Opinion
01-21-00252-CV
01-05-2023
ABDERRAHIM ENNADI, Appellant v. SOPHIE ANDREE CHRISTINE ENNADI, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2020-42242
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Amparo Guerra, Justice
Appellee Sophie Andree Christine Ennadi sought a protective order against her husband, appellant Abderrahim Ennadi. After a hearing, the trial court granted a lifetime protective order under the Texas Family Code and Chapter 7B of the Texas Code of Criminal Procedure. In two issues, Abderrahim contends (1) the trial court abused its discretion by allowing Abderrahim's counsel to withdraw on the day of the hearing without granting a continuance, and (2) the trial court erred in granting a lifetime protective order absent a pleading requesting such relief.
We affirm.
Background
Sophie applied for a protective order against Abderrahim for herself and her minor children under the Texas Code of Criminal Procedure, alleging he sexually assaulted and stalked her, and under the Texas Family Code, alleging he committed acts of family violence. See Tex. Code Crim. Proc. arts. 7B.001-.008 (protective order for victims of sexual assault); id. arts. 7B.051-.053 (protective order for victims of stalking); Tex. Fam. Code §§ 85.001-.065 (protective order for victims of family violence). In her declaration supporting her application and during her testimony at the hearing, Sophie described physical, verbal, and sexual abuse perpetrated on her by Abderrahim, as well as physical abuse of the children.
Sophie and Abderrahim have five children together; three were minors at the time Sophie filed her application for a protective order.
Abderrahim, a dual citizen of Morocco and France who left the United States and returned to France in November 2019, was served with Sophie's application for protective order on September 23, 2020. Abderrahim retained Papa Dieye as his counsel, and Dieye filed an answer on Abderrahim's behalf and moved for a continuance of the protective-order hearing which was set for September 29. After numerous re-settings, the hearing was set for March 12, 2021, at 1:30 p.m.
On March 11, 2021, Dieye filed a motion to withdraw as counsel for Abderrahim. Dieye's motion to withdraw stated that Abderrahim did not consent to the withdrawal but that Abderrahim had made "continued representation unreasonably difficult," had "failed to substantially fulfill an obligation" to Dieye, and that Dieye had "not been able to effectively communicate with Abderrahim." The motion also stated that a copy had been delivered to Abderrahim, that Abderrahim had been notified of his right to object to the motion, and that Dieye had requested a continuance so that Abderrahim could have sufficient time to retain other counsel. The trial court initially denied the motion to withdraw.
In email exchanges in English between Abderrahim and court staff on the morning of the March 12 hearing, Abderrahim indicated that he accepted Dieye's withdrawal, did not want Dieye to represent him, and that Abderrahim intended to represent himself at the hearing. Abderrahim also requested an interpreter. Trial court staff responded numerous times that Dieye was still listed as counsel for Abderrahim and that he should direct his inquiries about the case to Dieye, and that Abderrahim would need to provide his own interpreter.
These emails were attached to Sophie's response to Abderrahim's motion for new trial.
At the hearing, Abderrahim appeared by Zoom. The trial court stated that it would allow Dieye an opportunity to put on the record why he wanted to withdraw. Dieye testified that he moved to withdraw because Abderrahim refused to prepare for the hearing and continued to insist that a continuance was necessary because he resided in France despite Dieye's explanation that a continuance was unlikely due to the length of time the case had been pending. After hearing Dieye's reasons for moving to withdraw, the trial court questioned Abderrahim about whether he wanted Dieye to represent him, to which Abderrahim said no. The trial court also confirmed that Abderrahim understood that the hearing was going forward that day. Following this exchange, the trial court granted Dieye's motion to withdraw. The trial court then proceeded with the hearing, with Abderrahim representing himself.
During direct examination of Sophie's first witness, the interpreter appeared to fail to translate the testimony, prompting Sophie's counsel and the trial court to ask whether the interpreter was certified. After the interpreter stated she was not, the trial court explained that a certified interpreter was required for use in court proceedings, but that because the case had been pending for a long time, she would allow the interpreter to continue. However, as the testimony continued, the interpreter appeared to struggle with translation, and the trial court stated that it would reset the hearing for the following Monday and directed Abderrahim to appear with a certified translator. But after stating its intention to reset the hearing, the trial court asked Abderrahim why he could "write in English but . . . cannot talk or understand English?" Abderrahim responded that "there is interpreter online" and explained he had been in the United States off and on for five years. When asked by the trial court, Sophie confirmed that Abderrahim understood English. Sophie's counsel also stated that one of the witnesses at the hearing was English speaking only and would be testifying about conversations she had with Abderrahim in English. The trial court thereafter concluded that the hearing would go "forward in English and [Abderrahim] will question the witnesses in English." The trial court then released the interpreter and continued with the hearing.
At the conclusion of the hearing, at which Sophie, Sophie's neighbor, and Sophie and Abderrahim's daughter testified, the trial court granted the protective order under the Family Code and Chapter 7B of the Code of Criminal Procedure. The trial court signed the protective order on March 19. Abderrahim filed a motion for new trial, arguing that the trial court's procedure and the substance of the protective order violated his due-process rights and that Sections 84.001 and 84.004 of the Texas Family Code were unconstitutional as applied to him because he "has a right to a reasonable time to prepare for trial, including the right to subpoena witnesses, hire counsel and have counsel present where the court issues protective order exceeding two years, or has the effect of terminating his parental rights." The trial court denied Abderrahim's motion for new trial, and this appeal followed.
These sections allow the trial court to set a hearing fourteen days after the application for a protective order is filed and require at least forty-eight hours' notice of the hearing to be provided to the respondent. Tex. Fam. Code §§ 84.001, .004.
Withdrawal of Counsel and Denial of Continuance
In his first issue, Abderrahim argues that the trial court abused its discretion by granting Dieye's motion to withdraw on the day of the hearing without granting a continuance. Abderrahim contends that Dieye's motion to withdraw did not comply with Texas Rule of Civil Procedure 10 in that it did not notify him of the right to object, and that his counsel failed to comply with the Texas Disciplinary Rules of Professional Conduct by moving to withdraw one day before the hearing. Abderrahim further contends that Dieye should have moved for a continuance, or the trial court should have sua sponte granted a continuance, to allow him additional time to secure new counsel. Thus, he asserts, the trial court abused its discretion by allowing Dieye to withdraw without continuing the hearing.
A. Standard of Review
We review the trial court's rulings granting a motion to withdraw as counsel and denying a motion for continuance for an abuse of discretion. See Jackson v. Jackson, 556 S.W.3d 461, 467 (Tex. App.-Houston [1st Dist.] 2018, no pet.); In re Marriage of Harrison, 557 S.W.3d 99, 112 (Tex. App.-Houston [14th Dist.] 2018, pet. denied). A trial court abuses its discretion if it acts unreasonably or arbitrarily without reference to guiding rules or principles. Jackson, 556 S.W.3d at 467.
B. Motion to Withdraw
Although Abderrahim argues Dieye's motion to withdraw did not comply with Rule 10 or the Texas Disciplinary Rules of Professional Conduct, Abderrahim did not present these arguments to the trial court. "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion[.]" Tex.R.App.P. 33.1(a)(1). Although Dieye's motion to withdraw noted that Abderrahim did not consent to the withdrawal, Abderrahim did not object to the withdrawal at the hearing or in his motion for new trial. At the hearing, when asked by the trial court whether Abderrahim opposed the withdrawal, his counsel stated "that [Abderrahim] no longer wants me to represent him." Abderrahim also confirmed for the trial court that he did not object to Dieye's withdrawal:
THE COURT: Look. I just need to know do you -- are you okay with your attorney not being your attorney anymore? Yes or no.
ABDERRAHIM: Yes.
THE COURT: Yes what? You have a problem with him no longer being the attorney? Okay. Stop. I need you to answer my question. So listen. Do you want Mr. Dieye to be your attorney? Say yes, if you want him to be your attorney and no if you don't want him to be your attorney. Answer.
ABDERRAHIM: Yeah. I said no.
In his motion for new trial filed after entry of the protective order, Abderrahim argued that the trial court's procedure and the substance of the protective order violated his due-process rights and that Sections 84.001 and 84.004 of the Texas Family Code were unconstitutional as applied to him because he "has a right to a reasonable time to prepare for trial, including the right to subpoena witnesses, hire counsel and have counsel present where the court issues a protective order exceeding two years, or has the effect of terminating his parental rights." Abderrahim does not argue anywhere in his motion for new trial that the motion to withdraw failed to comply with the rules of civil procedure or that his counsel violated the rules of professional conduct by moving to withdraw the day before the hearing. Accordingly, Abderrahim has not preserved this issue for appellate review. See Harrison v. Reiner, 607 S.W.3d 450, 464 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (holding various complaints on appeal related to counsel's withdrawal were waived because appellants did not raise arguments about withdrawal in trial court); In re A.W.L., No. 05-16-00916-CV, 2018 WL 446421, at *6 (Tex. App.- Dallas Jan. 17, 2018, no pet.) (mem. op.) (appellant waived complaint that trial court violated his due-process rights by granting his first attorney's "facially-deficient motion" because he did not raise complaint regarding withdrawal in trial court); In re A.T., No. 05-16-00539-CV, 2017 WL 2351084, at *7 (Tex. App.-Dallas May 31, 2017, no pet.) (mem. op.) (holding party waived complaint that motion to withdraw did not comply with Rule of Civil Procedure 10 by not presenting complaint to trial court); Bonacci v. Bonacci, 420 S.W.3d 294, 299-300 (Tex. App.-El Paso 2013, pet. denied) (holding appellant failed to preserve denial-of-counsel complaint because appellant stated under oath that he did not object to counsel's motion to withdraw and never filed objection with trial court asserting that he was being denied counsel).
C. Continuance
Abderrahim next argues that the trial court abused its discretion in allowing Dieye to withdraw without continuing the hearing. He contends that when a trial court permits an attorney to withdraw, the court must give the party time to secure new counsel to investigate the case and prepare for trial. In support, Abderrahim relies on two cases: Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) and Jackson, 556 S.W.3d at 468-72.
In Villegas, counsel moved to withdraw twenty days before trial, and the trial court granted counsel's motion to withdraw two days before trial. 711 S.W.2d at 625. Villegas appeared at trial and stated that he had learned about the motion to withdraw six days previously and that he had attempted to hire a new attorney, but the other attorney would not accept representation until he could review the file, which the withdrawing attorney refused to turn over. Id. at 625-26. Villegas orally requested a continuance to obtain a new attorney and his file, but the trial court denied the request and immediately proceeded to trial. Id. at 626.
The Texas Supreme Court stated, "The right to counsel is a valuable right; its unwarranted denial is reversible error." Id. "When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence." Id. The court noted that generally, when movants fail to comply with Texas Rule of Civil Procedure 251's requirement that a motion for continuance be supported by an affidavit, appellate courts presume that the trial court did not abuse its discretion by denying the motion. Id. However, the court declined to "apply this presumption to lay movants who without fault have their attorney withdrawn." Id. (emphasis added)
The court, therefore, held that when a trial court allows an attorney to voluntarily withdraw from representation, 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. The court also stated that before a trial court allows an attorney to withdraw, it should "see that the attorney has complied with the Code of Professional Responsibility" and it cited the precursor to Disciplinary Rule 1.15(d), which required that, upon termination of representation, a lawyer should take "reasonable steps to avoid foreseeable prejudice to the rights of his client," such as giving reasonable notice to the client and allowing time for employment of other counsel. Id. (citation omitted). The court ruled that the trial court abused its discretion in denying Villegas' motion for continuance because the evidence demonstrated that Villegas was not negligent or at fault in causing his attorney's withdrawal. Id. The court reasoned:
The court granted Villegas' attorney's motion to voluntarily withdraw two days before trial-too short a time for Villegas to find a new attorney and for that new attorney to investigate the case and prepare for trial. In addition, Villegas could not obtain a new attorney or present his case because the former attorney refused to turn over Villegas' files with his papers and evidence. The attorney did not give Villegas time to employ new counsel or deliver to Villegas the papers and property to which Villegas was entitled. In short, Villegas' attorney did not take reasonable steps to avoid foreseeable prejudice to the client.Id. at 626-27. The court concluded that the trial court should have either denied the motion to withdraw or granted Villegas' motion for continuance, but instead it did neither, which constituted reversible error. Id. at 627.
In Jackson, this Court held that the trial court abused its discretion by granting a counsel's motion to withdraw on the morning of trial and by failing to sua sponte grant a continuance. 556 S.W.3d at 471-72. There, appellant's counsel moved to withdraw on the morning of the final divorce hearing, arguing that she was unable to communicate with appellant and that appellant was insisting on pursuing what counsel believed to be an unethical course of conduct. Id. at 464. At trial, the appellant stated that she did not consent to the withdrawal, did not understand how the issue compromised her counsel's ethics, and did not waive attorney-client privilege. Id. at 464-65. The trial court did not conduct an in camera hearing to determine the basis for the dispute between the appellant and her counsel; thus, counsel did not discuss the specifics of the dispute between them. Id. at 469-70. Counsel did not file a motion for continuance on the appellant's behalf, and the appellant did not request one herself. Id. at 469. When asked by the trial court whether the appellant "ha[d] a request of this Court should the court grant the motion to withdraw," the appellant stated, "I'm not aware of what my options would be; so, it's a little difficult to answer that in the affirmative right now." Id. After noting that it had not heard a motion for continuance, the trial court granted the motion to withdraw, excused counsel from the proceedings, and proceeded to a trial on the merits, with the appellant representing herself. Id.
This Court held that, under the circumstances presented in that case:
[T]he trial court erred by granting [counsel's] motion to withdraw-a motion filed the morning trial was scheduled to begin that did not state whether [the appellant] consented to the motion, that did not seek a continuance on [the appellant]'s behalf, and that did not take into account the foreseeable material adverse effects of self-representation on [the appellant]'s interests-without ascertaining the substantive basis of the dispute between [the appellant] and [counsel] and, therefore, without determining whether [counsel] had good cause to withdraw, and without providing adequate time for [the appellant] to secure other representation and for her new counsel to investigate the case and prepare for trial.Id. at 471.
We find Villegas and Jackson distinguishable from the present case. First, unlike the counsel in Jackson, Dieye did request a continuance in his motion to withdraw. Additionally, the record reflects that Abderrahim's appearance at the hearing without counsel was a result of his own actions and choice. As the Texas Supreme Court held in Villegas, when the ground for continuance is the withdrawal of counsel, the movant must demonstrate the failure to be represented at trial was not due to his own fault or negligence. 711 S.W.2d at 626. Here, although Abderrahim appeared to request a continuance in initial communications with court staff following receipt of his counsel's motion to withdraw, in three separate emails to court staff and Sophie's counsel on the morning of the March 12 hearing, Abderrahim stated he intended to represent himself at the hearing:
The morning of the March 12 hearing, Abderrahim forwarded email communications between himself and Dieye related to Dieye's motion to withdraw to trial court staff. These emails were attached to Sophie's response to Abderrahim's motion for new trial. In his first email sent to the trial court's staff, Abderrahim stated: "I ask you by this email, to postpone this hearing for a later date, please, so that I can find another competent and free lawyer." As detailed above, however, in subsequent emails that same morning, Abderrahim stated unequivocally that he intended to represent himself.
• "I can and I want to defend myself on my own, and I will never allow this Mr. Dieye to present me."
• "[Mr. Dieye] is not my lawyer . . . I accepted his request. . . . I need an interpreter and I want to defend myself alone. I maintain my request, it's my right."
• "Please confirm that I can defend myself without a lawyer."
The record here further demonstrates that, unlike in Jackson, the trial court inquired into the basis for Dieye's withdrawal and determined that counsel had good cause to withdraw. Testimony from Dieye at the hearing on the motion to withdraw established that he moved to withdraw because Abderrahim refused to prepare for the hearing and continued to insist that a continuance was necessary because he resided in France. Dieye testified that:
• Abderrahim "was insistent from the very beginning that the case should be reset because he was in France";
• Dieye advised Abderrahim that "the case had been pending for quite a while and that it was unlikely that the Judge would grant a continuance";
• Abderrahim "did not seem to agree with [counsel's] reasoning . . . and what [counsel] was telling him [regarding the continuance]";
• Abderrahim "did not seem to understand the importance of this matter and the need for us and for him to be prepared and meet for today" and they "were not prepared enough for the trial";
• "[A]fter many days of back and forth and bickering," counsel "decided that [he] would withdraw from the case and that [he] could no longer represent [Abderrahim]."
Further, at the hearing the trial court confirmed that Abderrahim consented to Dieye's withdrawal and, in addition, asked whether he understood that trial was continuing that day, without counsel present:
THE COURT: Okay. All right. And sir, you understand we are going forward and we're going to have the trial today? Do you understand that? Yes or no?
ABDERRAHIM: Yeah, I understand.
After this exchange with Abderrahim, the trial court granted the motion to withdraw, finding Dieye was unable to "properly communicate with his client and . . . adequately prepare and do his due diligence for today's hearing." Based on the above evidence-i.e., Abderrahim's refusal to cooperate with his counsel to prepare for the hearing; his consent to his counsel's withdrawal; multiple statements that he wanted to represent himself; and his understanding that the trial would go forward- we hold that the trial court did not abuse its discretion by allowing Abderrahim's counsel to withdraw without granting a continuance. See In re C.F., 565 S.W.3d 832, 844 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (holding that trial court did not abuse its discretion in denying continuance after permitting counsel to withdraw day before trial because basis for withdrawal was mother's desire for new lawyer and, therefore, mother did not "satisf[y] her burden to show that her failure to be represented at trial was not due to her own fault or negligence"); In re Marriage of Harrison, 557 S.W.3d at 119 ("When counsel withdraws due to the fault of the movant, a trial court generally does not abuse its discretion in denying a motion for continuance.").
We overrule Abderrahim's first issue.
In his statement of facts, Abderrahim recites facts related to his use of and need for an interpreter. At the conclusion of the statement of facts, Abderrahim contends the trial court abused its discretion in three ways: (1) discharging Abderrahim's attorney without providing a continuance; (2) discharging Abderrahim's interpreter without providing a continuance to secure a new interpreter; and (3) granting a lifetime protective order where the pleadings failed to include such a request. In his "issues presented" and "argument" sections of the brief, however, Abderrahim does not include any argument related to his lack of an interpreter at the hearing. The only issues briefed relate to the failure to grant a continuance following his counsel's withdrawal and the duration of the protective order. To the extent Abderrahim has attempted to raise an issue on appeal related to his lack of an interpreter, we hold that Abderrahim has waived that issue due to inadequate briefing. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d 627, 648 n.24 (Tex. App.- Houston [1st Dist.] 2021, pet. denied) ("A failure to provide substantive analysis of an issue or cite appropriate authority waives a complaint on appeal.").
Issuance of Lifetime Protective Order
In his second issue, Abderrahim argues that the trial court erred in granting a "lifetime protective order in the absence of a specific request." Abderrahim contends that because Sophie's application for a protective order included only a general prayer for relief, but did not ask for a lifetime protective order, the judgment does not conform with the pleadings and the trial court was bound by the two-year limitation provided by Section 85.025 of the Family Code.
To preserve a complaint for appellate review, Texas Rule of Appellate Procedure 33.1 requires a party to first make a complaint to the trial court by "a timely request, objection, or motion." Tex.R.App.P. 33.1(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); see also Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 21 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) ("Rule 33.1 requires the appealing party to adequately raise issues before the trial court to give the trial court notice of [the party's] complaint."). Here, Abderrahim did not complain in the trial court that its findings did not conform with the pleadings, and he did not ask the trial court to modify its final protective order on the ground that the relief granted in the protective order had not been pled. See Vinzant v. Helduser, No. 01-21-00633-CV, 2022 WL 3588756, at *4 (Tex. App.-Houston [1st Dist.] Aug. 23, 2022, no pet.) (mem. op.); Sharp v. Jimmerson, No. 01-20-00360-CV, 2021 WL 3624712, at *3 (Tex. App.-Houston [1st Dist.] Aug. 17, 2021, no pet.) (mem. op.). A party may not raise a lack-of-pleading issue for the first time on appeal. See Vinzant, 2022 WL 3588756, at *4 (holding lack-of-pleading complaint not preserved where appellant argued for first time on appeal that trial court erred in issuing protective order beyond two-year duration provided for in Section 85.025(a) because application did not allege appellant engaged in acts constituting felony offense, and thus, appellant did not have notice that appellee was requesting protective order of more than two years' duration); cf. Sharp, 2021 WL 3624712, at *3 (holding lack-of-pleading complaint not preserved where appellant argued for first time on appeal that trial court erred in granting protective order under Code of Criminal Procedure because application exclusively sought relief under Family Code); In re C.Z.P., No. 14-17-00565-CV, 2019 WL 386048, at *7 (Tex. App.-Houston [14th Dist.] Jan. 31, 2019, no pet.) (mem. op.) (holding argument that relief granted in judgment did not conform to pleadings was not preserved because it was raised for first time on appeal); see also Tex. R. App. P. 33.1(a)(1). We hold that Abderrahim failed to preserve his second issue for appellate review.
Conclusion
We affirm the trial court's judgment.