People v. Baptie

796 P.2d 978, 14 Brief Times Rptr. 1170, 1990 Colo. LEXIS 566, 1990 WL 129135
CourtSupreme Court of Colorado
DecidedSeptember 10, 1990
DocketNo. 90SA254
StatusPublished

This text of 796 P.2d 978 (People v. Baptie) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Baptie, 796 P.2d 978, 14 Brief Times Rptr. 1170, 1990 Colo. LEXIS 566, 1990 WL 129135 (Colo. 1990).

Opinion

PER CURIAM.

This is a disciplinary proceeding in which the facts have been stipulated to and where the only issue is the proper sanction to be imposed for the professional misconduct of the respondent, Marion Ray Baptie. The respondent was admitted to practice law before this court on September 30, 1957. He is accordingly subject to the jurisdiction of this court and its Grievance Committee. The Hearing Board of the Grievance Committee recommended that the respondent be suspended for one year and one day. The Hearing Panel, in reviewing the recommendation of the Hearing Board, by a divided vote recommended a three-year suspension. We order that the respondent be suspended for three years and that he pay $147.95 as the costs of these proceedings. We also order that the respondent, as a condition for reinstatement, must pass the professional responsibility examination given by the National Conference of Bar Examiners 1 and must also comply with the requirements of C.R.C.P. 241.21.

I.

The three-count disciplinary complaint charged the respondent with professional misconduct arising out of his representation of John New and Automotive Electronics Corporation (AEC). New is the primary shareholder of AEC and sold an automotive parts distributorship to Roy and Joyce Southerlin. The Southerlins executed a note and deed of trust in the amount of $362,720 to secure the unpaid balance of the purchase price for the distributorship. The Southerlins, after a period of time, defaulted on the note and the respondent, on behalf of New and AEC, filed a foreclosure action on the Southerlins’ residence and a request, pursuant to C.R.C.P. 120, for sale of the property.

On September 20, 1985, a hearing was held on the Rule 120 claim and the court permitted the foreclosure sale to proceed over the objections of the Southerlins. However, the court advised the Southerlins that if they filed an independent civil action setting forth their claim of fraudulent misrepresentation in the initial sale, the court in that action would enter a temporary restraining order staying the foreclosure sale until that litigation was resolved.

On September 27, 1985, the Southerlins filed a civil action alleging fraudulent misrepresentation and a temporary restraining order was entered. Southerlin v. Automotive Electric Corporation and John New, No. 87CV3027 (Jefferson County District Court). On the same day, the respondent signed an acceptance of service of process on behalf of New and AEC. The Southerlins’ attorney by letter granted the respondent until November 12, 1985, to answer the complaint. The respondent did not file an answer and did not notify his clients of the pending fraud case.

On December 2, 1985, based upon a verified motion for entry of default judgment, [980]*980the court granted a default judgment to the Southerlins declaring the note and deed of trust to be void. In June 1986, New hired other counsel to handle the foreclosure action while he was still unaware of the civil action for fraud that had been filed by the Southerlins. The default judgment was discovered by the lawyer that succeeded the respondent. A motion to set aside the default was denied and an appeal was taken.

On December 1, 1988, the court of appeals reversed, vacated, and set aside the default judgment. Southerlin v. Automotive Electronics Corp., 773 P.2d 599, 602 (Colo.App.1988). The court of appeals held that the default judgment was taken without complying with the notice requirements of C.R.C.P. 55. Since the respondent entered an appearance for New and AEC, notice of the motion for the default judgment was required not less than three days prior to the hearing on the motion for default judgment. Id. Southerlins’ counsel provided no notice of his intention to take a default judgment. Accordingly, since compliance with the notice requirements was jurisdictional, the default judgment was vacated and set aside. Id.

Prior to the decision by the court of appeals, New and AEC filed a malpractice action against the respondent. On February 24, 1988, one day before trial was to commence, the respondent stipulated to the entry of judgment for $742,982.25 on the malpractice claim, and judgment was entered for that amount. Three weeks before the stipulation was signed, the respondent, in an effort to avoid responsibility for any judgment in the malpractice case, conveyed his interest in three parcels of real estate to his wife and to another couple on a fourth parcel of real property. Prior to executing the conveyances, he borrowed $92,000 against two of the properties.

After judgment was entered against the respondent, he made every effort to evade service of process and to avoid the execution on the judgment by refusing to disclose his whereabouts or telephone number. On February 23, 1990, the respondent settled the malpractice judgment with New and AEC for $17,000 in cash and conveyed real estate valued at $30,000 to New.

II.

While the malpractice action against the respondent was pending, a complaint was being processed by the Grievance Committee. On December 28, 1988, a copy of the request for investigation with a letter requesting an answer within twenty days was sent to the respondent’s registered business address by certified mail, return receipt requested. On January 6, 1989, the certified mail was returned to the disciplinary counsel’s office marked “unclaimed.” On January 6, 1989, the same materials were sent by certified mail to the forwarding address provided by the postal service, but were also returned unclaimed. On January 12, 1989, the letter and request for investigation was mailed by regular mail to the respondent’s registered business address and that letter was returned marked “refused” on January 31, 1989. The same materials were also sent to the respondent’s home address and were returned marked “return to sender, moved, left no address.” On February 21, 1989, an investigator for the Office of Disciplinary Counsel received a long distance telephone call from the respondent who refused to disclose his address or telephone number or to indicate where he could be contacted.

III.

There are three counts in the disciplinary complaint. The first count relates to the respondent's failure to take any action on behalf of New and AEC in the civil action by the Southerlins for fraud in the sale of the distributorship and the failure of the respondent to advise his client of the existence of the claim for misrepresentation. The foundation for the second count is the respondent’s conduct in attempting to place his property beyond the reach of his creditors. The third count centers on the respondent’s failure to respond or cooperate with the Grievance Committee and to answer the complaint of New and AEC to the Grievance Committee.

[981]*981The respondent concedes that his failure to cooperate with the Grievance Committee and to provide a current address with the supreme court or the Grievance Committee violates C.R.C.P. 241.6. However, he denies that the conduct charged in counts one and two of the complaint constitutes grounds for discipline.

The factual background for the first two counts of the disciplinary complaint was stipulated to and has been set forth in this opinion.

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Related

Southerlin v. Automotive Electronics Corp.
773 P.2d 599 (Colorado Court of Appeals, 1988)
People v. May
745 P.2d 218 (Supreme Court of Colorado, 1987)
People v. Bugg
616 P.2d 133 (Supreme Court of Colorado, 1980)
People v. Gibbons
685 P.2d 168 (Supreme Court of Colorado, 1984)
People v. Chappell
783 P.2d 838 (Supreme Court of Colorado, 1989)
People v. Klein
500 P.2d 1181 (Supreme Court of Colorado, 1972)

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Bluebook (online)
796 P.2d 978, 14 Brief Times Rptr. 1170, 1990 Colo. LEXIS 566, 1990 WL 129135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-baptie-colo-1990.