Minnick v. State Bar of Texas, 3-89-151-CV
Decision Date | 16 May 1990 |
Docket Number | No. 3-89-151-CV,3-89-151-CV |
Citation | 790 S.W.2d 87 |
Parties | Ronnie H. MINNICK, Appellant, v. STATE BAR OF TEXAS, Appellee. |
Court | Texas Court of Appeals |
Arthur Mitchell, Bastrop (on appeal only), for appellant.
Linda A. Acevedo, Office of the Gen. Counsel, State Bar of Texas, Austin, for appellee.
Before POWERS, GAMMAGE and JONES, JJ.
Ronnie H. Minnick, defendant below, appeals from a judgment disbarring him and permanently enjoining him from practicing law in Texas. Appellee is the State Bar of Texas (State Bar). The issues raised by Minnick on appeal are: whether he was accorded due process in conjunction with grievance committee proceedings; whether an attorney can be disbarred for acts of misconduct not committed in the course of practicing law, and if so, whether a showing of an inability to represent clients is required; and whether, under the circumstances of this case, the trial court abused its discretion in ordering disbarment. We will affirm the trial court's judgment.
In December 1988 the State Bar brought suit against Minnick, seeking to discipline him for various acts of alleged professional misconduct. These acts related to conduct engaged in by Minnick in his capacity as president of First National Mortgage Company (First National), and involved alleged misappropriations of trust funds and misrepresentations as to the true application of those funds.
Accompanying the citation served on Minnick on January 10, 1989, were a set of interrogatories and a request for production of documents. As required by Rules 167(2) and 168(4) of the Texas Rules of Civil Procedure, both discovery requests gave Minnick fifty days from the date of service to respond. The request for production sought documents relating to three separate real estate transactions in which it was alleged that Minnick had misapplied escrow funds and then misrepresented the application of the funds; the request also sought documents relating to a specified escrow account at Allied Bank North Austin through which First National had settled the three real estate transactions in question. The interrogatories sought detailed information about Minnick, First National, and Minnick's activities as First National's agent.
Although Minnick filed a timely answer to the State Bar's suit, he failed to respond to either discovery request. On March 8 the State Bar filed a motion for sanctions and scheduled a hearing on the motion for March 24. On March 23, the day before the scheduled hearing, Minnick filed an amended answer, answers to interrogatories, and a response to the request for production of documents. The response to the request for production was an unsigned instrument that simply stated: "Be advised that Ronnie H. Minnick is not in possession, custody or control of any documentation whatsoever; and that all such records are in possession of Lane & Gorman, Certified Public Accountants, Dallas, Texas; and a Kenneth L. Kendrick, Capital Bank, Dallas, Texas." In addition, several of the answers to interrogatories were incomplete, some reciting that further information would be provided "upon receipt of applicable accounting records from Kenneth L. Kendrick."
The State Bar proceeded with the scheduled hearing on March 24; Minnick appeared in person. Following the hearing, the trial court ordered that, no later than April 20, 1989, Minnick provide the State Bar with
full and complete answers to Petitioner's First Set of Interrogatories, and ... all documents which are specified and requested in Petitioner's First Request for Production of Documents. Failing full and timely compliance with the provisions of this paragraph, Respondent's answer and any other pleadings shall be stricken, and judgment by default entered against Respondent.
Minnick did not file or serve on the State Bar any further response to the discovery requests. Accordingly, on May 4, 1989, the State Bar filed a "Motion for Sanctions and for Judgment." A hearing on the motion was held on May 18. The trial court then signed an order decreeing that "the First Amended Answer and all other pleadings filed by Respondent Ronnie H. Minnick in this cause be stricken in its entirety, and that judgment by default be entered against Respondent."
At the State Bar's request, and pursuant to procedures set forth in the Rules Governing the State Bar of Texas, the trial court conducted, on June 6 and 7, 1989, a separate evidentiary hearing on the "appropriate measure of discipline" for Minnick. See Supreme Court of Texas, Rules Governing the State Bar of Texas art. 10, § 23(B) (1988) [hereinafter State Bar Rules]. 1 On June 7, following the hearing, the trial court signed a judgment disbarring Minnick as of July 7, 1989, and permanently enjoining him from practicing law in Texas after that date. Minnick did not file a motion for new trial or other post-judgment motion.
In his first point of error, Minnick asserts that he was denied due process of law in the administrative proceedings because he was not granted a hearing or otherwise permitted to defend himself before the local grievance committee. We will overrule this point on two independent grounds. First, by this appeal, Minnick challenges only the judgment of disbarment; he does not challenge the trial court's order striking his pleadings and directing that a default judgment be entered against him. Accordingly, he stands before this Court, as he did before the trial court, as if he had never filed an answer to the State Bar's suit. See Fiduciary Mortgage Co. v. City Nat'l Bank, 762 S.W.2d 196, 200 (Tex.App.1988, writ denied); Assicurazioni Generali, S.p.A. v. Milsap, 760 S.W.2d 314, 317 (Tex.App.1988, writ denied); see also Sutton v. State Bar of Texas, 750 S.W.2d 853 (Tex.App.1988, writ ref'd n.r.e.) (upholding the application of Tex.R.Civ.P. 215(2)(b)(5) to disbarment proceedings). Thus, even though Minnick's First Amended Answer expressly alleged a violation of his due process rights, the striking of his pleadings effectively wiped out that allegation.
Virtually any right, including a constitutional right, may be waived if not timely pleaded or otherwise properly presented to the trial court. See Texaco, Inc. v. Pennzoil, Inc. 729 S.W.2d 768, 856-58 (Tex.App.1987, writ denied), cert. dism'd, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). In the absence of any pleading or other showing that he raised the issue of the alleged violation of his due process rights in the trial court and obtained a ruling thereon, Minnick must be considered to have waived any such complaint. See Tex.R.App.P. 52(a).
Second, even if Minnick could raise his due process complaint in this appeal, it is without merit. On October 29, 1986, the chairman of the local grievance committee sent Minnick a letter informing him that a formal complaint had been filed against him by "A.J. Waight, Jr. of Security Title Company, Austin, Texas," and inviting Minnick to respond. On November 6, 1986, Minnick did respond, by a letter in which he admitted that as a result of financial problems relating to the business of First National, "a material descrepency [sic] does exist and steps are being taken to rectify the situation." Minnick's letter did not, however, request a hearing before the local grievance committee. Indeed, there is no indication that a hearing was ever held. The record reflects only that more than two years later, on December 29, 1988, the State Bar filed the present suit in the district court of Travis County. It is primarily the failure to conduct a hearing at which Minnick could present evidence in his defense (or the failure to notify him of any hearing that was in fact held) that Minnick asserts was a denial of his due process rights. We disagree.
Minnick directs us to certain portions of the State Bar Rules that arguably require a grievance committee to conduct a hearing before taking any action against an attorney. See State Bar Rules art. 10, § 14(A); see also Gamez v. State Bar of Texas, 765 S.W.2d 827, 832-33 (Tex.App.1988, writ denied). Other provisions appear to make a hearing optional, at least in the absence of a specific request from the accused attorney. See State Bar Rules art. 10, § 10(E). For purposes of this appeal, however, the crucial issue is not whether a hearing is required by applicable statutes or rules, but whether one is required by the due process clause of the fourteenth amendment to the United States Constitution. We are convinced that Minnick's due process rights were not violated.
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988) (emphasis added). In the present case, the procedure used by the grievance committee and the State Bar permitted Minnick to respond in writing to the complaint against him. However, because Minnick did not request to be permitted to defend himself at a hearing, none was granted. Assuming arguendo that due process would require something more than the mere opportunity to respond in writing, still the right attaches only in a proceeding that is to be "accorded finality."
Article 10, section 14(A) of the State Bar Rules provides that if the grievance committee finds that the respondent attorney has engaged in professional misconduct, the committee "shall determine appropriate sanctions or take appropriate action." However, the committee's decision appears to have no finality at all unless the attorney consents to it. If the attorney does not accept the decision, the State Bar must file suit in district court. State Bar Rules art. 10, § 14(D); see Munson v. State, 576 S.W.2d 440 (Tex.Civ.App.1978...
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