Wilkinson v. Comm'n for Lawyer Discipline, 09-17-00444-CV

• Decision Date: 25 July 2019
• Docket Number: NO. 09-17-00444-CV,09-17-00444-CV
• Parties: KRISTIN D. WILKINSON, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee
• Court: Texas Court of Appeals

KRISTIN D. WILKINSON, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee

NO. 09-17-00444-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on March 6, 2019

July 25, 2019

On Appeal from the 284th District Court Montgomery County, Texas

Trial Cause No. 16-09-10238-CV

MEMORANDUM OPINION

Kristin D. Wilkinson appeals a final judgment of disbarment following a jury trial. See Tex. Rules Disciplinary P. R. 3.15 (Feb. 26, 1991, Oct. 9, 1991), renumbered eff. June 1, 2018.¹ In a pre-trial order granting a motion for partialsummary judgment, the trial court ruled that as a matter of law, Wilkinson violated a disciplinary judgment when she drafted and executed a trust document and powers of attorney while actively suspended from the practice of law. See Tex. Disciplinary Rules Prof'l Conduct R. 8.04(a)(7) (Oct. 17, 1989), amended eff. Oct. 1, 1994, amended eff. May 1, 2018.² The jury found that Wilkinson engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that Wilkinson committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects. See id. R. 8.04(a)(2), (3) (Oct. 17, 1989), amended eff. Oct. 1, 1994, amended eff. May 1, 2018. In the final judgment, the trial court disbarred Wilkinson as a sanction for her professional misconduct. The three issues presented by Wilkinson in her brief contend: (1) the trial court erred by denying Wilkinson's plea to the jurisdiction; (2) there were defects in the charge and legally and factually insufficient evidence to support the jury's verdict; and (3) the trial court erred by granting the Commission's partial summary judgment, in denying Wilkinson's motion for reconsideration, and in denying her motion for summary judgment and her requests for jury questions.

Appellant's Plea to the Jurisdiction

Wilkinson filed a post-judgment plea to the jurisdiction in which she argued that neither the Commission nor the lawyer who filed a grievance had standing to make allegations against Wilkinson on behalf of the beneficiary of the trust. Wilkinson further argued that the trial court interfered with the jurisdiction of the 190th District Court of Harris County where the beneficiary of the trust filed an action against Wilkinson. Additionally, Wilkinson challenged the Commission's jurisdiction over the acts of a trustee in the administration of a trust when that trustee was not admitted to practice law in Texas. The trial court signed an order denying the plea to the jurisdiction on November 13, 2017.

We review a challenge to the trial court's subject matter jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Where a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause, construing the pleadings liberally in favor of the plaintiff and considering the plaintiff's intent. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, thetrial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. The fact finder will resolve any fact question regarding the jurisdictional issue. Id. at 227-28.

A court's subject-matter jurisdiction traditionally consists of the power, conferred by constitutional or statutory provision, to decide the kind of claim alleged in the plaintiff's petition and to grant relief. Sierra Club v. Tex. Nat. Res. Conservation Comm'n, 26 S.W.3d 684, 687 (Tex. App.—Austin 2000), aff'd on other grounds, 70 S.W.3d 809 (Tex. 2002). The Texas Supreme Court regulates the practice of law in Texas, exercises administrative control over the state bar, and adopts rules for the discipline of state bar members. In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003); see also Tex. Gov't Code Ann. § 81.011 (West 2013). Each attorney admitted to practice in Texas is subject to the disciplinary jurisdiction of the Supreme Court and the Commission. Tex. Gov't Code Ann. § 81.071 (West 2013). The Commission files the disciplinary petition in a district court of the county of the attorney's principal place of practice. See Tex. Rules Disciplinary P. R. 3.03. (Feb. 26, 1991, Oct. 9, 1991), amended eff. Oct. 1, 1994, amended eff. Jan. 1, 2004, amended eff. Oct. 1, 2012. The county in which the disciplinary action is filed is a matter of venue, not jurisdiction, and can be waived. Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 103-04 (Tex. App.—San Antonio 2004, pet. denied). Furthermore, the Commission acts not as or on behalf of a private litigant to redressa private wrong, but as an administrative agency under the administrative control of the Supreme Court to hold an attorney accountable for professional misconduct. Id. at 104.

On September 1, 2016, the Supreme Court appointed a judge to preside over the disciplinary action against Wilkinson to be filed in a district court of Montgomery County, Texas. The Commission filed the petition in a Montgomery County district court on September 2, 2016. See Tex. Rules Disciplinary P. R. 3.01. (Feb. 26, 1991, Oct. 9, 1991), amended eff. Jan. 1, 2004, amended eff. Oct. 1, 2012. In its petition, the Commission alleged that Wilkinson was a licensed attorney and a member of the State Bar of Texas. The Commission alleged: (1) in 2011, Wilkinson received a judgment of partially probated suspension; (2) in 2013, the Texas Board of Disciplinary Appeals issued a judgment revoking her probation and ordered that Wilkinson be actively suspended from the practice of law from July 26, 2013, to July 25, 2015; (3) Wilkinson continued to practice law while on active suspension when in August 2014, she drafted and had executed an Irrevocable Living Trust Agreement and General Power of Attorney, by which the beneficiary transferred all of her assets to a trust with Wilkinson designated as the sole trustee; (4) on April 24, 2015, Wilkinson was removed as trustee in a proceeding filed in Probate Court Number One of Harris County; and (5) approximately $650,000 of liquid assetsdiminished to about $200,000 while Wilkinson was trustee. The Commission's petition invoked the trial court's subject matter jurisdiction to adjudicate the disciplinary action against Wilkinson as an attorney licensed in Texas in the exercise of the Supreme Court's administrative control over Texas attorneys.

Wilkinson filed a general denial without seeking a transfer to another county. Wilkinson signed her original answer as "The Wilkinson Law Firm, Kristin Wilkinson, Attorney and Counselor at Law, by: /s/ Kristin Wilkinson" under the same State Bar Number as alleged by the Commission in its petition. Although she argued in the trial court and in her appeal that the actions for which she was disciplined were not taken in her capacity as an attorney, when the Commission filed the petition at the direction of the Supreme Court, Wilkinson was an attorney licensed in Texas subject to the disciplinary jurisdiction of the Supreme Court and the Commission. See Tex. Gov't Code Ann. § 81.071. Likewise, as an attorney, Wilkinson was subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct. Id. § 81.072(d) (West Supp. 2018). Furthermore, the Commission filed the disciplinary petition as an administrative agency of the Supreme Court, not on behalf of the beneficiary of the trust or the person who initiated a grievance. See Acevedo, 131 S.W.3d at 104. As an exercise of the Supreme Court's administrative control to hold an attorney accountable forprofessional misconduct, the disciplinary action did not interfere with the district court's jurisdiction over the litigation relating to the trust. See id.; see generally Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 836 (Tex. App.—Dallas 2000, no pet.) (the trial court for the disciplinary proceeding did not interfere with the jurisdiction of the court in which the lawyer filed a suit against the state bar and the grievance committee). We conclude the trial court had the power to both try and enter judgment in the disciplinary action. See Tex. Rules Disciplinary P. R. 3.03, 3.09 (Feb. 26, 1991, Oct. 9, 1991). We overrule issue one.

Charge Error and Sufficiency of the Evidence

1. Charge Error

Wilkinson's second issue complains of defects in the jury charge and claims the evidence is legally and factually insufficient to sustain the jury's verdict. The trial court submitted two questions to the jury. Question One asked, "Did Kristin Wilkinson engage in conduct involving dishonesty, fraud, deceit or misrepresentation?" The trial court instructed the jury that, "[t]he term 'fraud' denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." The trial court instructed the jury that

[t]he term "misrepresentation" may be defined as one or both of the following: 1) The act or an instance of making a false or misleadingassertion about something, usually with the intent to deceive. The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. 2) The assertion so made; an incorrect, unfair, or false statement; an assertion that does not accord with the facts.

Question Two asked, "Did Kristin Wilkinson commit a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects?" In connection with Question Two, the trial court instructed the jury that

[i]t is a "criminal act" to intentionally, knowingly, or recklessly misapply property held as a fiduciary in a manner that involves substantial risk of loss to the

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