McCuller C. Stephens, III v. State Bar of Texas

• Court: Court of Appeals of Texas
• Decided: October 8, 2009
• Docket: 01-08-00210-CV
• Status: Published

Opinion

Opinion Issued October 8, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00210-CV

McCULLER C. STEPHENS, III, Appellant

V.

STATE BAR OF TEXAS, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2007-22098

M E M O R A N D U M O P I N I O N

The trial court granted summary judgment for the appellee, the State Bar of Texas ("the Bar"), and dismissed appellant McCuller C. Stephens' petition to reinstate his licence to practice law. In his sole issue, Stephens argues that the grant of summary judgment was improper because he complied with the rules for reinstatement.

We affirm.

Background

The Bar revoked Stephens' license to practice law on April 19, 2001 as a consequence of his felony conviction for witness tampering. On April 12, 2007, Stephens applied to the Bar for reinstatement. The Bar responded on May 23, 2007 with a request for special exceptions, and Stephens answered on the same day, stating that the special exceptions lacked merit. On January 18, 2008, the Bar filed a traditional motion for summary judgment claiming that Stephens failed to follow the procedural requirements for reinstatement. The Bar based its motion on the grounds that: (1) Stephens did not publish notice in the Texas Bar Journal; (2) his work history did not include sufficiently specific dates; and (3) his application for reinstatement included a false statement of material fact because after his disbarment he filed for bankruptcy but in his application he stated that he had not been involved in any civil suits since his disbarment.

On January 22, 2008, four days after the Bar filed its motion for summary judgment, Stephens filed an amended original petition for reinstatement. The amended original petition disclosed Stephens' involvement in a civil suit-his bankruptcy-but maintained that Stephens did not know the specific dates of his contract employment with the individual law firms listed in his work history. Stephens responded to the Bar's motion for summary judgment on February 6, 2007. He asserted that he had filed notice with the Texas Bar Journal indicating his intention to apply for reinstatement, that he remained unaware of the specific dates of employment with the various firms for which he had done contract work, and that the amended original petition for reinstatement, which included disclosure of his bankruptcy, superseded the prior answer and therefore his petition for reinstatement no longer contained a false statement of material fact. ⁽¹⁾ The trial court granted the Bar's motion for summary judgment on March 17, 2008 without specifying a ground. Stephens appeals the trial court's ruling.

Standard of Review

Because summary judgment is a question of law, we review a trial court's summary judgment decision de novo. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standard of review for a traditional summary judgment motion is threefold: (1) the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the reviewing court must take evidence favorable to the nonmovant as true; and (3) must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).

To be considered by the trial court or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). When the movant has produced evidence sufficient to support its motion for summary judgment, the nonmovant is required to produce summary judgment evidence that will dispute, but not necessarily disprove, the movant's evidence. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). Although we assume that the assertions and allegations in the nonmovant's pleadings are true, generally a party's own pleadings are not evidence. See Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).

If a trial court's order granting summary judgment does not specify the basis for the court's ruling, as is the case here, the summary judgment will be affirmed if any of the theories advanced by the movant is meritorious. Amtech Elevator Servs. Co. v. CSFB 1998-P1 Buffalo Speedway Office, 248 S.W.3d 373, 377 (Tex. App.-- Houston [1st Dist.] 2007, no pet.) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

Rules for Reinstatement

Texas Rule of Disciplinary Procedure 11.02 governs the contents of a petition for reinstatement. Tex. R. Disciplinary P. 11.02. Rule 11.02 includes thirteen requirements that the petition must meet; however, the only provisions relevant to this appeal are 11.02(g) and 11.02(i). The former requires the applicant to provide a "listing of the petitioner's occupations from the date of disbarment or resignation, including . . . the dates and duration of all such relationships and employment." Id. at 11.02(g). The latter requires a disclosure of "all civil actions in which the petitioner was a party" since disbarment or resignation. Id. at 11.02(i). Additionally, petitioners seeking reinstatement must publish notice of this intent as a paid classified announcement in the Texas Bar Journal. Id. at 11.04.

Notice

Rule 11.04 requires a petitioner seeking reinstatement into the Bar to publish notice of this intent in the Texas Bar Journal. Tex. R. Disciplinary P. 11.04. The Bar sought summary judgment claiming Stephens never provided such notice. To prevail in a summary judgment, the movant must show that (1) there is no genuine issue of material fact and (2) that it is entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548-49; see Tex. R. Civ. P. 166a(c). All inferences and doubts are resolved in favor of the nonmovant. Nixon, 690 S.W.2d at 548-49.

In its original motion for summary judgment, the Bar asserted that Stephens failed to provide notice to the Texas Bar Journal. The Bar supported this contention with a business records affidavit from the journal's managing editor. The affidavit stated that Stephens had not paid for notice as of January 18, 2008. Business records affidavits are appropriate evidence to support a motion for summary judgment. Tex. R. Civ. P. 166(f).

Once a movant has produced sufficient evidence to support its motion for summary judgment, the nonmovant must produce evidence to dispute that evidence. Casso, 776 S.W.2d at 556. Appellant produced only his own pleadings, which are not evidence. Laidlaw, 904 S.W.2d at 660. Stephens' failure to produce evidence, other than his own pleadings, that he provided notice in the Texas Bar Journal means that he failed to rebut the Bar's arguments that no genuine issue of material fact exists as to whether he provided notice to the Texas Bar Journal.

When a court finds that no genuine issue of material fact exists, it must determine whether the movant should prevail as a matter of law. Nixon, 690 S.W.2d at 548-49; see Tex. R. Civ. P. 166a(c). Rule 11.04 states that "[t]he petitioner . . . shall publish notice [of intention to petition for reinstatement] as a paid classified announcement in the Texas Bar Journal." Tex. R. Disciplinary P. 11.04. The use of the word "shall" imposes an affirmative duty on the petitioner to provide such notice. See Tex. Gov't Code Ann. § 311.016 (Vernon Supp. 2008) (explaining that the use of "shall" creates a duty). Stephens' failure to provide such notice means that the Bar prevails as a matter of law.

Because the order granting summary judgment did not specify a basis for the trial court's ruling and we find one of the grounds supporting the grant of summary judgment meritorious, we need not consider the remaining grounds asserted by Stephens. Amtech Elevator, 248 S.W.3d at 377.

We overrule Stephen's sole issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.

1. The Bar responded to this, and Stephens responded to the Bar's response, but neither side offered any new arguments or evidence.