Morris J. Kirschberg v. Commission for Lawyer Discipline--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00008-CV

Morris J. KIRSCHBERG,

Appellant

v.

COMMISSION FOR LAWYER DISCIPLINE,

Appellee

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-08959

Honorable Guilford L. Jones, III, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

This disciplinary proceeding involved appellant Morris J. Kirschberg's handling of bankruptcy matters on behalf of Keith and Carol McFarland, Tracie Love Grubbs, Ebrahim Olfatmanesh, and Jesus and Kyong Perez, and a bankruptcy-related matter on behalf of a personal injury client, Sherry J. Roberts. Appellant appeals from the trial court's judgment of partially suspended probation. We affirm.

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

In his first issue, appellant asserts the trial court erred when it refused his request for additional findings of fact and conclusions of law.

"After the court files original findings of fact and conclusions of law, any party may file with the clerk of the court a request for specified additional or amended findings or conclusions." Tex. R. Civ. P. 298 (emphasis added). Upon a party's timely request, the trial court "shall file any additional or amended findings and conclusions that are appropriate." Id. In his request for additional findings and conclusions, appellant noted his complaints as to each of the findings and conclusions made by the trial court, and he asked for more specificity as to each. However, appellant did not draft and submit proposed additional or amended findings and conclusions. Rule 298 requires that a request specify the additional or amended findings or conclusions a party desires the court to make and file. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 119-20 (1944); Alvarez v. Espinoza, 844 S.W.2d 238, 241 (Tex. App.--San Antonio 1992, writ dism'd w.o.j.). "A bare request is not sufficient; proposed findings must be submitted." Alvarez, 844 S.W.2d at 242.

Because appellant did not submit his proposed additional or amended findings and conclusions, the trial court did not abuse its discretion in denying his request.

SUFFICIENCY OF THE EVIDENCE

In his fourth issue, appellant challenges the legal and factual sufficiency of the evidence. Appellant's primary complaints are that certain findings are so general they are not supported by the record or lack necessary specificity, and that certain conclusions are unsupported by the record or are supported by the deficient findings. We follow the established standards of appellate review for legal and factual insufficiency. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (legal sufficiency); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (factual sufficiency).

Keith MacFarland's and Tracie Grubbs's testimony supports the court's findings that appellant failed to appear at scheduled hearings. The testimony of MacFarland and Pat Lowe, a bankruptcy trustee, support the court's findings that appellant failed to properly complete bankruptcy schedules, failed to sufficiently advise his clients regarding their rights and remedies, including the potential loss of MacFarland's homestead, and failed to respond to telephone calls. MacFarland's and Grubbs's testimony supports the court's findings that appellant failed to provide the legal advice and counsel necessary for them to make informed decisions regarding their bankruptcy cases. Grubbs stated she repeatedly tried, and failed, to reach appellant, and she ultimately received assistance from the bankruptcy trustee regarding objections to her bankruptcy petition.

Appellant contends, and there is some support in the record, that he was authorized by Ebrahim Olfatmanesh and Jesus and Kyong Perez to sign their names to certain bankruptcy documents. The trial court found that appellant signed his clients' purported signatures when such documents "are to be signed only by the client under penalty of perjury." Appellant argues on appeal that this finding is in reality a legal conclusion and is unsupported by the law. At trial, Lowe relied on section 521 of the Bankruptcy Code to support his testimony that the debtor must sign the schedules, statement of affairs, and petition. On appeal, appellant relies on Corpus Juris Secundum for his argument that a signature may be made at the direction of another. The record supports the conclusion that a debtor is required to sign certain bankruptcy documents, and appellant's clients failed to do so.

Finally, the testimony of Edward Hinders, Sherry Roberts's bankruptcy attorney, supports the court's finding that appellant sought payment of his fees without first seeking bankruptcy court approval of his employment on Roberts's behalf, that he did not reveal to the bankruptcy court that his fees had not been authorized, and he deceived the bankruptcy court regarding his employment.

The evidence in support of these findings is legally and factually sufficient to support the trial court's conclusions regarding appellant's violation of Texas Rules of Professional Conduct 1.01(b)(1), 1.01(b)(2), 1.03(b), and 3.03(a)(1). (1) Accordingly, the evidence is sufficient to support the trial court's judgment.

EXCLUSION OF APPELLANT'S WITNESSES

Appellant filed his response to the Commission's request for disclosure twenty-five days before trial. Based upon appellant's untimely disclosure, the Commission moved to exclude his witnesses. Following a bench conference on the Commission's motion, the trial court barred all of appellant's witnesses, except appellant, from testifying, and denied appellant's request for a continuance. In his second issue, appellant asserts the trial court's exclusion of all of his witnesses was an abuse of discretion because his failure to timely designate the witnesses did not amount to unfair surprise or unfair prejudice. Appellant further argues the trial court's ruling amounted to an unjust "death penalty" sanction.

A party must respond to a written discovery request in writing within the time provided by court order or the Texas Rules of Civil Procedure. Tex. R. Civ. P. 193.1. When a party fails to supplement a discovery response in a timely manner, the evidence may be excluded. Id. at 193.6(a). The remedy is mandatory and automatic unless the court finds there was good cause for the failure to amend or supplement, or the failure will not unfairly surprise or prejudice the other party. Id.; Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986); Bellino v. Commission for Lawyer Discipline, 124 S.W.3d 380, 383 (Tex. App.--Dallas 2003, pet. denied); Northwestern Nat'l County Mut. Ins. v. Rodriguez, 18 S.W.3d 718, 722 n.1 (Tex. App.--San Antonio 2000, pet. denied). The burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence. Tex. R. Civ. P. 193.6(b). The trial court has discretion to determine whether the offering party has met its burden. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994); Bellino, 124 S.W.3d at 383. The record must support a finding of good cause or lack of unfair surprise. Tex. R. Civ. P. 193.6(b).

Appellant asserts that all but one of the witnesses listed in his discovery response were identical to the witnesses named in the Commission's disclosure of persons with knowledge of relevant facts. On appeal, appellant argues that "the trial court failed to consider that the prior designation of these witnesses by [the Commission] precluded a finding of unfair surprise or unfair prejudice." Appellant's argument on appeal does not comport with his argument at trial, where appellant's attorney merely argued that "the rules allow us to call one of their witnesses." When asked to specify the rule, counsel replied, ""I don't have the record. It just seems logical." When asked if he had anything else to advance his notion that he should be able to call witnesses despite a failure to designate them, counsel replied that he had nothing. Based on this record, we conclude appellant did not carry his burden of establishing good cause for his failure to amend or lack of unfair surprise or unfair prejudice.

Appellant also asserts the trial court's ruling amounted to an unjust "death penalty sanction."

Whether the exclusion of evidence constitutes a death penalty sanction is determined on a case-by-case basis. State Farm Fire & Cas. v. Rodriguez, 88 S.W.3d 313, 326 (Tex. App.--San Antonio 2002, pet. denied). Where the exclusion of testimony is only an inconvenience that impairs the presentation of a party's case but does not preclude a trial on the merits, the exclusion of evidence is not a death penalty sanction. See id. A death penalty sanction is any sanction that adjudicates a claim and precludes the presentation of the merits of a case. See TransAmerican Nat'l Gas Corp. v. Powell 811 S.W.2d 913, 918 (Tex. 1991); Perez v. Murff, 972 S.W.2d 78, 81 (Tex. App.--Texarkana 1998, pet. denied). Thus, any sanction that is "case determinative" may constitute a death penalty sanction. Perez, 972 S.W.2d at 81.

Here, the trial court's ruling excluded all of appellant's witnesses. However, appellant himself testified and he cross-examined the Commission's witnesses. Although appellant's motion for new trial lists several witnesses whose testimony he contends the trial court erroneously excluded, at trial appellant sought to offer the testimony of only two witnesses. On appeal, appellant does not contend he would have offered any of the other excluded witnesses, nor does he explain how the exclusion of any witness prevented him from presenting the merits of his case. We conclude the trial court's sanction was not a death penalty sanction.

A trial court has broad discretion in entering sanctions. Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 346 (Tex. App.--San Antonio 1994, writ denied). However, sanctions for discovery abuse must be "just." TransAmerican, 811 S.W.2d at 917. Sanctions are just if there is a direct relationship between the offensive conduct and the sanction imposed, and the sanction is not excessive. Id.; State Farm Fire & Cas., 88 S.W.3d at 326. "A death penalty sanction is justified when counsel callously disregards the responsibilities of discovery under the rules." Id. at 327; see also TransAmerican, 811 S.W.2d at 918.

Appellant was served with the Commission's request for disclosure on January 21, 2003. In June 2003, the Commission and appellant's counsel conferred on the request, and appellant's counsel stated responses would be filed. At some point between June 2003 and September 2003, the Commission sent a letter to appellant's counsel regarding the responses. On September 24, 2003, twenty-five days before trial, appellant finally filed his responses. Appellant filed amended responses on September 28, 2003, twenty-one days before trial. At trial, appellant's counsel offered no explanation for the untimely responses. The trial court had the discretion to determine that appellant disregarded the responsibilities of discovery under the rules, and we conclude the court did not abuse its discretion in doing so.

MOTION FOR CONTINUANCE

In his third issue, appellant asserts the trial court erred in denying his motion for a continuance after the Commission stated that a videotape, requested by appellant, contained no recorded testimony. We review a trial court's grant or denial of a motion for continuance for an abuse of discretion, which must be clearly disclosed by the record. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

In August 2003, appellant served the Commission with a request for production in which he asked for photographs and oral statements of witnesses. The Commission responded that it had a videotape of grievance committee proceedings. On or about October 6, 2003, appellant noticed depositions for October 16, 2003. The Commission objected on the grounds that trial was set for October 20, 2003, and, following an October 7, 2003 telephonic hearing, the trial court quashed the deposition notices. On October 8, 2003, the Commission discovered the tape contained no recorded testimony. On October 9, 2003, appellant's attorney went to the Commission's office to view the videotape and, apparently, was informed of the video's deficiency. On October 15, 2003, appellant's counsel requested a continuance, contending he needed additional time to prepare for cross-examination of the witnesses whose statements were contained on the tape.

On appeal, the Commission argues the trial court did not abuse its discretion in denying appellant's motion for continuance because appellant did not diligently pursue discovery. Appellant counters that he should have been able to rely on the Commission's statement that it had the videotaped-recording of witness statements. We agree with the Commission. A litigant's failure to diligently use the rules of civil procedure for discovery purposes will not justify the granting of a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (holding that litigant's inability to review depositions or depose other witnesses was "a predicament of its own making."). A motion for continuance seeking time for discovery must be supported by an affidavit that describes the evidence sought, explains its materiality, and shows that the party requesting the continuance has used due diligence to obtain the evidence. Tex. R. Civ. P. 251, 252; see Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.--Austin 2002, no pet.). Conclusory allegations in the affidavit about diligence are not sufficient. Id. The affidavit must state with particularity the diligence used. Id. No where in appellant's motion for continuance, which does not include an affidavit, does he explain his due diligence to obtain the evidence he contends is contained on the tape. The disciplinary action against appellant had commenced almost one year before appellant served his request for production. He did not attempt to view the tape until after the trial court quashed his deposition notices, which were served two weeks before the trial date. Other than to argue he should have been allowed to rely on the Commission's discovery responses, appellant does not explain why he failed to exercise due diligence in procuring testimony and evidence at an earlier date. Accordingly, we hold the trial court's denial of a continuance was not an abuse of discretion.

CONCLUSION

We overrule appellant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

1. The trial court also found a violation of Texas Rule of Professional Conduct 8.04(a)(3). On appeal, the Commission concedes its pleadings were not amended before judgment to include an allegation of this violation and, therefore, the judgment cannot support this violation.