that Michelle asserted he had and that he had evidence (which he did not tender to the

court) that Michelle had scanned and e-mailed him the documents she was asking for when she

asked him to do taxes. He stated that he left Texas with possessions that were in the back of a

ten-foot trailer, that Michelle had the rest of the possessions from the 3,900 square-foot house, and

that he had no money. He then stated, “You can award her legal fees, if you want. There’s nothing

to get. I’ll be filing bankruptcy immediately after this anyway.”

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Jerry further argued that the documents that Michelle sought in discovery were with

the Comal County Sheriff, the Knox County Sheriff, and the 25th Military Police Detachment Fort

Sam Houston, and that she should get those e-mails from the police. Ancira responded that at a

minimum, Jerry should have electronic communications in his possession or control, as well as the

bank records or records from his employer concerning the $450,000 retirement withdrawal, plus

in the absence of any objections, he should produce anything he had possession of, regardless of

where it came from. Ancira also suggested that the court did not need to go piecemeal through the

multiple discovery requests for which relief was sought, it could just compel Jerry to respond and

then either strike his pleadings or preclude him from asserting matters related to those responses

at trial.

At that point, the court stated that it would grant the motion to compel and order

that discovery must be provided by January 2, 2019, at 5:00 p.m. and that it would award $2,000

in attorneys’ fees. Ancira also requested that Jerry be prohibited from seeking any further

discovery in the case, whether he retained counsel or not. Jerry responded that he should be able

to request at least the items he had already requested, which Michelle had objected to. The court

informed Jerry that “[w]ith proper motion, proper setting, you can certainly address those . . . that

existing discovery. But at this juncture, you know, without leave of court, we’re not going to do

any additional discovery.” The court reiterated when discussing the proposed order with Ancira,

“If he needs to assert some motion to compel . . . he can certainly do that as well, but he could ask

for leave of court. . . . For additional discovery.”

With this context from the record in mind, we hold that the trial court did not fail

to ensure that Jones complied with Rule 1.15 of the disciplinary rules. On Jerry’s behalf, Jones

argued against the motion to compel before the trial court granted the motion to withdraw, and she

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in fact made the arguments that Jerry contends she failed to make. Jerry’s loss on the merits of the

motion to compel cannot be attributed to Jones’s withdrawal. Instead, as we discuss in more detail

below, it was a result of his failure to timely object or sufficiently respond to Michelle’s

discovery requests. 4

C. Procedural Due Process

Jerry also argues that his due-process rights were violated because he was not

allowed to argue against his counsel’s withdrawal at the hearing. See U.S. Const. amend. XIV,

§ 1 (providing that no State shall “deprive any person of life, liberty, or property without due

process of law”); Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disfranchised, except by the due course of the

law of the land.”); Tex. Const. art. I, § 13 (“All courts shall be open, and every person for an injury

done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”).

We agree with Jerry that the trial court erred by not asking either Jones or him whether he

consented, especially because Jerry had not signed the motion to indicate his consent and he had

appeared at the hearing after being notified in writing of his right to object to the motion.

Moreover, after the court had granted the motion to withdraw and excused Jones, when Jerry

indicated that he had planned to oppose Jones’s motion, the trial court could have allowed Jerry to

4 We also address in more detail below Jerry’s argument that the granting of the motion to

compel left him “in a position that was unrecoverable and caused the entire outcome of the trial to

become unquestionably, and unjustly in favor of [Michelle].” We disagree with Jerry’s argument

that the trial court abused its discretion by granting “death-penalty” sanctions—the sanctions were

not death-penalty sanctions because they did not preclude him from presenting the merits of his

case, nor did they preclude him from seeking to compel discovery from Michelle to the extent that

he asserted her responses were inadequate. Moreover, the trial court left open the possibility that

Jerry could also seek leave of court if he contended further discovery was necessary. Jerry does

not articulate what, if any, additional discovery was necessary to assist him in presenting his case.

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express his objections to her withdrawal and considered whether they merited reconsideration of

its grant of the withdrawal. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“At a minimum,

due process requires notice and an opportunity to be heard at a meaningful time and in a

meaningful manner.”). However, we conclude that this denial of procedural due process was not

harmful error. See In re D.W., 498 S.W.3d 100, 118 (Tex. App.—Houston [1st Dist.] 2016, no

pet.) (conducting harm analysis after determining that party was denied procedural due process).

To reverse a judgment based on trial-court error, we must conclude that the error

probably caused rendition of an improper judgment or probably prevented the appellant from

properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a). Having reviewed the

entire record, we conclude that the trial court’s error did not probably cause the rendition of an

improper judgment. 5 In re Commitment of Jones, 602 S.W.3d 908, 914 (Tex. 2020) (applying

harmful-error rule when trial court erred by denying appellant’s requested jury instruction). As

we have already discussed, Jones argued the motion to compel on Jerry’s behalf before the trial

court allowed her to withdraw, and she made the arguments to the trial court that Jerry asserts on

appeal should have been made. And as we will discuss in more detail below, we conclude that

Jones’s withdrawal did not cause the trial court to err by granting the motion to compel—the trial

5 The trial court’s error in this case is not the type of error that prevents us from determining

whether the error probably caused the rendition of an improper judgment. See In re Commitment

of Jones, 602 S.W.3d 908, 914 (Tex. 2020) (“The prevented-from-presenting prong, on the other

hand, generally applies when something prevents an appellate court from evaluating harm under

the improper-judgment prong,” such as the submission of both valid and invalid theories of liability

in single broad-form jury question.). In this case, the prevented-from-presenting prong does not

apply because the record contains evidence enabling us to determine that the trial court’s failure

to allow Jerry to argue against Jones’s withdrawal did not probably cause the rendition of an

improper judgment. See id.

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court granted the motion to compel based on Jerry’s failure to comply with the discovery rules. In

addition, there was no trial setting at the time that Jones was allowed to withdraw, and Jerry could

have acquired new counsel in the two years that passed before the parties agreed to a property

division to settle the case. See, e.g., Walton, 23 S.W.3d at 148-149 (concluding that trial court’s

grant of motion to withdraw that did not comply with Rule 10 constituted harmless error because

appellant had been afforded an additional fifty days before trial to secure new counsel and for that

counsel to investigate case and prepare for trial). In the interim, Jerry was represented by other

counsel, although he asserts that he never authorized that attorney to represent him and that

attorney ultimately withdrew on the basis of communication difficulties. Furthermore, Jerry did

not file his motion seeking temporary orders for attorneys’ fees to be paid from the community

estate until over a year later (in February 2020), and he did not present the motion for hearing until

another year after that. In light of the lengthy span of time between the grant of Jones’s motion to

withdraw and the parties’ final agreement to settle the case, we conclude that Jerry was not harmed

by the trial court’s error in not allowing him to argue his objections to Jones’s motion to withdraw.

D. Sua Sponte Continuance

Finally, Jerry contends that the trial court should have sua sponte continued the

hearing and provided him with more time to further respond to the motion to compel. We cannot

conclude that the trial court’s decision to proceed with the hearing on Michelle’s motion to compel

was an abuse of its discretion. The grant or denial of a motion for continuance is a matter “within

the trial court’s sound discretion,” see Villegas, 711 S.W.2d at 626, as is a trial court’s sua sponte

decision to continue a case, see Dell Dev. Corp. v. Best Indus. Unif. Supply Co., 743 S.W.2d 302,

303 (Tex. App.—Houston [14th Dist.] 1987, writ denied). After Jones had defended Jerry against

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Michelle’s motion to compel and for sanctions and the trial court had granted the motion to

withdraw, Jerry did not suggest that he needed more time either to adequately represent himself

on the motion to compel or to comply with the court’s order to produce documents and adequately

respond to interrogatories. 6

Jerry did not contradict Jones’s statements that she had “been trying to get the

documents as part of the [motion to] compel. [Jerry] and I have been unable to communicate for

well over a month. And then that’s when he also start[ed] cc’ing Ms. Ancira’s office into a lot of

those communications”—communications that included statements threatening Michelle with

criminal prosecution and “trying to ruin her job.” Moreover, the motion for withdrawal of counsel

had been on file for over a month, and Jerry acknowledges that he had notice of it. He also had

notice of the motion-to-compel setting, which was moved to the same setting as the motion to

withdraw at his request. Thus, Jerry had the opportunity to seek other counsel to represent him

before the hearing on the motion to compel but instead chose to allow Jones to represent him.

These facts distinguish this case from cases like Villegas, where an attorney was allowed to

withdraw shortly before trial and the party was not allowed additional time to find new counsel

and for that new counsel to prepare for trial. See, e.g., Villegas, 711 S.W.2d at 625-27. Under

6 Generally, when a party seeks a continuance based on withdrawal of counsel, he “must

show that the failure to be represented at trial was not due to [his] own fault or negligence.”

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also Shadoian v. Shook,

No. 03-18-00242-CV, 2018 WL 3625766, at *2 (Tex. App.—Austin July 31, 2018, no pet.)

(mem. op.) (concluding trial court did not abuse its discretion when appellant seeking continuance

had not attempted to establish that he did not cause attorney’s withdrawal through his own fault or

negligence). In this case, Jerry asserts that because he was not allowed to argue to the court his

objections to allowing Jones to withdraw, he did not have the opportunity to establish that he did

not cause Jones’s withdrawal through his own fault or negligence. We do not find this argument

persuasive because Jerry did not seek a continuance and thus was never required to make

this showing.

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these circumstances, we cannot conclude that the trial court abused its discretion by not sua sponte

continuing the hearing.

The supreme court held in Villegas that “when 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.” Id. at 626. In this case, more than two years

passed after the trial court allowed Jones to withdraw before the parties reached the agreement that

resulted in the final decree of divorce. We conclude that the trial court did not abuse its discretion

by granting the motion to withdraw. We affirm the trial court’s order granting the motion, and we

overrule Jerry’s first four issues. See Tex. R. App. P. 44.1(a); Delgado v. Texas Workers’ Comp.

Ins. Fund, No. 03-03-00621-CV, 2006 WL 663903, at *3 (Tex. App.—Austin Mar. 17, 2006, no

pet.) (mem. op.) (stating that “even if the court erred by allowing the attorney to withdraw, we may

only reverse the judgment if the error probably caused the rendition of an improper judgment or

probably prevented [party] from properly presenting her case on appeal”).

II. Motion to Compel

In two issues, Jerry contends that the trial court abused its discretion by awarding

discovery sanctions against him at the November 2018 hearing that were “death penalty sanctions”

and by awarding unreasonable financial sanctions against him. He requests that we reverse the

trial court’s ruling granting the motion to compel and remand for a new trial because (1) the

discovery sanctions prevented him from properly presenting facts and issues to the court and (2)

there was no evidence supporting the reasonableness of the attorneys’ fees award. We review the

trial court’s order on a motion for discovery sanctions for an abuse of discretion. See Altesse

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Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 573 (Tex. 2018) (per curiam) (citing Cire

v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)).

A. Discovery Sanctions

With regard to the first issue, Jerry complains that he was justified in not complying

with the discovery requests and that the trial court should have considered and tested lesser

sanctions before imposing case-determinative sanctions. Although Jerry urges that he either did

not have the requested documents or that Michelle had access to those documents, neither Jerry

nor his counsel provided evidence at the hearing demonstrating that Jerry had either timely

objected to Michelle’s discovery requests or timely and adequately responded. See Tex. R. Civ.

P. 193.2, 196.2, 197.2. They did not deny that Jerry had produced no documents in response to

the discovery requests or the motion to compel. This lack of timely and adequate objections and

responses was the basis for the trial court’s order.

The Texas Supreme Court long ago established the standard for determining

whether an imposition of sanctions is just. See TransAmerican Nat. Gas Corp. v. Powell,

811 S.W.2d 913, 918 (Tex. 1991). First, there must be a direct relationship between the offensive

conduct and the sanction imposed; second, “just sanctions must not be excessive.” Id. at 917. The

trial court’s order provided Jerry with additional time to comply with the discovery requests, and

the court indicated at the hearing that it was giving Jerry this opportunity to adequately respond

before imposing the sanction of precluding him from presenting claims related to requests that he

had not responded to. See Tex. R. Civ. P. 215.2(b)(4) (trial court may order that disobedient party

cannot support or oppose designated claims or defenses and may prohibit party from introducing

designated matters into evidence). Moreover, although the trial court’s order precluded Jerry from

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further discovery, a permissible sanction under Rule 215(b)(1), it did not preclude him from filing

a motion to compel discovery against Michelle to the extent that he believed her discovery

responses were inadequate. 7 See Tex. R. Civ. P. 215.2(b)(1) (allowing trial court to issue order

disallowing further discovery of any kind by party who fails to comply with proper discovery

requests). The sanction of precluding Jerry from seeking additional discovery from Michelle

without leave of court when he had not adequately responded to her discovery requests was a

sanction “directed against the abuse and toward remedying the prejudice caused” to Michelle.

We conclude that precluding Jerry from seeking further discovery in the absence of

his providing sufficient discovery responses to her is a just sanction that is not more severe than

necessary to punish Jerry’s discovery abuse. See TransAmerican, 811 S.W.2d at 917. The trial

court’s order did not preclude Jerry from presenting the merits of his case, and it satisfies the

TransAmerican standard of just sanctions. See id. at 917-18. The trial court both considered and

imposed sanctions that are less than “death-penalty sanctions.” See id. at 918 (holding that

“[d]iscovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses

unless a party’s hindrance of the discovery process justifies a presumption that its claims or

defenses lack merit”). Thus, we affirm those portions of the trial court’s order on the motion to

compel that ordered Jerry to provide answers to interrogatories and to produce responsive

documents that he had access to or actual or constructive possession of and that prohibited him

from further discovery. We overrule Jerry’s fifth issue.

7 Jerry never moved to compel on the discovery responses that Michelle had

previously filed.

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B. Attorneys’ Fees

In his other issue challenging the trial court’s order granting the motion to compel,

Jerry contends that the trial court abused its discretion by awarding $2,000 in attorneys’ fees

payable to Ancira because there was insufficient evidence to establish that the award was

reasonable. After the trial court issued its sanctions order in this case, the Texas Supreme Court

issued an opinion that clarified the evidentiary burden of a party seeking to shift its attorneys’ fees

to its opponent as a sanction. See Nath v. Texas Children’s Hosp., 576 S.W.3d 707, 709-10 (Tex.

2019) (per curiam) (analyzing conclusory affidavits that did not substantiate either reasonable

hours worked or reasonable hourly rate and concluding that evidentiary standard for fee-shifting

awards recently clarified in Rohrmoos also applies to fee-shifting sanction); see also Rohrmoos

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 492, 498 (Tex. 2019) (clarifying

evidentiary standards for shifting attorneys’ fees and holding that sufficient evidence to establish

reasonable and necessary fee should include description of particular services performed, who

performed services, approximately when services were performed, and reasonable hourly rate for

each attorney performing services). The supreme court explained in Nath that “[b]efore a court

may exercise its discretion to shift attorney’s fees as a sanction, there must be some evidence of

reasonableness because without such proof a trial court cannot determine that the sanction is ‘no

more severe than necessary’ to fairly compensate the prevailing party.” 576 S.W.3d at 709

(quoting PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 480 (Tex. 2008)).

“Consequently, when a party seeks attorney’s fees as sanctions, the burden is on that party to put

forth some affirmative evidence of attorney’s fees incurred and how those fees resulted from or

were caused by the sanctionable conduct.” Id. (quoting CHRISTUS Health Gulf Coast v. Carswell,

505 S.W.3d 528, 540 (Tex. 2016)).

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In addition, Rule 215 provides that if a party’s motion to compel is granted, the trial

court shall award the moving party the reasonable expenses, including attorneys’ fees, incurred in

obtaining the order. Tex. R. Civ. P. 215.1(d). The rule specifically incorporates a reasonableness

determination: “In determining the amount of reasonable expenses, including attorney fees, to be

awarded in connection with a motion, the trial court shall award expenses which are reasonable in

relation to the amount of work reasonably expended in obtaining an order compelling

compliance . . . .” Id. Thus, a party seeking attorneys’ fees as sanctions must put forth evidence

of the fees it incurred. Diana Convenience, LLC v. Dollar ATM, LLC, No. 05-20-00936-CV,

2022 WL 1657033, at *5 (Tex. App.—Dallas May 25, 2022, no pet. h.) (mem. op.) (citing Nath,

576 S.W.3d at 709). And that evidence must satisfy the legal and evidentiary requirements

established in Rohrmoos. Id.

In this case, Ancira represented to the trial court that Michelle had incurred $2,500

in attorneys’ fees as a result of Jerry’s discovery abuse, but Michelle offered no evidence, either

attached to her motion or at the hearing, of the reasonable amount of attorneys’ fees incurred. In

its order, the trial court awarded $2,000 in attorneys’ fees payable to Ancira without explanation

of what made this a reasonable sanction. Consequently, the evidence is legally insufficient to

support the $2,000 award of attorneys’ fees. Because Michelle failed to present any evidence of

reasonable expenses or attorneys’ fees incurred, it would be inappropriate for us to remand for a

redetermination of reasonable expenses and fees. See id. Instead, we reverse the award of

attorneys’ fees and render the judgment that the trial court should have rendered—no award of

attorneys’ fees to be paid to Ancira. We sustain Jerry’s sixth issue.

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III. Motion for Temporary Orders on Attorneys’ Fees

In his seventh issue, Jerry contends that the trial court abused its discretion by

failing to rule on his motion for temporary orders seeking funds from the community-property

estate for the purpose of retaining an attorney. See Tex. Fam. Code § 6.502(a)(4) (authorizing trial

court to render temporary order that orders payment of reasonable attorneys’ fees and expenses

while suit for dissolution of marriage is pending). Although Jerry filed his motion in February

2020, he did not set it for hearing until February 3, 2021. 8 Michelle had also set for the same

hearing a motion for temporary orders seeking a release from Jerry so that she could communicate

with their mortgage company and a motion to compel Jerry to comply with the December 7, 2018

order for discovery and sanctions. Before taking up Jerry’s motion for temporary orders, the court

and the parties discussed the status of the mortgage and why the house had not yet been sold.

During this discussion, Jerry agreed to settle with Michelle by allowing her to keep all the equity

in the house if she would take care of the appraisal and selling the house. Before the court recessed

for the parties to discuss their settlement agreement, Jerry reminded the court about his motion for

temporary orders, and the court indicated that after the recess, it would consider the motion if the

parties wanted it to. However, after the recess, Jerry and Michelle testified about the details of

their agreement, Michelle’s counsel proved up the divorce with testimony from Michelle, the court

orally granted the divorce, and Jerry did not raise the issue of his motion again. Once the trial

court granted the divorce, which it rendered “effective immediately,” it could no longer grant

payment of attorneys’ fees pursuant to Section 6.502(a), which only allows a court to render such

8 Jerry asserts that he set the motion for hearing on March 19, 2020, but that the hearing

was cancelled by the court. Neither the setting of the hearing nor its cancellation are reflected in

the appellate record. Even if the hearing was set and cancelled as Jerry asserts, the motion was

not re-set for hearing until February 3, 2021.

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temporary orders “[w]hile a suit for dissolution of marriage is pending.” See id. Accordingly, we

conclude that the trial court did not abuse its discretion by not ruling on Jerry’s motion. We

overrule Jerry’s seventh issue.

CONCLUSION

Having overruled Jerry’s first four issues, we affirm the trial court’s order granting

Jones’s motion to withdraw. Based on our conclusions that Jerry had not complied with Michelle’s

discovery requests and that the trial court’s sanctions order prohibiting Jerry from further discovery

was just, we affirm in part the order granting the motion to compel. Based on our conclusion that

the trial court did not have sufficient evidence before it to support its award of $2,000 in attorneys’

fees, we reverse that part of the order granting the motion to compel and render judgment that no

attorneys’ fees are awarded to be paid to Ancira. Having overruled Jerry’s seventh issue, we

conclude the trial court did not abuse its discretion by failing to rule on Jerry’s motion for

temporary orders.

__________________________________________

Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed in Part, Reversed and Rendered in Part

Filed: August 19, 2022

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