author: Justice RICHTER.

text:
    Frank W. McINTYRE, Appellant v. The COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 05-04-01074-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 23, 2005.

      = Frank W. McIntyre, Dallas, for appellant.
    Linda A. Acevedo, Office of the Chief Disciplinary Counsel, State Bar of Texas, Austin, for appellee.
    Before Justices O’NEILL, RICHTER, and FRANCIS.
   OPINION

Opinion by

Justice RICHTER.

Frank W. McIntyre appeals the trial court’s judgment suspending him from the practice of law. In sixteen issues, McIntyre challenges the legal and factual sufficiency of the evidence and the sufficiency of the pleadings to support the trial judge’s findings of fact, conclusions of law, and judgment. We affirm.

BACKGROUND

McIntyre represented Vrasidas Pappas in a state court action against Sally Ma-glaris in a dispute over the rightful ownership of a restaurant. The result was a judgment in favor of Maglaris. Shortly after the final judgment was entered, McIntyre heard Maglaris was disposing of the restaurant’s furniture and fixtures. McIntyre also represented three of Pap-pas’s creditors, who contacted him to obtain advice about the removal of equipment from the restaurant. McIntyre referred the creditors to a bankruptcy lawyer, Joyce Lindauer, suggesting the filing of an involuntary bankruptcy. After the state court trial, but before the involuntary bankruptcy proceeding was initiated, Pap-pas disappeared. Although he was not able to discuss the matter with Pappas, McIntyre appeared as Pappas’s counsel in the bankruptcy proceedings. When the involuntary bankruptcy petition was filed, McIntyre filed a suggestion of bankruptcy in the state trial court where the Maglaris case was pending, requesting immediate injunctive relief against Maglaris. In six paragraphs of his verified motion, McIntyre requested relief for Pappas “on his own behalf and on behalf of the bankruptcy trustee.” McIntyre appeared ex parte before the trial judge. The trial judge granted the motion, treating it as a request for temporary restraining order, and set the matter for an injunction hearing.

In bankruptcy court, Maglaris moved to vacate the state trial court’s order. United States Bankruptcy Judge Robert C. McGuire did not grant Maglaris’s motion, declining to “sit as an appellate court” on the state trial judge’s actions. Judge McGuire, however, furnished the state court judge a memorandum opinion, noting the “state court judge may have been misled into signing the order in question.” Judge McGuire’s opinion noted at the time the suggestion of bankruptcy was filed, no bankruptcy trustee had been appointed, and McIntyre did not represent any bankruptcy trustee for Pappas. Quoting the language in the motion that it was made on behalf of Pappas “and on behalf of the bankruptcy trustee,” and the statement that “because all relief requested in this Motion is mandatory under the bankruptcy code and there are no questions of law or fact to be determined by this Court,” the motion should be granted, Judge McGuire noted these statements were “legally false.”

In an order dated April 27, 2001, state court judge David R. Gibson found “certain representations made to the Court by [McIntyre] ..., whether orally or in writing, and upon which the Court signed its March 30 Order on an ex parte basis were inaccurate.”

The bankruptcy proceeding in Judge McGuire’s court was dismissed; Lindauer testified the clerk’s office failed to send notice of a status conference and the case was dismissed when no one appeared. Pappas’s creditors filed a second involuntary proceeding, which was assigned to United States Bankruptcy Judge Steven A. Felsenthal. In a letter to the United States Trustee dated August 14, 2001, Judge Felsenthal also questioned McIntyre’s actions in the bankruptcy proceeding. Judge Felsenthal noted McIntyre had prepared and signed bankruptcy schedules and a statement of financial affairs for Pappas:

McIntyre signed the schedules and statement of financial affairs as attorney for the debtor, even though the signature required a declaration under penalty of perjury that Pappas read the answers and that they are true and correct. Pappas did not read the answers. McIntyre could not attest to the truth and correctness under penalty of perjury for Pappas. McIntyre had no authorization from Pappas to perform these acts.

The judge concluded, “The court is concerned that McIntyre may have submitted false oaths to the court and that he may have engaged in the unethical and improper practice of law that may result in adverse consequences for his purported client.”

Appellee filed a disciplinary action against McIntyre, alleging multiple violations of the Texas Disciplinary Rules of Professional Conduct. After a bench trial, the trial judge found McIntyre committed misconduct in violation of rules 1.01(a), 1.03(b), 3.03(a)(3), and 8.04(a)(3). See Tex. DISCIPLINARY Rs. Prof’l CoNduct 1.01(a), 1.03(b), 3.03(a)(3), and 8.04(a)(3), reprinted in Tex. Gov’t Code ANN. § tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). The trial judge filed findings of fact and conclusions of law in support of the judgment. In his conclusions of law, the trial judge found McIntyre represented Pappas in bankruptcy court when he was not competent to do so; represented Pappas in a bankruptcy proceeding without obtaining his client’s consent; made false representations to the state court judge; and made false representations in the bankruptcy proceeding. As a sanction, the trial court imposed a partially-probated eighteen-month suspension and ordered as an ancillary sanction $21,347.42 in attorneys’ fees. McIntyre appeals.

STANDARDS OF REVIEW

When the appellant is challenging the legal sufficiency of the evidence to support a finding on which he did not have the burden of proof at trial, he must demonstrate on appeal that no evidence exists to support the adverse finding. Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 385 (Tex.App.-Dallas 2003, pet. denied). When reviewing a “no evidence” point, we determine “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

A trial judge’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency of the evidence. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam). When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding. Bellino, 124 S.W.3d at 385. In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Bellino, 124 S.W.3d at 385.

In making this review, we are not a fact finder. Thus, we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Dallas County v. Holmes, 62 S.W.3d 326, 329 (TexApp.-Dallas 2001, no pet.); Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (TexApp.-Dallas 2000, pet. denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Barnett v. Coppell North Texas Court, Ltd., 123 S.W.3d 804, 813-14 (Tex.App.-Dallas 2003, pet. denied).

We review the trial court’s conclusions of law de novo to determine whether they are correct. See Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694, 697 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Conclusions of law must be upheld on appeal if any legal theory supported by the evidence sustains the judgment, and will be reversed only if the conclusions are erroneous as a matter of law. Cohn, 979 S.W.2d at 697.

We review the sanctions imposed on an attorney for professional misconduct for abuse of discretion. See Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 234-35 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. See Eureste v. Comm’n for Lawyer Discipline, 76 S.W.3d 184, 202 (Tex.App.Houston [14th Dist.] 2002, no pet.).

DISCUSSION

COMPETENT REPRESENTATION

Appellant’s first five issues challenge the trial court’s findings and conclusions relating to rule 1.01(a) of the Texas Rules of Disciplinary Conduct. Rule 1.01(a) provides:

A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless:
(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or
(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

Tex. DisciplinaRY R. Prof’l Conduct 1.01(a).

In his first conclusion of law, the trial judge concluded appellant represented Pappas in bankruptcy court when he was not competent to do so, in violation of rule 1.01(a). This conclusion was supported by several findings of fact. Finding of fact sixteen provided:

16. Respondent admitted to the bankruptcy judge in the hearings that he lacked competence to practice bankruptcy law and that he may have done something improper in signing the bankruptcy schedules. His conduct in the bankruptcy hearing led the bankruptcy judge to question his competence to practice before the bankruptcy courts.

In finding of fact fourteen, the trial judge noted appellant was apparently not aware of, and did not seek to learn, the procedures to be followed in order to represent an absent client in bankruptcy court. In finding of fact seven, the trial judge found the bankruptcy trustee had instructed appellant on the steps to be taken to be hired to represent the trustee, but appellant failed to take them.

The comments to rule 1.01(a) provide guidance in determining whether a matter is beyond a lawyer’s competence. Comment 2 provides, “relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience in the field in question, the preparation and study the lawyer will be able to give the matter, and whether it is feasible either to refer the matter to or associate a lawyer of established competence in the field in question.” Tex. Disciplinary R. Professional Conduct 1.01, cmt. 2.

Appellant challenges the trial judge’s findings and conclusion on several grounds. Appellant first argues the trial judge’s findings regarding his failure to take the necessary steps to be hired by the bankruptcy trustee or to represent an absent client cannot support the judgment because there are no such allegations in the pleadings. A trial court’s judgment must conform to the pleadings. Tex.R. Civ. P. 301. A party may not be granted relief in the absence of pleadings to support that relief. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983). Appellee was required to plead “a description of the acts and conduct that give rise to the alleged Professional Misconduct in detail sufficient to give fair notice to Respondent of the claims made,” and a listing of the specific rules alleged to be violated. See Tex.R. DisciplinaRY PROCEDURE 3.01.D, E. “A petition is sufficient if a cause of action or defense may be reasonably inferred from what is specifically stated.” Favaloro v. Comm’n for Lawyer Discipline, 13 S.W.3d 831, 837-38 (Tex.App.-Dallas 2000, no pet.).

Appellee’s amended petition alleged appellant violated rule 1.01(a). The petition included a section entitled “Competent Representation,” and alleged acts and conduct of appellant in violation of rule 1.01(a). Appellee alleged appellant knew or should have known bankruptcy law was a specialized area of practice and the issues presented were beyond his competence; he failed to associate another attorney competent in the area; he admitted he did not regularly practice bankruptcy law; and Judge Felsenthal raised questions regarding appellant’s representation of Pap-pas in bankruptcy court. In the “factual background” section of the pleading, appel-lee pleaded appellant admitted “he was not proficient in the practice of Bankruptcy Law”; admitted he had signed bankruptcy schedules under penalty of perjury without authority to do so; and stated he was doing the best he could in “unfamiliar territory.” Appellee was not required to plead all of the evidence that might be introduced at trial. See Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494-5 (Tex.1988) (rules of civil procedure do not require plaintiff to set out in pleadings the evidence on which he relies to establish his cause of action). The judgment specifically provides appellant’s conduct constituted a violation of rule 1.01(a). We conclude appellant had fair notice of the charges against him, and the pleadings supported the trial court’s judgment. See Favaloro, 13 S.W.3d at 838.

Appellant next complains about the sufficiency of the evidence. He argues the circumstances surrounding his representation of Pappas in the bankruptcy court constituted an emergency within the meaning of rule 1.01(a). He argues the testimony of numerous witnesses established he handled the matter ethically and competently in the emergency situation. After reviewing all of the evidence, we hold the trial judge’s findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Bellino, 124 S.W.3d at 385. While rule 1.01(a)(2) does allow “advice or assistance” by a lawyer in an area beyond his competence “in an emergency,” the lawyer must limit the advice and assistance “to that which is reasonably necessary under the circumstances.” Appellant continued to represent Pappas in the bankruptcy court after the initial involuntary filing and after the state court judge had addressed Maglaris’s removal of property from the restaurant. As noted in his brief, he “prepared and filed Pappas’s bankruptcy schedules, attended court hearings, attended the 341 meetings, maintained communications with the bankruptcy trustee and counsel for other parties, informed the trustee of valuable rights that needed to be protected, perfected the state court appeal to preserve the estate’s rights, and located alternative counsel for the bankruptcy trustee.” These actions went beyond offering advice and assistance to Pap-pas when Maglaris attempted to enforce the judgment and Pappas’s creditors filed the involuntary bankruptcy, the circumstances appellant contends constituted the emergency.

Appellant cites to the testimony of several witnesses to establish his competence in bankruptcy law. Appellant cites Joyce Lindauer’s testimony that the bankruptcy proceeding benefitted Pappas; appellant could not have done anything to prevent the bankruptcy from going forward; a challenge to the bankruptcy would have only increased the cost to the estate; the bankruptcy would have proceeded without appellant, and Pappas was better served with appellant’s efforts than without; appellant was in a difficult situation and tried to do the right thing; the bankruptcy trustee’s actions hurt appellant and Pappas; appellant was one of her students in a bankruptcy course in law school; and he had consulted with her about bankruptcy matters after his graduation. Professor Frederick C. Moss and former supreme court justice Robert A. Gammage provided expert testimony regarding appellant’s ethical obligations, but both witnesses disclaimed any expertise in bankruptcy law and practice.

Other evidence supports the trial court’s conclusion appellant knew or should have known representing Pappas in the bankruptcy court was beyond his competence. Appellant testified he had never represented a client in a bankruptcy case. His experience was limited to representing himself as a creditor in a bankruptcy proceeding on at least two occasions. Lin-dauer acknowledged appellant was not a regular bankruptcy practitioner, and further acknowledged an involuntary bankruptcy proceeding was not “ordinary” bankruptcy practice.

Appellant represented to Judge Gibson he sought relief on behalf of the bankruptcy trustee when a bankruptcy trustee had not yet been appointed. He represented to Judge Gibson the relief requested was mandatory under the bankruptcy code. Judge McGuire found both of these representations to be “legally false.” Setting aside the question of whether these representations were made intentionally, appellant was at least mistaken as to the applicable procedure and substantive law at the outset of the involuntary bankruptcy.

Later, appellant signed and filed bankruptcy schedules of Pappas’s financial affairs under penalty of perjury. Nancy Resnick, an attorney with the United States Trustee’s office in charge of monitoring certain cases in the bankruptcy courts, testified “the declaration to be signed under penalty of perjury as to the accuracy of your financial affairs, your assets, and liabilities has to be signed by the debtor.” Resnick also testified an attorney can obtain a special power of attorney to represent an absent debtor. Again setting aside any issue of intent, Judge Fel-senthal noted appellant was not the debtor and had no authority to sign the schedules under penalty of perjury. In response to Judge Felsenthal, appellant stated, “quite frankly, I’m not a regular bankruptcy petitioner,” and conceded “perhaps I did something improper.” While appellant argues this is not a concession he was not competent to handle the bankruptcy, it is evidence he was not familiar with the applicable bankruptcy law and procedure.

Judge Felsenthal also informed appellant he could not represent the bankruptcy trustee, as he had not obtained an order from the court authorizing him to do so. The bankruptcy trustee, Scott Seidel, testified he assisted appellant with preparing the application for employment because appellant did not know how to prepare one. The application, however, was never filed, so the necessary court order was never obtained. While appellant places the responsibility on Seidel to ensure the application was filed, the end result was that appellant was never properly authorized to represent the trustee. Regardless of appellant’s intent, the applicable bankruptcy procedures were not followed.

All of these problems were brought to appellant’s attention. Both bankruptcy judges presiding over the involuntary proceeding raised questions about appellant’s representation of Pappas in bankruptcy court. We hold the evidence was legally and factually sufficient to support the trial court’s findings and conclusions that appellant knew or should have known he was not competent to accept and continue employment as Pappas’s counsel in bankruptcy. We overrule appellant’s first five issues.

Communication

Appellant’s next three issues complain of the legal and factual sufficiency of the evidence to support the trial judge’s findings and conclusions he violated rule 1.03(b). Rule 1.03(b) provides: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

The trial judge concluded appellant represented Pappas in a bankruptcy proceeding and filed bankruptcy statements and schedules “without first discussing, explaining or the client having consented to such filings” in violation of rule 1.03(b). In finding of fact number eleven, the trial judge found appellant told the state court “he had no contact with Pappas for over 30 days and Pappas was not in the country.” In findings of fact fourteen and fifteen, the trial judge found:

14. Respondent filed documents in the bankruptcy proceedings on behalf of Pappas without consulting with or having any contact with Pappas before the filing of same. Pappas has never been notified by Respondent of the bankruptcy filing nor has Pappas authorized Respondent to make any filings or appearances in bankruptcy court for him.... 15. From the time that the bankruptcy case was filed until the dismissal of the bankruptcy case Respondent made no continuing effort to locate and communicate with Pappas.

Appellant does not contend he consulted Pappas about the bankruptcy proceedings or allege Pappas was aware the bankruptcy cases had been filed. He cites his efforts to reach Pappas through telephone calls to Pappas’s sister-in-law. He further contends he could not ethically withdraw from representing Pappas when he had been unable to reach him for only a short time. Appellant contends Pappas’s goal, and direction to his lawyer, was to recover his interests in the restaurant. Appellant contends the goal never changed, and he had to act in “exigent circumstances” to protect Pappas’s interests. Appellant cites testimony from Professor Moss that he was required to wait approximately six months before he could draw the conclusion his client did not intend to return to participate in the litigation.

The trial judge’s findings on this issue are based upon appellant’s actions in the bankruptcy court, not the state court action. Without his client’s knowledge or consent, appellant consented to the involuntary bankruptcy and filed schedules under penalty of perjury on behalf of his client. While appellant cites authority from other states regarding permissible actions in a client’s absence, see FORMAL Opinion No. 2002-160 (Calif. State Bar Standing Comm, on PROF. Resp. and Conduct 2002), and FloRida BaR Opinion 72-86 (Fl. 1987), these opinions speak to actions such as filing suit to prevent the running of the statute of limitations and settling a case where a client has given previous written authority to settle.

The California opinion is instructive. There, the client disappeared, and the attorney received two settlement offers. The client had authorized the attorney to accept settlement offers of two-thirds or more of the amount sought in any claim. One settlement offer was for two-thirds of the amount of the claim; the other was for one-half the amount. As to the first offer, the attorney should exercise professional judgment on behalf of the client whether or not to accept the offer. Formal Opinion No. 2002-160 at § I. The attorney could not, however, accept any proposed settlement which contained substantive terms at variance with the authority conferred by the client. Id. As to the second offer, the attorney was “not authorized to determine independently what is in Client’s best interests from a substantive as opposed to a procedural standpoint.” Id. at § II. The attorney “cannot know all of the objective and subjective circumstances and considerations that govern Client’s substantive decisions, and any decisions outside of Ghent’s authorization therefore must be left to client.” Id. Therefore, the attorney could not accept the second offer. Id.

Here, while Pappas had instructed appellant to recover his interests in the restaurant, there was no evidence the authority extended to making decisions and representations regarding Pappas’s overall financial condition and obligations in bankruptcy court. As the trial judge noted, “Bankruptcy actions taken by the Respondent were such that a reasonable attorney, although a relatively short period of time had lapsed, should have concluded that he was not able to go forward without consultation with his client, especially in light of the fact that the client had no notice of the bankruptcy filing at all.” There was sufficient evidence from which the trial judge could conclude appellant failed to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” in violation of Rule 1.08(b). We overrule appellant’s issues six, seven, and eight.

Candor Toward the Tribunal

In his ninth, tenth, and eleventh issues, appellant complains of the legal and factual sufficiency of the evidence to support the trial judge’s findings and conclusions he violated rule 3.03(a)(3). This rule provides: “A lawyer shall not knowingly: ... (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision.” Appellant also complains about the sufficiency of the Commission’s pleadings to support the judgment.

The trial judge concluded, “Respondent made false representations to the state court judge in violation of Rule 3.03(a)(3), Texas Disciplinary Rules of Professional Conduct.” In support of this conclusion, the trial judge found:

7. The state court judge entered an Order based on the Respondent’s pleadings and argument, which contained untrue statements, and stayed further proceedings. Respondent represented to the state court judge that he represented the bankruptcy trustee when he did not nor had he taken the appropriate steps to be hired by the bankruptcy trustee....
9. The bankruptcy judge entered a Memorandum Opinion and forwarded a copy to the state court judge. The bankruptcy judge noted that the state court judge may have been misled into signing the order.
10. The state court judge vacated his stay order based on the opinion from the bankruptcy judge regarding misrepresentations made to the state court judge by the Respondent.

Appellant first urges the pleadings do not support the judgment on rule 3.03(a)(3) because appellee failed to allege any knowing failures to disclose facts which appellant reasonably believed should be known to Judge Gibson for him to make an informed decision. In its amended petition, appellee alleged appellant made false representations to Judge Gibson on which Judge Gibson relied in granting appellant’s motion for immediate injunctive relief. Appellee pleaded specific statements in the suggestion of bankruptcy that were false, including appellant’s allegation he sought relief on behalf of the bankruptcy trustee and that the relief requested under the bankruptcy code was mandatory. As noted above, appellee was required to plead “a description of the acts and conduct that give rise to the alleged Professional Misconduct in detail sufficient to give fair notice to Respondent of the claims made,” and a listing of the specific rules alleged to be violated. See Tex.R. DISCIPLINARY PROCEDURE 3.01.D, E. Appellee’s amended pleading described appellant’s conduct at the ex parte hearing before Judge Gibson, and alleged appellant violated rule 3.03(a)(3). The petition was sufficient if a cause of action could be reasonably inferred from what was specifically stated. See Favaloro, 13 S.W.3d at 837-38. The judgment specifically provides appellant’s conduct constituted a violation of rule 3.03(a)(3). We conclude appellant had fair notice of the charges against him, and the pleadings support the trial court’s judgment. See Favaloro, 13 S.W.3d at 838.

Appellant urges the evidence is legally and factually insufficient to support the trial judge’s findings and conclusions of a violation of rule 3.03(a)(3). Appellant contends there is no evidence of any knowing conduct on his part. He contends his arguments regarding the automatic stay in bankruptcy were “well grounded” in the bankruptcy code, made by “a state court lawyer who did not practice bankruptcy law on a regular basis,” who was “focusing solely on protecting the assets” and “not thinking of the legal fine points,” and argues he never intended to imply he had been employed as counsel for the bankruptcy trustee. Appellant’s motion, however, states unequivocally, six times, that the motion sought relief “on behalf of the bankruptcy trustee,” and further states, equally unequivocally, that “all relief requested in this Motion is mandatory under the bankruptcy code and there are no questions of law or fact to be determined by this Court.” The evidence showed a bankruptcy trustee had not been appointed at the time of the motion. Appellant verified under oath that all the statements in the motion were based on his personal knowledge and true. Judge Gibson testified he relied on these representations in making his ruling at the ex parte hearing: “My decision was driven by the bankruptcy and representations about the bankruptcy.” The trial judge’s finding appellant violated rule 3.03(a)(3) is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Bellino, 124 S.W.3d at 385. We overrule appellant’s issues nine, ten, and eleven.

Misconduct Involving Dishonesty, Fraud, Deceit or Misrepresentation

In his twelfth and thirteenth issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial judge’s findings and conclusions he violated rule 8.04(a)(3). This rule provides: “A lawyer shall not: ... (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

In his fourth conclusion of law, the trial judge stated: “Respondent made statements in the bankruptcy filings that he could not know were true or accurate and made false representations regarding his status in the bankruptcy proceedings in violation of Rule 8.04(a)(3), Texas Disciplinary Rules of Professional Conduct.” The relevant findings of fact are as follows:

14. Respondent filed documents in the bankruptcy proceedings on behalf of Pappas without consulting with or having any contact with Pappas before the filing of same. Pappas has never been notified by Respondent of the bankruptcy filing nor has Pappas authorized Respondent to make any filings or appearances in bankruptcy court for him.... Respondent made representations in the documents filed with the bankruptcy court for which he had no knowledge of the truth thereof or the basis for such filings.
16. Respondent admitted to the bankruptcy judge in the hearings that he lacked competence to practice bankruptcy law and that he may have done something improper in signing the bankruptcy schedules. His conduct in the bankruptcy hearing led the bankruptcy judges to question his competence to practice before the bankruptcy courts.

Appellant contends he had the duty and authority to represent Pappas in the bankruptcy, and there was insufficient evidence of any false information in the bankruptcy schedules he filed. Therefore, he argues, there was no or insufficient evidence to support the trial judge’s findings and legal conclusion regarding rule 8.04(a)(3). Appellant cites to evidence he had Pappas’s authority to recover his interest in the restaurant, and evidence he only signed his own name to the schedules and only listed debts and assets he knew about from representing Pappas for eighteen months. Appellee offered no evidence the debts listed on the schedules were erroneous or false. Professor Moss and Justice Gam-mage testified there was nothing deceitful in signing the schedules under penalty of perjury where appellant was representing only that he had read the schedules and they were true and correct to the best of his knowledge.

Appellee argues “[i]t was the very filing of the pleadings and documents that constitute the misrepresentation because in doing so McIntyre was representing to the Court and others involved in the proceeding that Pappas knew of the proceedings, that Pappas had consented to the involuntary bankruptcy, and that Pappas approved the financial statement and schedules, when in fact this was not true.” Judge Felsenthal and appellant had the following exchange at a hearing in the second bankruptcy proceeding:

THE COURT: Okay. And you signed under penalty of perjury for the debtor on the schedules?
MCINTYRE: That’s correct.
THE COURT: And you have no authority to do that. You’re not the debtor.
MR. MCINTYRE: Well, I’m not the debtor and, quite frankly, I’m not a regular bankruptcy petitioner.
THE COURT: Well, you are an attorney. You know what it means to sign something under penalty of perjury.
MCINTYRE: I understand. And — and what the statements — I read the schedules and I read the — the—what I know about the — the financial affairs of the debtor come from my—
THE COURT: You had no business signing those.
MCINTYRE: Well, perhaps I did something improper.... And if I’ve done something improper, you know, I’ll answer for whatever impropriety I have committed with respect to filing the schedules. But if I may at least say that my knowledge — that the information that’s contained in the schedules comes from my personal knowledge of having represented the debtor in an account — in a suit for an accounting over the course of about a year and a half.

Despite appellant’s arguments, Judge Fel-senthal stated later in the hearing, “Mr. McIntyre conceded he signed under penalty of perjury as if he were the debtor without authority to sign,” after noting there were “very serious concerns” about the proceeding. Judge Felsenthal also noted, “[t]he problem with this case is that it appears, if you accept the face of the record, that the debtor agreed to the filing. But it hasn’t.” As noted in the California bar opinion discussed above, an attorney “cannot know all of the objective and subjective circumstances and considerations that govern Client’s substantive decisions, and any decisions outside of client’s authorization therefore must be left to client.” See FoRmal Opinion No. 2002-160 at § II. In discussing whether an attorney must or may withdraw from representing an absent client, Professor Moss testified, “[i]t depends on whether you can reasonably and prudently continue to represent him without doing something that you cannot do without his consent.” The trial judge found appellant made representations in the bankruptcy court filings “for which he had no knowledge of the truth thereof of or the basis for such filings.” Appellant himself argues he included on the schedules only information of which he was personally aware. The trial judge concluded appellant signed the declaration pages of the bankruptcy schedules and statements of financial affairs “without Pappas ever having seen the documents, without Pappas’ input or completion of the documents, nor any indication that [appellant] knew or could know whether the information was correct, complete and correct.” The trial judge also stated:

Respondent executed the declarations without any indication of his authority to sign the documents, without explanation to the bankruptcy court of his capacity, other than as an attorney, or any disclaimers contained therein. By his signature he avers the statements are true and correct. Without being able to do so, as such is a misrepresentation.

From the evidence presented, the trial judge could have found appellant’s signatures under penalty of perjury and his consent to the bankruptcy were representations Pappas knew of the bankruptcy, consented to it, and approved the schedules, when Pappas did not do so. The trial judge’s finding appellant violated rule 8.04(a)(3) is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Bellino, 124 S.W.3d at 385; see also Eureste, 76 S.W.3d at 198 (fraud not the only conduct prohibited by rule 8.04(a)(3); any conduct involving dishonesty, deceit, or misrepresentation also prohibited by rule 8.04(a)(3)). We overrule appellant’s twelfth and thirteenth issues.

Sanctions and AttoRneys’ Fees

In his fourteenth, fifteenth, and sixteenth issues, appellant challenges the legal and factual sufficiency of the evidence to support his suspension from the practice of law and the award of attorneys’ fees to appellee. He specifically challenges the trial court’s findings he is a continuing threat to his clients and the public; he should be suspended from the practice of law for eighteen months; and he should not practice bankruptcy law without associating a bankruptcy specialist for eighteen months. A trial court has broad discretion to determine the consequences of professional misconduct. See Eureste, 76 S.W.3d at 202. An appellate court should only reverse the trial court’s decision if the trial court acted in an unreasonable or arbitrary manner, or acted without reference to guiding rules and principles. Id. As noted in Curtis:

in determining the appropriate sanction for attorney misconduct, a trial court must consider the nature and degree of the professional misconduct, the seriousness of and circumstances surrounding the misconduct, the loss or damage to clients, the damage to the profession, the assurance that those who seek legal services in the future will be insulated from the type of misconduct found, the profit to the attorney, the avoidance of repetition, the deterrent effect on others, the maintenance of respect for the legal profession, the trial of the case, and other relevant evidence concerning the attorney’s personal and professional background.

Curtis, 20 S.W.3d at 235 (citing State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.1994), and Tex.R. Disciplinaey PROCEDURE 3.10). These factors were brought to the trial judge’s attention during the hearing on the sanctions imposed.

Appellant argues the sanctions are an abuse of discretion because the trial judge did not find any damage to Pappas or to an opposing party and did not find appellant profited by his actions. He also argues the sanction allows appellee to usurp appellant’s professional judgment in selecting the means by which to achieve the client’s objectives. He also argues the sanction discourages zealous advocacy, requiring an attorney to “sit and do nothing” without specific instructions from the client. The trial judge, however, considered these arguments and noted appellant sometimes went too far in actively urging his and his client’s position. He also noted his primary concern in the sanctions was appellant’s candor to the court, stating, “you have got to have the respect of the other parties in this process, including the judiciary. That is a very difficult job to do and has to rely upon the attorneys to present matters with them, be candid with them, and present legally and factually correct matters to them.” He ordered appellant to attend seminars on the lawyer’s creed, in addition to an eighteen month suspension of which ninety days were to be actively served and the remainder to be probated. The record reflects the trial judge acted with reference to the relevant guiding principles and did not act in an unreasonable or arbitrary manner in tailoring the sanctions imposed on appellant. See Eureste, 76 S.W.3d at 202-03 (trial court did not abuse its broad discretion in imposing sanction of suspension considering range of sanctions available, conduct at issue, and trial court’s reasoning); Curtis, 20 S.W.3d at 235 (sanctions suspending attorney for one year, six months active and six months probated, were not abuse of discretion where trial court found violations of several rules of disciplinary conduct including conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.04(a), and sanctions were less severe than advocated by commission at trial).

McIntyre also challenges the award of attorneys’ fees to appellee. He concedes appellee may recover reasonable and necessary attorneys’ fees under the rules of disciplinary procedure, but argues the fees incurred were neither reasonable nor necessary. He contends the commission was not the prevailing party on the primary issues in the case, and complains the commission failed to segregate its fees between the issues on which it prevailed and the issues on which it did not prevail, and therefore is not entitled to an award of any attorneys’ fees. Appellant does not cite authority for this proposition. The trial judge heard evidence from the commission regarding its fees, and appellant vigorously cross-examined the commission’s attorney as to the reasonableness and necessity of the fees and costs. The trial judge also heard testimony from appellant relevant to the costs incurred by the commission. The trial judge did not abuse his discretion in the award of attorneys’ fees and costs to the commission. See Curtis, 20 S.W.3d at 235 (attorney fees and court costs are appropriate sanction for violating disciplinary rule; no abuse of discretion to award fees and costs consistent with commission’s evidence). We overrule appellant’s fourteenth, fifteenth, and sixteenth issues.

We affirm the trial court’s judgment.


source: Caselaw Access Project

author: Justice MAZZANT.

license: Public Domain

text:
    DAVID L. SMITH AND ASSOCIATES, LLP, Appellant v. ADVANCED PLACEMENT TEAM, INC. and Renee Yousey, Appellees.
    No. 05-04-01317-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 24, 2005.

      Mark Randolph Lee, Lead Counsel, Austin, for Appellant.
    William C. Odeneal, Odeneal & Odeneal, Dallas, for Appellees.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this case brought under the Telephone Consumer Protection Act (TCPA) and Chapter 44 of the Texas Business and Commerce Code, David L. Smith and Associates, LLP appeals the trial court’s take-nothing judgment granted in favor of Advanced Placement Team, Inc. and Renee Yousey (collectively APT). In four issues, Smith argues the trial court erred in (1) construing the statutory definition of advertisement and finding APT’s transmissions were not advertisements; (2) finding that Smith invited the transmissions; (3) failing to find that APT had not responded within 24 hours of Smith’s request to remove his telephone number; and (4) failing to find Advanced Placement Team and Yousey jointly and severally liable for the alleged TCPA violations. We affirm the trial court’s judgment in part and reverse and remand in part.

BACKGROUND

Between October 1999 and October 2000, Smith placed advertisements in The Dallas Morning News seeking resumes for staff accountants and bookkeepers. These advertisements included Smith’s facsimile (fax) number and requested that resumes be faxed to Smith. Between October 1999 and February 2001, APT responded to the advertisements by faxing a total of 74 “newsletters” to Smith. The Smith employees who received the APT faxes removed them from the fax machine and put them in a box.

On May 7, 2003 — more than two years after receiving the last fax from APT— Smith, via an attorney, sent a letter to APT alleging APT had violated the TCPA, offering to settle the issue if APT paid Smith a proposed sum and requesting that its fax number be removed from APT’s faxing system. Smith asserted it never received a response to the letter. Yousey, the president of Advanced Placement Team, testified that after receiving Smith’s letter, someone from APT attempted to contact Smith by telephone but did not send a written response; she stated the letter had not requested that a response be made in writing.

After receiving no response to its May 7, 2003 letter, Smith filed suit against APT on September 15, 2003, alleging violations of the TCPA and section 35.47 of the Texas Business and Commerce Code. The trial court granted partial summary judgment in APT’s favor, dismissing all of Smith’s state law claims other than the cause of action arising from Smith’s May 7, 2003 demand letter to APT. The remaining claim asserted that APT violated federal law under the TCPA by sending the 74 unsolicited faxes.

The trial court proceeded with a trial on the merits of the remaining claims and entered a take-nothing judgment against Smith. On Smith’s request, the trial court entered findings of fact and conclusions of law. The trial court found, inter alia, that Renee Yousey is a principal of APT and was primarily responsible for the sending of the facsimile transmissions for her company; that due to the subject matter of Smith’s advertisements and the placing of its facsimile number in the public domain, Smith effectively invited or solicited the transmissions from APT; and that of the 74 facsimile transmissions complained of by Smith, the last one was sent on January 30, 2001, more than two years before Smith filed this lawsuit. The court concluded as a matter of law that because Smith solicited or invited the transmissions, APT did not violate the TCPA. It also concluded that all of Smith’s state law claims were barred by the two-year statute of limitations found in section 16.003(a) of the Texas Civil Practice and Remedies Code. The trial court did not enter additional findings when Smith requested them. This appeal followed.

STANDARDS OF REVIEW

Findings of fact in a nonjury trial have the same force and dignity as a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997), pet. denied, 977 S.W.2d 562 (Tex. 1998) (per curiam). When a complete reporter’s record is filed, the trial court’s fact findings may be reviewed for legal and factual sufficiency under the same standards as jury verdicts. Min v. Avila, 991 S.W.2d 495, 500 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per cu-riam). We do not review a trial court’s conclusions of law for factual sufficiency. See Ashcraft, 952 S.W.2d at 910. Rather, we evaluate the conclusions independently, determining whether the trial court correctly drew the legal conclusions from the facts. Id.; Dallas Morning News Co. v. Bd. of Trustees, 861 S.W.2d 532, 536 (Tex. App.-Dallas 1993, writ denied). However, incorrect conclusions of law will not require a reversal if the controlling findings of fact will support the judgment under a correct legal theory. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ).

Telephone ConsumeR PROTECTION Act

Express Permission or Invitation

We initially address Smith’s second issue. In this issue, Smith argues the court erred in finding that Smith gave APT prior express permission or invitation to receive APT’s transmissions. This is a complaint against this factual finding, and we review the issue by examining all of the evidence. See Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ).

The TCPA makes it unlawful for any person in the United States “to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C.A. § 227(b)(1) (West 2001). “The term ‘unsolicited advertisement’ means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” Id. § 227(a)(4). The TCPA provides a private right of action for a violation of the statute to enjoin violations and to recover the actual monetary loss from a violation or $500 in damages for each violation, whichever is greater. Id. § 227(b)(3).

The trial court specifically found that Smith “effectively invited or solicited the transmissions from APT.” Based on this finding, the trial court concluded the transmissions were not “unsolicited advertisements” prohibited by the statute. According to the statute, if transmitted material is sent with “prior express invitation or permission,” then it does not fall under the definition of “unsolicited advertisement.” See id. § 227(a)(4). It is unsolicited advertisements that are prohibited from being transmitted. See id. § 227(b)(1). Thus, if a transmission is invited by the recipient or if the sender has express permission to send it, the transmission is not banned by the statute.

Smith argues that “mere distribution or publication” of a fax number does not equate to express permission or invitation. However, in the present case Smith did more than merely publish its number; Smith requested that resumes be faxed to the published fax number.

Smith agrees its classified listing was “an agreement to receive certain faxes.” It argues, however, that it agreed to accept only resumes from persons applying for an employment position. Smith contends that “even if consent could be inferred or implied ... the statute plainly requires prior express consent.” Smith focuses its argument on whether express consent was given to APT to send the transmissions. Smith, however, does not address the clear invitation to potential job seekers to send transmissions to Smith. The TCPA allows transmissions to be sent if there is invitation or permission; both are not required. Id. § 227(a)(4).

The language of the classified advertisements that Smith placed is in the record. The advertisements read, “Local firm needs staff accountants & bookkeepers. Coit & LBJ area. Fax resume to ...” and “Local CPA firm needs staff accountants & bookkeepers. Fax resume to....” Neither type of wording used in any way restricts the invitation to potential applicants, nor does it exclude employment agencies.

Exhibits 2-15, 17-23, 25-63, 65-74

Two distinct types of faxes were sent to Smith by APT. In what we will refer to as Group A, represented in the record as Plaintiffs Exhibits 2-15, 17-23, 25-63, and 65-74, each transmission contained a page that contained “mini-resumes” on one side, and newsletter stories on the other. The testimony showed that the persons portrayed on these transmissions were clients of APT who were looking for employment in the accounting or bookkeeping fields. Each transmission contained the descriptions of these people by listing things such as their educational qualifications and employment history. A phone number was provided for the recipient to call and find out more information on any potential applicant.

Smith argues the information that was sent was not a “resume.” However, even if we needed to define what constituted a resume, the transmissions sent by APT fulfill all the definitions as provided by Smith. Smith also asserts that the resume had to contain each applicant’s name and contact information. But nothing directs this Court to any such legal requirement. The transmissions contained a telephone number Smith could use to follow up and contact any of the potential applicants highlighted on APT’s transmissions. Further, Smith’s advertisement did not restrict the type of resume that could be sent. Nothing in the advertisement limited responses other than the type of position being sought, and there was evidence that the applicants represented on the faxes sought positions in accounting and bookkeeping — the positions Smith wanted to fill.

Having reviewed all of the evidence, we conclude the evidence that Smith gave APT prior express permission or invitation to receive APT’s Group A transmissions is not so weak and is not so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Zieben, 786 S.W.2d at 799. Smith’s classified advertisements gave blanket consent to anyone reading it to fax a resume if interested in a position. The advertisement did not exclude agencies, and it was not restricted to individuals. Accordingly, we conclude the evidence was factually sufficient to support the trial court’s finding that Smith invited or solicited the transmissions from APT and that APT, due to the nature of its business, was entitled to respond to the invitation.

Exhibits 1, 16, 24, 64

The other type of fax sent to Smith by APT — Group B — is made up of Plaintiffs Exhibits 1, 16, 24, and 64. Each of these faxes states, “Noticed you were looking for help!” The one-page fax listed fees and requested the recipient to call APT. No information at all similar to a resume was contained in the fax.

Having reviewed all of the evidence pertinent to APT’s Group B faxes, we conclude the evidence that Smith invited APT to send these faxes is against the great weight and preponderance of the evidence such that it is clearly wrong and unjust. See Zieben, 786 S.W.2d at 799. These four faxes contain no information that was requested by Smith and nothing that could be construed as a resume. We resolve Smith’s second issue against it in part as it relates to exhibits 2-15, 17-23, 25-63, and 65-74. We resolve Smith’s second issue in its favor as it relates to exhibits 1, 16, 24, and 64.

Burden of Proof

Smith also asserts a burden-of-proof argument and states APT had the burden of showing it had permission to send the faxes. Without supporting authority, Smith argues APT was required to call Smith and ask if Smith minded receiving faxes from APT. We disagree. As stated above, the statute allows transmissions to be sent if there is invitation or permission. 47 U.S.C.A. § 227(a)(4). And as we concluded above, with the exception of exhibits 1, 16, 24 and 64, the evidence was sufficient to support the trial court’s finding that Smith invited the transmissions according to the wording of the newspaper advertisement.

Construing the Statute

In its first issue, Smith complains as follows: “The trial court erred in construing the statutory definition of ‘advertisement,’ and in finding that Appellees’ transmissions were not advertisements.” Smith does not direct this Court to where in the record the trial court construed the word “advertising,” or where the trial court applied that construction and made the specific complained-of finding. We have reviewed the findings of fact and conclusions of law, and we do not find the trial court so construed the statute. Instead, the court concluded that, based on its finding that Smith invited the transmissions, the statute did not prohibit APT from sending the faxes.

The Statute op Limitations

Applying the Statute of Limitations to the TCPA Claim

Returning to Smith’s second point of error and exhibits 1, 16, 24 and 64, we first note that in its findings of fact the trial court found that the last of the 74 facsimile transmissions was sent more than two years before Smith filed this lawsuit. In the motion for summary judgment APT argued that all of the faxes were sent more than two years before Smith filed its lawsuit, and were therefore time-barred by the civil practice and remedies code. See Tex. Crv. Peac. & Rem.Code Ann. § 16.003 (Vernon 2002). Smith argued in response that the two-year limitations period did not apply to the federal claims. We disagree. In so doing, we follow the reasoning of the Fourteenth Court of Appeals and conclude that in a private claim under the TCPA, the Texas two-year limitations period applies not only to the state law claims that arose more than two years prior to Smith’s filing suit, but also to Smith’s claims under federal law. See Chair King, Inc. v. GTE Mobilnet, 135 S.W.3d 365, 389-392 (Tex. App.-Houston [14th Dist.] 2004, pet. granted).

In Chair King, the court analyzed the language discussing the federal limitations period, the TCPA, and the state limitations periods. Under federal law, “[ejxcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.” 28 U.S.C.A. § 1658(a) (West Supp.2005). As Smith points out, the TCPA was enacted after section 1658 was enacted and seems initially to fall under the section 1658 language. However, we must also address the language “except as otherwise provided by law” of section 1658, and the TCPA itself allows private damage claims in a state court “if otherwise permitted by the laws or mies of court of a State.” 47 U.S.C.A. § 227(b)(3) (emphasis added). Accordingly, a party may assert a private claim under the TCPA only if state law so permits. In this “reverse-Erie ” situation, therefore, we apply state procedure laws to the TCPA claim. See Chair King, 135 S.W.3d at 390-91; see also Exxon Corp. v. Choo, 881 S.W.2d 301, 305-06 & n. 9 (Tex. 1994).

Under Texas law, if a tort is not expressly covered by a statute of limitations, we presume the tort is a trespass for purposes of determining the statute of limitations and apply the two-year limitations period as per civil practice and remedies code section 16.003(a). See Williams v. Khalaf, 802 S.W.2d 651, 654 n. 2 (Tex.1990) (citing Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988)). The Texas Supreme Court has not held that the claims under the TCPA are governed by a statute of limitations other than section 16.003(a), and the TCPA itself does not provide a separate limitations period. Accordingly, we conclude that the two-year limitations period under section 16.003(a) applies to the federal law claims. See Chair King, 135 S.W.3d at 391. Based on this, the trial court’s fact finding supports the trial court’s judgment that Smith take nothing regarding all of the federal law claims, including exhibits 1, 16, 24, and 64. See Westech Eng’g, Inc., 835 S.W.2d at 196. We therefore affirm the judgment relating to the remaining federal law claims.

Applying the Statute of Limitations to the Section 44.152 Claim

In addition to finding that the last of the 74 facsimile transmissions was sent more than two years before Smith filed this lawsuit, the trial court also concluded that Smith’s remaining state law claim based on the May 7th demand letter was barred by limitations. In its third issue Smith argues, inter alia, that this claim under section 44.152(1) is not barred by limitations because the cause of action accrued when APT failed to respond in writing within twenty-four hours of receiving Smith’s May 7th demand letter. We agree.

Section 44.152 reads in part:

On receipt of oral or written notification from a recipient of a facsimile solicitation not to send any further facsimile transmissions to one or more telephone numbers specified by the recipient, the person making the facsimile solicitation:
(1) shall within 24 hours send the recipient a written acknowledgment of the recipient’s notification....

Tex. Bus. & Com.Code Ann. § 44.152(1) (Vernon Supp.2004-05). The act that Smith alleged APT failed to do was sending a written acknowledgment that APT had received Smith’s notification. Smith sent the notification on May 7, 2003, which is less than two years before the filing date of the plaintiffs second amended petition on January 12, 2004. We therefore conclude the trial court erred in holding that Smith’s section 44.152 claim was time-barred, and we sustain Smith’s third point of error.

Conclusion

The federal law claims are time-barred. Likewise, because of our resolution of the federal-law claims, and because we remand the issue addressing Smith’s claims under section 44.152, we do not address Smith’s fourth issue asserting the trial court erred in failing to find APT and Yousey jointly and severally liable for the alleged TCPA violations. There are no existing TCPA violations before this Court. Furthermore, we need not address Smith’s request for prejudgment interest, nor do we address its motion for the Court to take judicial notice of a subsequent lawsuit; any subsequent lawsuit is not dispositive of any issue in this appeal. See Tex.R.App. P. 47.1.

We affirm the trial court’s take-nothing judgment relating to the federal law claims. We reverse the portion of the trial court’s judgment dismissing Smith’s claim under seqtion 44.152 of the business and commerce code and remand the issue to the trial court for further proceedings. We affirm the trial court’s judgment in all other respects.

      . See 47 U.S.C.A. § 227 (West 2001).

      . Smith pled the former statutory citation at Tex. Bus. & Comm.Code § 35.47(d)(1). This statute was amended in 2001, renumbering the relevant language under section 43.152(1). See Act of May 17, 2001, 77th Leg., R.S., ch. 1429, §§ 1, 2, 2001 Tex. Gen. Laws 5102, 5106, 5108. The legislature subsequently renumbered the code, and the current version of the statute is found in section 44.152(1). See Act of May 20, 2003, 78th Leg., R.S., ch. 1275, § 2, 2003 Tex. Gen. Laws 4140, 4140. We will therefore refer to the statute using its current section number, section 44.152(1).

      . Smith conceded in its response to APT’s motion for summary judgment that most of its state law claims, other than the claim arising from the May 7, 2003 demand letter, were barred by limitations.

      . There is no signed summary judgment order in the record, but Smith agrees the summary judgment was so granted, and the record reflects the trial court’s comments indicating it had granted summary judgment as detailed above before trial.

      . Smith cites Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162 (S.D.Ind.1997), to argue that by advertising its services, APT's transmissions invoked liability for sending the fax. The Kenro case, though, is distinguishable because it did not involve a situation where the transmissions had been invited by the recipient.

      . Smith, quoting Webster’s New Collegiate Dictionary, 988 (1977), The Merriam Webster Dictionary, 627 (1994), and The American Heritage Dictionary of the English Language (4th ed.), respectively, defined resume as "a short account of one's career and qualifications prepared typically by an applicant of a position”; "a short account of one's career and qualifications usually prepared by a job applicant”; and "a brief account of one's professional or work experience and qualification.”

      . Although not raised specifically by APT as a cross-point, we must affirm the judgment if it can be upheld on any legal theory (even if the trial court gives an incorrect reason for its judgment). See Guar. County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986); Polk v. Braddock, 864 S.W.2d 78, 79 (Tex.App.Dallas 1992, no writ).

      . The trial court actually based its conclusion on the predecessor to section 44.152, section 35.47, which is what Smith pled in its original, first, and second amended petitions. The trial court's findings do not address section 44.152, but the substance of the statute did not change with the renumbering. It is clear from the trial court’s findings and the record that all of Smith’s state law claims were dismissed, including section 44.152.


author: Justice MORRIS.

text:
    Neel COTTEN, Individually and as Beneficiary of the Dennis M. Cotten Trust Created Under the Last Will and Testament of Dennis M. Cotten, Deceased, Cause No. 68-2694-P2(B) in Dallas County, Texas, Appellant v. George F. COTTEN, Individually and as General Partner in the Cotten Family Limited Partnership, and George F. Cotten, Independently, Executor of the Estate of Frances M. Cotten, Deceased, Cause No. 01-4441-P, Appellee.
    No. 05-04-01177-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 24, 2005.

      Lawrence L. Beason, Mineóla, for appellant.
    John Alan Goren, Robert K. Dowd, Robert K Dowd, P.C., Dallas, for appellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MORRIS.

This case involves a dispute between two brothers over family assets. Neel Cotten brought this suit against his brother George F. Cotten, alleging George applied undue influence over their late mother Frances Cotton when she executed her final will and living trust, created the Cot-ten Family Limited Partnership, and conveyed substantial family assets into the partnership. He also alleged his mother conveyed properties to the partnership based on a forged warranty deed from her late husband. The trial court granted summary judgment in favor of George dismissing Neel’s claims. We affirm the trial court’s judgment.

I.

Dennis Cotten, the father of Neel and George and the husband of Frances, died on October 17, 1968. Approximately one month earlier, a law firm had prepared a warranty deed in Dennis’s name, making an inter vivos gift to Frances of his one-half community-property interest in three tracts of land. The deed was notarized and filed of record on October 24, 1968.

Before her death in 2001, Frances Cot-ten met with an attorney in 1994 to draft a living trust, her final will, and the Cotten Family Limited Partnership. After Frances’s death, Neel filed suit contesting the validity of her will. George filed a motion for summary judgment in the case. He requested that the probate court grant summary judgment on the issues of whether Frances was of sound mind, had testamentary capacity, and was free from undue influence and fraud, and that the will was properly attested to and executed. On July 10, 2002, granting George’s motion in part, the probate court concluded that Frances was of sound mind at the time of the execution of her will and there was no fraud with respect to the execution of the will. In September 2002, Neel and George settled the case and agreed to the probate of the will. In 2004, Neel filed this suit, alleging George exercised undue influence over their mother when she executed the family limited partnership and her will and trust. He further alleged his mother had conveyed property to the limited partnership based on a void, forged warranty deed from his father. George responded by filing a traditional summary judgment motion. The trial court granted George’s motion for summary judgment. Neel then brought this appeal.

II.

In Neel’s first issue on appeal, he contends the trial court erred in granting George’s motion for summary judgment. He contends there were genuine issues of material fact about whether George exerted undue influence over Frances at the time she executed her will and created the trust and family limited partnership. We conduct a de novo review of a trial court’s summary judgment. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). To obtain summary judgment, George had the burden to show no genuine issue of material fact existed and he was entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

A will may be set aside for undue influence if a contestant proves: (1) the existence and exertion of an influence; (2) the effective operation of such an influence that the mind of the testator was subverted or overpowered at the time of the will’s execution; and (3) the execution of a will that the testator would not have executed but for that influence. Holcomb v. Holcomb, 803 S.W.2d 411, 414 (Tex.App.-Dallas 1991, writ denied) (citing Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963)). The exertion of undue influence cannot be inferred by opportunity alone. There must be some evidence to show that the influence was not only present, but in fact exerted with respect to the making of the testament itself. Although evidence of age and the common maladies of age may be considered as establishing the testator’s physical incapacity to resist or the susceptibility of her mind to an influence exerted, such evidence does not establish that her mind was in fact subverted or overpowered at the time of the execution of the instrument in question. See Rothermel, 369 S.W.2d at 923.

In support of his motion for summary judgment, George presented deposition testimony of the attorney who helped Frances draft the Cotten Family Limited Partnership and her will and trust. The attorney testified that when he met with her in 1994 to set up the transactions, she was an active eighty-four-year-old woman who had survived a stroke well and had just returned from a trip to Alaska. The attorney noted that Frances was “very engaged” during the several hours he was involved with her. The attorney stated she had the capacity to understand the general nature and extent of her property and what she was doing in the various transactions.

Frances’s treating physician also testified by deposition that, in 1994, she had the ability to understand her business and finances, had full custody of her mental facilities, had the ability to understand her acts for the making of a will, had the capacity to understand the general nature and extent of her various holdings and property, and had memory sufficient to recollect the elements of the business of execution of wills and trusts and to hold that memory long enough to apply the elements to the creation of her will and trust. In 2002, the probate court in this case concluded that Frances was of sound mind at the time of the execution of the will. At the same time, the probate court concluded there was no fraud with respect to the will’s execution.

Neel argues on appeal that George had a “fiduciary relationship” with his mother and that relationship created a fact issue on undue influence. More specifically, he contends that because George’s adult daughter lived with Frances and attended to her needs, there was a fiduciary relationship between George and the mother. Appellant cites no authority, and we have found none, for the proposition that an adult granddaughter’s living with and caring for her grandmother creates a fiduciary relationship between the grandmother and the granddaughter’s father. Because Neel failed to show the existence of a fiduciary relationship, he failed to raise a fact issue based on such a relationship.

Neel also argues that because a “greatly disproportionate disposition of the Cotten family properties favorfed]” George over him, the “unnatural disposition” of the family properties created a fact issue about whether George had exercised undue influence over his mother when she executed the complained-of documents. But a person of sound mind has a legal right to dispose of her property as she wishes. Only where “all reasonable explanation in affection for the devise is lacking” can it be said that the disposition was unnatural. Id. at 923-24. In this case, the evidence showed that Neel’s relationship with his mother had been strained for years before the execution of her will and the execution of the trust and family partnership. Thus, the disproportionate disposition of the property did not create a fact issue about whether George had exercised undue influence over Frances. We conclude George established, as a matter of law, that Frances’s execution of her will and her creation of the trust and family partnership was not the result of undue influence. The trial court did not err in granting summary judgment on this matter. We resolve Neel’s first issue against him.

In Neel’s next issue, he contends the trial court erred in granting George’s motion for summary judgment on the issue of the allegedly forged deed. Neel argues that his father’s signature on the 1968 warranty deed is a forgery. He contends that, due to the forgery, his mother’s attempt to convey the property that was the subject of the deed to the family limited partnership is void. He further contends that he and George, therefore, are equal owners of the property in question, as equal beneficiaries of the Dennis M. Cot-ten Trust.

Neel filed an affidavit in support of his response to George’s motion for summary judgment in this case. In the affidavit, he stated that his mother had forged his father’s signature on the deed and the forgery had been confirmed by a qualified handwriting expert. Neel admitted in his affidavit, however, that he was not present at the execution of the deed. And we note that the record before us does not reveal the expert referred to by Neel testified by affidavit or otherwise. At the hearing on the motion for summary judgment, George moved to strike Neel’s statements about the forgery, and the trial court granted George’s motion. At that point there was no evidence showing the deed was forged, and the trial court did not err in granting summary judgment on the forgery issue. We resolve Neel’s second issue against him.

In a related issue, Neel complains the trial court erred by hearing and granting George’s motion to strike Neel’s affidavit. Neel contends the trial court abused its discretion because it did not require George to serve him with a “motion and notice of hearing on the motion” at least three days before the hearing on George’s summary judgment motion, when the motion to strike was filed, as required by the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 21. Neel’s statements in his affidavit that his mother had forged his father’s signature and an unidentified “expert” had confirmed the forgery were con-clusory and therefore not proper summary judgment evidence. See Thompson v. Curtis, 127 S.W.3d 446, 450-51 (Tex.App.Dallas 2004, no pet.). We conclude the trial court did not abuse its discretion in granting the motion to strike. Furthermore, our record reveals no complaint or objection was lodged with the trial court about hearing the motion to strike. Neel merely argues in his appellate brief that the “untimely notice was called to the trial court’s attention.” Absent an objection and an adverse ruling in our record, any error for failing to follow rule 21 is not preserved for our review. See Tex.R.App. P. 33.1(a). We resolve Neel’s third issue against him.

Neel complains in his fourth issue about the evidence George used to support his motion for summary judgment. He argues, in part, that the trial court erroneously considered the affidavit of his mother’s physician. Neel asserts the affidavit should not have been considered as summary judgment evidence because “the doctor’s treatment reports ... are not complete.” This complaint was not raised in the trial court. Because he failed to object, the claimed error is not preserved for our review. See id.

Neel also has not preserved his complaint that the trial court erred “in considering as summary judgment proof the copies of unsworn and uncertified excerpts from depositions” attached to George’s motion for summary judgment. He alleges on appeal that the excerpts were not properly authenticated. But in his opposition to George’s motion for summary judgment, Neel objected only on the basis that George had failed to show the deponents were unavailable for testimony in the case. His appellate complaint does not comport with his objection to the trial court. The claimed error is not preserved for our review. See id.

Finally, Neel argues that “the other exhibits attached to the motion are not competent summary judgment evidence, since the exhibits are not self-proving and are not attached to an affidavit that proves the exhibits to be true.” First, Neel’s argument ignores the effect of Texas Rule of Civil Procedure 166a(d), which states,

[djiscovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs ... at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment....

Tex.R. Civ. P. 166a(d). The supreme court has held that this rule “supercedes any authentication requirement.” McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994). To the extent the “exhibits” are discovery products, Neel’s argument is not well taken, and Neel makes no argument that the exhibits are not subject to rule 166a(d).

Second, George attached thirteen exhibits, totaling 263 pages, to his motion for summary judgment. The exhibits include an eighty-six page letter from Neel to Frances, the 2002 settlement agreement signed by both parties and notarized, a 2002 court order in a related proceeding between the two parties, a certified copy of the 1968 deed, and all the family planning instruments executed by the mother in 1994, which contain notarized acknowledgments of all the parties to the instruments. Neel fails to point out how any particular exhibit is flawed but instead makes a general claim that the evidence is not authenticated. We have no duty to conduct an independent search of the record to determine whether Neel’s general claim is true. See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas, writ refd n.r.e.). Instead, it is Neel’s burden to point us to the place m the record where matters complained of are established. Id. Neel has failed to do so. Based on the forgoing, we conclude Neel’s fourth issue is without merit. We resolve it against him.

We affirm the trial court’s judgment.

      . In his reply brief on appeal, Neel attempts to refute this evidence with deposition excerpts attached to his opposition to George's motion for summary judgment in a previous proceeding. This evidence was not in the summary judgment evidence before the trial court in this case and is not properly before us.


author: Chief Justice LAMBERT.

text:
    Cynthia PEDIGO, Appellant, v. Michael BREEN, Appellee.
    No. 2003-SC-0028-DG.
    Supreme Court of Kentucky.
    Oct. 21, 2004.
    As Modified on Denial of Rehearing Feb. 17, 2005.
    Michael A. Schafer, Louisville, Counsel for Appellant.
    Barton D. Darrell, Elizabeth W. Burt, Bell, Orr, Ayers & Moore, P.S.C., Bowling Green, Counsel for Appellee.
   Opinion of the Court by

Chief Justice LAMBERT.

KRS 413.245 provides that a claim for professional negligence shall be brought within “one year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party.” Appellant, Cynthia Pedigo, consulted with Appellee, attorney Michael Breen, concerning a possible claim against breast implant manufacturers for defective products. After their consultation, Breen declined to represent Pedigo, and she claims that he lost her original medical records. As a result of the lost medical records and upon her claim of damages therefrom, Appellant filed suit against Breen on June 21, 1999, almost seven years after the initial consultation. Here, we must decide whether Pedigo’s final settlement with the breast implant manufacturer in 1998 began the running of the one year statute of limitations, or whether her claim was barred at an earlier date. We hold that because the underlying litigation did not reach a final conclusion until June 30,1998, only then did Pedigo’s damages become fixed and non-speculative. As Appellant brought her claim within one year of that date, it was timely.

The procedural history of this case is that the Warren Circuit Court dismissed Appellant’s lawsuit against Appellee Breen on grounds that she did not bring her claim within the allotted one year period. The Court of Appeals affirmed in a unanimous opinion, and rejected Appellant’s claim that she had timely filed within one year of the date that her legal harm became fixed and non-speculative. Upon the Court of Appeals decision, we granted discretionary review.

In response to Breen’s advertisements seeking clients to pursue a class action lawsuit against breast implant manufacturers, Appellant sought Breen’s representation because she attributed certain medical problems to her breast implants. Appellant alleges that she delivered her original medical records to attorneys working in Breen’s office during the initial meeting. In August 1992, Breen notified Appellant that he would not take her case due to lack of scientific evidence and the high cost associated with that type of case. Appellant claims that she went to Breen’s office several days later to retrieve the case file, but her original medical records were not there. To no avail, Appellant repeatedly contacted Breen’s office and requested that her medical records be returned. For his part, Breen contends that he could not have lost any medical records because Appellant never brought them in for his review; that he never had them in his possession.

Appellant continued pursuit of her breast implant claim through attorney Flora Templeton Stuart. Stuart represented Appellant through 1996 when Appellant sought to join Multi-District Litigation (the “MDL”) against manufacturers of breast implants. Appellant was denied participation in the MDL because she lacked her original medical records. In February of 1996, Stuart suggested that Appellant pay for new examinations by physicians. Appellant agreed and participated in several medical examinations accumulating thousands of dollars in fees. Appellant paid $400 for tests to determine who had manufactured the breast implants. On July 1, 1997, Resch Engineering issued a report concluding that the 3M Company had manufactured the products. Appellant subsequently hired attorney Michael Schafer to represent her. After receiving notice that she would not receive a settlement offer due to the loss of her medical records, Appellant opted out of the MDL class action. She considered filing an individual lawsuit against 3M, but chose instead to settle her claim with 3M for $50,000 on June 30, 1998. Appellant later obtained information indicating that if she had been allowed to participate in the MDL, she would have received five times more than she received in the actual settlement.

On June 21, 1999, almost one year after her final settlement with 3M, Appellant brought this legal negligence claim against Breen. Appellant claims that on June 30, 1998, the date of the 3M settlement, her damages ceased to be speculative. She contends that the statute of limitations began to run on June 30, 1998, and therefore her complaint on June 21, 1999, was timely. Breen argues that Appellant discovered the alleged negligent act as early as 1992, and that she suffered non-speculative damages no later than July 1, 1997, more than one year before she filed her complaint against him.

The provisions of KRS 413.245, the controlling statute, are as follows:

Notwithstanding any other prescribed limitation of actions which might otherwise appear applicable, except those provided in KRS 413.140, a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall he brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured. Time shall not commence against a party under legal disability until removal of the disability, (emphasis added).

Construing this statute, this Court has recognized two possible dates upon which the statute of limitations begins to run. The first is the date of the occurrence, and the second is the date of discovery, if it is later in time.

A professional negligence claim does not accrue until there has been a negligent act and until reasonably ascertainable damages are incurred. When professional negligence occurs during the course of formal litigation, we have held that the injury becomes definite and non-speculative when the underlying case is final. Until the underlying case is final and non-appealable, the statute of limitations is tolled because no cognizable claim has yet accrued.

In Alagia, Day, Trautwein & Smith v. Broadbent, an attorney was sued for malpractice for incorrectly advising of the tax consequences of inter vivos land transfers that eventually resulted in a substantial tax assessment. This Court held that the statute of limitations did not run while there was an ongoing attorney-client relationship, and we held that the injury did not become fixed and non-speculative until the ongoing negotiations with the IRS were concluded and a final settlement of the tax claim reached. We reasoned that until then a party could not measure damages attributable to the negligent conduct. “Thus, the client’s knowledge or imputed knowledge of a potential malpractice claim was not decisive until there was a final adverse determination of the underlying claim.”

In the present case, Breen’s alleged negligence occurred during August or September of 1992. Although the alleged loss of the records may have prevented Appellant from qualifying for the MDL class action, damages at that time were merely speculative and measurable only by the cost of attempting to reconstruct her medical records so that the breast implant case could proceed. While the reconstruction of the medical records was necessary for Appellant to proceed and costs were incurred, there was no accounting for the value of the underlying case because it was ongoing. In other words, the cost of the records did not include the compensation Appellant claims to have lost because she failed to qualify for the MDL class action by timely production of her original medical records. Not until Appellant reached a non-MDL settlement with 3M on June 30, 1998, was she able to ascertain the damage sustained. As in Alagia, Day, Trautwein & Smith and other precedent, Appellant’s damages did not become fixed until the date of her settlement in the underlying case for which she had sought representation. Thus, Appellant’s claim for damages arising out of her inability to participate in the MDL class action was timely, but her claims for costs associated with identification of the implant manufacturer and costs associated with reconstruction of the original medical records are barred unless Appellant is successful on her claim for damages arising out of her denial of participation in the MDL class action litigation. Breen’s Motion for Summary Judgment was not ruled upon by the trial court, and on remand that motion will be before the court.

This case well illustrates the desirability of strictly construing the occurrence rule and requiring that all tort elements be fully developed. As in Alagia, Day, Trautwein & Smith v. Broadbent, Hibbard v. Taylor, and Michels v. Sklavos, sound public policy is best served by allowing parties an opportunity to seek mitigation of damages by pursuit of the underlying claim, and by leaving the professional negligence claim open until the underlying claim is concluded.

For the forgoing reasons, we reverse the Court of Appeals and remand to the trial court for further consistent proceedings.

COOPER, GRAVES, JOHNSTONE, KELLER, and STUMBO, JJ., concurred in the original opinion and WINTERSHEIMER, J., dissented.

COOPER, GRAVES, JOHNSTONE, KELLER, and SCOTT, JJ., concur in the opinion as modified, and WINTERSHEIMER, J., dissents.

      . Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky.1994).

      . See Faris v. Stone, 103 S.W.3d 1, 5 (Ky. 2003).

      . Id.; Hibbard v. Taylor, 837 S.W.2d 500 (Ky. 1992) (holding damages from underlying cause of action became fixed and non-speculative on the date the Kentucky Supreme Court denied discretionary review).

      . See Barker v. Miller, 918 S.W.2d 749, 751 (Ky.App.1996).

      . 882 S.W.2d at 126.

      . Id.

      . See generally id. (discussing the "continuous representation” rule).

      . Id.

        . See Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973).

      . Fans, 103 S.W.3d at 5.

      . 837 S.W.2d 500.

      .869 S.W.2d 728 (Ky.1994).