Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/23/2015 6:01:49 PM JEFFREY D. KYLE Clerk No. 03-15-00083-CV THIRD COURT OF APPEALS 10/23/2015 6:01:49 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00083-CV *1 ACCEPTED [7526153] CLERK _______________
In the Court of Appeals
Third District of Texas
Austin, Texas
_______________
C RAIG A. W ASHINGTON ,
A PPELLANT V.
C OMMISSION FOR L AWYER D ISCIPLINE , A PPELLEE _______________
Appealed from the 335th District Court Of Bastrop County, Texas
Honorable George Gallagher, Judge Presiding _______________
B RIEF OF A PPELLEE C OMMISSION FOR L AWYER D ISCIPLINE (O RAL A RGUMENT R EQUESTED ) _______________
L INDA A. A CEVEDO C YNTHIA C ANFIELD H AMILTON
C HIEF D ISCIPLINARY C OUNSEL S ENIOR A PPELLATE C OUNSEL
L AURA B AYOUTH P OPPS O FFICE OF THE C HIEF D ISCIPLINARY
D EPUTY C OUNSEL FOR A DMINISTRATION C OUNSEL
STATE BAR OF TEXAS P.O. B OX A USTIN , T EXAS 78711-2487 512.427.1350; 1.877.953.5535 F AX : 512.427.4167 *2 N AMES OF P ARTIES AND C OUNSEL A PPELLANT
C RAIG A. W ASHINGTON
C OUNSEL FOR A PPELLANT
M ICHAEL A. S TAFFORD
K ATHARINE D. D AVID
S TACY R. O BENHAUS
J OHN M AC V ANE
G ARDERE W YNNE S EWELL LLP
2000 Wells Fargo Plaza
1000 Louisiana Street
Houston, Texas 77002
Telephone: 713.276.5500
Fax: 713.276.5555
A PPELLEE
C OMMISSION FOR L AWYER D ISCIPLINE
S TATE B AR OF T EXAS
P.O. Box 12487
Austin, Texas 78711
C OUNSEL FOR A PPELLEE
L INDA A. A CEVEDO
Chief Disciplinary Counsel
L AURA B AYOUTH P OPPS
Deputy Counsel for Administration
C YNTHIA C ANFIELD H AMILTON
Senior Appellate Counsel
S TATE B AR C ARD N O . 00790419
Email: cynthia.hamilton@texasbar.com
*3 State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
512.427.1350; 1.877.953.5535
Fax: 512.427.4167
T ABLE OF C ONTENTS
P AGE N AMES OF P ARTIES AND C OUNSEL .............................................................................. 1
I NDEX OF A UTHORITIES ............................................................................................... 5
S TATEMENT OF THE C ASE ......................................................................................... 10
S TATEMENT OF THE I SSUES ....................................................................................... 11
S TATEMENT OF F ACTS ............................................................................................... 12
S UMMARY OF THE A RGUMENT .................................................................................. 14
A RGUMENT AND A UTHORITIES ................................................................................. 16
I. Character evidence could not have overcome Washington’s failure to
refute the compelling evidence of his misconduct, so the trial court did not harmfully err by excluding his character witnesses ................................ 16 A. The Commission presented compelling, unrefuted evidence of Washington’s violation of Rule 8.04(a)(3) ......................................... 17 B. Washington could not overcome the Commission’s compelling evidence of his misconduct simply by offering evidence regarding his reputation in the community ......................................... 23 C. TRE 608(a) is not relevant to this appeal because Washington did not rely on it in the trial court and because the Commission did not launch the type of character attack that opens the door to the admission of character evidence under 608(a) .............................. 26 II. Washington was not entitled to a new trial based on the jury’s receipt
of unadmitted evidence because he cannot show that the jury’s verdict probably resulted directly from the unadmitted evidence ............................. 28 III. Washington’s complaints regarding the jury charge are without merit
because the charge properly tracked the language of the disciplinary rules and Washington failed to preserve his charge complaints ................... 31 *5 IV. The “cumulative error” doctrine is irrelevant because the jury’s
verdict is based on compelling evidence of Washington’s misconduct rather than on error by the trial court ............................................................. 33 V. The trial court did not abuse its broad sanctions discretion .......................... 34
A. It is well settled that the trial court, not the jury, determines the appropriate sanction(s) for attorney misconduct ................................. 34 B. The sanctions in this case are not excessive in light of the seriousness of Washington’s misconduct and the egregious harm to his clients................................................................................ 37 P RAYER ..................................................................................................................... 39
C ERTIFICATES OF C OMPLIANCE AND S ERVICE .......................................................... 40
A PPENDIX .................................................................................................................. 42
I NDEX OF A UTHORITIES
C ASES P AGE Bellino v. Commission for Lawyer Discipline ,
124 S.W.3d 380 (Tex.App.—Dallas 2003, pet denied) ................................ 31 Cire v. Cummings ,
134 S.W.3d 835 (Tex. 2004) ......................................................................... 37 Collins v. Beste ,
840 S.W.2d 788 (Tex.App.—Fort Worth 1992, writ denied) ....................... 32 Continental Cas. Co. v. Davilla ,
139 S.W.3d 374 (Tex.App.—Fort Worth 2004, pet. denied) ........................ 37 Country Village Homes, Inc. v. Patterson , 236 S.W.3d 413 (Tex.App.
—Houston [1 st Dist.] 2007, pet. granted, judgm’t vacated w.r.m.) ............... 29
Davis v. Tex. Dep’t of Family and Protective Services ,
2012 WL 512674 (Tex.App.—Austin 2012, no pet.) (mem. op.) ................. 17 Dudley v. Humana Hospital Corp. ,
817 S.W.2d 124 (Tex.App.—Houston [14 th Dist.] 1991, no writ) ................ 16 Estate of Finney ,
424 S.W.3d 608 (Tex.App.—Dallas 2013, no pet.) ...................................... 16 Hanners v. State Bar of Tex. ,
860 S.W.2d 903 (Tex.App.—Dallas 1993, writ dism’d) .............................. 36 In re Caballero ,
441 S.W.3d 562 (Tex.App.—El Paso 2013, orig. proceeding) ..................... 35 Jaster v. Comet II Constr. ,
438 S.W.3d 556, 562-63 (Tex. 2014) ............................................................ 35 McIntyre v. Comm’n for Lawyer Discipline ,
247 S.W.3d 434 (Tex.App.—Dallas 2008, pet. denied) ......................... 31, 33 *7 Michael v. State ,
235 S.W.3d 723 (Tex. Crim. App. 2007) ...................................................... 26 Mid-South Bottling Co. v. Cigainero ,
799 S.W.2d 385 (Tex.App.—Texarkana 1990, writ denied) ........................ 29 Olsen v. Comm’n for Lawyer Discipline ,
347 S.W.3d 876 (Tex.App.—Dallas 2011, pet. denied) ......................... 37, 38 Owens-Corning Fiberglass Corp. v. Malone ,
972 S.W.2d 35 (Tex. 1998) ........................................................................... 16 Rhey v. Redic ,
408 S.W.3d 440 (Tex.App.—El Paso 2013, no pet.) .................................... 34 Sears, Roebuck & Co. v. Abell ,
157 S.W.3d 886 (Tex.App.—El Paso 2005, pet. denied).............................. 32 State Bar of Tex. v. Kilpatrick ,
874 S.W.2d 656 (Tex. 1994) ............................................................. 34, 37, 38 State v. O’Dowd ,
312 S.W.2d 217 (Tex. 1958) ................................................................... 34-35 Tex. Dep’t of Transp. v. Able ,
35 S.W.3d 608 (Tex. 2000) ..................................................................... 16, 17 University of Tex. at Austin v. Hinton ,
822 S.W.2d 197 (Tex.App.—Austin 1991, no writ) ..................................... 33 *8 S TATUTES AND R ULES P AGE
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.01(b)(1) .................................... 32
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.01(c) ......................................... 32
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.03(a) ......................................... 32
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.15(d) ......................................... 32
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 8.04(a)(3) ..................................... 32
T EX . G OV ’ T C ODE A NN . § 81.077(a) (West 2015) ................................................... 35
T EX . R. A PP . P. 44.1(a) ....................................................................................... 16, 29
T EX . R. C IV . P. 272 ................................................................................................... 32
T EX . R. C IV . P. 278 ................................................................................................... 32
T EX . R ULES D ISCIPLINARY P. R. 3.09 ................................................................. 35, 36
T EX . R ULES D ISCIPLINARY P. R. 3.10 ....................................................................... 37
S ECONDARY M ATERIALS P AGE
B LACK ’ S L AW D ICTIONARY 8 (6 th ed. 1990) ............................................................ 35
Merriam-Webster Online Dictionary ,
http://merriam-webster.com/dictionary/abrogate (last visited Oct. 22, 2015) ........ 36
No. 03-15-00083-CV
_______________
In the Court of Appeals
Third District of Texas
Austin, Texas
_______________
C RAIG A. W ASHINGTON ,
A PPELLANT V.
C OMMISSION FOR L AWYER D ISCIPLINE , A PPELLEE _______________
Appealed from the 335th District Court Of Bastrop County, Texas
Honorable George Gallagher, Judge Presiding _______________
B RIEF OF A PPELLEE C OMMISSION FOR L AWYER D ISCIPLINE _______________
TO THE HONORABLE COURT OF APPEALS:
Appellee, the Commission for Lawyer Discipline, submits this brief in response to the brief filed by Appellant, Craig A. Washington. For clarity, this
brief refers to Appellant as “Washington” and Appellee as “the Commission.” It
designates record references as CR (clerk’s record), RR (reporter’s record), Pet.
Ex. (Petitioner’s exhibit to reporter’s record) and App. (appendix). References to
rules refer to the Texas Disciplinary Rules of Professional Conduct unless
otherwise noted. [1] References to Appellant’s brief are designated “Appellant’s Br.”
followed by the page number.
*11 S TATEMENT OF THE C ASE
Type of Proceeding : Attorney Discipline
Petitioner/Appellee : The Commission for Lawyer Discipline
Respondent/Appellant : Craig A. Washington
Trial Judge : The Honorable George Gallagher (sitting by assignment
pursuant to Rule 3.02 of the Texas Rules of Disciplinary Procedure)
Judgment : Judgment of Partially Probated Suspension
Violations found : Rule 1.01(b)(1): In representing a client, a lawyer shall
not neglect a legal matter entrusted to the lawyer. Rule 1.03(a): A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule 1.15(d): Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.
Rule 8.04(a)(3): A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. *12 S TATEMENT OF THE I SSUES
Whether the exclusion of character evidence is harmless in a case where the record shows that the verdict did not turn on the excluded evidence?
Whether the presence in the jury room of unadmitted evidence is harmless if it is clear that the jury verdict did not result directly from the unadmitted evidence?
Whether an appellant who failed to take the steps necessary to preserve charge error is foreclosed from complaining on appeal about alleged error in a jury charge?
Whether a district court determines the appropriate sanctions for attorney misconduct following a jury trial in a disciplinary action?
Whether a reviewing court should affirm disciplinary sanctions that are well supported by the evidence of record?
S TATEMENT OF F ACTS
On September 21, 2006, Washington filed a lawsuit on behalf of Michael Gobert and N’Dia Henry (Pet. Ex. 5). The lawsuit essentially sought to recover the
clients’ deceased mother’s home (Pet. Ex 5). The trial court set the lawsuit for trial
on October 5, 2009, and provided the parties with a docket control order regarding
the trial date and associated deadlines on May 12, 2009 (Pet. Ex. 9).
Washington did not appear for the pretrial hearing on October 2, 2009, or the
trial on October 5, 2009 (Pet. Ex. 10, 17). He also did not seek a continuance of
the trial date in advance (Pet. Ex. 10, 17). As a result, the trial court dismissed the
lawsuit for want of prosecution (Pet. Ex. 10, 17). Washington sought to have the
suit reinstated, but the court denied his motion to reinstate (Pet. Ex. 11, 12, 17).
The Eighth Court of Appeals affirmed the dismissal of the lawsuit (Pet. Ex.
17). In its opinion, the Court explained that the history of the case warranted
dismissal for want of prosecution because (1) the suit had been on file for more
than three years at the time it was scheduled to go to trial; (2) there was no dispute
that Washington received notice of the trial setting and the pretrial hearing; (3) the
docket control order notified Washington that his failure to attend may result in
dismissal; (4) Washington failed to file any pretrial motions within the established
deadlines and failed to provide witness and deposition lists, proposed jury
questions, or a list of exhibits as required by the docket control order; and (5)
Washington provided no explanation for his omissions (Pet. Ex. 17).
The Eighth Court of Appeals affirmed the dismissal on October 6, 2010 (Pet.
Ex. 17). However, Washington’s clients did not learn of the dismissal until
October 30, 2012, because he failed to inform them of the dismissal (3 RR 32:24 –
35:9, 45:22-25; 4 RR 149:7 – 151:17). In fact, as late as June 26, 2012,
Washington misrepresented the status of the lawsuit, leading his clients to believe
that it was still viable on that date (3 RR 32:24 – 35:9, 45:22-25). He also failed to
provide them with copies of their file upon request (3 RR 43:15-24; 4 RR 143:22 –
144:4).
The Commission alleged that Washington’s conduct violated Rules 1.01(b)(1), 1.03(a), 1.15(d), and 8.04(a)(3) of the Texas Disciplinary Rules of
Professional Conduct (CR 112-15). After a jury trial and a verdict in the
Commission’s favor, the Honorable George Gallagher entered judgment for the
Commission and imposed sanctions against Washington, including a four-year
partially probated suspension of his law license (1 Supp. CR 4-11). Following a
hearing on Washington’s motion for new trial, Judge Gallagher modified the
original judgment, primarily by reducing the length of the active portion of the
suspension (CR 319-23).
S UMMARY OF THE A RGUMENT In this appeal, Washington does not attempt to argue that the evidence is insufficient to support the judgment. Instead, he picks apart the transcript from his
jury trial and identifies procedural issues that, he claims, constitute reversible error.
But none of the issues provides a basis for reversal. Nor is there “cumulative
error.”
Much of Washington’s brief focuses on the trial court’s exclusion of his character witnesses during the jury phase of the trial. The court admitted character
evidence during the sanctions phase but sustained the Commission’s objection to
its admission in the proceedings before the jury. And though Washington
insistently urges this Court to reverse the judgment due to the exclusion, it
provides no basis for reversal. Assuming for the sake of argument that the decision
to exclude character testimony was erroneous, the error was clearly harmless
because this case did not turn on character evidence. The Commission presented
compelling, unrefuted evidence of Washington’s misconduct, and he could not
overcome that evidence by putting on testimony regarding his reputation in the
community.
Similarly, this case did not turn on an exhibit that erroneously found its way to the jury room. The exhibit included information regarding a brief administrative
suspension of Washington’s law license in 1996 due to non-payment of the
attorney occupation tax and/or related penalties or interest. In light of the
compelling evidence of Washington’s misconduct, it would be unreasonable to
conclude that the jury’s verdict probably resulted directly from the presence of the
exhibit in the jury room. Thus, it cannot provide a basis for reversal.
Washington also complains about the jury charge, but he did not take the
steps necessary to preserve any error in the charge. Not only did he fail to make
objections on the record to the court’s charge, he also failed to submit written
instructions in substantially correct form. And most importantly, the jury charge
properly tracked the language of the disciplinary rules.
Washington’s arguments regarding sanctions also have no merit. It is well
established that the trial court, not the jury, determines sanctions in a disciplinary
action. In this case, the trial court’s sanctions find ample support in the record.
Washington’s egregious misconduct and the severe consequences to his clients
justified the court’s decision to impose a one-year active suspension followed by
three years of probation. His numerous prior disciplinary sanctions also support
the sanctions decision.
All in all, the judgment is well supported by the evidence, and Washington has not shown reversible error. Therefore, this Court should affirm the judgment
in all respects.
A RGUMENT AND A UTHORITIES I. Character evidence could not have overcome Washington’s failure to
refute the compelling evidence of his misconduct, so the trial court did not harmfully err by excluding his character witnesses.
Washington first argues that the trial court harmfully abused its discretion by
refusing to admit character evidence that he offered. He argues that the evidence
should have been admitted under Rules 404(a)(1)(B) and 608(a) of the Texas Rules
of Evidence.
A trial court has broad discretion to make evidentiary rulings, and an evidentiary ruling must be upheld if there is any legitimate basis for it. Owens-
Corning Fiberglass Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). Before
reversing a judgment based on the exclusion of evidence, an appellate court must
determine that the exclusion was erroneous and that it probably caused the
rendition of an improper judgment. T EX . R. A PP . P. 44.1(a); Tex. Dep’t of Transp.
v. Able , 35 S.W.3d 608, 617 (Tex. 2000). “Reversible error does not usually occur
in connection with evidentiary rulings unless the appellant demonstrates the whole
case turned on the particular evidence excluded or admitted.” Estate of Finney ,
424 S.W.3d 608, 612-13 (Tex.App.—Dallas 2013, no pet.) (citing Dudley v.
Humana Hospital Corp. , 817 S.W.2d 124, 126 (Tex.App.—Houston [14 th Dist.]
1991, no writ)). Erroneous “‘exclusion is likely harmless if the evidence was
cumulative, or if the rest of the evidence was so one-sided that the error likely
made no difference.’” Davis v. Tex. Dep’t of Family and Protective Services , 2012
WL 512674 (Tex.App.—Austin 2012, no pet.) (mem. op.) (citation omitted). To
determine harm, the appellate court reviews the entire record. Able , 35 S.W.3d at
617.
A. The Commission presented compelling, unrefuted evidence of Washington’s violation of Rule 8.04(a)(3).
In this case, Washington argues that he offered character testimony in response to the Commission’s allegation that he violated Rule 8.04(a)(3), which
prohibits conduct involving dishonesty, deceit, or misrepresentation. [2] The
Commission alleged that Washington violated the rule by leading his clients to
believe that their case was still pending long after it had been dismissed for want of
prosecution.
As part of its case in chief on the allegation that Washington engaged in conduct involving dishonesty, deceit, or misrepresentation, the Commission
offered testimony from Sherry Carter and Michael Gobert, who were Washington’s
clients (3 RR 21-100; 4 RR 139-212). Ms. Carter and Mr. Gobert presented
compelling testimony regarding Washington’s failure to tell them the truth about
the status of their lawsuit after its dismissal in 2009 for want of prosecution:
*19 Carter testimony (3 RR 32- 35):
Q: When did you first discover that the house might be for sale? A: Oh, Lord. I – I had been glancing on the internet one day at work, and I think I had put the address in or something. I noticed something flashed that there was a picture of the house and it was for sale. But I was real busy at work, so I didn’t pay attention to it that much. I just made a mental note that I’ll discuss it with Mr. Washington when I see him.
And so I went over to his office on June 26 th , and we visited and talked. And I mentioned to him that I thought I had seen a listing for the house on the internet, on a website. And I asked him had – Q: Let me ask you just a minute. June 26 th , what year was that? A: 2012.
Q: 2012?
A: Uh-huh.
Q: Go ahead.
A: I mentioned – I asked him if he knew where Craig Bush was paying the taxes on the house, and what would happen if the house caught on fire, were we sure it was protected. And he let me know that his staff was taking care of everything, was on top of everything. And that’s what I left the office believing.
But when I returned to work, I checked on the internet again. I checked the Montgomery County real estate website, and I noticed the house had been sold in March. So I was so shocked, I called his office and let them know what I had just found out. And I called my husband and asked him to return to my office and pick me up, I needed to go back to Craig Washington’s office and show him what I had discovered.
And so we drove back over there, and I rung the doorbell, and Mr. Washington came to the door. And I showed him the copy of the sale of the property. And, of course, he told me – well, he – he looked real shocked. *20 And he told me that anything can happen. And, I mean, he couldn’t say that couldn’t happen, but he wasn’t supposed to be able to sell the house if there was some type of hold on it or whatever.
And then he promised me that he would get in touch with another real estate person that would help him with that and he’d get back in touch with me.
Q: When you say there was some type of hold on the house, did he tell you there was a lis pendens on it?
A: Yes. Yes.
Q: So did you understand what that was?
A: Yes. I understood – my understanding was that it couldn’t be sold because it was in litigation. And I believed that up to that point.
Q: So this was in 2012?
A: Yes.
Q: And what did he say when you confronted him with the fact that the house had been sold?
A: Well, he said, well, anything could happen, but he was going to get in touch with this other acquaintance that was real knowledgeable in real estate and he’d get back in touch with me.
Q: Did he ever get back in touch with you?
A: No.
Q: And that was in June of 2012?
A: Yes.
Contrary to what Washington led Ms. Carter to believe on June 26, 2012, the lawsuit was over. It had been dismissed on October 14, 2009 (Pet. Ex. 10);
Washington’s motion to reinstate had been denied on November 9, 2009 (Pet. Ex.
12); and his appeal had ended on October 6, 2010, with an affirmance of the
dismissal (Pet. Ex. 17).
Nevertheless, Washington led his clients to believe that their case was not over. Mr. Gobert explained that they finally learned the truth long after the
dismissal of their lawsuit was final when, through an internet search, he found the
court of appeals’ decision affirming the dismissal:
Gobert testimony (4 RR 149-50):
Q: What is [Petitioner’s Exhibit 7]?
A: Looks like an appeal paper.
Q: Okay. What’s the date at the bottom of that?
A: October 30 th , 2012.
Q: Okay.
A: I think this is – looks like the paper that I found, what I looked up on the internet in the Court of Appeals.
Q: Okay.
A: Yeah. (Reading to himself.) Yeah, this.
Q: Okay. Is that the first time that – did you print this out at the time that you looked it up?
A: Yes. This is when I found out, around this time.
Q: Okay.
A: 2012.
Q: So this is a copy of the one you printed out?
A: Yes. And showed my grandmother, yes.
Q: Okay. And what did you find out when you read this?
A: What did I find out?
Q: Uh-huh.
A: That he did nothing for me or on my case or didn’t show up. Pretrial. He didn’t even send a representative. He didn’t do nothing, $10,000 he didn’t do nothing. That’s really what this says.
Q: Is this the first time you found out that the case – did Mr. Washington ever tell you the case had been dismissed?
A: Never. I was under the pretense that I still had a case. I was waiting. I mean, no.
That Washington’s clients learned of the final disposition of their case as the result of an internet search on October 30, 2012, is telling. The court of appeals
had affirmed the dismissal of their lawsuit more than two years earlier on October
6, 2010 (Pet. Ex. 7). Nonetheless, on June 26, 2012, Washington had led them to
believe that he was still working on the case and it could be salvaged (3 RR 32:24
– 35:11). It was not until Mr. Gobert confronted him with the information he
found on the internet that Washington finally admitted the case was lost (4 RR
150:8 – 151:17).
Washington offered little to refute the testimony from Ms. Carter and Mr.
Gobert regarding his misrepresentation of the status of the lawsuit. Washington
testified after Ms. Carter. Thus, at the time he testified, Ms. Carter’s testimony
regarding their conversation of June 26, 2012, was on the record, as was her
testimony that she and Mr. Gobert found out about the final disposition of the
lawsuit as a result of Mr. Gobert’s internet research (3 RR 35:12 – 40:14, 45:21-
25). Nonetheless, Washington never denied Ms. Carter’s description of their June
26 th conversation or directly addressed her assertion that he led her to believe the
lawsuit was still alive. In response to his attorney’s question whether he ever told
her that “there were no problems with the case, everything was going smoothly,
even though the case had been dismissed and you appealed it,” Washington was
evasive:
A: There were problems with this case from the beginning. From day one there were – and I told her what the problems were.
Q: In fact, you would receive calls from not just Ms. Carter and Mr. Gobert and Mr. Black and the attorneys but from the entire greater family would call regularly to find out, when are we going to get our money? A: Everybody was looking for money. And some of them didn’t have an interest, wasn’t going to get a dime anyway, but they would still call. And I would talk to them because I’m trying to keep the peace.
Like Mr. Black and Ms. Randle didn’t need to be fighting. They need to be on the same side. You don’t need to have Mr. Black mad at her about grandparent’s rights. They need to be – those two children are named in the thing. They need to be cooperating towards the greater good, which was to try to get the property back, not fighting each other over a storage locker full *24 of furniture and things that were emotionally important, but they had nothing to do with a $400,000 house. They needed to be on the same side, on the same team, and I did my best to juggle them. . . .
(4 RR 133:6 – 134:6)
Washington’s focus on supposed difficulties with the family ignored the real
problems with the lawsuit – his failure to take the steps necessary for the suit to
have any chance at success and his failure to keep his clients informed so that they
could make decisions about how to proceed. He also ignored the compelling
testimony demonstrating that he misrepresented the status of the lawsuit.
B. Washington could not overcome the Commission’s compelling evidence of his misconduct simply by offering evidence regarding his reputation in the community.
Based on the damning testimony against him and the absence of any direct response from Washington, the evidence left room for only one conclusion – that
Washington led his clients to believe that the lawsuit was still alive long after its
disposition was final. The case was not a he-said-she-said as Washington argues.
It was a case of convincing testimony on one side with no real rebuttal on the
other. Washington could not overcome unrefuted direct evidence of his
misconduct merely by offering evidence of his reputation. Although he is correct
that this was essentially a three-witness trial (Appellant’s Br. 28), his assertion
overlooks the fact that the Commission called all three witnesses. He did not put
on the testimony of a single witness other than very brief, limited testimony by
Sonya Heath. [3]
Despite the one-sided nature of the evidence regarding Washington’s misrepresentation of the status of the lawsuit, he argues that the admission of his
character evidence probably would have resulted in a different judgment. His
argument cannot succeed because character evidence alone could not overcome the
evidence supporting the jury’s finding that he engaged in conduct involving
dishonesty, deceit, or misrepresentation. No matter how much character evidence
the trial court admitted, the record would still be entirely devoid of evidence to
refute Ms. Randle’s and Mr. Gobert’s testimony. Thus, there would still be the
legal equivalent of no evidence in his favor on this issue.
In addition, the nature of the character evidence offered by Washington was unremarkable. Based on the record, the evidence would not have been
“particularly strong” as Washington claims. Appellant’s Br. 27. It consisted of
testimony from a lawyer who had been licensed to practice law for five years (4
RR 218) and had known Washington for 5-7 years (4 RR 223). Four years prior to
*26 her testimony (4 RR 226), she had worked for Washington for “a couple” of those
years (4 RR 224). She testified that she knows hundreds of lawyers and “all” of
them have good things to say about Washington (4 RR 225). She also testified that
“most everybody” she knows thinks highly of his integrity, honesty, and veracity
(4 RR 225). And she testified that she had little personal knowledge of
Washington’s dealings with the clients at issue in this disciplinary action (4 RR
226-27). [4]
The exclusion of Washington’s character evidence, even if erroneous, was not harmful. The rest of the evidence regarding Washington’s dishonesty was so
one-sided that any error likely made no difference. He argues that if his character
evidence had been presented to the jury, they “almost certainly would have
credited [his] testimony over that of the complaining witnesses.” Appellant’s Br.
36. But his assertion overlooks that there was no meaningful testimony for the jury
to credit in his favor. He never directly refuted the strong evidence of his
misconduct. Thus, assuming for the sake of argument that the trial court erred by
excluding his character evidence evidence, the exclusion cannot provide a basis for
reversal.
*27 C. TRE 608(a) is not relevant to this appeal because Washington did not rely on it in the trial court and because the Commission did not launch the type of character attack that opens the door to the admission of character evidence under 608(a).
As for his argument regarding TRE 608(a), Washington never made this argument to the trial court. Thus, he did not preserve it for appeal. In his brief, he
claims that he preserved the issue at 4 RR 216: 22-25. However, his attorney’s
statements at that point in the record do not refer to TRE 608(a) or otherwise
indicate that he was offering character testimony under TRE 608(a).
Moreover, TRE 608(a) provides for a witness to be rehabilitated through character evidence as to the witness’s truthfulness only if the witness’s general
character for truthfulness is attacked. Michael v. State , 235 S.W.3d 723, 726 (Tex.
Crim. App. 2007). The question is whether the overall tone and tenor of the
examination of the witness imply that he is a liar. Id. If the examination merely
questions information provided by the witness rather than the witness’s character,
exclusion is proper because the door is not open to character evidence under TRE
608(a). Id.
The Commission’s questions did not attack Washington’s general character for truthfulness. Their point was merely to highlight conflicts between his
testimony and documentary evidence in order to persuade the jury to rely on the
more objectively reliable of the two. This is the quintessential point of a trial.
Each party attempts to put on evidence that conflicts with or calls into question the
other party’s position. That is how each side proves its case. Each attempts to
show that the other’s version of events is inaccurate. And because the
Commission’s questions were aimed at the accuracy of information provided to
Washington by another person (his staff member who supposedly notified the court
of his conflicting trial settings before the scheduled trial date), characterizing them
as an attack on his general character for truthfulness would be particularly
misplaced. The Commission’s questions were nothing more than unremarkable
attempts to present its evidence to the jury. [5]
In addition, the record excerpts that Washington describes as character attacks were aimed at proving that he neglected his clients’ case by failing to take
the steps he should have taken in pursuit of their lawsuit. See Appellant’s Br. 25-
26. Thus, they were a necessary part of the Commission’s proof. They were not
superfluous to the elements the Commission had to prove in order to succeed at
trial. As such, any incidental reflection on the truth of Washington’s assertions
was an unavoidable consequence of the Commission’s efforts to put on its case. [6]
*29 In short, it was the evidence of record regarding Washington’s actions, not the absence of character evidence, that proved Washington’s misconduct. The
substantive evidence was so one-sided that it did not leave room for doubt about
whether he fulfilled his obligations to his clients. Character evidence simply could
not have overcome the direct evidence of misconduct or provided a legitimate
basis for a different verdict.
The character evidence that Washington wished to offer was ultimately presented in its proper context – at the sanctions hearing. But even as impressive
as the evidence was, it could not overcome the severe hardship that Washington’s
clients experienced as a result of his egregious misconduct. His actions directly
resulted in the loss of their cause of action and caused them to suffer serious
financial and emotional consequences.
II. Washington was not entitled to a new trial based on the jury’s receipt of
unadmitted evidence because he cannot show that the jury’s verdict probably resulted directly from the unadmitted evidence.
Washington next complains about unadmitted evidence that was
inadvertently taken into the jury room. The evidence in question is a copy of a
membership record showing that Washington’s law license was briefly suspended
in 1996 “for non-payment of the Texas Attorney Occupation Tax and/or associated
penalties or interest” (Pet. Ex. 1). Although the Commission initially offered the
exhibit, Washington objected and the Commission agreed that submission to the
jury was unnecessary, whereupon the trial court admitted the exhibit for purposes
of the record only (3 RR 20:3-23). Apparently neither party took steps to ensure
that the exhibit was removed from the papers taken to the jury room.
Washington first raised this issue in his motion for new trial by generally
complaining that unadmitted evidence had been considered by the jury (CR 253).
At the hearing on his motion for new trial, he offered the testimony of the
presiding juror, Melissa Rackel (7 RR 137-57). She testified that the exhibit
caused a juror to comment that after working in his position for almost 40 years,
people like Washington “tend to get old and cocky or arrogant, set in their ways,
and they don’t take care – or they don’t do their job the way they should because
they’ve been doing it this way for so long” (7 RR 139). She also testified that she
believed the exhibit had some impact on deliberations (7 RR 139:23-25).
The question for this Court is whether the presence of the exhibit in the jury room probably caused the rendition of an improper verdict. T EX . R. A PP . P.
44.1(a); Country Village Homes, Inc. v. Patterson , 236 S.W.3d 413 (Tex.App.—
Houston [1 st Dist.] 2007, pet. granted, judgm’t vacated w.r.m.); Mid-South Bottling
Co. v. Cigainero , 799 S.W.2d 385, 388 (Tex.App.—Texarkana 1990, writ denied).
Put another way, for the jury’s exposure to the exhibit to constitute reversible error,
this Court must determine that the jury’s verdict probably resulted directly from
the presence of the exhibit in the jury room. Id.
The record in this case does not support a conclusion that the exhibit in question probably resulted in the rendition of an improper verdict. As discussed in
response to Washington’s first issue, the evidence in this case was very one-sided.
Washington offered the testimony of only a single witness, and her testimony was
brief and limited to the tolling of the statute of limitations for the causes of action
of minors (4 RR 218:18 – 221:6). And in his own testimony (which the
Commission offered), Washington never directly refuted the evidence proving his
misconduct. Nor did he offer documentary evidence to refute the evidence against
him. In such a lopsided case, it is difficult to imagine that the jury would have
decided in Washington’s favor but for their consideration of a document showing
that his law license was suspended for fifteen days nearly nineteen years earlier as
a result of the non-payment of the attorney occupation tax and/or associated
penalties or interest.
Moreover, the lack of any rational relationship between the prior administrative suspension and the jury issues underscores the harmlessness of the
jurors’ awareness of the suspension. They were asked (1) whether Washington
neglected Mr. Gobert’s legal matter, (2) whether he failed to keep Ms. Carter and
Mr. Gobert reasonably informed, (3) whether he failed to comply with Ms. Carter’s
and Mr. Gobert’s reasonable requests for information, (4) whether he failed to
surrender papers to which Mr. Gobert was entitled, and (5) whether he engaged in
conduct involving dishonesty, deceit, or misrepresentation (CR 137-45). No
reasonable juror would conclude that because of a very brief nineteen-year-old
administrative suspension for non-payment of a tax and/or associated penalties or
interest, it is more likely that Washington committed these acts.
The presiding juror’s testimony cannot change the utter lack of significance of the information in question. The record simply does not support a conclusion
that the jury probably would have rendered a different verdict if they had not seen
Exhibit 1.
III. Washington’s complaints regarding the jury charge are without merit
because the charge properly tracked the language of the disciplinary rules and Washington failed to preserve his charge complaints. In his next issue, Washington complains about the jury charge. This Court reviews a claim of charge error for an abuse of discretion. McIntyre v. Comm’n for
Lawyer Discipline , 247 S.W.3d 434, 443 (Tex.App.—Dallas 2008, pet. denied).
A trial court has broad discretion in submitting jury questions (and even more discretion when submitting jury instructions) as long as they fairly place the
disputed issues before the jury. Id. In a case of attorney discipline, the jury charge
should track the language of the disciplinary rules as closely as possible because
the disciplinary rules are treated like statutes. Bellino v. Commission for Lawyer
Discipline , 124 S.W.3d 380, 385 (Tex.App.—Dallas 2003, pet denied).
In this case, Washington complains that the trial court did not provide adequate instructions to the jury. Appellant’s Br. 42-45. But as required, the jury
charge closely tracked the language of the disciplinary rules (CR 140-44). See
T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.01(b)(1), 1.01(c), 1.03(a),
1.15(d), 8.04(a)(3). [7]
In addition, Washington has not shown that he submitted to the trial court and the trial court refused any instruction(s) in substantially correct form. “Failure
to submit a definition or instruction shall not be deemed a ground for reversal of
the judgment unless a substantially correct definition or instruction has been
requested in writing and tendered by the party complaining of the judgment.” T EX .
R. C IV . P. 278. And a party must submit an objection to the jury charge in writing
or by dictating the objection to the court reporter before the court reads the charge
to the jury. T EX . R. C IV . P. 272. The failure to comply with these requirements
waives any error. Sears, Roebuck & Co. v. Abell , 157 S.W.3d 886, 891-92
(Tex.App.—El Paso 2005, pet. denied). In this case, there is no record that
Washington (1) submitted substantially correct instructions or (2) made objections
*34 to the court’s charge on the record prior to the reading of the charge to the jury.
Thus, Washington waived his arguments regarding the charge.
Washington’s arguments also hint at a complaint regarding the Commission’s failure to put on expert testimony, but any such complaint is
misplaced. [8] Expert testimony is not required in a disciplinary proceeding against
an attorney because a disciplinary proceeding is “‘not an attorney malpractice case
where the standard of care is at issue. Rather, [it] is a disciplinary proceeding
where the appropriate interpretation of the Rules of Conduct and a factual
determination of whether [the attorney's] conduct met or violated the Rules is at
issue.’” McIntyre , 247 S.W.3d at 447 (citation omitted).
IV. The “cumulative error” doctrine is irrelevant because the jury’s verdict
is based on compelling evidence of Washington’s misconduct rather than on error by the trial court.
The doctrine of cumulative error allows a reviewing court to reverse a judgment when the record shows a number of errors, “‘no one instance being
sufficient to call for a reversal, yet all the instances taken together may do so.’”
University of Tex. at Austin v. Hinton , 822 S.W.2d 197, 205 (Tex.App.—Austin
1991, no writ) (citation omitted). To show cumulative error, the complaining party
must show that the jury would have rendered a favorable verdict for that party but
*35 for the alleged errors. Rhey v. Redic , 408 S.W.3d 440, 462 (Tex.App.—El Paso
2013, no pet.).
In this case, the verdict rests solidly on the evidentiary record. The evidence of Washington’s professional misconduct was compelling. The Commission’s
witnesses testified convincingly that he not only failed to keep them informed
regarding the status of the lawsuit or provide them with their complete file but also
affirmatively misled them. And the documentary evidence left no room for doubt
about his neglect of the case. Washington offered nothing to directly refute the
compelling evidence presented by the Commission. As such, the record soundly
contradicts any notion that the jury would have rendered a verdict favorable to
Washington but for the alleged procedural errors that he has raised on appeal.
V. The trial court did not abuse its broad sanctions discretion.
Washington raises two complaints regarding his sanctions – that the trial
court erred by denying his request for the jury to impose sanctions and that the
sanctions are excessive. Neither complaint has merit.
A. It is well settled that the trial court, not the jury, determines the appropriate sanction(s) for attorney misconduct.
Even in a disciplinary case tried to a jury, “the trial court has broad discretion to determine whether an attorney guilty of professional misconduct
should be reprimanded, suspended, or disbarred.” State Bar of Tex. v. Kilpatrick ,
874 S.W.2d 656, 659 (Tex. 1994); State v. O’Dowd , 312 S.W.2d 217, 221 (Tex.
1958). “What is unmistakenly clear, and highly significant, is that when a
respondent attorney elects a jury trial, the jury may only render a verdict on
whether the attorney has committed acts of misconduct. The jury is not permitted
to determine sanctions.” In re Caballero , 441 S.W.3d 562 (Tex.App.—El Paso
2013, orig. proceeding).
As Washington notes in his brief, the State Bar Act states that the Supreme Court may not adopt a rule abrogating the right to a jury trial in a disbarment
proceeding. T EX . G OV ’ T C ODE A NN . § 81.077(a) (West 2015). The rule that
delegates sanctions authority to the trial court does not conflict with § 81.077(a)
because it does not “abrogate” the right to a jury trial. See T EX . R ULES
D ISCIPLINARY P. R. 3.09 (providing that the trial court determines sanctions if a
jury finds misconduct).
§ 81.077(a) should be construed according to its ordinary meaning, which leads to the inevitable conclusion that it does not conflict with Rule 3.09. Jaster v.
Comet II Constr. , 438 S.W.3d 556, 562-63 (Tex. 2014). To determine a term’s
ordinary meaning, dictionaries are a good starting point. Id. at 563. Black’s Law
Dictionary defines “abrogate” as “[t]o annul, cancel, revoke, repeal, or destroy; . . .
to repeal a former law by legislative act, or by usage.” [9] B LACK ’ S L AW
D ICTIONARY 8 (6 th ed. 1990). Merriam-Webster similarly defines “abrogate” as “to
*37 end or cancel (something) in a formal or official way.” Merriam-Webster Online
Dictionary , http://merriam-webster.com/dictionary/abrogate (last visited Oct. 22,
2015).
Clearly, then, Rule 3.09’s delegation of sanctions authority to the trial court does not “abrogate” a respondent attorney’s right to a jury trial because it does not
annul, cancel, revoke, repeal, or destroy the right. To the contrary, the disciplinary
rules preserve the right to a jury trial regarding the occurrence of professional
misconduct.
Hanners v. State Bar of Tex. , 860 S.W.2d 903 (Tex.App.—Dallas 1993, writ
dism’d), does not support Washington’s position on this issue. It merely provides
that, pursuant to a prior version of the disciplinary rules, a respondent attorney was
entitled to a jury trial as provided for by the common law and the rules of civil
procedure. Id. at 910-11. Importantly, the Hanners court specifically noted that it
“found no provision of the State Bar Rules which disallows a jury under the facts
of this case.” Id. at 911. In the instant case, however, the current disciplinary rules
explicitly delegate sanctions authority to the trial court. See T EX . R ULES
D ISCIPLINARY P. R. 3.09 (providing that the trial court determines sanctions if a
jury finds misconduct).
B. The sanctions in this case are not excessive in light of the seriousness of Washington’s misconduct and the egregious harm to his clients.
Because the trial court has broad discretion to determine the appropriate sanction(s) for attorney misconduct, a reviewing court must determine whether the
trial court acted without reference to guiding rules or principles. Cire v.
Cummings , 134 S.W.3d 835, 838-39 (Tex. 2004); Olsen v. Comm’n for Lawyer
Discipline , 347 S.W.3d 876, 888 (Tex.App.—Dallas 2011, pet. denied). As long
as the record holds some evidence of probative and substantive character to
support the trial court’s action, no abuse of discretion can be shown. Continental
Cas. Co. v. Davilla , 139 S.W.3d 374, 378 (Tex.App.—Fort Worth 2004, pet.
denied).
In determining sanctions for attorney misconduct, the trial court is to consider the factors set forth in Rule 3.10 of the Texas Rules of Disciplinary
Procedure. [10] Kilpatrick , 874 S.W.2d 659; Olsen , 347 S.W.3d 889. However, the
court need not find that every factor set forth in Rule 3.10 is implicated before
imposing even the most severe sanction – disbarment. Olsen , 347 S.W.3d 889.
*39 Moreover, even a single act of misconduct may be sufficient to support severe
sanctions. Kilpatrick , 874 S.W.2d 659; Olsen , 347 S.W.3d 889.
In this case, the sanctions fall well short of disbarment. The trial court actively suspended Washington’s law license for one year, imposed a three-year
probation, and ordered Washington to pay the Commission’s attorneys’ fees as an
ancillary sanction. The nature of the misconduct provides ample justification for
the sanctions.
Washington neglected his clients’ lawsuit to such an extent that it was dismissed for want of prosecution. And his clients remained unaware of the
dismissal for more than two years after the court of appeals affirmed it because
Washington led them to believe that their suit was still pending. In response to
direct questions from his clients regarding the status of the lawsuit, Washington
withheld the truth.
The consequences to Washington’s clients were devastating. Not only did they lose their cause of action, which was potentially worth hundreds of thousands
of dollars, they also suffered a severe emotional blow because of the nature of their
legal problems and Washington’s callous disregard of their interests. Under the
circumstances, the sanctions in this case do not reflect any abuse of discretion.
P RAYER
Because the evidence provides ample support for the judgment and Washington has failed to show reversible error, Appellees respectfully pray that
this Court affirm the judgment of the trial court in all respects.
R ESPECTFULLY S UBMITTED : L INDA A. A CEVEDO C HIEF D ISCIPLINARY C OUNSEL L AURA B AYOUTH P OPPS D EPUTY C OUNSEL FOR A DMINISTRATION C YNTHIA C ANFIELD H AMILTON S ENIOR A PPELLATE C OUNSEL O FFICE OF THE C HIEF D ISCIPLINARY C OUNSEL
P.O. B OX 12487
A USTIN , T EXAS 78711-2487 512.427.1350; 1.877.953.5535 F AX : 512.427.4167 /s/ Cynthia Canfield Hamilton C YNTHIA C ANFIELD H AMILTON S ENIOR A PPELLATE C OUNSEL S TATE B AR OF T EXAS S TATE B AR C ARD N O . 00790419 ATTORNEYS FOR APPELLEE *41 C ERTIFICATE OF C OMPLIANCE
Pursuant to the Texas Rules of Appellate Procedure, the brief of the Commission
for Lawyer Discipline contains approximately 7,749 words, which is less than the
total words permitted by the TRAPs. Counsel relies on the word count of the
computer program used to prepare this brief.
/s/ Cynthia Canfield Hamilton C YNTHIA C ANFIELD H AMILTON S ENIOR A PPELLATE C OUNSEL S TATE B AR OF T EXAS C ERTIFICATE OF S ERVICE
This is to certify that the above and foregoing brief of the Commission for Lawyer
Discipline has been served on Appellant, Mr. Craig A. Washington, by and
through his attorneys of record Mr. Michael A. Stafford, Ms. Katharine D. David,
Ms. Stacy R. Obenhaus, and Mr. John MacVane, Gardere Wynne Sewell LLP,
2000 Wells Fargo Plaza, 1000 Louisiana Street, Houston, Texas 77002, by
electronic service through this Court’s electronic filing service provider on the 23 rd
day of October 2015.
/s/ Cynthia Canfield Hamilton C YNTHIA C ANFIELD H AMILTON S ENIOR A PPELLATE C OUNSEL S TATE B AR OF T EXAS *42 No. 03-15-00083-CV
_______________
In the Court of Appeals
Third District of Texas
Austin, Texas
_______________
C RAIG A. W ASHINGTON ,
A PPELLANT V.
C OMMISSION FOR L AWYER D ISCIPLINE , A PPELLEE _______________
Appealed from the 335th District Court Of Bastrop County, Texas
Honorable George Gallagher, Judge Presiding _______________
A PPENDIX TO B RIEF OF A PPELLEE C OMMISSION FOR L AWYER D ISCIPLINE _______________
L INDA A. A CEVEDO C YNTHIA C ANFIELD H AMILTON
C HIEF D ISCIPLINARY C OUNSEL S ENIOR A PPELLATE C OUNSEL
L AURA B AYOUTH P OPPS O FFICE OF THE C HIEF D ISCIPLINARY
D EPUTY COUNSEL FOR A DMINISTRATION C OUNSEL
P.O. B OX 12487 A USTIN , T EXAS 78711-2487 512.427.1350; 1.877.953.5535 F AX : 512.427.4167 *43 No. 03-15-00083-CV
_______________
In the Court of Appeals
Third District of Texas
Austin, Texas
_______________
C RAIG A. W ASHINGTON ,
A PPELLANT V.
C OMMISSION FOR L AWYER D ISCIPLINE , A PPELLEE _______________
Appealed from the 335th District Court Of Bastrop County, Texas
Honorable George Gallagher, Judge Presiding _______________
A PPENDIX TO B RIEF OF A PPELLEE C OMMISSION FOR L AWYER D ISCIPLINE _______________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellee, the Commission for Lawyer Discipline, submits the following record excerpts in support of its brief:
APPENDIX 1: Opinion of the Eighth Court of Appeals (affirming dismissal of
lawsuit for want of prosecution)
Appendix 1
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-10-00021-CV IN THE INTEREST OF N.T.H. §
Appeal from the §
9th District Court §
of Montgomery County, Texas §
(TC# 06-09-09220-CV) §
O P I N I O N
This is an appeal from an order overruling a motion to reinstate a case after dismissal for want of prosecution. Appellants, Michael LaPaul Gobert and Lance C.L. Black, representing the
interests of N.T.H., a minor child, raise one issue contending that the trial court abused its discretion
by not granting its motion to reinstate. We affirm.
BACKGROUND N.T.H.’s mother owned a tract of land located in Montgomery County, Texas. On August 15, 2005, N.T.H.’s mother conveyed a deed to Appellee, Craig Bush, leaving him her property. In
return, N.T.H.’s mother received no consideration from Appellee for the conveyance.
On September 21, 2006, Appellants filed suit to rescind and cancel the deed, alleging that the deed was void as N.T.H.’s mother was mentally ill at the time of the conveyance and therefore
lacked the mental capacity to “execute, acknowledge and deliver the deed” to Appellee. Appellee
filed a general denial on November 22, 2006. Two-and-a-half years later, on April 22, 2009, the trial
court issued a docket control order. That order set the case for trial for October 5, 2009, and
instructed both parties to: (1) complete discovery 45 days before trial; (2) file an agreement for
mediation stating the name of an agreed mediator and the date of the same, 30 days before trial; (3)
file motions for continuance or settlement 20 days before trial; (4) file a list of exhibits, witnesses
and depositions; and (5) attend a pretrial hearing on October 2, 2009, and file any proposed jury
questions by that date. The docket control order further stated that failure to attend “PRE-TRIAL”
may result in case dismissal. Following the court’s order, Appellants never filed an agreement to
mediate, a motion for continuance or settlement, or a list of exhibits, witnesses or depositions. Nor
does the record reflect that discovery was completed. However, the record does show that
Appellants failed to attend the scheduled pretrial hearing and the trial. Consequently, on October
14, 2009, the trial court ordered the case dismissed for want of prosecution. Subsequently,
Appellants filed a motion to reinstate the case, alleging that counsel’s failure to attend pretrial and
trial was due to his participation in a criminal case on October 2, 2009, and October 5, 2009. The
trial court denied the motion.
DISCUSSION In a single issue, Appellants contend that the trial court abused its discretion by denying their motion to reinstate after dismissal for want of prosecution. Specifically, they contend that counsel’s
failure to appear at the pretrial hearing and later at trial “was not intentional or the result of conscious
indifference because he was in trial on a murder case . . . .” However, in reviewing the entire history
of the case, we discern no abuse of discretion in the trial court’s denial of their motion to reinstate.
Standard of Review We review the trial court’s denial of a motion to reinstate for an abuse of discretion. Herrera
v. Rivera , 281 S.W.3d 1, 8 (Tex. App. – El Paso 2005, no pet.). A trial court abuses its discretion
when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).
To determine whether a denial of a motion to reinstate constitutes an abuse of discretion, we look to whether a party prosecuted its case with due diligence. Herrera , 281 S.W.3d at 8. When
reviewing whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court
may consider the entire history of the case, including the length of time the case was on file, the
extent of activity in the case, whether a trial setting was requested, and the existence of reasonable
excuses for delay. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App. – Houston [14th Dist.]
1993, no pet.).
Analysis In this instance, Appellants argue that counsel’s inability to attend the pretrial hearing and trial was due to a scheduling conflict. Specifically, counsel alleges that he was not able to appear
because he was at jury selection and trial in another court, defending a murder case. Thus,
Appellants conclude that counsel’s failure to appear was neither intentional nor the result of
conscious indifference. See T EX . R. C IV . P. 165a(3) (providing for reinstatement of the case upon
finding “that the failure of the party or his attorney was not intentional or the result of conscious
indifference but was due to an accident or mistake or that the failure has been otherwise reasonably
explained”).
However, in considering the entire history of the case, including, but not limited to, the length of time the case was on file, the extent of activity in the case, whether a trial setting had been
arranged, and whether reasonable excuses for delay existed in order to determine whether
Appellants’ counsel was diligent in prosecuting its case, we note that: (1) this case was originally
filed in September 2006, and had been on file for over three years at the time it was scheduled to go
to trial; (2) there was no dispute that counsel received notice of the pretrial hearing and trial setting;
(3) the docket control order irrefutably stated that failure to attend pretrial may result in dismissal
of the case; and (4) prior to the trial setting, counsel failed to file any pretrial motions within stated
deadlines and failed to provide witness and deposition lists, proposed jury questions, or a list of
discovery exhibits as required by the control order. Appellants provide no explanation for these
omissions. Although they represent that counsel gave a reasonable explanation or excuse for his
failure to appear for the pretrial hearing and trial, the record reflects that no motion for continuance
was timely filed pursuant to the court’s docket control order or that the judge was ever informed of
the scheduling conflict. Appellants have failed to cite, and we have been unable to locate any case
law stating that the trial court abused its discretion by denying Appellants’ motion for reinstatement
under similar circumstances. Based on these facts we cannot conclude Appellants were diligent in
prosecuting the case. After carefully reviewing the entire record, we find no abuse of discretion in
the trial court’s denial of the motion for reinstatement after dismissal for want of prosecution. See
Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App. – El Paso 2007, pet. dism’d w.o.j.) (dismissal upheld
for failure to appear at pretrial); Garcia v. Mireles , 14 S.W.3d 839, 843 (Tex. App. – Amarillo 2000,
no pet.) (dismissal upheld for failure to appear at court-ordered mediation); Shook v. Gilmore &
Tatge Mfg. Co. , 951 S.W.2d 294, 298 (Tex. App. – Waco 1997, writ denied) (dismissal upheld for
failure to appear due to the breakdown of a good calendaring system). Accordingly, Appellants’ sole
issue is overruled.
CONCLUSION
Having overruled Appellants’ issue, we affirm the trial court’s judgment.
GUADALUPE RIVERA, Justice October 6, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
[1] Reprinted in T EX . G OV ’ T C ODE A NN ., tit. 2, subtit. G. app. A (West 2007).
[2] The live disciplinary petition quoted the entirety of Rule 8.04(a)(3), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation (CR 114). But at trial, the Commission pursued a claim that Washington’s conduct involved dishonesty, deceit, or misrepresentation (not fraud). As a result, “fraud” was not submitted to the jury (CR 144).
[3] Notably, Ms. Heath both worked in Washington’s law office at the time of the representation in question and served as co-counsel with Washington on the appeal of the dismissal of his clients’ lawsuit (Pet. Ex. 15; Pet. Ex. 18 (Ex. F)). In fact, Ms. Heath was the person who notified the court that Washington would not be present for trial because of his conflicting setting (Pet. Ex. 18 (Ex. F)). Thus, it is noteworthy that she did not offer more extensive testimony regarding the facts at issue, especially the disputed facts regarding notification of the court.
[4] Upon making his offer of proof regarding the excluded character testimony, Washington’s attorney represented to the trial court that his other character witnesses would provide substantially similar testimony (4 RR 228:14-19). Thus, Washington cannot now argue that the testimony would have been different from Ms. Heath’s testimony. Importantly, at that time he did not offer testimony from witnesses like a United States Congresswoman or a Texas State Senator as his brief implies.
[5] For example, the Commission’s questioning the positions that Washington took to defend himself and, in the process, stating that he “claimed” or “alleged” that his criminal case had precedence cannot fairly be described as a character attack (4 RR 46:22 – 47:2).
[6] Washington complains about the Commission’s use of his deposition to contradict his testimony as an example of how the Commission opened the door to character evidence under TRE 608(a). Appellant’s Br. 25. But Washington likewise used Mr. Gobert’s deposition to contradict his testimony (4 RR 177:3 – 178:17, 185:2 – 186:5), and the Commission obviously could not have offered testimony regarding Mr. Gobert’s character for truthfulness under TRE 608(a). Clearly, then, the mere use of a witness’s inconsistent deposition testimony does not open the door to character evidence.
[7] Washington argues that the charge should have asked about factual issues such as whether Washington informed his clients about the trial setting, dismissal, and motion to reinstate. Appellant’s Br. 43. However, the parties are entitled to have only controlling issues submitted to the jury, and the factual issues identified by Washington are mere evidentiary issues rather than controlling issues. See Collins v. Beste , 840 S.W.2d 788, 790 (Tex.App.—Fort Worth 1992, writ denied) (explaining that a controlling issue is one that requires a factual determination to render judgment in a case).
[8] Washington’s questions during the hearing on his motion for new trial hinted at the same complaint (7 RR 147:1 – 148:8).
[9] Black’s also notes that “abrogation” is distinct from “derogation, which implies the taking away only some part of a law.” B LACK ’ S L AW D ICTIONARY 8 (6 th ed. 1990).
[10] The factors set forth in Rule 3.10 are (1) the nature and degree of the attorney’s misconduct, (2) the seriousness of and circumstances surrounding the misconduct, (3) the loss or damage to clients, (4) the damage to the profession, (5) the assurance that those who seek legal services in the future will be insulated from the type of misconduct found, (6) the profit to the attorney, (7) the avoidance of repetition, (8) the deterrent effect on others, (9) the maintenance of respect for the legal profession, (10) the conduct of the attorney during the course of the disciplinary proceedings, (11) the trial of the case, (12) other relevant evidence concerning the attorney’s personal and professional background, and (13) the attorney’s disciplinary record. T EX . R ULES . D ISCIPLINARY P. R. 3.10.