Summary
holding party failed to preserve complaint about consolidation by never objecting in trial court
Summary of this case from Holmes v. Al JaafrehOpinion
No. 05-07-00775-CV
Opinion Filed February 2, 2009.
On Appeal from the 116th Judicial District Court Dallas County, Texas, Trial Court Cause No. 04-07936-F.
Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Samuel W. Hudson III appeals the trial court's summary judgment ordering his disbarment. In five appellate issues, Hudson complains of the trial court's rulings on matters of consolidation, discovery and summary judgment procedure, and the substance of the summary judgment motion. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellant Procedure 47.4. We affirm.
Background
In 2004, the Commission for Lawyer Discipline filed two disciplinary actions against Hudson, in two different district courts of Dallas County. Hudson answered both actions. The disciplinary actions included complaints against Hudson by nine different clients for violations of disciplinary rules, including neglect of work and mishandling of client funds. In June 2005, on the Commission's motion, the suits were consolidated in the second-filed action. Hudson was served with the consolidated action in April 2006, by substituted service. Hudson answered in May 2006. The consolidated case was never set for trial.
In July 2006, the Commission served a lengthy series of requests for admission on Hudson. Hudson did not respond to the request with answers or objections, resulting in the admissions being deemed. The Commission ultimately moved for summary judgment based on the deemed admissions, and the trial court granted the motion. The court held a separate hearing to determine punishment and concluded Hudson should be disbarred. The court's judgment included rulings requiring Hudson to pay reimbursement to some of the complainants and attorney's fees to the Commission.
Consolidation
In his first issue, Hudson contends the consolidation of the Commission's two actions against him was improper and prejudicial. Hudson argues that: he received no notice of the proposed consolidation; the consolidation order was signed two days after the motion was filed, with no hearing held; the order effectively deprived the judge of the first-filed case of jurisdiction; the suits were consolidated into the second-filed case rather than the first-filed case; and the Commission was "forum shopping" by consolidating as it did. The Commission argues these complaints were not preserved because Hudson never objected to the consolidation in any way, let alone on any of these grounds. To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (citing Tex. R. App. P. 52(a)). We have reviewed the record and conclude Hudson has not preserved these complaints for our review. Moreover, Hudson's brief does not describe any harm he experienced because of the consolidation. We deny his first issue.
Notice of Summary Judgment Hearing
In his third issue Hudson challenges whether proper notice was given for the hearing on the Commission's Motion for Partial Summary Judgment. However, the appellate record contains the motion itself, the Notice of Hearing, and the return of service for both the notice and the motion. The record indicates a professional process server served the documents upon Hudson on March 22, 2007. The notice informed Hudson of the hearing on the Motion on May 11, 2007, some fifty days after service of the notice. Hudson's third issue is without merit.
Requests for Admissions
Three of Hudson's issues address the requests for admission that formed the evidentiary basis of the trial court's summary judgment. We address those issues in turn.
Timeliness of Service
In his second issue, Hudson argues the requests for admission were not timely served. Hudson's argument here is based on a time line of his own creation. He relies initially on rule 3.07 of the Texas Rules of Disciplinary Procedure, which states: "Disciplinary Actions shall be set for trial not later than 180 days after the date the answer is filed, except for good cause shown." Based on that rule, Hudson asserts this case should have been set for trial, at the latest, 180 days from the consolidation date, i.e., on or before December 10, 2005. Hudson next points to the Commission's petition, which called for a Level II discovery control plan. Under such a plan, the discovery period would end thirty days before the date set for trial. See Tex. R. Civ. P. 190.3(1)(B). Thus, according to Hudson's calculations, requests for admission in this case had to be served no later than November 10, 2005. See Tex. R. Civ. P. 198.1 ("A party may serve on another party-no later than 30 days before the end of the discovery period-written requests that the other party admit the truth of any matter within the scope of discovery . . ."). Because the Commission did not serve its requests for admission on Hudson until July 6, 2006, the service was untimely under Hudson's construct.
We conclude, however, that Hudson's construct is not supported by the record in this case. Our record does not contain a discovery plan or any other scheduling order. In fact, the record does not indicate the case was ever set for trial. Nor does rule 3.07 impose a mandatory setting within 180 days of the defendant's answer: the rule is "directory only and the failure to comply with [it] does not result in the invalidation of an act or event." Tex. R. Disciplinary P. 15.05; see also Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 836 (Tex.App.-Dallas 2000, no pet.). The Commission was not subject to a scheduling order when it served its requests for admission; the service was not untimely. Hudson's second issue is not well-taken, and we overrule it.
Hudson's fourth issue is based on his second. In the fourth issue, Hudson argues the trial court erred in granting summary judgment in favor of the Commission when the motion was based on untimely served requests for admission. We have concluded the service was not untimely. Thus, we overrule Hudson's fourth issue as well.
Sufficiency of Deemed Admissions to Support Summary Judgment
In Hudson's fifth issue, he challenges the sufficiency of the evidence supporting the trial court's judgment. Specifically, he argues the deemed admissions proceeded from requests that called for conclusions or admissions of law rather than fact. Of the ninety-two requests for admission served by the Commission, Hudson points to thirty-six that sought to have Hudson admit he violated various disciplinary rules in his representation of the nine clients at issue. All the complained-of requests follow the same format. For example:
Request for Admission # 79:
Admit or deny that in your representation of Olivia Johnson you violated Rule 1.14(a) of the Texas Disciplinary Rules of Professional Conduct.
Request for Admission #80:
Admit or deny that in your representation of Olivia Johnson you violated Rule 1.14(b) of the Texas Disciplinary Rules of Professional Conduct.
Hudson correctly asserts that answers constituting admissions of law are not binding on a court. Esparza v. Diaz, 802 S.W.2d 772, 775 (Tex.App.-Houston [14th Dist.] 1990, no writ). The Commission acknowledges this rule, but it contends the complained-of requests for admission actually seek appropriate answers that merely require application of law to the facts of the case. The rules of civil procedure identify appropriate requests for admission as: written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Tex. R. Civ. P. 198.1 (emphasis added). Admissions applying law to facts are competent summary judgment evidence. Hanh H. Duong v. Bank One, N.A., 169 S.W.3d 246, 251 (Tex.App.-Fort Worth 2005, no pet.).
However, we need not determine in this case whether the thirty-six complained-of requests for admission were appropriate or not. Hudson did not identify any deficiency in the remaining fifty-six requests for admission. And the trial court's judgment asserts that "the proper discipline of [Hudson] for each act of professional misconduct as found in this case is DISBARMENT." (Emphasis added.) Thus, if the remaining admissions are legally sufficient to support any one of the charged acts of professional misconduct by Hudson, we must affirm the judgment.
We quoted above two examples of the complained-of requests, which sought to have Hudson admit outright that he had violated rule 1.14(a) and (b) in his representation of Olivia Johnson. Again by way of example, we set forth Hudson's admissions from the remaining requests concerning the charged violations of rule 1.14:
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Hudson is a lawyer licensed to practice in the State of Texas.
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Hudson is a member of the State Bar of Texas.
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Ms. Johnson hired Hudson as her attorney in June 2001 to represent her in a personal injury matter.
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Hudson did not deposit into a trust account the check he received in settlement of Ms. Johnson's case.
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Hudson withheld funds from Ms. Johnson's settlement check to pay medical providers.
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Hudson did not pay Ms. Johnson's medical providers.
We conclude this evidence is sufficient to support the trial court's judgment that Hudson violated disciplinary rule 1.14(a) and (b). Thus, even if we assume (without deciding) that Hudson is correct and the thirty-six complained-of requests for admission seek inappropriate legal conclusions, the evidence supplied by the remaining admissions is sufficient to uphold the trial court's judgment. Accordingly, we decide Hudson's fifth issue against him.
We affirm the trial court's judgment.