Hoover v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., E2011–02458–SC–R3–BP.

• Decision Date: 16 November 2012
• Docket Number: No. E2011–02458–SC–R3–BP.,E2011–02458–SC–R3–BP.
• Citation: 395 S.W.3d 95
• Parties: M. Josiah HOOVER, III v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee.
• Court: Tennessee Supreme Court

395 S.W.3d 95

M. Josiah HOOVER, III

v.BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee.

No. E2011–02458–SC–R3–BP.

Supreme Court of Tennessee,

at Knoxville.

Sept. 5, 2012 Session.

Nov. 16, 2012.

M. Josiah Hoover, III, Knoxville, Tennessee, pro se.

Sandy Garrett, Senior Litigation Counsel, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

OPINION

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, C.J.

This is an appeal from a judgment affirming the disbarment of an attorney. After considering evidence presented incident to five complaints against the attorney, a hearing panel designated by the Board of Professional Responsibility concluded that disbarment was warranted. On appeal, the trial court affirmed. In this appeal, the attorney has raised the following issues for review: (1) whether the panel erred by denying his motion to continue the hearing; (2) whether the panel erred by considering the attorney's conduct in a case based upon a complaint by another attorney who had no involvement in the case; (3) whether the evidence supports the panel's findings; (4) whether disbarment is an appropriate punishment; and (5) whether the trial court erred by denying the attorney's post-judgment motion to supplement the record. We affirm the judgment.

I. Facts and Procedural Background

On July 22, 2010, the Board of Professional Responsibility (“BPR”) filed a petition for discipline against M. Josiah Hoover, III, who has been licensed to practice law in this state since 1981. The petition contained allegations of five instances of misconduct by the following complainants: Norman Whitton, Ronald and Deborah Titus, and Wayne LeQuire, all of whom were former clients of Hoover, and attorney Roy Neuenschwander. After Hoover responded to the petition, a hearing panel (“Panel”) scheduled the matter to be heard on December 8, 2010.

Two days before the hearing, Hoover filed a motion to continue, contending that both he and the BPR had served discovery requests less than thirty days prior to the hearing and that the time for responses would not expire until after the hearing date. Because the BPR had subpoenaed several witnesses and was prepared to proceed without responses to its discovery requests, it opposed the motion. The Panel denied the request for a continuance and proceeded with the hearing as scheduled.¹ During the hearing the parties adduced the following evidence concerning the complaints against Hoover.

According to Hoover's testimony and court records presented by the BPR, the first complainant, Norman Whitton, hired him in January of 2007 to file a proof of claim in the bankruptcy proceeding of a judgment debtor. Whitton paid Hoover $1000 for his representation, and Hoover, without ascertaining the status of the bankruptcy beforehand, filed a proof of claim. Afterward, Whitton discovered that the debtor had been discharged from bankruptcy a month before the claim was filed. When he informed Hoover of the discharge and asked for a refund of the advance fee, Hoover refused to return the $1000. Proceeding pro se, Whitton filed suit against Hoover in the General Sessions Court for Loudon County, alleging legal malpractice and breach of contract. He obtained a $1000 judgment. When Hoover appealed, the circuit court affirmed the judgment, finding that the contract was unconscionable. On further appeal, the Court of Appeals concluded that the contract did not qualify as unconscionableand modified the judgment to $500. Whitton v. Hoover, 313 S.W.3d 262, 265 (Tenn.Ct.App.2009). On December 7, 2010, one day prior to the hearing before the Panel, Hoover paid $100 of the $500 judgment. As of the date of the hearing, the balance remained unpaid.

Ronald and Deborah Titus employed Hoover to file a suit for breach of warranty in the Circuit Court for Blount County. Hoover admitted that when the court granted summary judgment denying recovery, he filed a notice of appeal but failed to follow up with a timely brief. On January 11, 2008, the Court of Appeals ordered Hoover to either file a brief within ten days or show cause why the appeal should not be dismissed. Upon request, the Court of Appeals granted Hoover an extension of time for filing until February 25, 2008. Ten days before the due date, Hoover wrote a letter to the Tituses, informing them that he would “have the brief written on or before February 28, 2008.” Hoover did not file the required appellate brief until February 29, 2008, at which time he also filed a motion asking the Court of Appeals to accept a late transcript submitted contemporaneously with the brief. On March 12, 2008, the Court of Appeals denied the motion and dismissed the appeal for failure to file a timely brief and failure to comply with the previous orders. Hoover filed a petition for rehearing on April 14, 2008, which was denied as untimely. Deborah Titus testified that she and her husband, who had paid Hoover over $13,000 in attorney's fees, learned from the Appellate Court Clerk's Office rather than Hoover that their appeal had been dismissed.

Wayne LeQuire testified that he retained Hoover in September of 2008 to represent him in a divorce. LeQuire's wife had initiated the proceedings. Because Hoover emphasized that an answer to the divorce complaint had to be filed by Monday, September 15, 2008, he informed LeQuire that he would be required to arrange a consultation over the weekend before the deadline, for which he “was going to charge ... a little extra.” LeQuire met with Hoover over that weekend and paid him $3500; however, when he attempted to contact Hoover by telephone on September 15th, he was unsuccessful. Although Hoover had assured LeQuire that he would file his answer on September 15th, he did not do so until two days later.

Following the filing of the answer, Hoover scheduled a discovery deposition of LeQuire's wife and arranged for a meeting with LeQuire in order to properly prepare. LeQuire averred that despite repeated attempts, he was unable to make contact with Hoover until the day before the scheduled deposition. At that time, Hoover told LeQuire to meet him on the following morning. When LeQuire telephoned Hoover the next morning, he was again unable to make contact. Hoover returned the call at approximately 10:30 a.m. and instructed LeQuire to meet him at noon—one hour before the 1:00 p.m. deposition—in the parking lot of the building where the deposition was to be taken. LeQuire arrived at the appropriate time. Hoover did not arrive until approximately 1:20 p.m. Because Hoover had nothing but a pen and notepad, LeQuire was required to provide Hoover with materials he kept in his own case file.

Because of the lack of preparation, LeQuire informed Hoover that he was uncomfortable with going forward with the deposition at that time. Hoover, however, persuaded him to proceed. In consequence, the deposition went “as bad as one can possibly go,” according to LeQuire, who claimed that Hoover posed a number of questions that did not make sense in the context of the case. Eventually, LeQuire, who perceived that he had been “backed into a corner,” requested a recess, presented a settlement offer directly to opposing counsel in excess of what he had initially planned, and settled the case.

Attorney Roy Neuenschwander complained about the conduct of Hoover in Edwards v. Powers, No. 2:00–0775, 2003 WL 25674812 (S.D.W.Va. June 5, 2003) and in Hoover v. Disney, No. L–16572 (Cir.Ct. May 26, 2010). Hoover brought the Edwards case in the United States District Court for the Southern District of West Virginia, asserting claims for injuries suffered by a deceased prisoner and on behalf of his surviving spouse as a result of civil rights violations. In an order issued on June 5, 2003, the district court enumerated twelve instances of misconduct by Hoover as a result of his failure to comply with court orders, various provisions of the Federal Rules of Civil Procedure, and the local rules of the district. Edwards, 2003 WL 25674812, at *1–3. Among other things, the district court found that Hoover had neglected to make several required discovery disclosures, had failed to comply with multiple scheduling deadlines, had repeatedly filed untimely responses, and had filed a “frivolous and vexatious” motion for sanctions against opposing counsel. In addition, after being cautioned that any further violation of a court order would result in sanctions or criminal contempt, Hoover violated an order requiring him to provide opposing counsel certain documents by a specified time. Id. The district court further made the following observation:

The court repeatedly has warned [Hoover] that he would be personally sanctioned if he continued to fail to comply with the discovery requests and orders of this court. Accordingly, the court FINDS that it has given [Hoover] more than sufficient notice of his alleged misconduct and the consequences of that misconduct. As stated in the show cause hearing, the court FINDS that Hoover has repeatedly violated the orders of this court, the local rules, and the Federal Rules of Civil Procedure. Although Mr. Hoover proffers that he did not “ intend to hinder or delay” litigation and that he has “done the best [he] could” in this complex case, the court FINDS that these excuses are not credible and that Mr. Hoover's numerous violations of the rules were in fact made in bad faith and with the intent to delay.

Id. at *4.

Based on these findings, the district court imposed a monetary sanction in the amount of $12,649.58, as reasonable attorney's fees incurred by the opposing party as a result of Hoover's improper conduct. Id. Noting the “flagrant” nature of the conduct, the district court also ordered that Hoover be fined $1000 per week for every week after the payment deadline, if the...