Rundle v. Comm'n for Lawyer Discipline

• Decision Date: 30 July 1999
• Citation: 1 S.W.3d 209
• Parties: (Tex.App.-Amarillo 1999) PATRICK J. RUNDLE, APPELLANT v. COMMISSION FOR LAWYER DISCIPLINE, APPELLEE NO. 07-97-0437-CV
• Court: Texas Court of Appeals

Page 209

1 S.W.3d 209 (Tex.App.-Amarillo 1999)

PATRICK J. RUNDLE, APPELLANT v. COMMISSION FOR LAWYER DISCIPLINE, APPELLEE

NO. 07-97-0437-CV

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

July 30, 1999

PANEL B FROM THE 151ST JUDICIAL DISTRICT COURT OF HARRIS COUNTY; NO. 96-58327, HONORABLE FRANK B. McGREGOR, JR., JUDGE

[Copyrighted Material Omitted]

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

Phil Johnson, Justice

Appellant Patrick J. Rundle (Rundle) appeals a take nothing judgment rendered in a bill of review proceeding wherein Rundle sought to set aside a default judgment of disbarment. In three issues, Rundle contends that (1) there is insufficient evidence that he was properly served with process to support a default judgment of disbarment, (2) the trial court should not have excluded the testimony of a witness, and (3) Rundle exhausted all available remedies to challenge the default judgment prior to filing his bill of review, and thus was not barred from seeking relief by bill of review. We affirm.

FACTUAL BACKGROUND

On February 5, 1996, the Commission for Lawyer Discipline (Commission) filed a disciplinary action against Patrick J. Rundle, styled Commission for Lawyer Discipline v. Patrick J. Rundle, Cause Number 96-07019 in the 151st District Court of Harris County (the underlying case). In the underlying case, the Commission alleged that Rundle committed acts constituting professional misconduct and sought discipline or disbarment. Cindy Robinson (Robinson) executed a return of citation verifying that she delivered citation and petition to Rundle on February 12, 1996. Attached to the return of citation was an affidavit by Robinson in which she averred that she was an authorized process server. The affidavit set out no basis for her authorization, nor that she was authorized to serve process in Harris County. Rundle did not file an answer to the petition. On March 13, 1996, the trial court signed a default judgment disbarring Rundle.

On July 16, 1996, Rundle filed a Motion to Set Aside Judgment and for New Trial. In the motion, Rundle asserted that he was unaware of the underlying proceedings until he was advised of the default judgment order by a friend on June 21, 1996. The motion was denied on August 21, 1996. On November 15, 1996, Rundle filed a petition for bill of review. On July 23, 1997, after a trial on the merits, the trial court rendered a take nothing judgment on Rundle's bill of review.

The trial court filed findings of fact and conclusions of law in support of its denial of the bill of review. Relevant to this appeal, the trial court found as facts that (1) on or about February 12, 1996, Rundle was served with citation and a copy of the petition in the underlying action; (2) Cindy Robinson personally served Rundle with the citation and the disciplinary petition on or about February 12, 1996, and Robinson was authorized by court order as a process server in Harris County, Texas; but the Clerk's file in the underlying cause No. 96-07019 did not reflect filing of her affidavit (at least not in exactly the form required by the administrative judge's order dated January 23, 1996); (3) Rundle filed a Motion to Set Aside Judgment and for New Trial asserting that he gained actual knowledge of the default judgment of disbarment on or about June 21, 1996; and (4) Rundle did not file a writ of error seeking relief from the default judgment of disbarment within 180 days of the date of the default judgment. The trial court concluded as matters of law that (1) Rundle was personally served with citation and notice of the disciplinary petition filed against him and that he was properly served; (2) Rundle gained actual knowledge of the default judgment of disbarment at least on or about June 21, 1996; (3) the entry of the default judgment in the underlying action was due to Rundle's own negligence; (4) Rundle failed to timely file a motion for new trial or to file an application for writ of error within 180 days of the date of the default judgment; (5) Rundle failed to avail himself of all remedies available to him to challenge the default judgment; (6) Rundle failed to meet the requisites for a bill of review; and (7) the return of citation filed in the underlying cause No. 96-07019 did not contain the language required by a January 23, 1996 order of the administrative judge, but based on a subsequent affidavit and testimony, any technical error was de minimus.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Rundle contends that there was insufficient evidence that he was served with process to support the default judgment of disbarment. Rundle does not specify whether he is raising a legal or factual sufficiency challenge. We will treat this issue as raising both legal and factual sufficiency challenges.

Rundle asserts that in the face of a constitutional due process challenge, insufficient unclear, and uncertain evidence should not be allowed to support a default judgment of disbarment. In support of this assertion, he relies on Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). In Peralta, the bill of review petitioner attempted to set aside a default judgment rendered against him by alleging that he was not given proper notice of the underlying suit. The respondent did not contest this assertion, but sought and received summary judgment on the bill of review because the petitioner did not allege any meritorious defense to the underlying action. The appellate court affirmed the summary judgment on the bill of review based on the petitioner's failure to plead and show a meritorious defense, despite the showing of invalid service. The United States Supreme Court reversed, noting:

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in this particular case, due process of the law would have led to the same result because he had no adequate defense upon the merits." "[O]nly wiping the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." Peralta v. Heights, 485 U.S. at 86-87 (citations omitted).

Normally, to be entitled to relief under a bill of review, a party must allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which the party was prevented from making by the fraud, accident, or wrongful act of the opposite party, and (3) which is unmixed with any fault or negligence of the moving party. See Baker v. Goldsmith, 582 S.W.2d 404, 406-07, 408 (Tex. 1979). Peralta does not change the standard of review under sufficiency challenges, as contended by Rundle. Rather, Peralta holds that a judgment entered without notice or service is constitutionally infirm and thus void. Further, Peralta does not relieve the petitioner in a bill of review of the burden of proving that petitioner was not served.

The bill of review in this case was tried to the court and the trial court issued findings of fact and conclusions of law. Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). The trial court's findings of fact are reviewable for legal and factual sufficiency by the same standards applied in reviewing the sufficiency of the evidence supporting jury findings. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.--Waco 1997, writ denied).

To prevail in an attack on the legal sufficiency of the evidence of an adverse finding to an issue on which that party had the burden of proof, the party must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.--Houston [14th Dist.] 1989, writ denied). In reviewing a legal sufficiency challenge to a finding, the appellate court first examines the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If there is no evidence to support the finding, the appellate court then examines the entire record to determine if the contrary position is established as a matter of law. Id. If the contrary position is established as a matter of law, the issue will be sustained. Meyerland Community Improvement Ass'n v. Temple, 700 S.W.2d 263, 267 (Tex.App.--Houston [1st Dist.] 1987, no writ).

To prevail in an attack on the factual sufficiency of a finding upon which that party had the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See Croucher v Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a factual sufficiency issue, the appellate court first examines the record to determine if there is some evidence to support the finding. If there is some evidence to support the finding, the court determines, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or whether the great preponderance of the evidence supports its non-existence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting these reviews, we are mindful that the trier of fact was not convinced by a preponderance of the evidence to find in favor of appellant's position. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

We first consider the legal sufficiency of the evidence by examining the record for evidence that supports the trial court's finding that Rundle was properly served, while ignoring all evidence to the contrary. Rundle denied being served with process or receiving any notice of any proceeding against him until late June or mid-July of 1996. He...