Barnes v. State Bar of Texas

• Decision Date: 13 October 1994
• Docket Number: No. 13-92-396-CV,13-92-396-CV
• Parties: Carolyn Machalec BARNES, Appellant, v. The STATE BAR OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 102

888 S.W.2d 102

Carolyn Machalec BARNES, Appellant, v. The STATE BAR OF TEXAS, Appellee.

No. 13-92-396-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 13, 1994.

Opinion Granting Rehearing in Part

and Otherwise Denying Rehearing

Nov. 3, 1994.

Carolyn Machalec Barnes, pro se.

James M. McCormack, Gen. Counsel, Dawn Miller and Linda Acevedo, Asst. Gen. Counsels, Austin, for appellee.

Before SEERDEN, C.J., and DORSEY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Carolyn Machalec Barnes, a licensed Texas attorney, appeals from a disciplinary suit brought against her by the State Bar of Texas. Barnes raises four points of error, and the State Bar raises two cross points. We reverse the trial court's judgment and render judgment in favor of appellant.

Since Barnes' points of error concern her conduct in two specific lawsuits, we first discuss the relevant facts of each suit.

The Turley Suit

Barnes practiced law in Victoria. Toni Turley retained Barnes to collect approximately $3,000 in past-due child support which was allegedly owed by her ex-husband, Robert Turley, and to file a motion to increase child support. Barnes, on behalf of Toni Turley, filed a petition against Robert Turley to register a foreign support order and several motions.

Robert Turley retained Lynn Knaupp, an attorney practicing in Victoria, to represent him in the case. Knaupp filed an answer and a "Motion to Modify and Motion for Enforcement of Prior Order." ¹ The Turleys' motions were set for hearing on May 22, 1986.

Knaupp testified that, in order to determine how much child support Robert should pay Toni, she and Barnes agreed to exchange their clients' W-2 forms. On April 29, 1986, Knaupp sent a letter to Barnes, enclosing Robert's W-2 forms and requesting copies of Toni's W-2 forms. Knaupp waited until May 13, 1986 for Toni's W-2 forms. When the W-2 forms did not arrive, Knaupp served Barnes with a notice to take Toni's deposition and a subpoena duces tecum. ² Since the case was scheduled to be heard on May 22nd, Knaupp scheduled the deposition for May 19th. Knaupp testified that she did not have time to send out interrogatories or requests for production because of the May 22nd hearing date. It seemed to her that the fastest way to learn how much money Toni made was to depose her and subpoena the records. Knaupp testified that Barnes called her and was very upset because the deposition was going to interrupt her vacation plans. Knaupp offered to cancel the deposition if Barnes produced Toni's W-2 forms and bank statements before the deposition date. Barnes responded that she could not get these items and that she did not know about the May 22nd hearing.

In response to the deposition notice and subpoena duces tecum, Barnes filed a motion for protective order. ³ Upon hearing the motion on May 19, 1986, the trial court 1) reset the deposition to May 20th, 2) reset the May 22nd hearing to May 29th, and 3) ordered the documents produced. After the hearing, Barnes informed Knaupp that she was not going to produce the documents and that she was going to file suit.

On May 19, 1986, Barnes filed suit against Knaupp and Robert Turley. The suit, styled "Toni U. Turley & C.S. Machalec Barnes v. Robert L. Turley & Lynn Knaupp," alleged, in part, that Robert's motion to modify and motion to enforce were "filed with an illegal and improper motive which was not warranted or authorized." Barnes also alleged that [Knaupp] "proceeded to coerce [Barnes] with threats of Contempt and Sanctions if [Barnes] did not give in to [Knaupp's] demands or appear at the scheduled deposition" and that Knaupp "refused to reschedule the deposition unless [Barnes] would agree to [Knaupp's] exorbitant demands which would have prejudiced [Barnes'] client." Barnes sought actual and exemplary damages and attorney's fees. Due to Barnes' initiation of the Turley suit, Knaupp filed a complaint against her with the State Bar Grievance Committee.

The Lemons Suit

Edwards, Parker, & Brown, Inc., d/b/a South Texas Office Products (South Texas), retained Barnes to file suit against the John Lemons Company, Inc. (Lemons). South Texas alleged that Lemons had sold it defective venetian blinds. John Griffin, an attorney practicing in Victoria, represented Lemons in the suit. Griffin testified that, on August 25, 1986, he noticed South Texas's president for a deposition to take place on October 10, 1986. However, on September 9, 1986, Barnes obtained a trial setting three days after the day Griffin was scheduled to take the deposition. Griffin, realizing that he needed more time between the deposition date and the trial date, filed a motion for continuance. Barnes opposed the motion, and the trial court denied it. Griffin subsequently amended the motion, and the trial court granted him a continuance to file a third-party suit against the supplier of the venetian blinds. On November 25, 1986, Lemons filed a "Third-Party Action" ⁴ against the supplier of the blinds, Mark Window Products.

On August 21, 1987, Barnes filed a Fifth Amended Petition in the Lemons suit. In the petition, Barnes added Griffin as a party defendant. Barnes alleged that Griffin acted without probable cause when he initiated the third-party suit because he did not honestly, reasonably, and in good faith believe that Mark Window Products was guilty of the alleged acts and practices. Barnes further alleged that Griffin acted maliciously because he initiated the third-party suit to receive insurance funds and to harass South Texas and increase its expenses, costs, and attorneys' fees. The suit prompted Griffin to file a complaint against Barnes with the State Bar of Texas.

The Disciplinary Suit

The State Bar alleged in the disciplinary suit that while Carolyn Machalec Barnes represented Toni Turley in the Turley suit, Barnes filed a separate suit on behalf of herself and Toni Turley against Robert Turley and his attorney, Lynn Knaupp. In addition, the State Bar alleged that while Barnes represented Edwards, Parker, & Brown, Inc., d/b/a South Texas Office Products in the Lemons suit, she filed an amended petition which initiated suit against the defendant's attorney, John Griffin.

The disciplinary suit was tried to a jury which found that Barnes knowingly filed the Turley and Lemons suits. ⁵ The trial court found that Barnes' acts and conduct constituted two separate violations of Disciplinary Rule 7-102(A)(2). ⁶ The trial court's judgment provides, in part, as follows:

The Court, based upon the jury's verdict and the law applicable thereto, is of the opinion and so finds that the acts and conduct on the part of the Respondent, as found by the jury in answer to Question Nos. 6 and 18, constitute two (2) separate violations of Disciplinary Rule 7-102(A)(2) of the Code of Professional Responsibility. As to each such act of misconduct, the Court finds that the appropriate discipline is suspension from the practice of law for a period of one (1) year with the last six (6) months of such suspension to be probated, said two (2) one (1) year periods of suspension to run concurrently.

The judgment further required that Barnes seek and obtain psychological counseling and that she be supervised and counseled by a lawyer in good standing during the term of her probation.

Barnes' Points of Error

By her first point of error, Barnes complains that the jury's answers to Special Questions 6 and 18 do not support the judgment against her under Disciplinary Rule 7-102(A)(2). Barnes contends that she was entitled to have the jury determine whether she knowingly violated DR 7-102(A)(2) when she filed the Turley and Lemons suits; i.e., whether she "knowingly advance[d] a claim ... that is unwarranted under existing law" and whether the claim "can be supported by a good faith argument for an extension, modification, or reversal of existing law." Barnes contends that the State Bar did not ask the trial court to submit the essential and controlling elements of DR 7-102(A)(2) to the jury. Therefore, it waived recovery under DR 7-102(A)(2).

We must first consider whether Barnes properly preserved her complaints for appellate review. The State Bar argues that Barnes's objection to Special Question Nos. 6 and 18 recited language from DR 7-102(A)(1), ⁷ not DR 7-102(A)(2), and that her objection was "neither specific nor does it give any explanation as to the objection." ⁸ The State Bar contends that, in order to preserve error, Barnes was required to distinctly point out the matter to which she was objecting and to explain the ground or reason why the matter was erroneous, citing Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex.1986).

In deciding whether a party has preserved error in the jury charge, we need determine only whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992); Morris v. Holt, 714 S.W.2d 311 312 (Tex.1986). TEX.R.CIV.P. 279 permits a party in Barnes' position to preserve error regarding the trial court's failure to submit an issue by making a timely, specific objection or by requesting submission of the issue in substantially correct form. Payne, 838 S.W.2d at 239-241; Morris, 714 S.W.2d at 312.

Barnes requested that the trial court include the following questions in the charge:

Do you find from the preponderance of the evidence that in THE TURLEY LAWSUIT, Carolyn Machalec Barnes, knowingly advanced a claim or defense that is unwarranted under existing law, except that she may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law?

[Instructions omitted]

Do you find from the preponderance of the evidence that in THE LEMONS LAWSUIT, Carolyn Machalec Barnes, knowingly advanced a claim or defense that is unwarranted under existing law, except that she may advance such...