Michael W. Williams v. Commission for Lawyer Discipline

• Court: Court of Appeals of Texas
• Decided: July 16, 2009
• Docket: 13-08-00111-CV
• Status: Published

Opinion

NUMBER 13-08-00111-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL W. WILLIAMS, Appellant,

v.

COMMISSION FOR LAWYER DISCIPLINE, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Garza

Appellee, Commission for Lawyer Discipline (the “Commission”), filed disbarment

proceedings against appellant, Michael W. Williams, in district court. After a bench trial,

the court rendered a final judgment of disbarment. Williams appeals this judgment by

three issues. We affirm the judgment of the trial court. I. BACKGROUND

The Commission filed its third amended disciplinary petition on September 13, 2007.

In this petition, the Commission alleged that Williams violated several disciplinary rules in

representing Mary L. Franklin, Robert Corder, and Jean V. Albe.

Regarding Franklin, the Commission stated that Williams represented Franklin in

a debt collection suit on a credit card account and alleged that he: (1) failed to

communicate with Franklin; (2) failed to respond to her reasonable requests for information

pertaining to the case; (3) failed to take any action on Franklin’s behalf; and (4) made a

false statement of material fact to an investigator for the Office of Chief Disciplinary

Counsel. See TEX . DISCIPLINARY R. PROF’L CONDUCT 1.01(b)(1), 8.01(a), 8.04(a)(3),

reprinted in TEX . GOV’T CODE ANN ., tit. 2, subtit. G app A (Vernon 2007) (TEX . STATE BAR

R. art. X, § 9). With respect to the latter, the Commission alleged that Williams

represented to the investigator that he had sent a letter on Franklin’s behalf to Jay A.

Taylor, the attorney for the creditor; however, Williams could not verify the letter’s creation

or existence.

Based on a separate complaint, the Commission further alleged that Williams was

hired by Corder to expunge records in three criminal matters. Corder gave Williams three

checks, each in the amount of $242, for the filing fees associated with each of the criminal

matters. The Commission asserted that Williams: (1) cashed two of the checks and

misplaced the third check; (2) failed to keep the funds paid by Corder separate from his

own funds; (3) failed to communicate with Corder; (4) failed to file any of the requested

expunction actions; and (5) did not return the filing fees to Corder. See id. at R. 1.01(b)(1),

1.14(a), 1.15(d).

Finally, the Commission contended that Williams represented Albe in a case filed

2 against Albe’s insurance company. The Commission argued that Williams failed to: (1)

obtain service of process on the insurance company; (2) prosecute the case; and (3) keep

Albe informed of the status of the case. See id. at R. 1.01(b)(1), 1.03(a). As a result of

Williams’s inaction, Albe’s case was dismissed for want of prosecution and, ultimately,

barred by the statute of limitations.

On October 9, 2007, the trial court conducted a bench trial of the Commission’s

allegations against Williams.1 On November 30, 2007, the trial court entered a judgment

of disbarment and assessed: (1) reasonable attorney’s fees in the amount of $6,460

against Williams; and (2) court costs in the amount of $4,000 for an appeal to this Court

and $2,000 for an appeal to the Texas Supreme Court. On the same day, the trial court

issued findings of fact and conclusions of law.2

Williams filed a pro se motion for new trial on December 28, 2007. The motion was

overruled by operation of law. See TEX . R. CIV. P. 329b(c). Williams filed a pro se notice

of appeal on February 19, 2008.

II. ANALYSIS

In his first two issues, Williams challenges the sufficiency of the evidence supporting

the trial court’s judgment of disbarment. Specifically, Williams argues that the trial court’s

findings that: (1) he never mailed a letter to Taylor on behalf of Franklin; and (2) he failed

to hold Corder’s funds in a trust or escrow account separate from his own funds are not

supported by competent evidence. In his third issue, Williams asserts that the trial court

erred by considering the Franklin and Corder complaints, which Williams contends are not

1 W illiam s did not file a reporter’s record of the trial court proceedings for our review; however, W illiam s did file the clerk’s record.

2 In its findings of fact, the trial court noted that W illiam s “has an extensive disciplinary history including num erous findings of professional m isconduct.”

3 supported by legally and factually sufficient evidence, in determining the proper sanction

to impose. The Commission counters by arguing that, because Williams’s arguments on

appeal depend on the review of the evidence presented at trial, and because Williams

failed to have a reporter’s record filed, his issues should be overruled. We agree.

Williams was responsible for making arrangements to pay for the preparation of the

reporter’s record. See TEX . R. APP. P. 35.3(b)(3), 37.3(c)(2). Williams has neither paid the

reporter’s fee, made satisfactory arrangements with the reporter to pay the fee, nor

established entitlement to appeal without paying the fee.3 See id. at R. 20.1, 35.3(b)(3),

37.3(c)(2). This Court notified Williams of this deficiency on November 3, 2008, and

afforded him a reasonable opportunity to cure it, but he has failed to do so. On February

27, 2009, this Court informed Williams that it would proceed in this matter without the

reporter’s record.

In challenging the sufficiency of the evidence supporting a judgment, at least a

partial reporter’s record is necessary. See TEX . R. APP. P. 34.6(c)(4); Hiroms v. Scheffey,

76 S.W.3d 486, 489 (Tex. App.–Houston [14th Dist.] 2002, no pet.) (holding that appellant

has the burden to present to the appellate court a record that shows the error about which

appellant complains); see also Gardner v. Comm’n for Lawyer Discipline, No. 03-97-00275-

CV, 1998 Tex. App. LEXIS 2094, at *7 (Tex. App.–Austin Apr. 9, 1998, no pet.) (not

designated for publication). When a reporter’s record is necessary for an appeal but is not

filed through the fault of appellant, the appellate court must presume that the evidence

supports the trial court’s judgment. Travelers Indem. Co. v. Starkey, 157 S.W.3d 899, 905

(Tex. App.–Dallas 2005, pet. denied). Moreover, after a bench trial, a trial court’s findings

3 The record does not reflect that W illiam s established indigence within the context of rule 20.1 of the appellate rules. See T EX . R. A PP . P. 20.1.

4 of fact are conclusive unless the appellate court has a complete reporter’s record. Catalina

v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re J.C., 250 S.W.3d 486, 489 (Tex.

App.–Fort Worth 2008, pet. denied).

We cannot review Williams’s first two issues pertaining to the Franklin and Corder

complaints on the scant record—one clerk’s record with no volumes of trial exhibits or

testimony—he caused to be filed in this Court. See TEX . R. APP. P. 34.6(c)(4), 37.3(c);4 In

re Spiegel, 6 S.W.3d 643, 646 (Tex. App.–Amarillo 1999, no pet.) (“Simply put, if the

reporter’s record is absent because the appellant did not satisfy rule 35.3(b), we will not

only continue to presume that the missing record supports the trial court’s determination

but also forego reviewing the dispute as authorized under appellate rule 37.3(c).”); see also

Douglass v. Torrez, No. 2-08-189-CV, 2009 Tex. App. LEXIS 3035, at *4 (Tex. App.–Fort

Worth Apr. 30, 2009, no pet.) (mem. op.). Therefore, the trial court’s findings of fact are

conclusive and support the judgment of disbarment. See Catalina, 881 S.W.2d at 297; In

re J.C., 250 S.W.3d at 489; see also Starkey, 157 S.W.3d at 905. Accordingly, we

overrule Williams’s first two issues.

Furthermore, Williams’s third issue is premised on an assumption that the trial

4 Rule 37.3(c) of the rules of appellate procedure provides:

If No Reporter’s Record Filed Due to Appellant’s Fault. Under the following circum stances, and if the clerk’s record has been filed, the appellate court m ay— after first giving the appellant notice and a reasonable opportunity to cure— consider and decide those issues or points that do not require a reporter’s record for a decision. The court m ay do this if no reporter’s record has been filed because:

(1) the appellant failed to request a reporter’s record; or

(2)(A) appellant failed to pay or m ake arrangem ents to pay the reporter’s fee to prepare the reporter’s record; and

(B) the appellant is not entitled to proceed without paym ent of costs.

Id. at R. 37.3(c).

5 court’s findings with respect to the Franklin and Conder complaints were erroneous.5

Moreover, in arguing his third issue, Williams has not cited to any evidence in the record

supporting his contentions. See TEX . R. APP. P. 38.1(i). Because we cannot review the

sufficiency of the evidence pertaining to the Franklin and Conder complaints based on the

record before us, and because Williams has not cited to evidence in the record supporting

his contentions, we conclude that Williams’s third issue was waived. See id.; see also

Dolenz v. State Bar of Tex., 72 S.W.3d 385, 388 (Tex. App.–Dallas 2001, no pet.)

(concluding, in a disciplinary proceeding, that a failure to cite to any record references

waives an issue on appeal). Accordingly, we overrule Williams’s third issue.

IV. CONCLUSION

We affirm the judgment of the trial court.

________________________ DORI CONTRERAS GARZA, Justice

Memorandum Opinion delivered and filed this the 16th day of July, 2009.

5 As part of his third issue, W illiam s references the Albe com plaint and adm its to the Com m ission’s allegations; however, he argues, in a conclusory fashion, that his transgressions in the Albe case should not result in his disbarm ent. Regardless, W illiam s’s adm ission, in and of itself, would likely be enough to support disbarm ent because the trial court has broad discretion to determ ine whether an attorney guilty of professional m isconduct should be reprim anded, suspended, or disbarred and W illiam s has an extensive disciplinary history. See T EX . D ISC IPLIN AR Y R. P R O F ’L C O N D U C T 3.10, reprinted in T EX . G O V ’T C OD E A N N ., tit. 2, subtit. G app A (Vernon 2007) (T EX . S TATE B AR R. art. X, § 9) (providing that in determ ining the appropriate sanction for attorney m isconduct, a trial court m ust consider the nature and degree of the professional m isconduct, the seriousness of and circum stances surrounding the m isconduct, the loss or dam age to clients, the dam age to the profession, the assurance that those who seek legal services in the future will be insulated from the type of m isconduct found, the profit to the attorney, the avoidance of repetition, the deterrent effect on others, the m aintenance of respect for the legal profession, the trial of the case, and other relevant evidence concerning the attorney’s personal and professional background); State Bar of Tex. v. Kilpatrick, 874 S.W .2d 656, 659 (Tex. 1994) (holding that disbarm ent can be an appropriate sanction even for a single act of m isconduct); see also Favaloro v. Comm’n for Lawyer Discipline, 13 S.W .3d 831, 840-41 (Tex. App.–Dallas 2000, no pet.); Butler v. Comm’n for Lawyer Discipline, 928 S.W .2d 659, 666 (Tex. App.–Corpus Christi 1996, no writ).