Curtis v Comm'n for Lawyer Discipline

• Decision Date: 04 May 2000
• Citation: Curtis v Comm'n for Lawyer Discipline, 20 S.W.3d 227 (Tex. App. 2000)
• Parties: <!--20 S.W.3d 227 (Tex.App.-Houston 2000) MARY O. CURTIS, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee NO. 14-99-00749-CV In The Opinion filed
• Court: Texas Court of Appeals

Page 227

20 S.W.3d 227 (Tex.App.-Houston[14th Dist.] 2000)

MARY O. CURTIS, Appellant v COMMISSION FOR LAWYER DISCIPLINE, Appellee

NO. 14-99-00749-CV

In The Fourteenth Court of Appeals

Opinion filed May 4, 2000.

On Appeal from the 133rd District Court Harris County, Texas Trial Court CauseNo. 98-44939

[Copyrighted Material Omitted]Panel consists of Justices Yates, Fowler, and Edelman.(J. Edelman concurs in the result only).

O P I N I O N

Wanda McKee Fowler Justice

The Commission for Lawyer Discipline("Commission") brought this disciplinary action against Mary O. Curtis("Curtis"), alleging violations of multiple provisions of the Texas Disciplinary Rules of Professional Conduct.Following a non-jury trial, the trial court suspended Curtis from the practice of law for one year, six months active and six months probated.On appeal to this Court, Curtis assigns ten interrelated issues for appellate review.She contends that (1)the trial court's judgment is not supported by clear and convincing evidence, (2)the trial court failed to specifically find that she acted in bad faith, (3) the attorney fees she charged were reasonable, (4)she did not practice under a misleading name by identifying herself with a name of a lawyer who was not a member of her firm or that she communicated such misleading name to clients, (5)she did not engage in any misconduct (6) the sanctions imposed against her were improper and an abuse of discretion, (7) the Commission breached its duty to her to provide protection from abuses of power in the disciplinary process, and (8) her trial counsel breached his fiduciary to her.We affirm.

BACKGROUND

Joanne Chadderdon is an attorney licensed in the State of Texas.Chadderdon represented Jan Harrison and Tammy Sonnier in separate sexual harassment suits.Both clients executed contingency fee contracts with Chadderdon.Curtis is also an attorney licensed in the State of Texas.She maintained her office in the same building as Chadderdon.Curtis offered her assistance to Chadderdon in any of her pending cases.Chadderdon agreed to allow Curtis to assist her in the Harrison and Sonnier sexual harassment suits.Chadderdon introduced Curtis to Harrison and Sonnier and obtained their consents to allow Curtis to work on their cases.

Under Chadderdon's supervision, Curtis was to be responsible for drafting pleadings and contacting witnesses.Chadderdon remained solely responsible for all court appearances.Chadderdon and Curtis agreed to equally share expenses related to the two suits and to equally split any recovery.

Unbeknownst to Chadderdon, Curtis subsequently contacted Harrison and Sonnier and had them execute, respectively, a second contingency fee contract which provided for a contingency fee to Curtis and for Harrison to pay an additional $150 per hour to Curtis and for Sonnier to pay an additional $200 per hour to Curtis.According to the record, Curtis told Harrison and Sonnier that the Chadderdon authorized the second contract and that it was common for clients to execute multiple employment contracts.Curtis also told Harrison and Sonnier that Chadderdon was seriously ill and would possibly be unable to perform her duties in their cases.

When Curtis relocated her law practice to another building, she took the files for Harrison and Sonnier.Harrison and Sonnier were then forced to choose between Curtis and Chadderdon whom they wanted to represent them.Following their respective discussions with Chadderdon, during which Chadderdon first learned of the second contracts and the false representations that she was seriously ill, Harrison and Sonnier contacted Curtis and informed her that they no longer desired her to represent them and asked her to return their files to Chadderdon.Curtis returned Sonnier's file, demanded payment of $4,100 from Chadderdon and payment of one-half of any contingency fee ultimately recovered.Likewise, Curtis returned Harrison's file, demanded payment of $23,000 from Chadderdon and payment of one-half of any contingency fee ultimately recovered.

Chadderdon responded by filing a grievance against Curtis with the State Bar of Texas.The Commission for Lawyer Discipline launched an investigation against Curtis and ultimately filed a disciplinary action against her.During her subsequent trial, Curtis's trial counsel and the Commission appeared.Curtis did not.Following the trial, the court entered judgment in favor of the Commission, suspending Curtis from the practice of law for a period of one year based upon multiple violations of the Texas Disciplinary Rules of Professional Conduct.The trial court also ordered Curtis to pay $7,087 to the Commission for attorney fees and $651.95 for court costs.

DISCUSSION

In her first several issues presented for appellate review, Curtis contends that the evidence was legally and factually insufficient to support a finding that she violated any provision of the Texas Disciplinary Rules of Professional Conduct.¹

In reviewing the legal sufficiency of evidence to support a specific finding of fact, we consider all the evidence in the light most favorable to the finding and disregard all contrary evidence and inferences.SeeVickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 258(Tex.App.-Houston[14th Dist.]1999, no pet. h.).We will uphold the finding if there is more than a scintilla of evidence to support it.Seeid.If we determine the evidence is legally sufficient, we must then determine whether it is factually sufficient.Seeid.In doing so, we no longer consider the evidence in the light most favorable to the finding; instead, we consider and weigh all the evidence and set aside the finding only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.Seeid.In so doing, we do not pass on the witnesses' credibility or substitute our judgment for that of the trier of fact.Seeid.

When no findings of fact were filed, as here, the reviewing court implies all necessary findings to support the judgment.SeeWade v. Commission for Lawyer Discipline, 961 S.W.2d 366, 374(Tex.App.-Houston[1st Dist.]1997, no pet.).Implied findings of fact, like the trial court's findings, may be challenged for legal and factual sufficiency.Seeid.The standard of review is the same as that applied to a jury's findings and a trial court's findings of fact.Seeid.;see alsoVickery, 5 S.W.3d at 258.However, where no findings of fact were entered, the trial court's judgment will be affirmed if it can be upheld upon any basis that has support in the record under any theory of law applicable to the case.SeeVickery, 5 S.W.3d at 252.

Credibility of Testimony

In her first issue, Curtis devotes several pages of her brief to arguing that the trial court's judgment was not supported by sufficient evidence because the testimony of Chadderdon was inconsistent and lacked credibility."The trier of fact is the sole judge of the credibility of witnesses and the weight to be given their testimony, and we may not substitute our judgment for that of the trial court in a bench trial [even if]we disagree with the court's findings."Cohn v. Commission for Lawyer Discipline, 979 S.W.2d 694, 696(Tex.App.-Houston[1st Dist.]1998, no pet.);see alsoVickery, 5 S.W.3d at 258.Accordingly, Curtis's argument challenging the trial court's judgment based upon the credibility of a witness is not eligible for appellate review.²Seeid.We overrule issue number one.

Bad Faith

In her second issue, Curtis contends that the trial court's judgment was not supported by sufficient evidence because the court did not "specifically find that [her] actions constituted or were tantamount to 'bad faith.'"As noted above, no findings of fact and conclusions of law were entered by the trial court.Curtis argues that the trial court was obligated to enter findings of fact to support the judgment because she filed a request for findings of fact and conclusions of law.While the record shows that Curtis did file such a request, she did not file a "Notice of Past Due Findings of Fact and Conclusions of Law."SeeTEX. R. CIV. P. 297.³

Texas Rule of Civil Procedure 297 provides, in part, the following:

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk.Such notice shall state the date the original request was filed and the date the findings and conclusions were due.

TEX. R. CIV. P. 297.The failure to file a notice of past due findings of fact waives the right to complain about the trial court's failure to file findings of fact and conclusions of law.SeeLas Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255(Tex.1984).No such notice appears in the record of this case.Although the record shows that Curtis filed a "second" request for findings of fact and conclusions of law eleven days after her first request and nine days before the findings of fact and conclusions of law were even due, it complies with Rule of Civil Procedure 297 in neither form nor substance.See, e.g., State Bar of Texas v. Heard, 603 S.W.2d 829, 833(Tex.1980).Specifically, the document filed by Curtis is not titled "Notice of Past Due Findings of Fact and Conclusions of Law," nor does it state the date the original request was filed and the date the findings and conclusions were due.SeeTEX. R. CIV. P. 297.Curtis's complaint about the trial court's failure to enter findings of fact is therefore waived.SeeLas Vegas Pecan & Cattle Co., 682 S.W.2d at 255.

Curtis also contends in her second through sixth issues presented for review that the evidence was insufficient to...