Gamez v. State Bar of Texas

• Decision Date: 28 December 1988
• Docket Number: No. 04-88-00367-CV,04-88-00367-CV
• Citation: 765 S.W.2d 827
• Parties: Joe A. GAMEZ, Appellant, v. The STATE BAR OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 827

765 S.W.2d 827

Joe A. GAMEZ, Appellant, v. The STATE BAR OF TEXAS, Appellee.

No. 04-88-00367-CV.

Court of Appeals of Texas,

San Antonio.

Dec. 28, 1988.

Rehearing Denied Feb. 14, 1989.

Joe A. Gamez, San Antonio, for appellant.

Russell A. Friemel, Linda Acevedo, Steven D. Peterson, Office of General Counsel, Attorney General's Office, Austin, for appellee.

BUTTS, Justice.

This is an appeal from a disciplinary proceeding brought by appellant Joe A. Gamez, an attorney, against appellee, the State Bar of Texas. TEX.GOV'T CODE ANN., T.2, Subt. G. App. A, STATE BAR RULES, arts. I-XII (Vernon 1988); see specifically art. X. Trial by jury was had on charges of professional misconduct stemming from representation by Gamez of clients in four separate matters, however, the jury answered favorably to Gamez in one case. The three before this Court are: (1) the divorce of Lillian Farris (formerly Lillian De La Guerra), (2) the divorce of David Reece Brewton, Jr., (3) the bankruptcy

of El Azteca Mexican Food Restaurant, Inc. Based upon the jury's verdict, the trial court found that the acts and conduct of Gamez constituted eleven separate violations of Disciplinary Rules. SUPREME COURT OF TEXAS, STATE BAR RULES, art. X, § 9 (Code of Professional Responsibility) (1988). One of these violations was found in the Farris matter, three in the Brewton matter, and seven in the El Azteca matter. The trial court found the proper discipline for the occurrences of professional misconduct to be suspension for one year from the practice of law, but that a portion of the suspension be probated (with conditions). Appellant brings four points of error.

THE FARRIS DIVORCE

The husband, Karl L. De La Guerra, was petitioner in a divorce action against Lillian, his wife. She was first represented by an attorney who withdrew; then she employed appellant, Joe A. Gamez, attorney, to represent her in the contested action. Tanya McNaughton, attorney, represented the husband. The parties and attorneys conferred at the courthouse on April 1, 1981, reaching an agreement. The agreement was filed in the record to preserve its terms. McNaughton prepared the divorce judgment, and she and her client, the husband petitioner, signed the agreed judgment. McNaughton delivered the judgment to Gamez' office; Lillian signed it that afternoon, making several copies at that time. Gamez' secretary, who is his wife, took the document home that evening and Gamez signed it. The secretary delivered it to McNaughton's office the next day, according to her testimony.

McNaughton testified that she never saw the divorce judgment. She stated that a secretary at her office may have seen it. She stated that shortly after the Farris divorce she closed her law office and took an extended trip to Europe and the Middle East. She never followed up on the divorce decree to see whether it was filed. She stated it was her understanding that Gamez was to enter the divorce judgment.

About two years later Lillian (now remarried) requested a certified copy of the judgment from the district clerk and discovered it had never been signed by the judge and entered of record. She notified the office of Gamez.

From his copy of the earlier judgment in his file, Gamez drew up a new, but identical, judgment. He approved it, and a lawyer associated with McNaughton (who was on vacation) approved it for her. The trial judge signed it and it was filed of record on August 12, 1983. Farris brought the grievance.

Three questions were answered by the jury regarding the Farris grievance in the trial de novo. The jury failed to find that Gamez willfully or intentionally neglected the legal matter that was entrusted to him. The jury failed to find that Gamez intentionally failed to seek the lawful objectives of his client, or to carry out the contract of employment entered into for professional services, or that Gamez prejudiced or damaged Farris during the course of the professional relationship without good cause. In the only other question, Question 1(A), submitted to the jury on the Farris divorce action, it found that Gamez engaged in conduct that was prejudicial to the Courts, to the State Bar of Texas or the complainant.

Since the jury found specifically in another question there was no prejudice to Farris, the State Bar must show the prejudice to be to the Courts or the State Bar of Texas. The judgment in this disciplinary proceeding indicates that the finding reflects a violation of Disciplinary Rule 1-102(A)(5): "A lawyer shall not ... engage in conduct that is prejudicial to the administration of justice." ¹

The first point of error is that the evidence is both legally and factually insufficient to support the jury's verdict in the Farris matter. ² In deciding a "no evidence" This court is required to determine the "no evidence" point first, and if that point is sustained, the disposition of the case must reflect that decision even though a factually insufficient point is also sustained. See Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361 (1960).

point the reviewing court will view the evidence in the most favorable light in support of the verdict, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary to the verdict. The point of error must be sustained if there is a complete absence of, or no more than a scintilla of, evidence to support the verdict. Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980). We sustain the "no evidence" point.

In reviewing factually insufficient evidence points, we examine all the evidence to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). This point is also sustained.

We agree with appellant that it is the usual custom for the petitioner's attorney, under the circumstances presented in this divorce case, to assume the responsibility of obtaining the trial judge's signature and filing the agreed judgment. It is not ordinarily an affirmative duty imposed on the attorney for respondent. However, as soon as Gamez learned of the omission, an affirmative duty arose to cause the judgment to be filed. He did immediately cause the judgment to be entered. Compare State Bar v. O'Dowd, 553 S.W.2d 822, 824 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.) (determining that a lawyer's failure to appear at a contempt hearing after a continuance had earlier been obtained, was not such professional misconduct as to be prejudicial to the administration of justice). We cannot say it has been shown that the failure of Gamez to act until after he learned that the judgment had not been signed and entered was such professional misconduct as to be prejudicial to the administration of justice. Compare Howell v. State, 559 S.W.2d 432 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). We find that the evidence is legally and factually insufficient to support the answer to Question 1(A). Accordingly, the trial court's finding as a matter of law that DR-1-102(A)(5) had been violated cannot stand. That portion of the judgment will be reformed to delete that finding.

THE BREWTON DIVORCE

In his second point of error Gamez maintains the evidence to support the verdict on the Brewton divorce is legally and factually insufficient.

Brewton employed Gamez as his attorney to file a divorce action against his wife, who employed Jerry P. Heltzel as her attorney. The divorce was heard in August 1980. In evidence is a copy of a letter sent to Brewton on December 31, 1980. It recites that "[e]nclosed herein please find a copy of your divorce decree in reference to the above captioned cause." The copy of the decree is a conformed one reflecting that attorneys for both parties signed it, as well as the judge, and further, that it was signed and entered on August 12, 1980.

In evidence there is also a copy of the actual divorce decree that was signed by the judge and entered of record, shown by volume and page numbers of the records. This states that the divorce was heard on August 22, 1980, but was not signed and entered of record until December 21, 1980. The actual signatures of both attorneys appear on the approval lines, as well as the actual signature of the judge. The judgments differ in the following respects:

The two judgments showed different dates of hearing and different dates of the judge's signature. Child support is to be paid to mother of children directly in the non-official judgment, whereas it is to be paid through the child support office in the official one. The judgments showed different dates for when child support began. The major difference is the court order in The attorney for the wife testified that she telephoned him regarding entry of the judgment. He checked the court records and determined no judgment was on file, although a divorce had been granted. The attorney said he contacted Gamez and then discussed the issue of tax exemption for the wife since the child support payments were very low, and they agreed to the terms. Brewton never received a copy of the real divorce decree. When Brewton discovered the tax exemption provision in 1983, he filed a grievance against Gamez.

the actual judgment that the right to claim income tax exemptions upon the children of the marriage is granted to the respondent (wife) as part of the child support award.

In answer to Question Number 1, the jury failed to find that Gamez engaged in conduct that was prejudicial to the Courts, to the State Bar of Texas or Brewton. The jury did find in answer to Question Number 3, that Gamez intentionally failed to seek the lawful objectives of Brewton, to carry out a contract of employment with Brewton for professional services, or that Gamez prejudiced or damaged Brewton during...