Landerman v. State Bar of Texas

• Decision Date: 05 March 2008
• Docket Number: No. 05-07-00332-CV.,05-07-00332-CV.
• Citation: 247 S.W.3d 426
• Parties: Allen LANDERMAN, Appellant v. STATE BAR OF TEXAS, Appellee.
• Court: Texas Court of Appeals

247 S.W.3d 426

Allen LANDERMAN, Appellant v. STATE BAR OF TEXAS, Appellee.

No. 05-07-00332-CV.

Court of Appeals of Texas, Dallas.

March 5, 2008.

Allen Landerman, Plano, pro se.

Cynthia W. Hamilton, Asst. Disciplinary Counsel State Bar of Texas, Austin, for Appellee.

Before Chief Justice THOMAS and Justices BRIDGES and FITZGERALD.

OPINION

Opinion by Chief Justice THOMAS.

Appellant appeals the trial court's denial of his petition for reinstatement as an attorney licensed to practice law in Texas, challenging in four issues the trial court's findings of fact and conclusions of law and contending in two issues the trial court erred in asking questions of witnesses after the close of evidence and in denying appellant's motion for new trial. We affirm the trial court's judgment.

Background

Appellant was licensed to practice law in Texas in May 1978. In October 1990, appellant was privately reprimanded by the State Bar of Texas (the Bar) for failing to timely respond to a grievance filed against appellant by one of his clients. In December 1990, the Bar publicly reprimanded appellant for failing to timely respond to a grievance filed against appellant by another client. In October 1991, appellant entered into an agreed judgment of suspension with the Bar in which appellant's license to practice law was suspended for thirty days and appellant was placed on probation for three years following the active suspension. The suspension was based on findings appellant neglected the legal matters of four different clients.

In December 1993, appellant was convicted in federal court of being a conspirator in a scheme to commit mail fraud, wire fraud, and money laundering. Appellant essentially agreed to hold fraudulently obtained funds for a client in appellant's attorney trust account until appellant prepared the necessary documents to transfer the funds to another entity. Although appellant was not "completely aware" these were sham transactions, he admittedly learned in April 1991 that his client was engaged in conduct that might violate securities laws or federal criminal laws. Even though appellant advised his client to change his behavior, appellant learned five months later the client's practices were continuing. Appellant continued to represent the client for another year before terminating the relationship. Appellant testified he made a bad choice because he was trying to develop a substantial oil and gas practice.

Appellant was sentenced to 134 months in prison and his license to practice law was suspended by the Bar. In 1994, the Fifth Circuit Court of Appeals reversed appellant's conviction because of trial errors by the federal district court. Appellant was then released from prison, and the Bar reinstated his license to practice law. Due to the death of his trial attorney, appellant was required to obtain new counsel to represent him in a second trial on the criminal charges. Appellant's new counsel reviewed the conspiracy laws with appellant and appellant, for the first time, realized he might have violated those laws. Appellant entered into a plea bargain agreement and, on April 17, 1998, was sentenced to sixty months in prison and a $10,000 fine and, upon release from prison, was placed on supervised release for a period of three years.

When appellant was released from prison, his probation officer told him he needed to resign his license to practice law. On August 22, 2000, the Texas Supreme Court accepted appellant's resignation. Because appellant agreed to assist the federal government in its prosecution of appellant's former client, appellant was discharged from supervised release early.

In 2006, appellant filed a petition seeking reinstatement of his license to practice law. At the hearing on his petition, appellant testified he had worked as a paralegal, a tutor, and a tax preparer since being released from prison. He spends a significant amount of time participating in activities and services at his temple and in volunteering for charitable causes. His past experiences have deepened his faith and he now understands what is required to lead a moral life. He is "older and wiser" and does not believe he will repeat his mistakes. He believes his reinstatement is in the interest of the public because he can make an impact on the legal landscape and is in the interest of the legal profession because he can mentor other lawyers and help them avoid the problems he has encountered. He also believes it is in the interest of justice to afford him a second chance.

Appellant called a number of character witnesses to testify as to his conduct and employment since being released from prison and about his skills as attorney. These witnesses testified appellant was a good, moral man who would not repeat his mistakes. Further, appellant has been active in his temple and in charitable causes since his release from prison. Appellant has strong legal skills and would be competent to assist his clients. Finally, the witnesses were not aware of anything that would make it contrary to the interests of justice, the profession, or the public for appellant to be reinstated.

The trial court denied appellant's petition.

Findings of Fact and Conclusions of Law

In issues one through three and five, appellant challenges the trial court's findings of fact and conclusions of law, arguing (1) the findings of fact are evidentiary and not controlling and, therefore, cannot support the judgment; (2) conclusions of law one through five are incorrect as a matter of law; (3) conclusion six is not legally correct or, alternatively, the evidence is legally and factually insufficient to support the findings of fact; and (4) the successor judge erred by entering the findings of fact and conclusions of law.

A. Filing of Findings of Fact and Conclusions of Law by Successor Judge

We first consider appellant's fifth issue in which he contends the findings of fact and conclusions of law were erroneously entered by the successor judge. The Honorable Nathan White was the sitting judge of the 366th Judicial District Court on December 11, 2006 and heard appellant's petition. Judge White signed the judgment denying appellant's petition on December 20, 2006. Judge White did not run for reelection and his term expired on December 31, 2006.¹ The Honorable Gregory Brewer assumed the trial court bench on January 1, 2007.

On January 5, 2007, appellant filed his request for findings of fact and conclusions of law by mail. Judge Brewer entered findings of fact and conclusions of law on January 12, 2007. Appellant objected to the entry of findings of fact and conclusions of law by Judge Brewer. Although the docket sheet reflects Judge White reviewed and approved the findings of fact and conclusions of law on April 5, 2007, Judge White never entered findings of fact and conclusions of law.² Appellant contends section 30.002(a) of the Texas Civil Practice and Remedies Code required Judge White, rather than Judge Brewer, to enter findings of fact and conclusions of law.³ Assuming, without deciding, that Judge White erred in failing to enter findings of fact and conclusions of law, we conclude any error was harmless.

When properly requested, the trial court has a mandatory duty to file findings of fact. TEX.R. CIV. P. 296, 297; Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 77 (Tex. App.-El Paso 2005, no pet). The purpose of rule 296 is to give a party the right to findings of fact and conclusions of law following a conventional bench trial on the merits. Willms v. Ams. Tire Co., 190 S.W.3d 796, 801 (Tex.App.-Dallas 2006, pet. denied). If the trial court fails to file findings of fact and conclusions of law after a proper request, the failure is presumed harmful unless the record affirmatively shows the complaining party suffered no injury. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Willms, 190 S.W.3d at 801.

Generally, an appellant is presumed harmed if, under the circumstances of the case, he has to guess at the reason the trial court ruled against him. Willms, 190 S.W.3d at 801-02. However, "fact findings are not necessary when the matters in question are not disputed." Barker v. Eckman, 213 S.W.3d 306, 310 (Tex. 2006). Accordingly, "where the facts are undisputed and the only matters presented on appeal are legal issues to be reviewed de novo, the failure to file findings of fact and conclusions of law is harmless error." Rollins v. Am. Exp. Travel Related Servs. Co., 219 S.W.3d 1, 5-6 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

The evidence regarding the circumstances surrounding appellant's conviction, his conduct since the completion of his sentence and his prior disciplinary history was undisputed. Therefore, fact findings were not necessary, Barker, 213 S.W.3d at 310, and any error by Judge White in failing to enter findings of fact and conclusions of law was harmless. We overrule appellant's fifth issue.

B. Findings of Fact

In his first issue, appellant contends the trial court's findings of fact do not support the judgment because the findings are evidentiary in nature and do not reach the ultimate or controlling issues. Because fact findings were not necessary in this case, we need not consider whether the findings reached an ultimate or controlling issue. See Keisling v. Landrum, 218 S.W.3d 737, 743 (Tex.App.-Fort Worth 2007, pet. denied) (court of appeals can "unfind" unnecessary findings of fact). We overrule appellant's first issue.

C. Conclusions of Law

In his second and third issues, appellant challenges the trial court's conclusions of law as being legally incorrect and, alternatively, argues the evidence is legally and factually insufficient to support any facts that would be presumed to support the trial court's conclusion appellant's petition should be denied.

We review a trial court's conclusions of law de novo to determine whether the trial court drew the correct...