Hines, Zerrie L. v. Commission for Lawyer Discipline

• Court: Court of Appeals of Texas
• Decided: July 24, 2003
• Docket: 14-02-00344-CV
• Status: Published

Opinion

Motion for Rehearing Overruled and Opinion of June 19, 2003 Withdrawn; Affirmed and Substituted Opinion filed July 24, 2003

Motion for Rehearing Overruled and Opinion of June 19, 2003 Withdrawn; Affirmed and Substituted Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00344-CV

ZERRIE L. HINES, Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

___________________________________________________________

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 01-20963

S U B S T I T U T E D   O P I N I O N

            Appellant’s motion for rehearing is overruled.  We withdraw our opinion of June 19, 2003, and issue this substituted opinion. 

            In two points of error, appellant, Zerrie L. Hines, contends the trial court erred in denying his plea to the jurisdiction because: (1) the Commission for Lawyer Discipline does not have standing to pursue a complaint from a non-client who is a third party to the attorney-client relationship; and (2) the trial court does not have the authority to render a final

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judgment if it lacks subject matter jurisdiction over the controversy.  We affirm and publish this opinion pursuant to Texas Rule of Disciplinary Procedure 6.06.  See Tex. R. Disciplinary P. 6.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon 1998).

Factual Background

            In December of 1998, Hans Keith Broderson, Jr. was convicted of reckless injury to a child.  Broderson v. State, No. 14-99-00413-CR, 2001 WL 619559, *1 (Tex. App.—Houston [14th Dist.] Jun 07, 2001, no pet.) (not designated for publication).  Hines was hired to represent Broderson during the appellate process.  This disciplinary action against Hines ensued from that representation.

            On August 1, 2000, Broderson’s father completed a State Bar of Texas Grievance Form alleging that Hines had never paid the court reporter for copies of transcripts despite having been given the funds to do so by Broderson’s father.  Both Broderson and his father signed the complaint.  On August 7, 2000, the State Bar sent a notice letter to Hines advising him of the complaint and requesting that he respond.  Hines did not do so before the requisite deadline.

            The Commission then instituted a disciplinary action against Hines.  In its “Original Disciplinary Petition,” the Commission averred:

On or about February 11, 1999, HANS KEITH BRODERSON, SR. (hereinafter referred to as “Complainant”) hired Respondent [Hines] to appeal the criminal conviction of Complainant’s son.  Complainant paid Respondent a total amount of Ten Thousand Seven Hundred and No/100 Dollars ($10,700.00), which included the court reporter’s fee for the transcript.  On or about November 19, 1999, and May 8, 2000, Respondent received notice from the court of appeals to pay the court reporter’s fee for the transcript; however, Respondent failed to forward said payment.

During the course of the representation, Complainant repeatedly made requests for information about the status of the case; however, Respondent failed to respond.

            The petition alleged violations of four provisions of the Texas Disciplinary Rules of Professional Conduct, including Rule 1.01(b)(1) (prohibiting lawyers from “neglect[ing] a legal matter entrusted to the lawyer”), 1.03(a) (requiring that a “lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information”), 8.01(b) (prohibiting a lawyer’s knowing failure “to respond to a lawful demand for information” from a disciplinary authority), and 8.04(a)(1) (prohibiting violations of the Texas Disciplinary Rules of Professional Conduct).

            In response to the petition, Hines filed an answer, generally denying the Commission’s allegations.  Prior to the trial on the merits, Hines filed a plea to the jurisdiction alleging that the trial court lacked subject matter jurisdiction to adjudicate the controversy because the Commission lacked standing to bring an action on behalf of a non-client.  The trial court denied Hines’ plea.^[1]  Following the presentation of evidence at the bench trial, both parties entered into an Agreed Judgment of Partially Probated Suspension, which provided for a two year suspension, restitution, and drug testing.

            Hines now challenges the denial of the plea to the jurisdiction.

Standard of Review

            A party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation.  See Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no writ).  Consequently, a party’s consent to a trial

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court’s entry of judgment waives any error in the judgment, except jurisdictional error.  See Chang v. Linh Nguyen, 81 S.W.3d 314, 316 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  Here, Hines alleges jurisdictional error.  Thus, the only issue before this court is whether the trial court had jurisdiction to hear the matter.  See Texas Bd. of Pardons & Paroles v. Feinblatt, 82 S.W.3d 513, 520–21 (Tex. App.—Austin 2002, pet. denied). 

            A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  The purpose of a dilatory plea is not to force the plaintiff to preview his case on the merits, but to establish a reason why the merits of his claims should never be reached.  Id.  Appellate courts review a trial court’s ruling on a plea to the jurisdiction under a de novo standard of review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  Throughout this inquiry, we are mindful that subject matter jurisdiction is never presumed and cannot be waived.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993).  The Texas Supreme Court recently observed:

In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiff’s favor and look to the pleader's intent. When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (citations omitted). 

Analysis

            In his first point of error, Hines argues that the Commission lacked standing to prosecute this disciplinary cause of action because Broderson’s father was never a client.^[2]  In so doing, Hines points to various cases and disciplinary rules which discuss the relationship and obligations of attorneys to non-clients.  See Tex. Disciplinary R. Prof’l Conduct 5.04(c) (“A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”); Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996) (holding that “an attorney retained by a testator or settlor to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust”).  However, we begin by noting that the plaintiff in a disciplinary proceeding is not a client, but rather the Commission for Lawyer Discipline, an arm of the State Bar of Texas.  See Flume v. State Bar of Texas, 974 S.W.2d 55, 58–59 (Tex. App.—San Antonio 1998, no pet.) (noting that attorney disciplinary suit was properly brought in name of State Bar of Texas); see also Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 247 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (indicating that complainant was a witness in a disciplinary proceeding, not a party).  According to section 2.09 of the Texas Rules of Disciplinary Procedure (entitled “Classification of Inquiries and Complaints”), “[e]very written statement, from whatever source, apparently intended to allege Professional Misconduct by a lawyer, shall be promptly forwarded to the Office of the Chief Disciplinary Counsel.”  Tex. R. Disciplinary P. 2.09 (emphasis added).  The Rules of Professional Conduct also provide that a lawyer having knowledge of another lawyer’s violation of the rules must inform the appropriate disciplinary authority of the violation.  Tex. Disciplinary R. Prof’l Conduct 8.03(a).  Thus, contrary to Hines’ contention, these provisions reflect that non-clients may pursue complaints against lawyers who violate the rules of professional conduct.  Indeed, a complaint may even be brought solely in the name of the State Bar.  See Tex. R. Disciplinary P. 2.09 (stating that under certain circumstances an individual or entity initiating a complaint may request that the complaint be made in the name of the State Bar and the identity of the individual or entity remain confidential).  The mere fact that Broderson’s father was not a client does not preclude him from filing a complaint nor does it deprive the trial court of jurisdiction to hear proceedings instituted by the Commission.  Id.

            Nevertheless, Hines contends that the petition does not allege violations of duties to the client, but rather alleged obligations to the client’s father.  Thus, Hines argues that the basis of the complaint is not the dissatisfaction of a client but rather that of the client’s father, and thus, the dissatisfaction of a non-client cannot form the basis of a grievance complaint.  Hines also notes that there are no allegations in the pleadings that Broderson ever directed his father to exercise any control in the pursuit of his criminal appeal or consented to his father entering into the attorney-client relationship as a third party. 

            A lawyer’s violation of the Rules of Professional Conduct does not create any presumption that a legal duty to a client has been breached.  Tex. Disciplinary R. Prof’l Conduct Preamble ¶ 15 (1989).  The rules merely set forth “minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action.”  Id. ¶ 7.  Thus, a disciplinary proceeding is not premised upon the dissatisfaction of a client, but upon the attorney’s misconduct, as defined by the rules.  Any violation of the Rules of Professional Conduct may result in a disciplinary proceeding, not just those rules regarding an attorney’s obligation to his clients.  See id. ¶ 7.  Moreover, as previously established, a non-client’s grievance complaint may form the basis of a disciplinary proceeding. 

            The Rules of Disciplinary Procedure set forth the requirements of a disciplinary petition.  See Tex. R. Disciplinary P. 3.01.  A disciplinary petition must, among other requirements, describe the acts giving rise to the alleged misconduct such that a respondent is sufficiently given “fair notice” of the claims made.  Id.  The petition must also list the specific rules violated.  Id.  There is no requirement that the petition set forth only those violations which may be asserted by, or involving, a client.  As noted, any violation of the rules may serve as a basis for a disciplinary proceeding.  Thus, the fact that the petition does not allege violations of duties to clients does not serve to defeat the court’s jurisdiction to hear the case.

            We also note, Hines did not file any special exceptions to force a clarification by the Commission concerning its petition.  See Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1992, no writ); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (noting that when a party fails to specially except courts should construe the pleadings liberally in favor of the pleader).  Only after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action.  See Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 483 (Tex. App.—Houston [14th Dist.] 1991, no writ).  Therefore, at most, the Commission’s pleadings may have suffered from a deficiency in pleading which could have been clarified by the filing of special exceptions.  As this is a case involving an agreed judgment, the decree cures every pleading defect and all other errors not going to jurisdiction.  See Travelers Ins. Co. v. Williams, 603 S.W.2d 258, 262 (Tex. Civ. App.—Corpus Christi 1980, no pet.).  Accordingly, we overrule Hines’s first point of error.

            In his second point of error, Hines contends that any judgment rendered by a trial court without jurisdiction is void.  Because we find that the trial court did have jurisdiction to entertain the Commission’s claims, we overrule Hines’ second issue.

Conclusion

            For the foregoing reasons, we affirm the judgment of the trial court.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Substituted Opinion filed July 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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            ^[1]  In his Motion for Rehearing, Hines argues that at the “plea to the jurisdiction hearing,” the Commission failed to present any evidence and therefore, we are limited in our review to that evidence presented by Hines.  However, the record does not reflect that a hearing was ever held on his plea.  Instead, prior to the bench trial, the court denied the plea, deciding the issue as a matter of law.  See Ford ex rel. Williams v. City of Lubbock, 76 S.W.3d 795, 798 (Tex. App.—Amarillo 2002, no pet.) (noting that plea to the jurisdiction was properly decided as a matter of law because no disputed fact issues existed concerning jurisdiction).  Where no evidence is presented to the trial court, we look to the pleadings to determine the jurisdictional question.  Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 326 (Tex. App.—Beaumont 2002, no pet.).  Had Hines raised the standing issue for the first time on appeal, if necessary we would review the entire record to determine if any evidence supports standing.  Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). 

            ^[2]  Hines does not specifically address how the Commission lacked standing to pursue discipline against him for knowingly failing to respond to a lawful demand for information from a disciplinary authority, an infraction which itself would violate the prohibition on violations of the Texas Disciplinary Rules of Professional Conduct.