D. Patrick Smitherman v. Commission for Lawyer Discipline

Opinion

ACCEPTED 01-13-00635-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 4/14/2015 12:46:23 PM CHRISTOPHER PRINE CLERK

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS FILED IN HOUSTON, TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS 4/14/2015 12:46:23 PM CHRISTOPHER A. PRINE Clerk No. 01 -13-00635-CV

D. PATRICK SMITHERMAN, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee

On appeal from the I 29th Judicial District Court Of Harris County, Texas Trial Court Cause No. 2010-10256 Specially Appointed Judge Richard A. Beacom Presiding

APPELLANT'S MOTION FOR EN BANC RECONSIDERATION

D. PATRICK SMITHERMAN State Bar No. 24027992 1044 W. 25th Street #E Houston, Texas 77008 Telephone: (832) 712-1842

ProSe

1 TABLE OF CONTENTS PAGE PROCEDURAL IllS TORY ............................ . .......... ... ...... ... . ....... .. ....3 BASES FOR EN BANC RECONSIDERATION ........................................ .3

ISSUES FOR RECONSIDERATION ...................................................... 8 CONCLUSION ................................. ..... . ... .................................... 10 PRAYER .......... . ............ ....... ................................. .... .................. 11 CERTIFICATE OF SERVICE ............................................................ !! CERTIFICATION ................. ......... .... ..... ...... .... ....... ...... .... ........ ..... 11

2 PROCEDRUAL HISTORY

The Panel's Opinion was issued on February 26, 2015. Appellant timely

filed a Motion for Rehearing before the Panel on March 4, 2015. The Appellee did

not file a response to same. The Motion for Rehearing was overruled on March 31,

2015. This Motion for En Bane Reconsideration is timely filed subsequent to the

decision by the Panel to deny the Motion for Rehearing, and according to the

Texas Rules of Appellate Procedure. Appellant requests a ruling on this Motion

for En Bane Reconsideration within the Court's plenary jurisdiction.

BASES FOR EN BANC RECONSIDERATION Extraordinary circumstances require en bane consideration of this case.

Appellant will not re-brief herein the argument Appellant has already made in his

Brief, Reply Brief, and Motion for Rehearing - such argument has already been

made. Rather, Appellant cites those same pleadings and incorporates them herein

in their entirety. Appellant requests reconsideration en bane of every single Issue

that he has argued in this appellate proceeding.

Why do extraordinary circumstances exist such that this case should be

reviewed before the entire Court? There are several reasons, any of one of which

the Appellant respectfully submits should result in the Court granting the en bane

consideration requested herein by Appellant:

3 1) Appellant won a jury Verdict, which the Opinion does not seem to address. In fact, the rather one-sided Opinion reveals that the Panel did not seek to fmd any evidence in support of the Verdict, but rather sought only to support the Final Judgment. As the Final Judgment was based upon a claim and argument that was never made at trial (in fact, the CFLD argued the direct opposite argument to the jury), this sets a rather troubling precedent not just in disciplinary cases but in all civil cases. Appellant submits this justifies en bane reconsideration.

2) The Panel inexplicably refused to address several Issues presented by Appellant it was required to rule upon under the Texas Rules of Appellate Procedure. Appellant used these omissions as bases for his request rehearing, but ultimately to no avail. One of the Issues not addressed in the Opinion - that the Final Judgment was not supported by the pleadings- was the very first Issue briefed by Appellant and one of the Appellant's strongest arguments in favor of reversal. Appellant is at a loss for why the Panel would not address one of his strongest arguments for why the Final Judgment was obviously improper. To not rule upon this Issue as well as the other Issues the Panel did not address suggests the Panel punted in this regard. This has necessitated en bane reconsideration.

3) The Panel used the incorrect standard for reviewing the granting of a JNOV, which was involved in this case (the trial court granted the CFLD's request for a JNOV). Instead, the Panel used the standard for reviewing the denial of a JNOV. As the Opinion shows, the Panel consistently addressed what the evidence purported to "conclusively show" in support of the Final Judgment rather than whether there was any evidence in support of the Verdict. Appellant used this as a basis for rehearing, but to no avail. Appellant believes this be somewhat obvious error, and so respectfully requests en bane reconsideration to address this error.

4) As alluded to above, the Panel refused to address the evidence in support of the Verdict, including the testimony of Mr. Perry and Appellant. The Panel focused exclusively on what evidence it considered to be in support of the Final Judgment. Appellant used this as a basis for rehearing, but ultimately to no avail. This justifies en bane reconsideration.

4 5) The Panel avoided review of the sanction on the grounds that Appellant waived his argument, when clearly Appellant did not. This justifies en bane reconsideration.

6) The Panel's Opinion regarding the judicial admissions made by the CFLD should be reversed. Respectfully, the Panel seemed to make findings on these obvious admissions that were in complete opposite to the law. This justifies en bane reconsideration.

7) Quite notably, the trial court acknowledged during the sanctions hearing that the remaining $276,000 in funds (all of the funds remaining from the Petrosearch settlement that were at issue during the disciplinary hearing) were clearly disputed, which begs the question then as to why the trial court granted the JNOV. Given that the trial court admitted during the sanctions hearing that the entire basis upon which it granted the JNOV during the evidentiary phase meant the trial court should have denied the JNOV justifies en bane reconsideration.

In addition to not addressing - at all - Appellant's Issue that the Final

Judgment did not conform to the pleadings (Point 2, above), the Opinion:

completely ignored Appellant' s argument that the State Bar's own guidelines on

disputed funds state that Appellant's actions were completely ethical and in

accordance with the Rules. Appellant is left to wonder why the Panel sought to

avoid these Issues, especially given a fair treatment of these Issues would lead to

reversal of the Final Judgment.

Moreover, the fact that the trial court acknowledged during the sanctions

hearing that all of the relevant funds were in dispute is particularly deserving of

reconsideration considering that the claim that these funds were not in dispute (less

the $50,000) was the entire foundation of the Rule 1.14(c) violation as alleged by

5 the CFLD, and as such the entire foundation for the granting of the JNOV by the

trial court. Admittedly, the Appellant chose to focus on this admission by the trial

court during the sanctions hearing by way of his Motion for Rehearing in manner

in which he had not during his Brief. But the fact remains, the trial court made a

fmding on the record that completely undermines the granting of the JNOV and

indeed the entire basis of the Final Judgment. The trial court found the funds were

all disputed. This alone justifies reversal. Because the trial court would not

address this argument by way of rehearing, Appellant seeks en bane

reconsideration.

The jury in this case vindicated Appellant, and Appellant intends to honor

that and to reclaim the Verdict that was rightfully awarded to him. With all due

respect to the Panel, it seems as though the Panel did not attempt at all to look for

evidence in support of the Verdict, and unfortunately - perhaps unfairly -

discounted all such evidence in favor of Appellant. The Panel's Opinion makes it

seem as though no Verdict was actually ever awarded to the Appellant, when

clearly one was. Given the seriousness involved in disturbing a jury verdict, and

given the onerous standards that must be met for doing so, Appellant seeks en bane

reconsideration.

Appellant requests that entire Court review this matter under the proper

standard and conduct a fair analysis of the evidence in support of the Verdict as

6 well as the judicial admissions that were clearly made by the CFLD. Should this

occur, the Appellant is confident that the Court will reach the proper result, which

is reversal of the Final Judgment.

Appellant realizes that as a pro se attorney in the disciplinary process, he

was not expected to prevail at a disciplinary trial. However, Appellant did prevail.

The jury evaluated the sole piece of evidence presented by the CFLD - the

testimony of Brad Perry, and found it lacking because, inter alia, Appellant proved

Mr. Perry was not telling the truth on many material issues at trial. Once the jury

decided Mr. Perry was not a credible witness, the case was effectively over. The

record proved this. The legal gymnastics engaged in by the CFLD since that

adverse jury verdict are just so much attempted deflection from this very salient

and incontrovertible fact: Mr. Perry tried to be untruthful on the stand, and

Appellant impeached him for it. That cannot be glossed over.

Appellant, with the utmost respect, requests this Court to give him his

verdict back. Appellant was rightfully awarded it at trial, and has proved during

the appellate process why it was rightfully awarded to him. Reversing the Final

Judgment will go a long way towards re-instilling respect among the Bar in our

disciplinary system.

7 ISSUES FOR RECONSIDERATION Appellant incorporates each and every Issue and argument briefed by him in

the Appellant's Brief, Reply Brief, and Motion for Rehearing, and requests

reconsideration of same. Should the Court not be inclined to review all the Issues,

the Appellant would ask to the Court pay particular attention to the following

issues, any one of which should result in en bane reconsideration of the Court's

Opinion:

Issue 1: The Court's Opinion did not address Appellant's argument that the Final Judgment did not conform to the pleadings, even after this was pointed out in the Appellant's Motion for Rehearing [see Issue 1, pg. 21 of Brief; Issue 1, Motion for Rehearing].

Issue 2: The Court's Opinion did not address Appellant's argument that the State Bar Guidelines on disputed funds support the actions that Appellant took [see Issue 7, pgs. 35-6 of Brief; Issue 7, Motion for Rehearing].

Issue 3: The Court's Opinion applies the incorrect standard for purposes of reviewing the granting of a JNOV [see Issue 6, Motion for Rehearing].

Issue 4: The Court's Opinion did not address Appellant's argument that the alleged rule violation date of October 16, 2008 was a controlling fact that should have been submitted to the jury [see pgs. 6-9, Reply Brief; Issue 4, Motion for Rehearing].

Issue 5: The Court's Opinion did not address Appellant's argument that the CFLD never alleged prior to the JNOV nor offered any evidence at trial that only $50,000 of the funds were in dispute on October 16, 2008, which goes to fair notice [see Issue 2, pgs. 23-26, Brief; Issue 2, Motion for Rehearing].

8 Issue 6: That the Court's Opinion holds that up to 40% of Mr. Perry's recovery was subject to dispute - an argument never advanced by the CFLD - proves Appellant's point that it was unclear how much money was in dispute [see Issue 3, Motion for Rehearing]. Issue 7: The Court's Opinion did not address Appellant's argument that John Ogren did not receive his settlement funds on October 16, 2008. In fact, the Court's Opinion was based in part on its mistaken belief that Mr. Ogren did receive settlement funds on October 16, 2008 [see pgs. 36-7 of Brief; Issue 5, Motion for Rehearing]. Issue 8: The Court erred in affirming the sanction on the grounds that "Smitherman violated Rule 1.14(c) continuously and deliberately for approximately one year" given that no evidence was adduced at trial beyond what occurred in the Fall of 2008 [see Issue 8, Motion for Rehearing] .

Issue 9: The CFLD made a judicial admission in its request for a JNOV - relative to the issue of the sanction - that nothing that occurred after October 16, 2008 bore any relevance to the determination of the sanction. Issue 10: The CFLD did not allege "alternate legal theories" in the Third Amended Disciplinary Petition relative to the alleged violation date of Rule 1.14(c), rather, it made a judicial admission that Appellant's obligation to release funds to Perry arose after Appellant's receipt of the October 22, 2008 letter from Bergner [see Issue 10, Motion for Rehearing].

Issue 11 : The trial court acknowledged during the sanction hearing that the funds at issue - including the $276,000 that at first went undistributed - were all disputed [see pg. 41, Motion for Rehearing]. This begs the question then as to how the trial court could have granted the JNOV.

Issue 12: The statement in the Third Amended Disciplinary Petition that "Since approximately $271,000 was not distributed to Respondent, Bergner's offer to put $50,000 into escrow meant that Respondent should have given approximately $221,000.00

9 to Perry in late October or early November of 2008" was not a legal conclusion [see Issue 11, Motion for Rehearing].

Issue 13: The CFLD's remarks during closing regarding how the Rule violation occurred did not merely state the minimum level of disbursement that might have been acceptable, but rather were quite clearly judicial admissions that could not be denied later in connection with the JNOV [see Issue 12, Motion for Rehearing].

Issue 14: The Court's Opinion did not address Appellant's argument that the CFLD took inconsistent and contradictory positions as to how the Appellant allegedly violated Rule 1.14(c) [see Issue 13, Motion for Rehearing].

CONCLUSION The Appellant requests en bane reconsideration because he believes fairness,

justice, and indeed the Texas Rules of Civil Procedure require that the Court

consider all the evidence and argument Appellant presented at trial and presented

to the Panel. Appellant believes en bane review is required because of the

extraordinary circumstances presented by the Panel's Opinion, including the

Panel's refusal to consider that the trial court acknowledged during the sanctions

hearing that all the funds between Perry and Appellant were in fact disputed. This

was clearly not a mistake on the trial court's part. The trial court reiterated this

finding at the sanctions hearing. Given this acknowledgment and admission, the

JNOV should never have been granted. Indeed this disciplinary case never should

have been brought.

10 PRAYER For the foregoing reasons, Appellant respectfully asks the Court to grant en

bane reconsideration, and ultimately enter an order reversing the Final Judgment,

and for all and further relief to which Appellant may be justly entitled.

D. PATRICK SMITHERMAN 1044 W. 25th STREET HOUSTON, TEXAS 77008 STATE BAR NO. 24027992

/s/ D. Patrick Smitherman

APPELLANT

CERTIFICATE OF SERVICE This is to certify that the above and foregoing response has been served on the CFLD on April14, 2015.

Is/ D. Patrick Smitherman

CERTIFICATION Pursuant to the Texas Rules of Appellate Procedure, the enclosed contains approximately 2,402 words, which is less than the total words permitted by the TRAP. Appellant relies on the word count of the computer program used to prepare this Motion for En Bane Reconsideration.