People v. Belina

765 P.2d 121, 12 Brief Times Rptr. 1776, 1988 Colo. LEXIS 214, 1988 WL 131180
CourtSupreme Court of Colorado
DecidedDecember 12, 1988
DocketNo. 88SA74
StatusPublished
Cited by2 cases

This text of 765 P.2d 121 (People v. Belina) 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. Belina, 765 P.2d 121, 12 Brief Times Rptr. 1776, 1988 Colo. LEXIS 214, 1988 WL 131180 (Colo. 1988).

Opinion

ROVIRA, Justice.

In this attorney discipline case, a hearing panel of the Supreme Court Grievance Committee has recommended that the respondent, David D. Belina, be suspended from the practice of law for a period of one year and one day, and that the cost of these proceedings be assessed against him. We accept the recommendations of the panel.

I.

The respondent was admitted to practice in Colorado in 1972, and is subject to the jurisdiction of this court and its Grievance Committee.

In Case No. GC 86B-46, the respondent was charged by complaint with having neglected a legal matter he undertook for M.A. Huneycutt and his daughter, Kristin Bloom. He was also charged with a conflict of interest arising from his representation of Glendella Webster. In Case No. GC 87B-42, the complaint alleged that the respondent neglected a legal matter and failed to comply with certain court orders. The cases were consolidated and set for hearing on June 9, 1987.

At the commencement of the hearing, the respondent, his attorney, and the deputy disciplinary counsel submitted a stipulation of facts in which the respondent freely and knowingly admitted that his conduct violated C.R.C.P. 241.6, and several sections of the Code of Professional Responsibility. The stipulated facts giving rise to this proceeding encompass three separate acts of misconduct.

A.

In August 1984, the respondent was retained by M.A. Huneycutt to represent him and his daughter, Kristin Bloom, in a case in which they were named defendants. Huneycutt paid the respondent $500 to file an answer for his daughter, and to either file a bankruptcy petition or an answer on his behalf. Respondent advised Huneycutt that he would prepare a bankruptcy petition for him which would stay the proceedings and he would also file an answer on his behalf if he could not complete the bankruptcy petition on time.

[122]*122The respondent failed to file an answer for either Huneycutt or his daughter. In September 1984, a default was entered and in October 1984, a judgment was entered against Huneycutt and Bloom for $9,616.86 actual damages, $50,000 for mental suffering, and $100,000 for exemplary damages.

In November 1984, Huneycutt signed the bankruptcy petition prepared by respondent and it was filed on November 19, 1984. Respondent failed to file schedules with the petition. Therefore, no stay of the civil proceedings was ordered. It was not until May 1985 that respondent filed the appropriate schedules.

On January 24, 1985, Huneycutt’s bank account was garnished. Until that time he was not aware that respondent had failed to file an answer on his or his daughter’s behalf, that a bankruptcy stay had not been issued, and that a judgment had been entered in the civil action. Not being able to contact the respondent, Huneycutt retained other counsel. In subsequent proceedings the default judgment was set aside, but Huneycutt was ordered to pay $850 in costs to the plaintiffs.

B.

On October 1, 1982, Glendella and Mark Webster entered into an agreement to sell their corporation, High Country Motors, Inc., to Richard E. Schoenfeld and Hubert E. Blazina. Respondent represented the Websters and prepared the sales agreement which required the buyers to pay $124,938.91, payable in part by a promissory note for $110,000 secured by a deed of trust on real property owned by each buyer. The note provided for monthly payments of $1,515.25 for ten years, commencing on November 1, 1982. The payments were made for ten months. On September 18, 1983, Mr. Webster died and the buyers stopped making payments.

In 1983, respondent began representing Schoenfeld, Blazina, and High Country Motors. His representation continued into 1985. In May 1984, Mrs. Webster, who by then was physically impaired because of a stroke, consulted with respondent concerning the delinquent payments on the promissory note. Respondent informed Mrs. Webster of his representation of Schoen-feld and Blazina on other matters. Notwithstanding this dual representation, respondent entered into negotiations between Webster, Schoenfeld, and Blazina. As a result of the negotiations, the respondent prepared a second agreement between the parties which was signed in July 1985.

The second agreement incorporated the terms of the first agreement, but deleted the provision for a deed of trust on the buyers’ real property. It also set out High Country Motors’ agreement to forego a bankruptcy action, and provided for a $10,-000 cash payment to Mrs. Webster in consideration of her agreeing to reduce the principal amount of the original promissory note from $110,000 to $20,000.

The second agreement also provided that payment on the promissory note “shall be established by agreement between the parties on or before the 1st day of September, 1984....” However, the new note, also prepared by the respondent, stated that the “parties agree, on or about July 1, 1985, to establish payment schedule ... said payments to commence on or about the 1st of September 1985....”

Webster understood that her payments would begin September 1, 1984. Respondent admits that he acceded to the demands of Schoenfeld and Blazina and changed the date for the commencement of the note payments from 1984 to 1985, without consulting or advising Webster.

Although Webster knew of respondent’s joint representation, she was not advised of the risks and ramifications of multiple representation or the advisability of consulting another attorney.

In June 1985, Webster, having, received no payments on the second promissory note, retained new counsel. She advised respondent of this fact and requested him to forward her file to her new attorney. Respondent sent Webster a letter agreeing to do so and reminded her that she had an outstanding bill for legal services. Webster’s new attorney also requested the file. Respondent contends that he replied to this [123]*123request by letter in September 1985, and agreed to make the file available, but it was not until June 1986 that Webster’s daughter picked up the files from respondent’s office.

Subsequently, Webster’s new attorney filed suit against respondent, Schoenfeld, Blazina, and High Country Motors. A settlement was reached in May 1987, and Webster recovered $20,000 plus interest, costs, and attorney’s fees from Schoenfeld and Blazina, and $7,000 from respondent.

C.

In June 1985, the respondent filed a petition for dissolution of marriage on behalf of Thomas Williams. At a hearing for temporary orders on August 9, 1985, at which Marlene Williams appeared pro se, a stipulation was entered into and respondent was ordered by the court to prepare the temporary orders. Marlene Williams set the case for a final orders hearing. On being advised by the court clerk of the setting, respondent told the clerk that there were unresolved issues in the case. Accordingly, the clerk vacated the hearing and so advised Marlene Williams.

In May 1986, the court sent respondent a notice of its intended dismissal of the matter due to lack of progress. Mrs. Williams did not receive notice. In June 1986, the case was dismissed for failure to prosecute.

Mrs. Williams filed a request for investigation with the Grievance Committee and sent a copy to the court.

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Related

People v. Grossenbach
803 P.2d 961 (Supreme Court of Colorado, 1991)
People v. Belina
782 P.2d 26 (Supreme Court of Colorado, 1989)

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Bluebook (online)
765 P.2d 121, 12 Brief Times Rptr. 1776, 1988 Colo. LEXIS 214, 1988 WL 131180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-belina-colo-1988.