*1 403 trial, appeal I would that this new reconsid- therefore hold is petition motion dismissal, fatally flawed its re-examination, and direct eration, rehearing or to decision), modify begins a vacate or may
run decision and not be from that . , ,, -i reconsideration, by any plea for extended
no matter how denominated. postjudgment
If motions motions regarded post- as authorized to
were then, appeal, of an pone perfection Oklahoma, ex rel. OKLA- STATE Salyer v. National Trailer pointed out in ASSOCIATION, HOMA BAR Inc., Okl., Convoy, [1986], P.2d 727 1361 Complainant, appeal interminably ex- could be time v. delayed review appellate tended and MOSS, Respondent. William R. to “reconsider” an successive motions (Two Cases) decision, such as one appealable, terminal trial. motion for new Succes- denies a 3536, SCBD Nos. 3581. or for trial sive motions to reconsider new Supreme Court of Oklahoma. appeal to affect time. are inefficacious Co., Drilling Home Philbrock v. 117 Okl. 13, March Archer, v. 266, Sowers [1926]; 246 P. 457 2, Aug. As Corrected v. Starr 148, [1932]; 161 Okl. 17 P.2d Woods, 242, [1933]; 162 Okl. Hobbs, 204 Okl. 913,
Adams v. 226 P.2d Leche, Manos v. [1950]; Okl. Equally
236 P.2d unauthorized 693 [1951]. new trial ad-
are successive motions for judgment. v.
dressed to the same Potts
Rubesam, [1915]; 156 P. 54 Okl.
Boorigie Boyd,
v.
41 Okl.
[1914]. Travis, Okl., [1984],
Gas
though timely motion for new trial a clarify original grounds, its
be amended to second, untimely motion new-trial which independent grounds is up
sets new Moreover,
impermissible. past, for new a motion trial was
when statute situations, this court
mandatory in certain unnecessary motion filing
held the of an postpone the time new did not trial Norris, Jones filing appeal. 185 Okl.
125,
reconsider.” not, time. appeal See
could affect Salyer v. National
1.12(c)(1). held in As Inc., supra, an unautho- Convoy,
Trailer motion considered postjudgment
rized
nullity. *2 Counsel, Douglas, E. Asst.
John Gen. City, complainant. Oklahoma Tulsa, Green, respondent. Robert G. SUMMERS, Justice. reports panels two trial Responsibility
Professional Tribunal recom- disciplined mended be # In misconduct. SCBD 3536 recommended that suspended practice for twelve majority report In # months. SCBD 3581 minority report were filed. ma- and a disbarment, report jority recommended minority public report recommended a However, reprimand. examining before disciplinary proceedings the merits of the pending first motion we must address consolidate.
Motion to Consolidate disciplinary proceedings Both are now appealed properly to this Court. The Bar they has filed a Association motion consolidated. adjudicating disciplinary pro
In
ceeding this court wants the entire record
before
court. State ex
Bar Association v. War
rel. Oklahoma
(Okl.1981).
zyn,
ex rel. Oklahoma Bar Association v.
Lowe,
terest
legal representa- money
unpaid
plaintiffs
remained
*3
protected by
tion is best
a consideration
attorney
approximately
four months.
attorney’s
span
activities over a
respondent’s
act
using
his client’s
time.” Id.
SCBD #3536
cipline on the second count. The factual
question was
respondent’s
negligently
Count I
whether Moss
involved
let
the statute
placing
filing
actions in
of limitations run
a client’s
without
funds into a
a suit.
account,
The Bar Association
using
trust
did not contest
per
the funds for his
panel’s
use,
finding
appeal.
on
We have
paying
sonal
and not
the funds to
transcript
reviewed the
agree
with the
opposing
timely
counsel
in a
manner.
Neglect
punishable
Tribunal.
to be
under
Virginia
Moss defended
Ketchum in a con
101(A)(3)
DR
should “involve indiffer
tract action. The court
judgment
entered a
6—
ence in and
carry
consistent failure to
against
$958,
out
plus
her for
costs and attor
obligations
which the
ney
30,1986,
has as
fees. On December
she deliv
sumed ... or a
$3,000
disregard
conscious
for the
satisfy
ered
to Moss to
judg
responsibility
ment, costs,
owed to the client.”
ex
plain
fees owed the
Pearson,
rel. OBA v.
attorney,
tiffs
respondent’s
and the
attor
(Okl.1989). The Bar Association did not
ney’s
$3,000
fees as well. None of the
proving
charge
meet its
by
burden of
placed into a
account.
trust
At that time
convincing
(See
clear and
evidence
State ex
did not maintain either a
Braswell,
(Okl.
rel. OBA v.
counsel to be retained Moss SCBD 3581 as a fee. When he was asked what he did money with the remainder of the The Bar Complaint sub Association filed a fees, tracting alleging 6-101(A)(3); the amount for his Moss tes that Moss DR violated pay [my] 1-102; tified that: was used to DR 1.4 of the Rules Gov- “[i]t (Explanation added). Tr. erning Disciplinary Proceedings. bills”. at 73. The es- Ketchum became aware that the funds Complaint had sence of the Bar’s was that: 1. paid when she was misrepresentations judge; been informed that Moss made to a placed a lien had property timely been on her due 2. Moss did not file a notice of lis judgment. paid sale; to the unsatisfied pendens prior to a sheriff’s and 3. $1,500 plaintiff’s attorney April Moss converted funds of a client. first Complaint alleged 1. The vi- which states that: "A Neglect shall not: ... 6-101(A)(3), legal olated DR matter entrusted to him". later, due approximately Then one week
allegation the Bar at the was dismissed efforts, respondent’s the trial court panel. Id. hearing before void, $4,000 judgment as vacated the respon- allegations from the arise pro- “all issued and ruled that executions client, Kathryn representation of one dent’s Judg- ceedings foregoing enforce the Kukar’s earlier divorce had result- Kukar. [including ment and lien the Sheriff’s Sale] $4,000.00 her, judgment ed in a are void and should be recalled impressed a lien which amount was quashed ”.2 County. property some she owned Creek purchasers at the had bid In the summer of 1979 Kukar retained property. for the real sheriff’s sale attempt represent her in an Moss to *4 the sale or- vacating judgment order and negotiate judgment. of a settlement that $10,001 pur- to the dered the return the He made some communications with the 2,1982, August received chasers. On Moss ex-husband, attorney for her no settle- but $10,001 from the On a voucher for Clerk. Opposing ment com- occurred. counsel 3, 1982, August he it the endorsed over to prop- proceedings menced to execute on the Claiming purchasers and sent it to them. (1) Request erty, whereupon filed Moss they spent improving their own funds had in the case Stay of Execution divorce and property they returned the voucher the County new in and action Tulsa they represented were informed Moss Quash Proceedings. Recall Execution the by counsel. Moss then sent voucher causing This the the had effect sched- attorney. attorney it to their returned uled sale for March 1982to sheriffs set trust deposited and it was into his postponed and rescheduled. Moss wrote 1982. account in opposing counsel that date that he intended proceeding quiet title was then to file a notice of on the Creek lis Kukar, brought purchasers against the by attempts County property, and further represented by Moss. trial the who was At judgment lien dur- settle the and occurred judgment pro- purchasers prevailed by ing five the next or six weeks. judg- nounced 1984. That on October 26, 1982, April On a sheriffs sale was appealed. ment following day held the con- it was the Kukar testified before trial firmed, all notice to Moss. The without around first of that she contacted Moss the buyers May Wilson and Morris. On were January requested of 1988 and information 5th, Objection Respondent an filed $10,000. property the Moss about the Confirmation, which was sustained. On days testified that a few after the adverse 6th, pen- day, May the he filed a lis next ruling quiet proceeding in the title in 1984 County. May in 13th dens Creek On notice had he had called Kukar and told her what entered, Confirming Sale a new Order happened. also said He testified that she (the purchasers, same bidders at the appeal that she did not want to and that sale) $10,- April paid 26th sum “I it she said: don’t want deal with Clerk, the num- 001.00 to the Court under anymore”. Tr. of at 55. filed a 6-7-89 She of the divorce case. The funds were ber grievance with the Bar Association awaiting an by held the Clerk order responded on March Moss Moss 1988. court. request to the Bar’s for information and $10,000. explained July in late of 1982 Kukar sent the disbursement Then Later, 16, 1988, $10,000. $10,000 August approximately Moss This was disbursed by investigator her for the Bar Moss Moss to former husband his asked claims, $10,001. meeting in of their about In a with the settlement litigation, investigator in November of payment of the costs of $10,001 deposit- if the had respondent’s attorney fees. stated that been panel thought practices.” of the trial One member opposing engaged "sharp had Moss’ counsel ed into his trust account then “he had Kukar and the Bar of the status of the himself, probably money maybe $10,001 used that 1988; early steps 3. take unknowingly”. Tr. of 4-26-89 at 104. money secure Kukar’s at the conclusion of requested Moss then Kukar’s address3 suit; quiet title 4. to write Mrs. Kukar from the Bar and her sent a cashier’s check concerning quiet the outcome of the title $11,000 on December proceeding and confirm her desire not to appeal; keep adequate and 5. to accounting Moss testified that when contacted minority client trust account. The investigator for the Bar he had no report $10,001 $10,001 repaid found that Moss being deposited recollection of the promptly learning August into his of 1988 trust account. He testified that he $10,001 money thought deposited that the had been had been received into his plaintiffs’ lawyer, minority report who would have trust account. The recom- quiet pro- sent it to Kukar after the title public reprimand. mended a ceeding. Allegations of
Moss testified that he first became Error. aware August 1988 that the had been procedural asserts three in his trust account. He testified that he *5 (1) errors: that Complaint the formal did kept ledgers no on the account but relied yet not mention DR 9-102 but on the check-stub entries in the account panel guilty found him violating of that deposit slips, checkbook and and that he provision; that after he “invoked the simply happened did not know what to the investigator rule” the for the Bar Associa- $10,001. Sep- The evidence showed that in hearing tion remained in the and later testi- deposited tember of 1982 the was fied; (3) respondent improper- that the was account, in the trust that one week there- ly compelled testify against to himself. $9,895, after the account had a of balance in and then December of 1982 it had a I. $2,322.66. sum, balance of neither the say exactly Bar Moss could hap- or what Complaint adequate. was Rule $10,001. pened to the The trust account Governing Disciplinary 6.2 of the Rules in was closed 1985 with a zero balance. Proceedings states: panel Two of the trial members found complaint spe- “The shall set forth the allegation neglect that the of based on the constituting alleged cific facts mis- respondent’s filing pendens of the lis no- conduct, prior resulting and if conduct They tice did not merit action. discipline, prior or evidence from investi- reasoned that the law effect did not gations, is relied to enhance disci- notice; require filing pendens of a lis that pline, prior acts or conduct relied purchasers at the Sheriff’s sale had upon shall be set forth.” claim; actual notice of Kukar’s that Moss requires specific This rule facts be given was not notice of the eventual confir- forth, require set does sale; mation of and Moss received assur- specific disciplinary to be notified of the opposing from counsel ances that the Sher- rule such conduct violates. completed. had not iff’s sale been present Complaint In the case the same two members of the found that specific alleged respondent’s regard as to the acts of miscon- actions with 6-101(A)(3), 1-102, $10,001 violated DR DR duct. 9-102,
DR and Rule 1.4 of the Rules Gov- 9, 1982, Respondent “26. On erning Disciplinary Proceedings. Those voucher, deposited the full amount of the two members recommended disbarment. $10,001.00 attorney to his trust account. Respondent thereafter made no disburse- minority found that Moss vio- report 6-101(A)(3) trust account to or on lated DR due to his failure to: ments notice; Kathryn 1. file a lis 2. advise Mrs. behalf of Kukar. On December Kukar resided in California. invoked, Respondent’s testify bal- rule and then later trust account $2,322.66. the Bar’s case chief. ance stood eventually Respondent closed the III. making trust account without also claims he was Kathryn any on behalf of disbursements improperly compelled testify against Kukar.” controversy centers on two himself. The Respondent never informed his “30. Governing Disciplinary Rules Pro- client, Kukar, result of Ms. 6.11(d) ceedings, Rules 5.2. quiet action.” title 6.11(d) states: allegations clearly respon- accuse the These called as a “The receiving belonging funds to Mrs. dent prosecution either or on witness Kukar, with- closing his trust account behalf, upon to his own and when called anyone them her or on her paying out give testimony, respondent may enti- notifying her that she was behalf question any to answer relevant decline requires DR tled the funds. 9-102 he that his an- personally unless states notify promptly the client of the might thereto disclose matters that swer receipt complete her funds maintain privileged or that tend in- are would coming records all the client’s funds guilty criminate him or show him to be O.S.1981, lawyer’s possession. into the any act or that would 9-102(B)(l) Ch. DR offense grounds discipline.” respondent had sufficient notice of the ac- 1-A, 1, App. 6.11(d). (Emphasis against him. cusation added).
II.
Rule
states:
5.2
hearing
making
preliminary
Nor was
denied a fair
“After
such
inves-
presence
investigator
tigation
the
of the
for the
as the General Counsel
In
appropriate,
Bar.
Clark v. Continental Tank Co.
the General Counsel
deem
copy
stituted a waiver of the
to refuse to
(1976),
L.Ed.2d
and United
States
6.11(d)
questions
Rule
answer
under
then
Kordel,
411
Responsibility
ultimately paid
As did the Professional
Tri-
clients’ funds were
bunal,
occurred,
so also do we find an
proper party
commingling
absence
no
convincing
clear and
evidence that Moss
argument
we said that such an
was irrele-
neglected
by waiting
May
his client
until
However,
vant.
we conclude that that the
1982 to file the lis
notice.
convincing
evidence is clear and
that Moss’
commingling was the result
sloppy
Discipline
neglectful
keeping
record
instead of theft
conversion,
required
which would have
imposed
degrees
This court has
different
1.4(c).
disbarment under Rule
punishment
commingling type
in
cases.
State ex
given public reprimand,
We have
imposing discipline
we note that his
rel.
v. Dugger,
Oklahoma Bar Association
handling of Kukar’s funds was not an iso-
1963),
(Okl.
a ninety day
8. Where there is a theft conversion of a mandates 1-A, 1.4(c). funds and a of Rule 1.4 that client’s violation SIMMS, Justice, dissenting: respectfully
I dissent. these consol- cases, addressing sepa- we two
idated are
rate, co-mingling independent acts Proof of either
funds and conversion. Proof warrant of both
could disbarment. warrant disbarment.
should to state that Chief Jus-
I am authorized HARGRAVE, Justice Vice Chief OPA-
tice
LA, join with me and Justice LAVENDER expressed herein.
in the views BLANTON, Appellee, H.
Duane
HOUSING AUTHORITY OF CITY NORMAN, Municipal
OF
Authority, Appellant.
No. 65963.
Supreme of Oklahoma. Court
April 17, 1990.
Rehearing July Denied