Appellate Cause No. 06-16-00025-CV

_____________________________________________ 

IN THE COURT OF APPEALS 

FOR THE 

SIXTH DISTRICT OF TEXAS 

TEXARKANA, TEXAS 

_____________________________________________ 

SHERRY McGALLIARD 

V.

KATHRYN HILL 

_____________________________________________ 

On appeal from the 40th District Court of Ellis County, Texas 

Trial Cause No. 88284 

_____________________________________________ 

BRIEF OF APPELLANT 

_____________________________________________ 

Justin H. Anderson 

State Bar No. 24066563 

Law Office of Justin H. Anderson 

100 N. Sixth Street, Suite 902 

Waco, Texas 76701 

Attorney for Sherry McGalliard 

ACCEPTED

06-16-00025-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/6/2016 2:41:01 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/6/2016 2:41:01 PM DEBBIE AUTREY Clerk
Brief of Appellant – Page ii

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final judgment, as 

well as names and addresses of all trial and appellate counsel. 

PARTIES COUNSEL 

Plaintiff: 

Kathryn Hill Amy Ganci 

Ganci, L.L.P.

3811 Turtle Creek Blvd., Suite 800 

Dallas, Texas 75219

Defendant:

Sherry McGalliard Justin H. Anderson

Law Office of Justin H. Anderson

100 N. Sixth Street, Suite 902

Waco, Texas 76701 
Brief of Appellant – Page iii

TABLE OF CONTENTS 

Identity of Parties and Counsel .................................................. ii 

Index of Authorities ............................................................... v 

Statement of the Case ............................................................ vii 

Statement Regarding Oral Argument ..........................................viii 

Issues Presented .....................................................................ix 

Statement of Facts ..................................................................1 

Summary of the Argument ........................................................3 

Argument and Authorities .........................................................5 

I. Issue Number One: The trial court abused its discretion 

by failing to postpone the December 15, 2015 hearing on 

Appellee’s Motion for Summary Judgment. ..............................5

II. Issue Number Two: The trial court erred in granting

Dan Gus’ motion to withdraw six days prior to the

summary judgment hearing. ............................................... 10 

A. The trial court’s granting of Dan Gus’ motion to 

withdraw – which did not comply with Rule 10 – 

was an abuse of discretion which was harmful 

to Appellant. ........................................................ 10 

B. The trial court’s grant of Mr. Gus’ motion to withdraw 

was an abuse of discretion because the court failed to 

ensure that Dan Gus took steps to prevent foreseeable 

prejudice to the rights of his client. ..............................12

III. Issue Number Three: The trial court erred in granting

Appellee’s Motion for Summary Judgment because Appellee

failed to satisfy her summary judgment burden since certain

key statements contained in the declarations of Kathryn Hill
Brief of Appellant – Page iv

and Dr. Kenton Arnold are hearsay, conclusory, unsupported 

by evidence, and should have been disregarded by the trial 

court. ........................................................................ 13

IV. Issue Number Four: The trial court erred in not granting

Appellant’s motion for continuance of the January 4, 2016

hearing. ..................................................................... 17

Prayer ............................................................................... 20

Certificate of Service ............................................................. 20 

Certificate of Compliance with Rule 9.4(i) .................................... 21 
Brief of Appellant – Page v

INDEX OF AUTHORITIES 

CASES 

Amedisys, Inc. v. Kingwood Home Health Care, LLC, 

437 S.W.3d 507 (Tex. 2013) ....................................................... 13 

Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) ......................................14, 17 

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) .................. 14, 16 

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 

136 S.W.3d 227 (Tex. 2004) ................................................. 14, 17 

Computize, Inc. v. NHS Communs. Group, Inc., 992 S.W.2d 608 

(Tex. App.—Texarkana, 1999, no pet.) ...................................... 5, 17 

Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013) .................................. 14, 16 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 

(Tex. 1998) .................................................................14, 16, 17 

In the Interest of P.M., 59 Tex. Sup. Ct. J. 582, 2016 Tex. LEXIS 

236 (Tex. April 1, 2016) (per curium) ........................................... 13

Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995) .............. 15

McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) ............................. 14, 17 

State v. Crank, 666 S.W.2d 91 (Tex. 1984) ............................................ 5

Thompson v. Thompson, 387 S.W.3d 769 (Tex.App.—El Paso 

2012, no pet.) ....................................................................... 9 

Villegas v. Carter, 711 S.W.2d 624 (Tex.1986) ...........................5, 12, 13, 17 

Williams v. Bank One, Texas, N.A., 15 S.W.3d 110 

(Tex.App.—Waco, no pet.) ...................................................10, 11 
Brief of Appellant – Page vi 

TEXAS CONSITITUTION, STATUTES, AND RULES 

Tex. R. Civ. P. 10 .............................................................. 3, 9, 10, 11 

Tex. R. Civ. P. 166a(c) ......................................................6, 13, 14, 15 

Tex. R. Civ. P. 253 ..................................................................... 5, 9 
Brief of Appellant – Page vii

STATEMENT OF THE CASE

Kathryn Hill originally brought this action against Sherry McGalliard on 

October 21, 2013. (C.R. 7). Hill sued McGalliard for breach of contract, gross 

negligence, declaratory judgment, and fraud arising from the lease of a mare. (C.R. 

78). McGalliard counterclaimed for breach of contract. (C.R. 29). On December 

15, 2015, six days after McGalliard’s attorney withdrew, (C.R. 91). the trial court 

granted partial summary judgment in favor of Hill for $25,000.00 on her breach of 

contract claim and ordered that McGalliard take nothing. The court set the issue of 

attorney’s fees for a January 4, 2016 hearing. (C.R. 93). On December 29, 2015, 

McGalliard, still pro se, filed a motion for continuance. (C.R. 94). On January 4, 

2016 the trial court denied the motion for continuance and awarded attorney’s fees 

of $23,000.00 and pre-judgment interest in the amount of $2,500.00. (C.R. 98). On 

February 2, 2016, McGalliard, through new counsel, filed a motion for new trial. 

(C.R. 101). That motion was overruled on February 19, 2016. (C.R. 112).

McGalliard timely perfected this appeal on April 1, 2016. (C.R. 114).
Brief of Appellant – Page viii

STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument.
Brief of Appellant – Page ix

ISSUES PRESENTED 

Issue Number One 

Whether the trial court erred in proceeding with the summary judgment hearing on 

December 15, 2015 because Appellant was afforded no opportunity to file a timely 

pro se response. 

Issue Number Two

Whether the trial court’s granting the withdrawal of Appellant’s attorney, Dan Gus, 

was an abuse of discretion which was harmful to Appellant. 

Issue Number Three 

Whether the trial court erred in granting Appellee’s Motion for Summary judgment 

because Appellee failed to satisfy her summary judgment burden since certain key 

statements contained in the declarations of Kathryn Hill and Dr. Kenton Arnold are 

conclusory, unsupported by evidence, and should have been disregarded by the 

trial court. 

Issue Number Four 

Whether the trial court erred in not granting Appellant’s Motion for Continuance 

as to the January 4, 2016 hearing. 
Brief of Appellant - Page 1

STATEMENT OF FACTS

In November 2011, Appellant and Appellee entered into a written 

broodmare lease agreement (the “Lease”) which Appellee leased a 2007 

Andalusian mare named Gabacha (the “Horse”) to Appellant. (C.R. 32). Appellee 

believed that the Horse became lame in the Appellant’s care, and Appellee sued 

Appellant in October 2013 for breach of the Lease. (C.R. 33, 7). Appellant 

answered and counterclaimed in November 2013 by and through her then attorney 

of record, Dan Gus. (C.R. 25). On January 6, 2015 Appellee filed Plaintiff’s 

Motion for Summary Judgment and sought to enforce a liquidated damages clause 

in the Lease. (C.R. 31). That clause read: 

6.3.2 Disability. Lessee and Mare Owner agree that Mare’s fair 

market value is dependent on her soundness, breeding soundness and 

general good condition. If, at the end of the term of this Agreement, 

Mare has any injury or condition that causes Mare to be unsuitable for 

breeding and the remainder of the full range of uses she was able to 

perform at the beginning of the term of this Agreement and a licensed 

veterinarian of Mare Owner’s choice determines that such condition is 

likely to be permanent and not a result of heredity or old age, Lessee 

agrees to pay Mare Owner the following amount within 30 days of the 

end of the Lease term $25,000, or purchase Mare from Mare Owner at 

the fair market value specified in Section 2. 

(C.R. 33).

Appellee moved for traditional summary judgment as to her breach of 

contract claim and a no-evidence summary judgment as to Appellant’s 

counterclaim. (C.R. 32, 35). The motion for summary judgment hearing was 
Brief of Appellant - Page 2

scheduled for December 15, 2015. (R.R., Vol. 2, p. 1). On November 24, 2015, 

Appellant’s attorney, Dan Gus, filed a Motion to Withdraw as Counsel. (C.R. 89-

90). On December 9, 2015, the trial court signed an order granting the motion to 

withdraw. (C.R. 91). On December 15, 2015, the summary judgment hearing was 

called and the parties announced ready and presented argument. (R.R., Vol. 2, p. 

12). Appellant’s attorney had not filed a written response to the motion for 

summary judgment, and Appellant did not file a response pro se. The Appellee’s 

motion was supported by the unsworn declarations of Kathryn Hill and Kenton 

Arnold, DVM. (C.R. 32). Relying on the liquidated damages provision, the trial 

court granted the motion for summary judgment which ordered an award of 

$25,000.00 in favor of Appellee, it ordered that Appellant take nothing on her 

counterclaim, and it set the Appellee’s claim for attorney’s fees for trial for 

January 4, 2016. (C.R. 92-93). Appellant, still pro se, filed a verified Motion for 

Continuance on December 29, 2015 requesting additional time to retain another 

attorney. (C.R. 94-95). At the January 4, 2016 hearing the trial court heard 

Appellant’s motion for continuance but did not grant it. (R.R., Vol. 3, p. 8). The 

case immediately proceeded to trial on the issue of Appellee’s attorney’s fees. The 

trial court rendered and signed a final judgment which – in addition to the relief 

previously ordered – awarded $23,000.00 in attorney’s fees and $2,500.00 in 

prejudgment interest. (C.R. 98-99).
Brief of Appellant - Page 3

SUMMARY OF THE ARGUMENT

Issue Number One: The trial court abused its discretion by failing to postpone the 

December 15, 2015 hearing on Appellee’s Motion for Summary Judgment. When 

the trial court allowed Appellant’s prior attorney, Dan Gus, to withdraw only six 

days prior to the summary judgment hearing, Appellant should have been afforded 

more time. The failure to do so under these circumstances constituted an abuse of 

discretion. The deadline for filing a response passed while Appellant was still 

represented by counsel. She was afforded little time to either hire a new attorney or 

prepare for a complicated and difficult hearing which the trial court described as “a 

very formal, very specific, very ridged (sic) process.” Though she announced ready 

for the hearing, the trial court offered no admonishment on proceeding as a pro se 

party, and it did not make her aware that there was not a summary judgment 

response on file until long after the hearing commenced and that she would not be 

able to offer responsive evidence at the hearing.

Issue Number Two: The trial court should have postponed the summary judgment 

hearing and afforded more time for Appellant because the granting of the motion to 

withdraw was prejudicial to Appellant. Dan Gus’ motion to withdraw did not 

comply with Rule 10 in a number of different ways. By granted a flawed motion 

to withdraw the trial court abused its discretion. It could have cured this error by 
Brief of Appellant - Page 4

postponing the summary judgment hearing, but it failed to do so. Moreover, the 

trial court, in granting the motion to withdraw, failed to ensure that Mr. Gus was 

taking reasonable steps to prevent foreseeable prejudice to Appellant. 

Issue Number Three: Even despite the lack of a summary judgment response, the 

trial court erred in granting Appellee’s motion for summary judgment because the 

Appellee presented no competent summary judgment evidence that the Horse’s 

disability was not due to heredity or old age. Appellee only offered conclusory 

statements in this regard in her declaration and in the declaration of veterinarian, 

Dr. Kenton Arnold. An expert’s conclusion must be supported by data. A bare, 

baseless opinion should be disregarded. As such, the summary judgment burden 

should have never shifted to Appellant. 

Issue Number Four: Appellant filed a verified motion for continuance on 

December 29, 2015 seeking to continue the January 4, 2016. The trial court erred 

in denying Appellant’s motion for continuance since Appellant was requesting 

additional time to retain a new attorney. 
Brief of Appellant - Page 5

ARGUMENT AND AUTHORITIES

I. Issue Number One: The trial court abused its discretion by failing to 

postpone the December 15, 2015 hearing on Appellee’s Motion for Summary 

Judgment. 

Because Appellant was not afforded an opportunity to file a timely pro se 

response to Appellee’s Motion for Summary Judgment the trial court erred by not 

postponing the summary judgment hearing on December 15, 2015.

Regarding postponement, Rule 253 states: 

“Except as provided elsewhere in these rules, absence of counsel will 

not be good cause for a continuance or postponement of the cause 

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.”

Tex. R. Civ. P. 253. 

The right to counsel is a valuable right, and its unwarranted denial is 

reversible error. State v. Crank, 395 S.W.2d 91, 94 (Tex. 1984); Villegas v. 

Carter, 711 S.W.2d 624, 626 (Tex.1986). When a trial court allows counsel to 

voluntarily withdraw, it must give the party time to secure new counsel and time 

for the new counsel to investigate and prepare for trial. Villegas v .Carter, 711 

S.W.2d at 626; Computize, Inc. v. NHS Communs. Group, Inc., 992 S.W.2d 608, 

613 (Tex. App.—Texarkana, 1999, no pet.). The failure to do so is an abuse of 

discretion. Villegas at 626. 
Brief of Appellant - Page 6

In this case, Appellant’s attorney filed a Motion to Withdraw as Counsel on 

November 24, 2015.1(C.R. 89). The hearing on Appellee’s motion for summary 

judgment was scheduled for December 15, 2015 which meant that Appellant’s 

summary judgment response was due on or before December 8, 2015 pursuant to 

Texas Rule of Civil Procedure 166a(c). On December 8, 2015, Appellant was still 

represented by attorney Dan Gus. Mr. Gus’ withdrawal from the case was granted 

the next day when the trial court signed an order to that effect. (C.R. 91). At the 

December 15, 2015 hearing on Appellee’s motion for summary judgment, the 

Appellant had not filed a response to Appellee’s motion. On the record, Appellant 

twice notified the trial court that she had not received the case file from her prior 

attorney. (R.R., Vol. 2, pp. 4, 5). Additionally, Appellant told the trial court that 

she was under the impression that Appellee’s motion for summary judgment had 

been denied at a prior hearing.2 (R.R., Vol. 2, p. 7, 10). The trial court did not 

admonish Appellant about the risks of appearing pro se, but simply confirmed that 

she was pro se and asked if she was prepared to go forward with the hearing in the 

following exchange: 

THE COURT: Are you prepared to go forward with 

the summary judgment portion? 

MS. McGALLIARD: Yes. Yes, sir. 

 

1 Appellant stated at the hearing that she was that her attorney was seeking to withdraw. (R.R., 

Vol. 2, pp. 4-5)

2 Appellee’s Motion for Summary Judgment hearing was previously scheduled for hearing on 

April 29, 2015, but was it continued upon request the of Appellant’s attorney who had a conflict. 

(C.R. 6; R.R. Vol. 2, pp. 8-9).
Brief of Appellant - Page 7

THE COURT: Of course you’re appearing pro se.

MS. McGALLIARD: That’s right. 

(R.R., Vol. 2, p. 12).

The court proceeded with the summary judgment hearing, first allowing 

Appellee’s attorney to present oral argument. Once Appellee’s attorney concluded 

her argument, the Court turned to Appellant and admonished her that there was no 

written response on file and no summary judgment evidence on file. The judge 

further stated: 

“What I would like to express or communicate, ma'am, is that

summary judgment is a very formal, very specific, very

ridged (sic) process, and this is unlike a jury trial. It is

unlike a non-jury bench trial in that you do not get an

opportunity to come forward, take the witness stand, be sworn

in and present testimony. There’s no cross-examination. It’s 

not like a trial. It’s a very specific, legal process that comes 

well before a jury or non-jury trial process.” 

(R.R., Vol. 2, p. 26).

The court invited Appellant to present a responsive argument, and she 

attempted to do so, but the trial court eventually concluded the hearing, and 

granted Appellee’s motion for summary judgment in part.3The court awarded 

liquidated damages against the Appellant in the amount of $25,000.00 and ordered 

that Appellant take nothing on her counterclaim. 

 

3

The matter of attorney’s fees was reserved for a separate hearing. The court ordered that 

hearing set for January 4, 2016. (C.R. 92-93). 
Brief of Appellant - Page 8

Appellee will undoubtedly point to the language quoted above where 

Appellant answers that she is ready to go forward with summary judgment. 

However, Appellant was not aware of the summary judgment procedures. The 

court explained to Appellant that summary judgment is a “very formal, very

specific, very ridged (sic) process ... a very specific, legal process” but 

this explanation was provided long after the court elicited Appellant’s 

permission to proceed.4 Moreover, the intricacies of a summary judgment 

hearing – especially where the non-movant has not filed a response – are 

evident from the record because the trial court had to repeatedly admonish 

Appellant.5 

 

4 According to the reporter’s record, 32 minutes of hearing elapsed before the court admonished 

Appellee regarding the lack of a response and the challenge of the summary judgment process. 

5

The trial made the following statements to Appellant during the hearing: 

“Ms. McGalliard, I believe one of the challenges that you face here for purposes of summary 

judgment hearing is that you do not have on file any type of written response, and you do not 

have on file, that I can see, any summary judgment evidence. So, for example, you have no 

affidavits on file.” (R.R., Vol. 2, p. 25).

“Ma’am, it is your responsibility to present summary judgment evidence to me.” (R.R., Vol. 2, p. 

28).

“And, ma'am, that may or may not be true, but I can only go on the summary judgment evidence 

that's presented to me here this morning. Again, your discussion or talking here in open court, it's 

not sworn testimony. It's simply argument.” (R.R., Vol. 2, p. 29).

“For me to evaluate and weigh the evidence, I have to have the evidence in summary judgment 

form, which is generally affidavits, depositions, and various other documents in summary 

judgment form.” (R.R., Vol. 2, p. 30).

“And, Ms. McGalliard, this information could be relevant, it could be important to this hearing, 

but do you have what you just said in summary judgment form and summary judgment 

evidence?” (R.R., Vol. 2, p. 31).

“You understand, ma’am, in this hearing I’m bound by summary judgment evidence, affidavits 

from you and others, affidavits from experts.” (R.R., Vol. 2, p. 31).
Brief of Appellant - Page 9

Ultimately, the grant of summary judgment against the Appellant was 

fundamentally unfair. It was Appellant’s attorney of record, Dan Gus, who failed 

to file a timely summary judgment response, yet it was Appellant herself who 

appeared at the hearing alone and had to (unsuccessfully) defend that untenable 

position he created. The six days (and merely four business days) between the 

withdrawal and the summary judgment hearing afforded Appellant virtually no 

time to meet with and retain new counsel.6 Rule 253 affords the trial court the 

discretion to postpone a hearing “upon cause shown or upon matters within the 

knowledge or information of the judge.” Here, there was an abundance of good 

cause at the judge’s disposal and the relevant matters were within his knowledge. 

In particular, the court was aware that: 

 Dan Gus’ withdrawal was granted only six days prior to hearing (C.R. 91); 

 on the date the summary judgment response was due, Dan Gus was still 

Appellant’s attorney of record (C.R. 91); 

 Appellant first learned that the withdraw was granted at the summary 

judgment hearing (R.R., Vol. 2, pp. 4-5); 

 Appellant did not know that the motion for summary judgment was still 

pending (R.R., Vol. 2, pp. 7); 

 Appellant had not received the case file from Mr. Gus (R.R., Vol. 2, pp. 4, 

5).

 

6 As mentioned previously, Appellant acknowledged that she was aware that Mr. Gus was 

attempting to withdraw from the case, but there is nothing in the record to show exactly when 

she learned of his motion to withdraw. See Thompson v. Thompson, 387 S.W.3d 769, 771 

(Tex.App.—El Paso 2012, no pet.) (the date a motion to withdraw is filed is immaterial if the 

record does not reflect the date the client knew that the motion had been filed); see also Tex. R. 

Civ. P. 10 (requiring service of a motion to withdraw be served on the client by either personally 

delivery or regular and certified mail).
Brief of Appellant - Page 10

As a result Appellant was effectively denied the right to counsel because the 

court afforded no additional time for her to seek to hire another attorney. Because 

of the timing of the order granting the withdrawal and the trial court’s failure to 

postpone the summary judgment hearing, the six days was simply not enough time 

for Appellant to retain new counsel. 

II. Issue Number Two: The trial court erred in granting Dan Gus’ motion to 

withdraw six days prior to the summary judgment hearing. 

A. The trial court’s granting of Dan Gus’ motion to withdraw – which 

did not comply with Rule 10 - was an abuse of discretion which was 

harmful to Appellant. 

Rule 10 of the Texas Rules of Civil Procedure provides in relevant part: 

“An attorney may withdraw from representing a party only upon 

written motion for good cause shown. ... If another attorney is not to 

be substituted as attorney for the party, the motion shall state: that a 

copy of the motion has been delivered to the party; that the party has 

been notified in writing of his 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. ... Notice or delivery to a party shall 

be either made to the party in person or mailed to the party's last 

known address by both certified and regular first class mail....”

Tex. R. Civ. P. 10. 

The requirements of Rule 10 are mandatory. A trial court abuses its 

discretion if it grants a motion to withdraw that does not comply with Rule 10. 

Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 113-114 (Tex.App.—Waco, no 

pet.). However, the error is harmless if the trial court affords the party additional 

time to secure new counsel. Id. 
Brief of Appellant - Page 11

Dan Gus’ motion to withdraw does not comply with Rule 10 in at least four 

ways. Specifically: 

1) It fails to state that a copy of the motion has been delivered to the party.

2) It fails to state that the client has been notified in writing of her right to 

object to the motion. 

3) It does not state whether or not Appellant consented to the motion. 

4) There is no indication from the certificate of service (or elsewhere in the 

clerk’s record) that a copy of the motion was delivered to Appellant either 

“in person or mailed to [Appellant’s] last known address by both certified 

and regular first class mail.” 

(C.R. 89). 

Despite these deficiencies in Mr. Gus’ motion,7the trial court granted the 

withdrawal. This is axiomatically an abuse of discretion. This error, however, 

would have been harmless if the court had afforded Appellant additional time to 

retain counsel and prepare for the summary judgment hearing. For example, in 

Williams v. Bank One, Texas, N.A., the trial court granted Ms. Williams’ attorney’s 

motion to withdraw six days after Bank One filed a motion for summary judgment. 

The motion to withdraw failed to state that Ms. Williams had a right to object to 

the motion. The appellate court concluded that the granting of the motion was an 

abuse of discretion, but because the court afforded Ms. Williams an additional 42 

 

7 At the December 15, 2015 summary judgment hearing, the judge referred to “an agreed motion 

to withdraw as attorney of record.” (R.R., Vol. 2, p. 4). This should not be misconstrued as 

Appellant’s agreement to the withdrawal. Instead, Appellee did not object to the withdrawal 

according to the certificate of conference attached to the motion. (C.R. 90). There is nothing on 

the motion to withdraw or subsequent order evidencing Appellant’s knowledge or agreement. 
Brief of Appellant - Page 12

days to secure a new attorney, the error was harmless. 15 S.W.3d 110, 113-114 

(Tex.App.—Waco, no pet.). 

Here, because the withdrawal was granted six days prior to the summary 

judgment hearing, and because the trial court did not afford additional time for 

Appellant to secure new counsel, the trial court’s granting of the motion to 

withdraw was an abuse of discretion and such error was harmful to Appellant. 

B. The trial court’s grant of Mr. Gus’ motion to withdraw was an abuse 

of discretion because the court failed to ensure that Dan Gus took 

steps to prevent foreseeable prejudice to the rights of his client. 

Before a trial court allows an attorney to withdraw, it should see that the 

attorney has complied with the Code of Professional Responsibility to ensure that 

the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of 

his client. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Here, there is no 

evidence that the trial court took any action to ensure that Mr. Gus took reasonable 

steps to avoid foreseeable prejudice to the rights of Appellant. Mr. Gus’ motion 

(filed November 24, 2015) states generally that Appellant was advised of any 

deadlines and hearing dates in connection with this matter. (C.R. 89). When the 

motion to withdraw was considered by the trial court the day after the summary 

judgment response deadline, it should have been foreseeable that a pro se 

defendant might be unaware that summary judgment is a “very formal, very

specific, very ridged (sic) process.” Pursuant to the Supreme Court’s 
Brief of Appellant - Page 13

directive in the Villegas case,

8

rather than simply sign the order granting 

withdraw, the court should have either signed the order, but postponed the 

summary judgment hearing date, or refused to sign the order until it 

received assurances from Mr. Gus that Appellant had been made aware of 

the complications looming because of (1) the absence of a summary 

judgment response, and (2) the very limited amount of time remaining 

prior the hearing. 

III. Issue Number Three: The trial court erred in granting Appellee’s Motion for 

Summary Judgment because Appellee failed to satisfy her summary 

judgment burden since certain key statements contained in the declarations

of Kathryn Hill and Dr. Kenton Arnold are hearsay, conclusory, 

unsupported by evidence, and should have been disregarded by the trial 

court.

To prevail on a motion for traditional summary judgment as a matter of law, 

the movant must offer admissible evidence proving that no genuine issue of 

material fact exists and that the movant is entitled to judgment as a matter of law 

on the issues expressly set out in the motion or in an answer or any other response 

to the motion. Tex. R. Civ. P. 166a(c); see, e.g., Amedisys, Inc. v. Kingwood Home 

Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2013) (when movant meets its

burden of establishing each element of claim or defense on which it seeks 

 

8

The Supreme Court of Texas recently reaffirmed this directive and stated it more succinctly: 

“Courts have a duty to see that withdrawal of counsel will not result in foreseeable prejudice to 

the client.” In the Interest of P.M., 59 Tex. Sup. Ct. J. 582, 2016 Tex. LEXIS 236 at *5 (Tex. 

April 1, 2016) (per curium).
Brief of Appellant - Page 14

summary judgment, burden then shifts to non-movant to disprove or raise a fact 

issue as to at least one of those elements). Rule 166a requires that “supporting and 

opposing affidavits shall be made on personal knowledge, shall set forth such facts 

as would be admissible in evidence, and shall show affirmatively that the affiant is 

competent to testify to the matters stated therein.”

Additionally, regarding expert opinion the Supreme Court has held:

“Bare, baseless opinions will not support a judgment even if there is 

no objection to their admission into evidence, and we have often held 

that such conclusory testimony cannot support a judgment. A 

conclusory statement of an expert witness is insufficient to create a 

question of fact to defeat summary judgment. Further, a claim will 

not stand or fall on the ipse dixit of a credentialed witness. Expert 

testimony fails if there is too great an analytical gap between the data 

and the opinion proffered.”9 

Here, to be entitled to summary judgment for the $25,000.00 in liquidated 

damages which were awarded, Appellee should have been required to offer 

admissible evidence conclusively proving that the Horse was disabled as set forth 

in the parties’ contract under section 6.3.2 Disability. That paragraph, however, 

specifically limits disability to an injury or condition that is “likely to be permanent 

and not a result of heredity or old age.” (C.R. 33). The only summary judgment 

 

9

Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013) (internal quotations omitted). See also City 

of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009); Coastal Transp. Co. v. Crown 

Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004); McIntyre v. Ramirez, 109 S.W.3d 

741, 749-50 (Tex. 2003); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999); Gammill v. Jack 

Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). 
Brief of Appellant - Page 15

evidence offered to show that the Horse’s disability was permanent and not a result 

of heredity or old age are two brief sentences in the summary judgment record. 

The first such sentence is contained in the declaration of Appellee: 

“My veterinarian states that the founder is permanent and is not the 

result of heredity or old age by way of separate Declaration being 

filed herewith.” 

(C.R. 41). 

Appellee’s statement fails on every front. It is hearsay. It is not based on 

her personal knowledge. The facts set forth would not be admissible in evidence. 

It does not affirmatively show that she is competent to testify to the matters 

asserted. It is conclusory. See Tex. R. Civ. P. 166a(c); see also Laidlaw Waste 

Sys. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995). 

The second statement is found in the declaration of Dr. Kenton Arnold who 

also avers in boilerplate manner: “Gabacha’s founder was not a result of heredity 

or old age. Gabacha’s laminitic condition is chronic and permanent.” (C.R. 73). 

This statement is insufficient to support summary judgment. It is a 

conclusory statement and cannot support a judgment on its own. While Dr. Arnold 

states that he examined the Horse and that he reviewed veterinary records and 

radiographs, he provides no explanation of what his examination revealed and why 

his examination, the records, or the radiographs lead him to the opinion he 

proffered. There is no supporting data either attached or otherwise expounded 
Brief of Appellant - Page 16

upon that would support the statement that the Horse’s “founder was not a result of 

heredity or old age.” Dr. Kenton states that “I have determined that Gabacha had 

suffered a laminitic episode with 9-12 months prior to November 2013” but he 

likewise fails to back up this assertion with any factual foundation.10 (C.R. 73).

The factfinder is left with only the ipse dixit of Dr. Kenton, but without any 

substantive foundational data. While an expert is not required to recite every fact 

relied upon, expert testimony fails when there is too great an analytical gap 

between the data and the opinion proffered.” Gammill v. Jack Williams Chevrolet, 

Inc., 972 S.W.2d 713, 726 (Tex. 1998). Here, the analytical gap was infinite 

because Dr. Arnold furnished no data in support of his “bare, baseless” opinion. 

Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). A number of Texas cases 

have upheld the proposition that an expert opinion, without reliable supporting 

data, is conclusory and will not support (or raise a fact issue to defeat) summary 

judgment.11

 

10 The claim that an “episode” occurred within the curiously specific “9-12 months prior to 

November 2013” timeframe prior is noteworthy because during those months the Horse was in 

Appellant’s possession. It would be helpful to a fact finder to know why Dr. Arnold believed that 

the Horse supposedly suffered this episode at that particular time rather than before Appellant

took possession of the Horse. Likewise, it would be helpful to a factfinder to know why he 

believed a specific “laminitic episode” occurred as opposed to the Horse suffering from a chronic 

or hereditary issue. The absence of supporting data is especially significant in light of 

Appellant’s comment at the summary judgment hearing that the Horse has a colt with a similar 

condition. (R.R., Vol. 2, p. 31). 

11 Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013) (credentialed personal injury attorney’s 

opinion that a settlement was inadequate lacked “a demonstrable and reasoned basis” and 

therefore did not raise a fact issue to defeat defendants’ motion for summary judgment.); City of 

San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (because there was no factual support 
Brief of Appellant - Page 17

Because neither of the declarations of Appellee or Dr. Arnold constitutes 

admissible summary judgment evidence, the summary judgment burden should not 

have shifted to Appellant. Appellant should not have been required to raise a 

genuine issue of material fact, and summary judgment should not have been 

granted in favor of Appellee. 

IV. Issue Number Four: The trial court erred in not granting Appellant’s motion 

for continuance of the January 4, 2016 hearing. 

When a trial court allows counsel to voluntarily withdraw, it must give the 

party time to secure new counsel and time for the new counsel to investigate and 

prepare for trial. Villegas v .Carter, 711 S.W.2d at 626; Computize, Inc. v. NHS 

Communs. Group, Inc., 992 S.W.2d 608, 613 (Tex. App.—Texarkana, 1999, no 

pet.). The failure to do so is an abuse of discretion. Villegas at 626. 

Here, Appellant filed a verified motion for continuance on December 29, 

2015. (C.R. 94). Appellant sought to postpone the final hearing which was 

 

of expert’s opinion in a jury trial, the expert’s “naked conclusion” was inadequate to support a 

judgment); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 

2004) (the lack of a factual basis for expert’s opinion meant that the opinion was a conclusory 

statement and even unobjected to, could not support a judgment); McIntyre v. Ramirez, 109 

S.W.3d 741, 749-50 (Tex. 2003) (expert’s conclusory statement regarding medical billing 

practices was properly struck because it was a “legal conclusion with no supporting facts or 

rationale”); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (personal injury attorney’s 

credentials qualified him to offer and expert opinion, “but he cannot simply say, ‘Take my word 

for it, I know: the settlements were fair and reasonable.’”); Gammill v. Jack Williams Chevrolet, 

Inc., 972 S.W.2d 713, 726 (Tex. 1998) (the court in a seat belt safety case stated that a trial court 

can exclude expert opinions when there is simply too great an analytical gap between the data 

and the opinion proffered). 
Brief of Appellant - Page 18

scheduled for January 4, 2016.12 The trial court heard Appellant’s motion on 

January 4, 2016, and in denying the motion stated: 

“Ms. McGalliard, based upon what you have just told me, I have not 

heard you say anything that would lead me to believe that you are 

going to be prejudiced with respect to going forward on this limited 

hearing for attorney fees. Most of what you expressed deals with the 

merits of the underlying case. We're not going to handle anything 

today that deals with the so-called merits of the underlying case. This 

is a damage issue related to attorney fees. There's nothing that will 

happen today that will change my previous ruling. Why don't we go 

forward and simply wrap up the entire case, and then you and your 

attorney will be afforded the opportunity to contest the underlying 

case on the merits.”

(R.R., Vol. 3, p. 8).

However, Appellant’s motion states that Appellant “needs a continuance for 

additional time to retain a lawyer. The earliest appointment she was able to get was 

January 6, 2016.” (C.R. 94). Furthermore, Appellant’s first statement to the trial 

court regarding the continuance was: 

“I’d like to continue this matter until I can get another attorney. We 

have an appointment on the 6th at 1:00 p.m. to have another attorney 

look over my case.” 

(R.R., Vol. 3, p. 5). 

 

12 Appellant’s motion was filed less than three weeks after Mr. Gus’ withdraw was granted. It 

should be noted that these three weeks spanned a good portion of the holiday season making the 

task of finding a new attorney on short notice even more challenging. 
Brief of Appellant - Page 19

Similar to Appellant’s issue number one, she contends that the trial court 

failed to afford her adequate time to retain an attorney and effectively denied her 

the right to counsel without good cause.13 

 

13 Lest the award of attorney’s fees be mistaken for a mere procedural matter to “wrap up” the 

conclusion of a case, it should be noted that the amount of trial level attorney’s fees and prejudgment interest awarded by the court on January 4, 2016 actually exceeded the liquidated 

damages claim awarded on December 15, 2015. (C.R. 93, 98). 
Brief of Appellant - Page 20

PRAYER 

For these reasons, Appellant Sherry McGalliard requests that this Court 

reverse the judgment of the trial court. 

Respectfully submitted, 

______________________________ 

Justin H. Anderson 

State Bar No. 24066563 

Law Office of Justin H. Anderson 

100 N. Sixth Street, Suite 902 

Waco, Texas 76701 

(254) 644-1004 (telephone) 

(254) 754-4824 (facsimile) 

justin@jhafirm.com 

Attorney for Appellant 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of this Appellant’s Brief has been served on all parties 

on this 6th day of July, 2016 in accordance with the Texas Rules of Appellate 

Procedure. 

Amy Ganci 

3811 Turtle Creek Blvd., Suite 800 

Dallas, Texas 75219 

Via E-Service at aganci@gancilaw.com

______________________________ 

Justin H. Anderson 
Brief of Appellant - Page 21

CERTIFICATE OF COMPLIANCE 

WITH APPELLATE RULE 9.4(i) 

I certify that this document contains 5,127 words as indicated by the word-count 

function of the computer program used to prepare it, excluding the caption, identity 

of the parties and counsel, statement regarding oral argument, table of contents, 

index of authorities, statement of the case, statement of issues presented, statement 

of jurisdiction, statement of procedural history, signature, proof of service, 

certification, certification of compliance, and appendix, as provided by Rule 9.4(i). 

____________________________ 

Justin H. Anderson 

Attorney for Appellant