list of parties and counsel

Transcription

LIST OF PARTIES AND COUNSEL
Appellant
Appellate Counsel
Edwin C. Olsen IV
R. Deryl Edwards, Jr.
606 S. Pearl Ave.
Joplin, MO 64801
(417) 624-1962 (o)
(417) 624-1965 (f)
Trial and Appellate Counsel
Jeff Forest Smith
6750 Hillcrest Plaza
Suite 214, LB-16
Dallas, Texas
972-387-3388 (o)
972-387-2299 (f)
Trial Counsel Pro Se
Edwin C. Olsen IV
11318 Cotillion Drive
Dallas, Texas
469-441-8715 (o)
972-686-1464 (f)
Appellee
Appellate Counsel
Commission for Lawyer Discipline
Jeremy Kernodle
Haynes & Boone, L.L.P.
2323 Victory Ave, Suite 700
Dallas, TX 75219
214-651-5159 (o)
214-200-0693 (f)
Appellate Counsel
Cynthia W. Hamilton
Office Chief Disc. Counsel
State Bar of Texas
P.O. Box 12487
Austin, TX 78711-2487
512-427-1349 (o)
512-427-4167 (f)
Trial Counsel
Susan Morgan Farris
Office Chief Disc. Counsel
State Bar of Texas
One Lincoln Centre
5400 LBJ Freeway, Suite 1280
Dallas, Texas 75240
972-383-2900 (o)
972-383-2935 (f)
i
TABLE OF CONTENTS
List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . .ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . vi
Statement Regarding Record References . . . . . . . . . . . . . . .vii
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . viii
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of the Argument . . . . . . . . . . . . . . . . . . . . . . 4
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1. EVIDENTIARY STANDARD FOR LAWYER DISCIPLINARY ACTIONS . . . . . . . 5
2. EVIDENTIARY STANDARD FOR SUMMARY JUDGEMENTS . . . . . . . . . . . .6
3. STANDARD OF APPELLATE REVIEW FOR SUMMARY JUDGEMENTS . . . . . . . 7
4. ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . .7
A. The Summary Judgment Evidence. . . . . . . . . . . . . . . . . . . 7
B: ISSUE ONE:
The trial court erred in granting the Commission for
Lawyer Discipline’s Motion for Partial Summary Judgment. . . . 8
C: ISSUE TWO:
The trial court erred in granting summary judgment that Mr. Olsen
violated Rule 3.08(a). . . . . . . . . . . . . . . . . . . . . .8
D: ISSUE THREE:
violated Rule 8.04(a)(3) regarding Mary Ellen’s February 22, 2005
Will and accompanying notary jurat, and in granting summary
judgment that the Mary Ellen’s actual February 22, 2005 Will
consisted solely of two pages and was not accompanied by a third
page bearing a notary’s jurat, signature and seal, and that the
filing of the three-page will document constituted dishonesty and
misrepresentation. . . . . . . . . . . . . . . . . . . . . . . 13
E: ISSUE FOUR:
violated Rule 8.04(a)(3) regarding the notary jurat’s language
accompanying Mary Ellen’s February 22, 2005 Will, and in granting
summary judgment that the filing the original of Mary Ellen’s
February 22, 2005 Will with the accompanying jurat erroneously
stating that Mary Ellen was before the notary constituted
dishonesty and misrepresentation. . . . . . . . . . . . . . . .17
F: ISSUE FIVE:
violated 8.04(a)(3), 3.03(a)(1), 3.03(b), and in granting summary
judgment that Mr. Olsen’s statements to the court were dishonest,
constituted a misrepresentation to the court, and that Mr. Olsen
was not candid with the court and intended to mislead the court.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
G: ISSUE SIX:
violated 8.04(a)(3), 3.03(a)(1) & 3.03(b), and in granting
summary judgment that Mr. Olsen’s Opposition to Giron’s Motion
for Emergency Orders was dishonest, constituted a
misrepresentation to the court, and that Mr. Olsen was not candid
with the court and intended to mislead the court. . . . . . . .31
H: ISSUE SEVEN:
violated Rule 8.04(a)(1). . . . . . . . . . . . . . . . . . . .34
I: Procedural History of the Disciplinary Case: . . . . . . . . . . .34
ii
J: ISSUE EIGHT:
The trial court erred in giving Mr. Olsen only three hour’s
notice of the re-set December 5, 2008 summary judgment hearing
date and time, and erred in not complying with the procedural
requirements of T.R.C.P. 166a. . . . . . . . . . . . . . . . . 37
K: ISSUE NINE:
The trial court erred in denying Mr. Olsen’s written and oral
request for the creation of a written record, and erred in not
permitting the court reporter to perform her duty as mandated by
the Texas Rules of Appellate Procedure. . . . . . . . . . . . .38
L: ISSUE TEN:
The trial court erred in striking Mr. Olsen’s Response
verification and affidavit, and in sustaining the Commission’s
objections to Mr. McCay’s and Burgess’ affidavit portions
pertaining to Mary Ellen’s will. . . . . . . . . . . . . . . . 39
M: ISSUE ELEVEN:
The trial court erred in denying Mr. Olsen’s motion to cure the
alleged defects in the affidavits attached to his Response, his
motion to supplement the record with additional affidavits and
discovery, and his motion to continue the summary judgment
hearing until the deposition of Judge Price was completed. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
N: ISSUE TWELVE:
The trial court erred in granting summary judgment to the
Commission, there by denying Mr. Olsen’s right to a trial by jury
and his right to due process. . . . . . . . . . . . . . . . . .44
O: ISSUE THIRTEEN:
The trial court erred in not following the Texas Rules of
Disciplinary Procedure’s requirement to consider all the factors
set forth in § 3.10 in determining the appropriate sanction for
attorney misconduct. . . . . . . . . . . . . . . . . . . . . . 45
P: ISSUE FOURTEEN:
The trial court erred in deciding that the appropriate sanction
for attorney misconduct was disbarment, disbarment was not a
“just” punishment under the circumstances. . . . . . . . . . . 48
Q: ISSUE FIFTEEN:
The trial court erred in refusing to conduct a hearing on Mr.
Olsen’s timely filed Verified motion for new trial regarding the
default disbarment judgment. . . . . . . . . . . . . . . . . . 49
R: ISSUE SIXTEEN:
The trial court erred in awarding attorney’s fees to the
Commission because no admissible evidence exists in the record
supporting the reasonableness nor amount of the Commission’s
alleged attorney fees. . . . . . . . . . . . . . . . . . . . . 49
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . 51
APPENDIX INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
iii
INDEX OF AUTHORITIES
CASE LAW:
Bastine v. Comm'n for Lawyer Discipline, 252 S.W.3d 413,416-7
(Tex.App.–Houston [1stDist.] 1996, no writ): page 50
Birdwell v. Texins Credit Union, 843 S.W.2d 246, 249-50 (Tex. App. –
Texarkana 1992, no writ): page 38
City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675-79
(Tex. 1979): pages 6, 45
Cutler v. Ament, 726 S.W.2d 605, 609 (Tex. App. – Houston [14th Dist.],
1987, writ ref’d n.r.e.): pages 18, 19
Daves v. State Bar of Texas, 691 S.W.2d 784, 791 (Tex. App.--Amarillo
1985, writ ref'd n.r.e.), dism'd, 474 U.S. 1043 (1986), citing State v.
Ingram, 511 S.W.2d 252, 253 (Tex. 1974): page 49
E.B. Smith Co. V. USF&G, 850 S.W.2d 621, 623 (Tex. App. – Corpus
Christi 1993, writ den.): page 8
Fluty v. Simmons Co., 835 S.W.2d 664, 667 (Tex. App.—Dallas 1992, no
writ): page 49
Gasaway v. Nesmith, 548 S.W.2d 457, 460 (Tex. Civ. App. – Houston [1st
Dist.] 1977, writ ref’d n.r.e.): page 19
Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970): page 6
Luker at 629, citing Nixon v. Mr. Property Management Co., 690 S.W.2d
546, 548 (Tex. 1985): page 6
Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970): page 8
May v. Crofts, 868 S.W.2d 397, 399 (Tex. App. – Texarkana 1993, no
writ): page 9
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) 6
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999): page 6
Rodriguez v. Naylor Industries, Inc., 763 S.W.2d 411, 412-3 (Tex.
1989): page 6, 7
Smith v. Smith, 544 S.W.2d 121, 123 (Tex. 1976): page 39
State v. Ingram, 511 S.W.2d 252, 253 (Tex. 1974): page 49
State Bar v. Kilpatrick, 874 S.W.2d 656, 659(Tex. 1994): page 49
State v. O'Dowd, 158 Tex. 348, 312 S.W.2d 217, 221 (Tex. 1958): page 49
Tenneco Inc. v. Enterprise Products Co., 925 S.W.2nd 640, 647 (Tex.
1996): page 44
iv
TREATISES:
Johanson’s Texas Probate Code Annotated, 2001 ed.: pages 9, 18, 23, 24
Texas Center for Legal Ethics and Professionalism opinion: page 12
Tex. Bar R. art. X, § 16 (B), (C): page 6
TEXAS STATUTES:
Texas Probate Code § 10: page
23
Texas Probate Code § 59: pages 15, 18
Texas Probate Code § 75: pages 22, 23
TEXAS RULES:
T.R.C.P. 194.2(f)(3): page 47
T.R.D.P 3.03(a)(1): pages 25, 31
T.R.D.P. 3.03(b): pages 25, 31
T.R.D.P. 3.08: pages 5, 10, 11
T.R.D.P. 3.10: pages 45, 47, 48
T.R.D.P 8.04(a)(3): pages 13, 17, 25
v
STATEMENT OF THE CASE
Nature of the Case and Parties:
Commission for Lawyer Discipline brought disciplinary action against
attorney Edwin C. Olsen IV on behalf of non-client Frances Ann Giron.
Trial Court:
Judge Graham Quisenberry (415th Judicial District Court), sitting by
assignment in the 162nd Judicial District Court of Dallas County, Texas.
(CR 10)
The court granted the Commission’s motion for partial summary judgment
at a re-set hearing for which Mr. Olsen was given three hours notice.
(CR 214)
At a default sanctions hearing conducted on May 8, 2010, the Court
entered a final judgment of disbarment. (CR 423)
Mr. Olsen timely filed a verified motion for new trial
which was denied without hearing (CR 466).
(CR 428),
Mr. Olsen timely appeal to the Court of Appeals for the 5th District of
Texas, at Dallas. (CR 467)
vi
STATEMENT REGARDING RECORD REFERENCES
The clerk's record in this case consists of three original volumes and
is cited as (CR __) for page numbers 1 through 474.
The reporter’s record of the default sanctions hearing of May 8, 2009
is one volume.
vii
ISSUES PRESENTED
ISSUE ONE:
The trial court erred in granting the Commission for
Lawyer Discipline’s Motion for Partial Summary Judgment.
ISSUE TWO:
violated Rule 3.08(a).
ISSUE THREE:
violated Rule 8.04(a)(3) regarding Mary Ellen’s February 22, 2005
Will and accompanying notary jurat, and in granting summary
judgment that the Mary Ellen’s actual February 22, 2005 Will
consisted solely of two pages and was not accompanied by a third
page bearing a notary’s jurat, signature and seal, and that the
filing of the three-page will document constituted dishonesty and
misrepresentation.
ISSUE FOUR:
violated Rule 8.04(a)(3) regarding the notary jurat’s language
accompanying Mary Ellen’s February 22, 2005 Will, and in granting
summary judgment that the filing the original of Mary Ellen’s
February 22, 2005 Will with the accompanying jurat erroneously
stating that Mary Ellen was before the notary constituted
dishonesty and misrepresentation.
ISSUE FIVE:
violated 8.04(a)(3), 3.03(a)(1), 3.03(b), and in granting summary
constituted a misrepresentation to the court, and that Mr. Olsen
was not candid with the court and intended to mislead the court.
ISSUE SIX:
violated 8.04(a)(3), 3.03(a)(1) & 3.03(b), and in granting
summary judgment that Mr. Olsen’s Opposition to Giron’s Motion
for Emergency Orders was dishonest, constituted a
misrepresentation to the court, and that Mr. Olsen was not candid
with the court and intended to mislead the court.
ISSUE SEVEN:
violated Rule 8.04(a)(1).
ISSUE EIGHT:
The trial court erred in giving Mr. Olsen only three hour’s
notice of the re-set December 5, 2008 summary judgment hearing
date and time, and erred in not complying with the procedural
requirements of T.R.C.P. 166a.
ISSUE NINE:
The trial court erred in denying Mr. Olsen’s written and oral
request for the creation of a written record, and erred in not
viii
permitting the court reporter to perform her duty as mandated by
the Texas Rules of Appellate Procedure.
ISSUE TEN:
verification and affidavit, and in sustaining the Commission’s
objections to Mr. McCay’s and Burgess’ affidavit portions
pertaining to Mary Ellen’s will.
ISSUE ELEVEN:
The trial court erred in denying Mr. Olsen’s motion to cure the
alleged defects in the affidavits attached to his Response, his
motion to supplement the record with additional affidavits and
discovery, and his motion to continue the summary judgment
hearing until the deposition of Judge Price was completed.
ISSUE TWELVE:
The trial court erred in granting summary judgment to the
Commission, there by denying Mr. Olsen’s right to a trial by jury
and his right to due process.
ISSUE THIRTEEN:
The trial court erred in not following the Texas Rules of
Disciplinary Procedure’s requirement to consider all the factors
set forth in § 3.10 in determining the appropriate sanction for
attorney misconduct.
ISSUE FOURTEEN:
The trial court erred in deciding that the appropriate sanction
for attorney misconduct was disbarment, disbarment was not a
“just” punishment under the circumstances.
ISSUE FIFTEEN:
The trial court erred in refusing to conduct a hearing on Mr.
Olsen’s timely filed Verified motion for new trial regarding the
default disbarment judgment.
ISSUE SIXTEEN:
The trial court erred in awarding attorney’s fees to the
Commission because no admissible evidence exists in the record
supporting the reasonableness nor amount of the Commission’s
alleged attorney fees.
ix
STATEMENT OF FACTS
Attorney Edwin C. Olsen IV, Appellant, has never had a grievance filed
against him by a client in his entire practice (Mr. Olsen was admitted to
the Illinois Bar in 1993 and to the Texas Bar in 1994). (CR 441, CR 462)
Mr.
Olsen‘s
representation
alleged
of
Ellen‖). (CR 308)
Mary
misconduct
Ellen
is
Logan
an
outgrowth
Bendtsen
in
2005
of
his
successful
(hereinafter
―Mary
Mary Ellen was the subject of an involuntary guardianship
action brought by her only child, Frances Ann Giron (hereinafter ―Giron‖).
See, In the Matter of the Guardianship of Mary Ellen Logan Bendtsen, An
Alleged Incapacitated Person, No. 05-272-P2, Dallas County Probate Court No.
2; Application for Appointment of Temporary Guardian and Application for
Appointment of Permanent Guardian. (CR 353)
Mr. Olsen served as Mary Ellen‘s attorney in that matter (CR 309), along
with
attorney-ad-litem
presiding
Judge
Robert
Jon
Arneson
Price
(CR
denying
306;
CR
Giron‘s
309),
which
Application
resulted
for
in
temporary
guardianship in its entirety. (CR 308)
Judge Price conducted three hearings regarding Mary Ellen, on January 31,
February 7, and February 11, 2005. (CR 309; CR 368; CR 362)
Mr. Olsen
provided Mary Ellen‘s primary defense at all three. (CR 309; CR 369; CR 363)
As a result of these hearings, Judge Price entered three orders:
(1) He denied Giron‘s Motion in Limine to strike Mr. Olsen as Mary
Ellen‘s counsel. (CR 316)
(2) He denied Giron‘s Application for appointment of and as temporary
guardian. (CR 308)
(3) He sua sponte ordered Giron to pay attorney-ad-litem Arneson‘s
attorney‘s fees of $10,470.00 personally. (CR 307)
At the final February 11, 2005 hearing, Mr. Olsen asked Mary Ellen the
following question and she testified – under oath – as follows:
Q.
If this Court decides you need a temporary guardian, do you want your
daughter, Frances Ann, to be your temporary guardian?
A.
No.
She’s doing so many things terrible to me that I don’t want – I
don’t want her to be connected to me. (transcript p. 81, lines 7-11; CR 364)
Giron had previously removed the entirety of Mary Ellen‘s savings account
1
of $65,404.39 – on January 19, 2005 (CR 217), two days before Giron filed
the involuntary guardianship action against Mary Ellen.
(CR 353)
Mary
Ellen‘s sole monthly income was interest from her savings account and Social
Security. (CR 358)
January 19, 2005 was the same day that Giron had been thwarted in her
effort
to
remove
Mary
Ellen
to
a
nursing
home
from
Baylor
University
Hospital. (CR 217) Giron‘s verified (CR 361) Application for Appointment of
Temporary Guardian and Application for Appointment of Permanent Guardian
concedes that Mr. Olsen‘s efforts on behalf of Mary Ellen had rendered Giron
―unable to admit her mother into a nursing home‖. (CR 354)
Mary Ellen had been brought to Baylor on January 12, 2005, for a sprained
ankle and gashed forehead (out collecting her mail, Mary Ellen slipped in
the rain). (CR 29)
Giron had directed the Baylor staff to have Mary Ellen sedated when Ms.
Giron returned to take her away because ―she [Mary Ellen] would otherwise
try to jump out of the car.‖ (CR 217)
Mary Ellen was discharged from Baylor on January 21, 2005, having had her
forehead
physical
gash
stitched,
therapy
on
and
her
on
Baylor‘s
sprained
advice
ankle,
had
which
agreed
took
to
place
undergo
at
the
rehabilitation center Ashley Court, in Dallas. (CR 350)
The afternoon of January 31, 2005, Ashley Court discharged Mary Ellen,
having informed her that Medicaid would no longer cover her stay because
―goals met‖. (CR 350)
Mary Ellen went from Ashley Court to the first of the
three court events in Giron‘s involuntary guardianship case. (CR 30; CR 246)
Mary Ellen returned home after the January 31 st hearing. (CR 247)
Mary
Ellen‘s ―profoundest wish [was] to be in her home of over fifty-five years.‖
(CR 125)
return
Giron‘s
Giron then filed her Motion for Emergency Orders, seeking to
Mary
Ellen
Emergency
to
the
Orders
rehabilitation
Motion
was
center
first
2
heard
Ashley
on
Court.
(CR
246)
February
7th,
then
continued to February 11, 2005. (CR 368, 362)
At the February 11th hearing, Judge Price denied Giron‘s Application for
appointment of any temporary guardian. (CR 308)
Eleven days later (February 22, 2005), Mary Ellen suffered a stroke. (CR
30; CR 243) Her stroke was to the motor skills hemisphere of her brain, not
to the cognitive functions hemisphere. (CR 219)
Mary Ellen informed Mr.
Olsen that she wished her Last Will and Testament prepared, and dictated the
terms, her bequests, and her desired beneficiaries. (CR 218)
Giron was to
receive only the ―cradle rocking chair‖ in which Mary Ellen had rocked Giron
as an infant. (CR 50)
Mr. Olsen was informed that Mary Ellen had a 2% chance of making it
through the night. (CR 241; CR 243)
Mr. Olsen prepared Mary Ellen‘s will at
a business near Baylor, not at his distant law office by Garland, Texas. (CR
242) Mr. Olsen arranged to have the will signing videotaped. (CR 243, 244)
Mary Ellen did not have her Texas driver‘s license or any other form of
identification.
(CR
241;
CR
244)
Mary
Ellen
stated
that
Giron
had
previously taken her driver‘s license and other identification cards from
her and cut them up. (CR 241; CR 244)
Thus, only a notary who personally
knew Mary Ellen could notarize legal documents for Mary Ellen.
Marian
Gibson, a long-standing (―some fifty years‖) elderly friend of Mary Ellen‘s
was a notary. (CR 241; CR 244)
Ms. Gibson had notarized legal documents for
Mary Ellen at Ashley Court on the afternoon of January 22, 2009. (CR 241; CR
244).
This event was also videotaped at Mr. Olsen‘s insistence.
Marian Gibson however declined to go to Baylor the evening of February
22, 2005. (CR 245)
Mr. Olsen was informed of this fact at the last minute
(CR 241; CR 245) and consequently had to make rushed modifications to what
had been the self-proving affidavit component of the will document. (CR 242)
Mary Ellen died on March 2, 2005. (CR 243)
Mary
Ellen‘s
designated
executrix
Dixie
3
Mr. Olsen agreed to represent
Tidwell,
and
prepared
the
Application for Probate, filed March 2, 2005. (CR 47; CR 242; CR 244) Four
hours later Giron filed her own application for probate of a 2002 Will (CR
127), in which Giron was Mary Ellen‘s sole beneficiary. (CR 131)
The next day Giron filed a Will Contest. (CR 136)
Giron – never a client – later filed this grievance against Mr. Olsen (CR
31) – his first. (CR 441)
SUMMARY OF ARGUMENT:
The trial court erred in granting the Commission for Lawyer Discipline‘s
Motion for Partial Summary Judgment, because it did not apply the proper
evidentiary standard when considering the summary judgment evidence before
it.
In each case, instead of requiring the Commission to demonstrate that
there was no issue of material fact and interpreting all disputed material
facts in favor of the non-movant, Mr. Olsen, the trial court accepted the
Commission‘s version of the facts and rejected Mr. Olsen‘s.
The
trial
court
erred
evidentiary standards.
by
not
applying
the
proper
summary
judgment
It it had done so, the trial court would have found
that the five specific areas of alleged misconduct were intrinsically fact
questions that must be resolved by a trier of fact.
The trial court further erred by giving Mr. Olsen only three (3) hours
notice of the re-setting of the hearing on the Commission‘s Motion for
Partial Summary Judgment, not the seven (7) days required by T.R.C.P. 166a.
The trial court failed to follow the procedures specified by Texas Rules
of Civil Procedure for granting continuances, rescheduling hearings, and for
ruling on verified motions for new trial.
The trial court also erred in not
granting Mr. Olsen‘s written motion for the presence of a court reporter.
The trial court further erred in striking Mr. Olsen‘s Verified Summary
Judgment Response and accompanying affidavits.
giving
Mr.
Olsen
leave
to
amend
and
cure
The trial court erred in not
the
defects
alleged
by
the
Commission, nor time to complete the remainder of Judge Price‘s deposition
4
and to secure the additional discovery that was necessary.
In imposing a sanction of disbarment at the default sanctions hearing,
the trial court
ignored the requirements of Texas
Rule
of Disciplinary
Procedure § 3.10 ―Imposition of Sanctions‖, failing to consider admissible
evidence on all twelve elements. At the default sanctions hearing, the court
took admissible evidence only on one of the twelve elements (―I‖), which was
in fact exculpatory to Mr. Olsen.
The only other testimony considered by
the Court was inadmissible evidence as it was not sworn testimony, and was
opinion testimony offered by a non-designated expert.
The trial court‘s decision to disbar Mr. Olsen at a default sanctions
hearing after granting summary judgment on intrinsic material fact questions
having stricken Mr. Olsen‘s affidavits was unjust, grossly disproportionate
to the allegations of misconduct made by the Commission, and an abuse of
discretion.
The trial court‘s rulings violated Mr. Olsen‘s constitutional
rights to due process and to trial by jury.
Lastly, trial court erred in awarding the Commission attorney‘s fees
because no evidence in the recorded supported the award.
The Commission
presented no sworn testimony as to the amount and reasonableness of those
fees.
No affidavit as to the amount and reasonableness of the Commission‘s
attorney‘s fees appears in the record.
ARGUMENT and AUTHORITIES:
1. EVIDENTIARY STANDARD FOR LAWYER DISCIPLINARY ACTIONS:
Disciplinary
actions
are
civil
in
nature
and
governed
by
the
preponderance of the evidence standard of proof. Tex. Bar R. art. X, § 16
(B), (C); Tex. R. Disciplinary P. 3.08 (C).
As the Petitioner, the Commission for Lawyer Discipline (heretofore ―the
Commission‖)
has
the
evidentiary
burden,
and
must
prove
at
trial
by
a
preponderance of the evidence that all five of the specific allegations of
misconduct by Mr. Olsen took place (the sixth charge is the catchall charge
5
of having violated any rule of disciplinary procedure).
The Commission did not meet even this hurdle.
court
no
preponderance
of
the
allegations of misconduct.
evidence
on
It presented to the trial
any
of
the
five
specific
Regarding some allegation of misconduct, the
Commission presented no evidence whatsoever on the specific charge.
2. EVIDENTIARY STANDARD FOR SUMMARY JUDGEMENTS:
However, the hurdle for the Commission was actually much higher, since
this
matter
never
went
to
trial
and
judgment
resulted
from
a
summary
judgment ruling in favor of the Commission as movant.
To properly prevail at summary judgment, the movant must establish that
there was ―no genuine issues of material fact‖ and that it was ―entitled to
judgment as a matter of law.‖ Rodriguez v. Naylor Industries, Inc., 763
S.W.2d 411, 412-3 (Tex. 1989):
Summary judgment is proper only if the movant establishes that
there are no genuine issues of material fact and that he is
entitled to judgment as a matter of law. City of Houston v. Clear
Creek Basin Authority, 589 S.W.2d 671, 675-79 (Tex. 1979); Gibbs v.
General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).
The Commission failed to show that no genuine issue of material fact
existed and that it was entitled to judgment as a matter of law. Nixon v.
Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985).
The burden of
proof is on the movant, and all doubts about the existence of a genuine
issue of material fact are resolved against the movant. Rhone-Poulenc, Inc.
v. Steel, 997 S.W.2d 217, 223 (Tex.1999).
―Under Rule 166a(c), summary judgment is proper only when the movant
demonstrates that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law.‖ Luker at 629, citing Nixon v. Mr.
Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); T.R.C.P. 166a(c).
Applying the traditional summary judgment standard, the Luker court held
that
―When
deciding
whether
there
is
a
disputed
material
fact
issue
precluding summary judgment under Rule 166a(c), we treat evidence favorable
6
to the nonmovant as true and we resolve any doubts in its favor.‖ Luker, Id.
3. STANDARD OF APPELLATE REVIEW FOR SUMMARY JUDGEMENTS:
For the purposes of this appeal, the evidence favorable to Mr. Olsen is
taken a true and all doubts are resolved in his favor. ―On appeal from a
summary judgment, the evidence favorable to the non-movant will be taken as
true,
and
all
doubts
will
be
resolved
in
favor
of
the
non-movant.‖
Rodriguez, 763 S.W.2d at 413. (citation omitted; emphasis added)
―The question on appeal from a summary judgment is not whether the
summary judgment evidence raises a fact issue on the essential
elements of the claim, but whether the evidence establishes as a
matter of law that there is no genuine issue of material fact.‖
Rodriguez, 763 S.W.2d at 413 (emphasis added)
4.
ARGUMENT AND AUTHORITIES:
The Commission‘s Motion for Partial Summary Judgment [hereinafter ―MPSJ‖]
alleged
that
Mr.
misrepresentation‖
Olsen
engaged
in
conduct
―involving
(the Commission‘s MPSJ at pp. 4-6 of
dishonesty
or
18 [CR 31-33],
mislead the Court [CR 39] and ―should have withdrawn [CR 43]), and in so
doing committed five specific acts of misconduct (plus the Rule 8.04(a)(1)
catchall violation of committing any violation). (CR 43)
Each of these will be addressed individually as separate issues.
A.
The Summary Judgment Evidence:
The Commission‘s summary judgment consisted of:
(1) Mr. Olsen‘s admissions regarding basic facts (CR 53);
(2) A certified copy of Mary Ellen‘s Last Will and Testament (CR 49);
(3) The videotape commissioned by Mr. Olsen of Mary Ellen‘s signing of
her Last Will and Testament (CR 69);
(4) An affidavit of Judge Price (CR 113);
(5) One of the three hearing transcripts-for January 31, 2005 (CR 71);
(6) The Application for Probate authored by Mr. Olsen (CR 46);
(7) Mary Ellen‘s Opposition to Giron‘s Motion for Emergency Order
heard on February 7 and February 11, 2005 (CR 115); and
(8) Giron‘s Application for Probate (CR 126), Will (CR 131), and Will
Contest (CR 136).
Mr. Olsen, who was pro se at the time of the summary judgment hearing on
December 5, 2008 (CR 6), verified his Response to the Commission‘s MPSJ(CR
237), and included as additionally summary judgment evidence an appendix, as
7
well as incorporating by reference the Commission‘s evidence.
The appendix
included the following documents:
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
A:
B:
C:
D:
E:
Nov. 28, 2008 Affidavit of Edwin C. Olsen IV (CR 238)
Nov. 28, 2008 Affidavit of Justin Dale Burgess (CR 240)
Nov. 28, 2008 Affidavit of Mark Patrick McCay (CR 243)
Giron‘s February 2, 2005 Motion For Emergency Order (CR 246)
Giron‘s Proposed Order for her February 2, 2005 Motion For
Emergency Order (CR 251)
November 6, 2008 Deposition of Judge Robert Price, with
Exhibits 1-15 (CR 252)
EXHIBIT F:
Mr. Olsen timely filed and served his Response on The Commission seven
(7) days before hearing on the motion (CR 216), pursuant to T.R.C.P. 5 and
166a(c), E.B. Smith Co. V. USF&G, 850 S.W.2d 621, 623 (Tex. App. – Corpus
Christi 1993, writ den.).
B: ISSUE ONE: The trial court erred in granting the Commission for Lawyer
Discipline’s Motion for Partial Summary Judgment.
Appellant includes
this issue to
granting
of
the
ensure that he preserves all error
concerning
the
Commission‘s
Motion
for
Partial
Summary
Judgment.
See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.
1970) (holding that a summary judgment can be attacked on appeal through a
general assignment of error).
This issue incorporates as if set forth in full herein the arguments and
authorities set forth below at Issues Two through Twelve.
C: ISSUE TWO: The trial court erred in granting summary judgment that Mr.
Olsen violated Rule 3.08(a).
The
Commission
alleges
that
―Respondent
[Mr.
Olsen]
Should
Have
Withdrawn‖ (CR 41) from representing Ms. Tidwell as Mary Ellen‘s nominated
executrix
in
the
will
contest
filed
by
Giron
because
―he
[Mr.
Olsen]
prepared [Mary Ellen] Bendtsen‘s will and because he was present when [Mary
Ellen] Bendtsen signed the will.‖ (CR 42)
The Commission asserts that
T.R.D.P. 3.08 ―requires him [Mr. Olsen] to withdraw from representation if
he may be a witness.‖ (CR 41; emphasis added)
Under Texas law, a lawyer who prepared the will may defend it in a
8
resulting will contest. May v. Crofts, 868 S.W.2d 397, 399 (Tex. App. –
Texarkana 1993, no writ).
Texas law expressly crafts an exception to Rule 3.08 in the context of
will contests.
Merely because an attorney has prepared a will, he cannot be
disqualified as counsel: ―Disciplinary Rule 3.08 did not bar attorney who
prepared
will
contestant
from
announced
serving
as
intention
counsel
to
call
for
will
attorney
proponent
as
even
hostile
though
witness.‖
Johanson’s Texas Probate Code Annotated, 2001 ed., p. 29, citing May v.
Crofts, 868 S.W.2d 397 (Tex. App. – Texarkana 1993, no writ).
In May v. Crofts, the Court of Appeals thoroughly parsed Ruled 3.08:
Her [the Will Contestant‘s] argument seems to assert that because she
intends to call Old [opposing counsel] as a witness, he is automatically
disqualified from acting as attorney in the will contest. However, under
Rule 3.08, an attorney is not automatically disqualified under such
circumstances. See Robert K. Wise, The Lawyer-Witness Rule: A Comparison of
a Lawyer's Ability to be Both a Witness and an Advocate Under the Texas Code
of Professional Responsibility and the Texas Disciplinary Rules of
Professional Conduct, 31 So. TEX. L. REV. 651, 672 (1990). This rule should
rarely be the basis for disqualification. Id. at 663. Although the Rules of
Professional Conduct may be relevant when determining an attorney's
disqualification to serve in a case, the primary function of the rules is to
define proper conduct for purposes of professional discipline. TEX.
DISCIPLINARY R. PROF. CONDUCT preamble para. 10 (1989); see Ayres v.
Canales, 790 S.W.2d 554, 556 n.2 (Tex. 1990). Nor has Irma May [the will
contestant] established that Old's continued representation of the estate is
prohibited by Rule 3.08. There is no evidence showing what Old would testify
to or that he is a witness who is necessary to establish an essential fact
on behalf of his client. At oral argument, Old indicated that he did not
intend to call himself as a witness. Rather, Irma May's attorney is the one
who claims he wants to call Old as a witness.
Rule 3.08 should not be used as a tactical weapon to deprive the opposing
party of the right to be represented by the lawyer of his or her choice,
because reducing the rule to such use would subvert its purpose. Ayres, 790
S.W.2d at 556 n. 2; TEX. DISCIPLINARY R. PROF. CONDUCT. 3.08 cmt. 10 (1989).
In Ayres, the court held that, in order to prevent such misuse of Rule 3.08,
a trial court should require the party seeking disqualification to
demonstrate actual prejudice to itself resulting from the opposing lawyer's
service in the dual roles. Ayres, 790 S.W.2d at 558; TEX. DISC[.] R. PROF.
CONDUCT 3.08 cmt. 10 (1989).
May v. Crofts, 868 at 399 (footnote omitted; bolding added).
In May v. Crofts, the will contestant had stated she intended to call
Olds (opposing counsel) as a witness.
In Giron‘s will contest of Mary
Ellen‘s will, Giron never designated Mr. Olsen as a witness.
9
Moreover,
Giron
never
moved
to
disqualify
Mr.
Olsen
under
Rule
3.08,
much
less
―demonstrate actual prejudice‖.
The Commission does not assert that Mr. Olsen actually was a witness,
only that he ―m[ight] be one‖. (CR 41) The Commission‘s alleged violation of
Rule 3.08 derives from a hypothetical possibility, not an actual situation,
as it asserts that T.R.D.P. 3.08 ―requires him [Mr. Olsen] to withdraw from
representation if he may be a witness.‖ (CR 41; emphasis added)
Aside from the fact that under May v. Crofts Mr. Olsen was not obliged to
unilaterally withdraw as counsel, and aside from the fact that Mr. Olsen was
never designated a witness by Giron, the Commission misconstrues T.R.D.P.
3.08.
The Commission quotes the first part of T.R.D.P. 3.08 (CR 41):
Rule 3.08(a) ―Lawyer as Witness‖ provides: ―A lawyer shall not
accept or continue employment as an advocate before a tribunal in a
contemplated or pending adjudicatory proceeding if the lawyer knows
or believes that the lawyer is or may be a witness necessary to
establish an essential fact on behalf of the lawyer‘s client.‖
The Commission presented no summary judgment evidence that Mr. Olsen was
a material fact witness ―necessary to establish an essential fact on behalf
of the lawyer’s client.‖ (Rule 3.08, emphases added).
Indeed, the only
summary judgment evidence offered by the Commission was Mr. Olsen‘s dual
admissions that he represented Ms. Tidwell on behalf of Mary Ellen‘s estate
and did not withdraw (CR 42; Olsen Admission #46 and Olsen Admission #47)
The Commission asserts that Mr. Olsen had ―personal knowledge of facts
related to each of Giron’s claims‖ (CR 42;emphasis added).
This is entirely
irrelevant under May v. Crofts and the notes explicating Rule 3.08.
relevant person under Rule 3.08 is ―the lawyer’s client” not Giron.
The
Giron
was not Mr. Olsen‘s client, Giron was the opposing party.
The Commission claims that the areas of Mr. Olsen‘s personal knowledge
pertaining to ―each of Giron‘s claims‖ were
[1] the circumstances surrounding the execution of the Will, [2]
Bendtsen‘s
testamentary
intent,
[3]
Bendtsen‘s
testamentary
capacity, [4] any undue influence asserted against Bendtsen, [5]
10
the inability of Bendtsen to resist the efforts
others to force her to sign the Will. (CR 42)
Ignoring
for
the
moment
that
Rule
3.08‘s
standard
make
is
[sic]
not
by
―personal
knowledge on the essential facts relating to a Will contest‖ (CR 43), but
―knowing‖
that
he
[the
lawyer]
is
or
may
be
a
―witness
necessary
to
establish an essential fact on behalf of the lawyer’s client‖ [emphases
added], the Commission presented no summary judgment evidence that Mr. Olsen
had personal knowledge regarding Giron‘s claims.
It
cannot
offered
by
violation
be
the
of
overemphasized
that
Commission
its
Rule
3.08
in
are
his
the
only
MPSJ
two
summary
regarding
admissions
judgment
Mr.
that
evidence
Olsen‘s
he
alleged
represented
Ms.
Tidwell on behalf of Mary Ellen‘s estate and did not withdraw (CR 42; Olsen
Admission #46 and Olsen Admission #47).
Thus the Commission‘s assertion that because Mr. Olsen ―was in possession
of all this personal knowledge on the essential facts relating to the Will
contest, [and] he failed to withdraw from representing Tidwell‖ (CR 43),
thus ―A violation of Rule 3.08(a) has been proven as a matter of law‖ (CR
43) is not substantiated by the summary judgment evidence.
The Commission‘s
claim also misapplies Rule 3.08 and ignores May v. Crofts.
Whether
Mr.
Olsen
had
―personal
Giron‘s will contest is irrelevant.
Ms.
Tidwell
contemplate
as
nominated
withdraw
if
knowledge‖
the
five
elements
of
Rule 3.08 applies not to Giron, but to
executrix.
his
of
Under
testimony
is
3.08,
Mr.
―necessary
Olsen
to
must
establish
only
an
essential fact on behalf of the lawyer’s client.” (emphasis added)
Further, Rule 3.08
offers an exception even to this scenario: where
withdraw would offer ―substantial hardship on the client‖, the lawyer can
both
testify
to
the
essential
fact
and
represent
his
client.
Rule
3.08(a)(5) states this exception: ―unless . . . disqualification of the
lawyer would work substantial hardship on the client.‖
11
Excepting the issue of attorney‘s fees, Mr. Olsen was not designated as a
witness, as expressly permitted by Rule 3.08 (a)(3): ―the testimony relates
to the nature and value of legal services rendered in the case‖.
In its MPSJ, the Commission cites no case law.
The only authority cited
by the Commission regarding Rule 3.08 does not apply to the facts at bar.
The
attorney
at
issue
in
the
Texas
Center
for
Legal
Ethics
and
Professionalism ethics opinion cited by the Commission had both prepared
―and notarized‖ the will. (Ethics Opinion at CR 141-2)
Mr. Olsen did not
notarize Mary Ellen‘s will, nor does the Commission allege that he did so.
The Commission properly quotes the dual requirement specified by the
Ethics Opinion of ―prepared the will and notarized it‖ (CR 43), then in the
immediate next sentence omits the essential element of ―notarized‖:
―
Just as [sic] in that fact situation [i.e. re the notarizing
attorney], Respondent [Mr. Olsen] prepared the will and was the
attorney for Tidwell . . . After considering this Ethics Opinion
and the personal knowledge Respondent possessed, it is clear
Respondent should have withdrawn from representing Tidwell. (CR 43)
The Commission offers no evidence that Mr. Olsen notarized the will. In
fact, Exhibit Two to the Commission‘s MPSJ is a certified copy of the Mary
Ellen‘s will which shows the actual notary was named Marian Gibson. (CR 52)
Notarization of a self-proving affidavit makes a will self-proved and
obviates the need to produce witnesses in court, see Texas Probate Code §
59, so notarization is a crucial element.
But Mr. Olsen did not notarize
Mary Ellen‘s will (CR 52) – and could not have done so since he is not and
never has been a notary – thus the Ethics Opinion cited by the Commission
does not apply to Mr. Olsen‘s conduct.
Finally, the Commission offers no summary judgment evidence that Mr.
Olsen
knew
or
believed
that
he
“is
or
may
be
a
witness
necessary
to
establish an essential fact on behalf of the lawyer‘s client.‖ Rule 3.08(a)
(emphasis
added).
affidavit
that
he
In
did
fact,
not
Mr.
know
Olsen
nor
12
testified
believe
in
himself
his
to
Response
―be
a
and
witness
necessary to establish an essential fact on behalf of the lawyer‘s client.‖
(CR 235)
Indeed, after having been subjected to Giron‘s Motion in Limine to
remove him as Mary Ellen‘s counsel on precisely ―material witness‖ grounds
in the guardianship action -- which was denied -- Mr. Olsen made sure not to
interject himself as a potential material witness, so he did not witness the
will, nor did he notarize it. (CR 314; CR 316)
Finally, on the issue of testamentary capacity, Mr. Olsen believed that
Mary Ellen‘s doctors were the essential material witnesses. (CR 235)
On the
issue of undue influence, Mr. Olsen believed that Mary Ellen‘s long standing
friends were the essential material witnesses. (CR 235)
Since Mr. Olsen had
not witnessed nor notarized the will, he was not an essential material
witness as to whether it was executed according to the formalities required
by Texas Probate Code § 59.
On none of the grounds alleged in Giron‘s will
contest or in the Commission‘s MPSJ did Mr. Olsen know himself to be or
believe himself to be a ―witness necessary to establish an essential fact on
behalf of the lawyer‘s client‖. (CR 235)
D: ISSUE THREE: The trial court erred in granting summary judgment that Mr.
Olsen violated Rule 8.04(a)(3) regarding Mary Ellen’s February 22, 2005 Will
and accompanying notary jurat, and in granting summary judgment that the
Mary Ellen’s actual February 22, 2005 Will consisted solely of two pages and
was not accompanied by a third page bearing a notary’s jurat, signature and
seal, and that the filing of the three-page will document constituted
dishonesty and misrepresentation.
The Commission alleges that the actual will that was signed consisted
solely of two pages and was not accompanied by a third page bearing a
notary‘s
jurat,
signature
and
seal.
The
Commission
asserts
that
the
presence of a third page with three lines of text and a signature block on
it of a notary‘s attestation and stamp contradicts the language of the will
―consisting of this and one preceding page‖. (MPSJ at p. 7 of 18; CR 34)
The Commission claims that ―Filing a three-page Will with the probate
court
when
the
actual
Will
that
was
signed
consisted
of
two
pages
constitutes dishonesty and misrepresentation.‖ (MPSJ at p. 7 of 18; CR 34)
13
In short, the material fact at issue is whether the actual will document
was only two (2) pages in length or whether it had a third, accompanying
page for the notary‘s jurat, signature and seal.
The Commission attached a copy of the three-page will document filed with
the Dallas County Probate Court to its Partial Motion for Summary Judgment
(CR 49-52).
The first two pages are filled with text, with the first page
identifying the beneficiaries and setting forth terms of the will and the
second page setting forth additional terms of the will along with containing
the
signatures
of
Mary
Ellen
and
her
two
witnesses
and
the
witnesses‘
attestation clause (which is what is being sworn to before the notary). (CR
50, 51)
The third page bears three lines of text (CR 52):
SUBSCRIBED AND SWORN TO before me by the said MARY ELLEN LOGAN BENDTSEN,
Testatrix, and ______________ and ________________
Witnesses, this 22nd day of February, 2005.
The two witness name blanks in the above notary jurat bear the handprinted names ―Rose Cline‖ and ―Dixie L.M.Tidwell‖ [Ms. Tidwell hand-printed
these names, on page two before Mary Ellen in the hospital (CR 51), then on
page three before the notary Marian Gibson at her home]. (CR 52)
Below these three lines in a signature block line underscribed by ―Notary
Public, State of Texas‖ with the signature name ―Marian Gibson‖ above the
signature line and her notary seal to the left. (CR 52)
The exact same notary seal on page three also appears at the bottom of
page two of the will. (CR 51; CR 52) This evidences the link between both
pages of the will (CR 50 & CR 51), and the notary‘s jurat page (CR 52).
The SOLE summary judgment evidence offered by the Commission that this
third page does not properly accompany the will is (1) the fact that the
text of the will refers to the will itself being ―this and one preceding
page‖ (―this‖ being the second page bearing Mary Ellen‘s and the two present
attesting witness‘ signatures). (CR 34)
And (2), the negative evidence that
the video recording arranged by Mr. Olsen of the will signing ―shows that
14
the Will [Mr. Olsen] presented to Bendtsen for execution consisted of a
total of two pages.‖ (CR 35)
The Commission does not address the presence on page two of the will (CR
52) of the same notary seal that is on page three of the will document. (CR
51)
Both seals are the three-dimensional embossed notary seal physically
embossing the paper (made visible by pencil), not the ink-stamp seal kind.
Under Texas law, a will can be accompanied by a ―self-proving affidavit‖.
§ 59 Texas Probate Code, ―Requisites of a Will‖, provides:
Such a will or testament may, at the time of its execution or at
any subsequent date during the lifetime of the testator and the
attesting witnesses, be made self-proved, and the testimony of the
witnesses in the probate thereof may be made unnecessary, by the
affidavits of the testator and the attesting witnesses, made before
an officer authorized to administer oaths under the laws of this
State. [emphasis added]
As is set forth in more detail in the next issue section, Mr. Olsen
originally drafted the will to include the ―self-proving affidavit‖ language
set forth in § 59.
At the last minute he was informed that Mary Ellen‘s
notary would not travel to the hospital, but would only notarize at her
home, thus rendering the self-proving affidavit pointless. (CR 245)
He therefore changed the witness testament language on page two from the
present tense ―do hereunto subscribe our names‖ to the past tense ―have
hereunto subscribed our names‖ (CR 51), so as to objectively fix the date of
the will‘s signing and attestation.
Having the witness attestation clause
on page two notarized by the notary on page three preserved an objective
method
of
fixing
attestations.
Because
the
the
date
of
the
will‘s
execution
and
of
the
witness
The dual embossing of the notary‘s seal linked the pages.
third
page
was
solely
a
notary
jurat
for
the
notary‘s
signature and seal, Mr. Olsen did not present this third page to Mary Ellen
in the video he arranged to be made of Mary Ellen signing the will.
As that
the third page pertained to the absent notary, did not require Mary Ellen‘s
signature, and did not contain any of the specific bequests, terms or heirs
15
of Mary Ellen‘s will, there was no reason for Mr. Olsen to remove it from
his briefcase along with the other two pages shown in the video.
At trial, jury determines whether the absence in the video of this threelined third page outweighs Mr. Olsen‘s evidence: from himself, from the
testimony of Ms. Tidwell and Mr. Burgess (CR 242) (both present when the
three page will was printed on Mr. Burgess‘ computer by Mr. Olsen), and from
the testimony of Mr. McCay, Ms. Tidwell, Ms. Cline, Ms. Gibson and Mr. Olsen
(CR 245) (present when the notary signature and stamp was later affixed to
page three of the will document, and the notary stamp affixed to page two).
Further, the jury would determine whether the fact that a three page will
document was filed is contradicted by the will itself referring on its page
two as being that page and ―one preceding page‖. (CR 51)
In short, it is a question of fact for a jury to decide whether the
Commission has proven with a preponderance of the evidence its assertion
that the actual will that was signed consisted solely of two pages and was
not accompanied by a third page bearing a notary‘s jurat, signature and seal
(which seal also appears on the will‘s second page). (CR 50 & CR 51; CR 52)
But before this Court of Appeals is not the outcome of a trial, but a
summary judgment ruling.
not
outweigh
accompanying
the
The Commission‘s summary judgment evidence does
evidence
affidavits.
presented
Joining
Mr.
in
Mr.
Olsen‘s
Olsen‘s
sworn
MSJ
Response
statement
that
and
he
produced a three page will, presented the first two pages to Mary Ellen, and
then probated the three page will document with Dallas County‘s Probate
Court, is Mr. Burgess‘ summary judgment affidavit. (CR 240-242)
Mr. Burgess‘ sworn testimony states:
Because of this new information [that the notary refused to
travel to the hospital], I observed Mr. Olsen hurriedly make changes
on my computer to the will he was preparing, and with my help since he
was unfamiliar with my computer, he printed out a three page document.
The three page document he printed out on my computer on
February 22, 2005 is the same as the three page document that is
attached hereto as Exhibit 1.
This is the same three page document
16
that I couriered to Dallas County Probate Court for filing on March 2,
2005.
The first two pages of this three page document are the same
two pages that Mr. Olsen explained and presented to Mary Ellen on
February 22, 2005. The second page is the same page that Mary Ellen
signed in my presence in the Baylor University Emergency Room on
February 22, 2005. (CR 242)
Mr. McCay‘s affidavit confirms Mr. Burgess‘ affidavit. (CR 243-245)
Since the standard
at issue is
the
evidentiary standard for summary
judgment rulings, this material fact must be construed in favor of Mr.
Olsen.
Mr. Burgess‘ affidavit alone is enough to create a material fact
dispute which must be construed in favor of Mr. Olsen, the non-movant.
Significantly, there was no allegation by the Commission that the Last
Will
and
Testament
filed
on
March
2,
2005
does
not
fully
reflect
the
testamentary dispositions declared by Mary Ellen on February 22, 2005 in the
videotape recording of her stating what her last wishes were.
A copy of
this videotape was attached as Exhibit 4 to the Commission‘s Motion for
Partial Summary Judgment. Mary Ellen‘s video-taped statements track exactly
with
the
terms,
beneficiaries,
property
dispositions
and
executor
arrangements set forth in the Will filed on March 2, 2005.
Given the summary judgment evidence before the trial court, the trial
court erred in not construing that evidence in favor of Mr. Olsen, the nonmovant, erred in not finding that the two pages that were presented to Mary
Ellen, to the second page of which she affixed her signature, are the two
pages that are pages one and two of the three page Will document that was
filed for probate on March 2, 2005, and erred in finding Mr. Olsen engaged
in misconduct and violated the T.R.D.P. 8.04(a)(3).
E: ISSUE FOUR: The trial court erred in granting summary judgment that Mr.
Olsen violated Rule 8.04(a)(3) regarding the notary jurat’s language
accompanying Mary Ellen’s February 22, 2005 Will, and in granting summary
judgment that the filing the original of Mary Ellen’s February 22, 2005 Will
with the accompanying jurat erroneously stating that Mary Ellen was before
the notary constituted dishonesty and misrepresentation.
The Commission alleged that ―Filing a Will with the probate court that
included a jurat that states the Will was signed by Bendtsen in front of a
17
notary
when
that
did
not
occur
constitutes
dishonesty
and
misrepresentation.‖ (The Commission‘s MPSJ at p. 7 of 18, CR 34)
The Commission further alleged that:
[1] By filing the Will with the Application for Probate (Exhibit
1), Respondent [Mr. Olsen] certified to the court that the Will was
valid and was the one executed by Bendtsen.
[2] The problem is
that a third page, containing a false jurat, became attached to the
Will between the time Bendtsen signed it and the time Respondent
[Mr. Olsen] filed it with the court. [3] Thus, the Will Respondent
filed for probate is not the two-page Will Bendtsen signed.
(The Commission‘s MPSJ at p. 8 of 18, CR 35; bracketed numerals added)
The Commission‘s conclusion does not follow from the premises stated at
―[1]‖ and ―[2]‖, and ignores that fact that a defectively drafted selfproving affidavit does not invalid the will it accompanies. Cutler v. Ament,
726 S.W.2d 605, 609 (Tex. App. – Houston [14th Dist.], 1987, writ ref‘d
n.r.e.).
See also Johanson’s Texas Probate Code Annotated, 2001 ed., p.
113, citing Cutler v. Ament: ―If the attesting witnesses signed the will and
self-proving affidavit, but the affidavit is merely acknowledged and not
sworn to by the witnesses, invalidity of the affidavit does not invalidate
the will.
Although the will is not self-proved, it is admissible to probate
upon proof of its due execution.‖ (emphasis added)
Under Texas Probate Law, a testator‘s signature need not be notarized for
the will to be valid. Texas Probate Code § 59, ―Requisites of a Will‖.
The
Texas Probate Code only requires that the testator‘s signature be witnessed
by two witnesses who sign the will in the presence of the testator. Id.
Only a self-proving affidavit requires a notarization. Id. A self-proving
affidavit is optional, it is not required for a will to valid. Id.
Further,
the self-proved affidavit can be done separately from the will: ―. . . at
any subsequent date during the lifetime of the testator and the witnesses,
[the will may] be made self-proved‖. Id.
A defective self-proving affidavit
does not invalid the will it accompanies. Cutler v. Ament, op. cit.
As an evidentiary matter, Texas law holds that the validity of a self-
18
proved affidavit is a fact issue, and thus cannot be resolved through a
summary judgment proceeding. Gasaway v. Nesmith, 548 S.W.2d 457, 460 (Tex.
Civ.
App.
–
Houston
[1st
Dist.]
1977,
writ
ref‘d
n.r.e.).
See
also
Johanson’s Texas Probate Code Annotated, 2001 ed., p. 113, citing Gasaway v.
Nesmit: ―A self-proving affidavit constitutes prima facie evidence of the
validity of the will‘s execution.
Although the recitals in the affidavit
are subject to contradiction by competent testimony, such testimony does not
destroy the prima facie case established by the will‘s attestation clause,
and only raises a fact issue for the trier of facts.‖ (emphasis added)
Consequently, under Texas Probate law, the Commission is in error in
suggesting that the defective jurat in any way made defective Mary Ellen‘s
February 22, 2005 Will.
The Commission is also in error is arguing that Mr.
Olsen‘s filing of Mary Ellen‘s February 22, 2005 Will with the defective
jurat contradicted his alleged certification ―to the court that the Will was
valid‖ (Commission MPSJ at p. 8 of 18, CR 35).
Texas Probate Law is clear
that a defective self-proving affidavit does not invalidate the will it
accompanies. Cutler v. Ament, op. cit.
As a evidentiary matter, the Commission presents no evidence that the two
pages that are pages one and two of the will document that was filed on
March 2, 2005 are not the same two pages that appear in the videotape of the
February 22, 2005 will signing.
The Commission presents no evidence that
the signature of Mary Ellen‘s located on page two the of the will document
that was filed on March 2, 2005 is not the signature that she affixed to her
will as documented by the videotape of the February 22, 2005 will signing.
The Commission presents no evidence that the hand printed and signed names
of the two attesting witnesses located on page two of the will document that
was filed on March 2, 2005, were not affixed to the will on February 22,
2005, as both witnesses attested before the notary Marian Gibson (as is
typed on page three of the will document). (CR 51; CR 52)
19
Therefore, the Commission‘s conclusion that ―Thus, the Will Respondent
[Mr. Olsen] filed for probate is not the two-page Will Bendtsen signed.‖
does not follow logically and is not substantiated by the evidence provided
by the Commission. (The Commission‘s MPSJ at p. 8 of 18; CR 35)
What the summary judgment evidence does demonstrate is the following:
Fact: Mary Ellen had a stroke on February 22, 2005. (CR 30; CR 243)
Fact: Mr. Olsen was informed Mary Ellen was in the Baylor Emergency Room and
went there to see how his client was doing. (CR 218)
Fact: At the time, there was still pending Giron‘s Application for
appointment of and as Mary Ellen‘s permanent guardian (Giron‘s
Application to be temporary guardian had been denied 11 days earlier).
(CR 353; CR 308)
Fact: Mr. Olsen continued to represent Mary Ellen in Giron‘s involuntary
guardianship action against Mary Ellen. (CR 218)
Fact: Mary Ellen asked to see Mr. Olsen in Baylor‘s Emergency Room. (CR 218)
Fact: Mr. Olsen visited with Mary Ellen in Baylor‘s Emergency Room. (CR 218)
Fact: Mary Ellen asked Mr. Olsen to draft her Last Will and Testament and
informed him as to her desired heirs, testamentary dispositions,
desired executors, and the disposition of her body. (CR 218)
Fact: Mr. Olsen was informed Mary Ellen had only a 2% chance of making it
through the night. (CR 241; CR 243)
Fact: Mary Ellen was at Baylor Hospital, Dallas, Texas. (CR 241; CR 243)
Fact: Mr. Olsen‘s law office was on the outskirts of Garland, Texas. (CR
219; CR 309)
Fact: Traveling to Mr. Olsen‘s law office to prepare Mary Ellen‘s will with
his law books and will forms available and returning to Baylor would
have taken much longer than doing Mary Ellen‘s will nearby at DecoDence L.L.C. (which at 3020 Canton Street is five blocks from the
Baylor Emergency Room). (CR 219; CR 241)
Fact: Mary Ellen had no identification to prove her identity.(CR 241;CR 244)
Fact: Giron had destroyed Mary Ellen‘s driver‘s license and other
identifications. (CR 241; CR 243)
Fact: Because Mary Ellen had no identification, only a notary who knew her
personally could notarize a self-proven affidavit attached to her
will. (CR 241; CR 243)
Fact: Marian Gibson was a notary who knew Mary Ellen personally and had
already notarized legal documents for Mary Ellen on January 22, 2005
at Ashley Court. (CR 241; CR 243)
Fact: Marian Gibson was contacted to be taken to Baylor‘s Emergency Room to
notarize a self-proving affidavit for Mary Ellen‘s will. (CR 245)
Fact: Marian Gibson refused to travel to Baylor Emergency Room but agreed to
notarize legal documents at her home. (CR 245)
Fact: Mr. Olsen was informed of this last minute refusal. (Cr 242; CR 245)
Fact: Mr. Olsen had to re-draft the will document because there was now no
notary available for the hospital signing. (CR 242)
Fact: Mr. Olsen did re-draft the will document. (CR 242)
Fact: Mary Ellen signed her will in Baylor Hospital (on page two of the
three page will document). (Cr 242; CR 245)
Fact: The two attesting witnesses both wrote their names to the will in
front of Mary Ellen. (CR 226)
Fact: The two attesting witnesses than went to Ms.Gibson‘s home and attested
that they had witnessed Mary Ellen sign her will at Baylor. (CR 226)
20
Fact: The notary Marian Gibson then affixed her signature and notary seal to
page three of the will document, and affixed her notary seal to page
two of the will document. (CR 226)
These are the facts set forth in the summary judgment record by Mr.
Olsen, the non-movant.
The trial court erred in not applying these facts to
the Commission‘s allegations and in granting the Commission‘s MPSJ.
The emergency situation set forth in the fact section above and the
attached affidavits of Edwin C. Olsen IV (CR 238-239), Justin Dale Burgess
(CR
240-242),
and
Mark
Patrick
McCay
(CR
243-245),
illustrate
that
circumstances were not ideal for the drafting of perfect legal documents.
Under the emergency situation at issue, and the last minute refusal of the
only notary that could notarize a ―self-proving affidavit‖ to a will for
Mary Ellen, the document that was printed was flawed. (CR 242; CR 245) But
it was the document that Mary Ellen had signed and the witnesses present
knew that a three-page will document had been printed. (CR 226)
The document printed at Deco-Dence L.L.C. on February 22, 2005, signed by
Mary Ellen, and subscribed by her two witnesses, and then notarized at the
notary‘s house, was the one filed ―as is‖ on March 2, 2005.
The
notary
jurat
language
deriving
from
the
(CR 226)
―self-proving
affidavit‖
language of § 59 of the Texas Probate Code is the sole content of page
three.
The
typed
text
referring
to
Mary
Ellen
on
page
three
was
inadvertently not deleted after the changes were made to the language of the
witness‘s
attestation
clause
on
page
two
in
the
last
minute
rush
to
accommodate the notary‘s refusal to go to Baylor Hospital‘s Emergency room.
It is a mischaracterization for the Commission to claim it is a ―false
jurat‖ (CR 35), in the sense of being intentional done for dishonest reasons
or reasons of
misrepresentation. Once
the will document
was signed and
notarized, the typed language was left unmarked since that was the document
―as is‖ that Mary Ellen signed and was witnessed and later notarized.
Further, the Commission is incorrect in its assertion that ―The problem
21
is that a third page, containing a false jurat, became attached to the Will
between the time Bendtsen [Mary Ellen] signed it and the time Mr. Olsen
filed it with the court.
Thus, the Will Mr. Olsen filed for probate is not
the two-page Will Bendtsen signed.‖
(The Commission‘s MPSJ at p. 8 of 18)
As the non-movant, the summary judgment evidence is that the third page
was printed out on a computer printer at the same time as pages one and two,
and all three pages were in Mr. Olsen‘s brief case when he returned to
Baylor Hospital‘s Emergency Room. (CR 242)
Mary Ellen was presented page
one and two since those had the next germane language for recording Mary
Ellen‘s wishes for her Last Will and Testament, Mary Ellen signed page two,
the witnesses subscribed their names to page two, then pages one and two
were returned to the brief case.
The witnesses, Mr. Olsen, and Mr. McCay then went to the notary‘s home,
pages 2 and 3 were presented to the notary, the witnesses affirmed their
attestation on page 2, and they affixed their signatures to the notary‘s
notary book. The notary signed her name to page 3 and affixed her seal to
page 3 and page 2.
Pages 2 and 3 were then returned to Mr. Olsen‘s brief
case back with page 1.
Eventually all three pages were photocopied, and
then at this point were page 1, page 2 and page 3 stapled together.
On
March
2,
2005,
all
three
pages
were
filed
together
since
they
constituted the original three page Will document as signed by Mary Ellen
and her witnesses, and as notarized by the notary. (CR 242)
NO LEGAL AUTHORITY THAT ONLY VALID WILLS MAY BE FILED FOR PROBATE
Mr. Olsen was obliged to file the three page will document under Texas
law. Texas Probate Code § 75: ―Upon receiving notice of the death of a
testator, the person having custody of the testator‘s will shall deliver it
to the clerk of the court which has jurisdiction of the estate.‖
The Commission claims that ―[1] By filing the Will with the Application
for Probate (Exhibit 1), Respondent [Mr. Olsen] certified to the court that
22
the Will was valid. (CR 35; bracketed numerals added; emphasis added).
The Commission provides no legal authority for its proposition that the
filing of a will is a certification by an attorney that the will is ―valid‖.
Texas Probate Code § 75 makes no such distinction.
Texas Probate Code §
75 mandates a blanket obligation to deliver all wills to the probate court
clerk.
Any
―person‖
having
―custody
―deliver it to the clerk of the court‖.
of
the
testator‘s
will‖
Texas Probate Code § 75.
―shall‖
There is
no exception made for not being obliged to deliver ―invalid‖ wills.
The obligation is even more draconian when a person has in his custody a
testator‘s last Will: ―On sworn written complaint that any person has the
last will of any testator . . . the county judge shall cause said person . .
. to appear before him and show cause why he should not deliver such will to
the court for probate.‖ Texas Probate Code § 75.
Indeed, a person having custody of a testator‘s last Will is potentially
subject to imprisonment if he does not provide it the court for probate: ―.
. . such judge may cause him to be arrested and imprisoned until he shall so
deliver . . .‖ Texas Probate Code § 75.
The Commission presents no legal authority for its proposition that the
drafting attorney must determine the validity of a will and so certify.
Such a situation is contrary to the purpose of the statutory establishment
of specialized county probate courts, whose express duty is to determine the
validity of wills filed with them.
It is the duty of the probate court,
through the judge and the trier of fact to access the validity of wills, by
subjecting
contested
wills
to
the
adversarial
admissible evidence from lay and expert witnesses.
process
and
to
consider
See Texas Probate Code §
10 ―Persons Entitled to Contest Proceedings‖ and Johanson’s Texas Probate
Code Annotated, 2001 ed., discussion of § 10, p. 22-30.
Wills
can
be
challenged
on
a
variety
lack
of
testamentary capacity and undue influence. See Texas Probate Code § 10.
A
23
of
grounds,
including
facially valid will can be found to be invalid because the testator lacked
testamentary capacity or was subject to undue influence.
When a client asks
her attorney to draft her will, it is his obligation to do so and let the
Court decide whether or not the will is valid, not to don the mantle of
judge and jury and unilaterally decide not to file a last will because of
potential claims that it is ―invalid‖. To the contrary, Texas Probate Code §
75 obliges the attorney to file a last will.
A last will is constructively
presumed to be valid by the Probate Court and will be admitted to Probate if
facially valid, unless it is successfully challenged by a will contestant.
In a will contest, the will proponent has the burden to demonstrate that the
will
complies
with
statutory
formalities
and
that
the
testator
had
testamentary capacity. See Johanson’s Texas Probate Code Ann. 2001 ed., p.
23.
But the will contestant has the burden to prove undue influence. Id. p.
26: ―The burden of proving undue influence is on the contestant.‖
Lastly, the Commission ignores that the attestation clause wording of
page two above the witness signature lines.
On its face, it applies only to
the two attesting witness, and it is this attestation that the two witnesses
are swearing to before the notary on page three of the will document.
Ellen‘s attestation
clause is entirely separate, and
is
Mary
located in the
middle of page two, above her signature block. (CR 51)
Specifically, the witness attestation clause reads:
The foregoing instrument, consisting of this and the preceding
page, was signed, published and declared by MARY ELLEN LOGAN
BENDTSEN, Testatrix, to be her Last Will and Testament, in our
presence and we, at her request and in the presence of each other,
have hereunto subscribed our names as witnesses this 22nd day of
February, 2005. (CR 51)
The attestation act is referred to in the past tense ―have hereunto
subscribed‖ (CR 51) because Mr. Olsen had been informed the witnesses would
have to go to the notary, and attest to a prior act. (CR 242; CR 245)
Otherwise, if the notary had been present at Baylor, the clause would have
24
been written in the present tense and read ―do hereunto subscribe‖.
While the refusal of the notary prevented Mary Ellen from have a selfproved will, the act of notarization did conclusively establish the date on
which the will was attested to.
Since Mary Ellen was still embroiled in
Giron‘s involuntary guardianship action, it was reasonable to presume that
Giron would contest Mary Ellen‘s Last Will and Testament.
Hence, Mr. Olsen
did the best he could do under the circumstances to document Mary Ellen‘s
wishes and bulletproof them (hence the videotaping plus the fixing of the
date of the will via the notarization).
F: ISSUE FIVE: The trial court erred in granting summary judgment that Mr.
Olsen violated 8.04(a)(3), 3.03(a)(1), 3.03(b), and in granting summary
constituted a misrepresentation to the court, and that Mr. Olsen was not
candid with the court and intended to mislead the court.
The Commission alleges that ―Mr. Olsen‘s statements [sic] to the court
are
dishonest
and
constitute
a
misrepresentation
to
the
Court.‖
(The
Commission‘s MPSJ at p. 8-9 of 18; CR 35-36) and alleges that Mr. Olsen
―misled the court‖. (The Commission‘s MPSJ at p. 12 of 18, CR 39) Actually,
the singular – not plural – statement at issue is Mr. Olsen‘s response to a
question of Judge Price‘s made after he had just adjourned court.
Judge
Price, standing up, asked: ―And also, where is Ms. Bendtsen now? What is her
current residence?‖
Mr. Olsen volunteered the statement: ―Your Honor, she
was at Ashley before.‖ (CR 336; emphasize added)
These are the facts established by the summary judgment record:
Fact: Mary Ellen had been informed by Ashley Court that Medicare would not
longer cover her stay at Ashley Court. (CR 350)
Fact: Mary Ellen had consequently checked herself out of Ashley Court on
January 31, 2005. (CR 350)
Fact: The first hearing on Giron‘s effort to be appointed Mary Ellen‘s
temporary guardian took place on January 31, 2005 after Mary Ellen
checked herself out of Ashley Court. (CR 309)
Fact: Giron pled that Mary Ellen‘s residence was 4949 Swiss Avenue, Dallas,
TX, in her Application for Appointment of Temporary Guardian and
Application for Appoint of Permanent Guardian. (CR 353)
Fact: Mary Ellen was present in court on January 31, 2005, seated at the
table directly before Judge Price. (CR 311)
Fact: Judge Price adjourned court in the midst of witness testimony.(CR 336)
25
Fact: As Mary Ellen sat at the table before him, Judge Price asked: ―And
also, where is Ms. Bendtsen now? What is her current residence?‖
Fact: At the time, ME‘s residence was 4949 Swiss Avenue, Dallas, TX (CR 353)
Fact: At that moment, Mary Ellen was in court. (CR 311)
Fact: Mr. Olsen answered the question, using the past-tense twice: ―Your
Honor, she was at Ashley before.‖ (CR 336; emphasis added)
Fact: Judge Price never signed an order ordering Mary Ellen back to Ashley
Court. (CR 289)
Fact: Absent a ruling appointing a guardian for Mary Ellen, she was free to
go where she wished. (CR 252)
Fact: Mr. Olsen had no motive to mislead the court. (CR 238)
Fact: Mr. Olsen did not believe he had misled the court. (CR 238)
Fact: Mr. Olsen‘s mental focus was on Mary Ellen‘s property tax payment
deadline (due postmarked by midnight that evening). (CR 238)
Fact: Mary Ellen‘s ad-litem counsel was present throughout the hearing, and
throughout the discussion that took place after Judge Price adjourned
the hearing, and made no statements contradicting Mr. Olsen. (CR 309)
Summation:
All these facts are set forth in the record.
facts are material.
facts
had
to
be
All of these
As this was a summary judgment proceeding, all these
construed
in
favor
of
the
non-movant,
Mr.
Olsen.
The
Commission offers no evidence that contradicts these facts.
The threshold event that started all the litigation that has been spawned
in
the
Mary
Ellen
matter
is
Giron‘s
filing
of
her
Application
for
Appointment of Temporary Guardian and Application for Appoint of Permanent
Guardian on January 21, 2005. (CR 353)
The Commission chose not to include in its MPSJ either Giron‘s January
21, 2005 Application for Appointment of Temporary Guardian and Application
for Appointment of Permanent Guardian (CR 353) or her February 2, 2005
Applicant’s Motion For Emergency Order. (CR 246)
to
include
as
exhibits
both
of
Mr.
Olsen‘s
The Commission did choose
Responses
filed
to
these
pleadings, but not the original pleadings themselves.
The
Commission
claims
that
Mr.
Olsen‘s
answering
questions: ―And also, where is Ms. Bendson [sic] now?
residence?‖
was
misleading
and
dishonest
because
of
Judge
Price‘s
What is her current
Mr.
Olsen
accurately
answered ―Your Honor, she was at Ashley before.‖ (CR 336; emphasis added)
The
Commission
mischaracterizes
the
setting
by
stating:
―During
the
course of the hearing, the following exchange took place between Mr. Olsen
26
and the Honorable Robert E. Price, Judge of Probate Court No. 2, Dallas
County, Texas.‖ (Commission‘s MPSJ at p. 9 of 18; CR 36; emphasis added)
To the contrary, Judge Price had suddenly interrupted the proceedings to
announce that the hearing was adjourned and had stood up. (CR 228) Mr. Olsen
had not had the opportunity during the hearing to raise the issue that Mary
Ellen‘s property taxes on her home at 4949 Swiss Avenue where due that day
postmarked by midnight or a late penalty would be imposed, it being January
31st. (CR 228) This was the foremost issue on Mr. Olsen‘s mind. (CR 228)
The transcript of the January 31, 2005 hearing is attached as exhibit 7
to the Deposition of Judge Price. (CR 309-349)
page 26 through 29.
The relevant portion is at
Judge Price interjects at line 19, p. 26 (CR 336):
THE COURT: Excuse me, Ms. Kenney.
It‘s 4:00 o‘clock now.
We‘re
going to adjourn. The witness may step down.
We‘re going to continue this matter until February the 19 th and the
lawyers can get together and see if they can agree upon a setting
within that period of time. And also, where is Ms. Bendtsen now?
What is her current residence?
Mr. Olsen then volunteered the answer quoted earlier that the Commission
claims is dishonest and done for the purpose of misrepresentation.
The
Commission ignores three key points is its claim and fails to note that
there was no dispute pertaining to the key issue.
First, Giron‘s January 21, 2005 Application for Appointment of Temporary
Guardian and Application for Appointment of Permanent Guardian stated itself
on page one, paragraph one: ―The Respondent, MARY ELLEN LOGAN BENDTSEN, is a
female whose date of birth is July 13, 1916.
She currently resides at 4949
Swiss Avenue, Dallas, Texas 75214.‖ (Application at p. 1; CR 353)
Giron
through
her
attorney
Ms.
Kenney
had
agreed
with
Mr.
Olsen
as
counsel for Mary Ellen on January 20, 2005 to allow Mary Ellen to check
herself into Ashley Court on January 21, 2008 when Baylor Hospital was
discharging her. (CR 229)
Thus, when Ms. Kenney filed Giron‘s Application
on January 21, 2005, she knew that Mary Ellen was at Ashley Court.
27
This in
where
Mary
Ellen
was
served
Giron‘s
Application
on
January
25,
2005.
Knowing that Mary Ellen was at Ashley Court, Giron‘s Application states that
Mary Ellen ―currently resides at 4949 Swiss Avenue, Dallas, Texas 75214.‖
(Application at p. 1, CR 353) Giron‘s Application was verified by Giron.
(Application at p. 9, CR 361)
Thus,
with
regard
to
Judge
Price‘s
compound
questions,
Mary
Ellen‘s
―current residence‖ was her home at 4949 Swiss Avenue of fifty-five (55)
years (CR 125).
As to ―where is she now?‖, at that moment in time, Mary Ellen was seated
directly before Judge Price. (CR 229)
Mr. Olsen answered Judge Price‘s compound question as best he could under
the circumstances at the time, stating accurately that ―Your Honor, she was
at Ashley before.‖ (CR 336; emphasis added)
The ―was‖ is the past tense of
―is‖, which is why Mr. Olsen used it, since Mary Ellen was no longer at
Ashley Court. Furthermore, ―before‖ is a reference to the past.
Judge Price
in his deposition testimony agreed that both words refer to the past tense.
(CR 265)
It was not Mr. Olsen‘s intent or desire to misrepresent or be
dishonest. (CR 229)
misrepresent.
Mr. Olsen did not have any motive to be dishonest or
Indeed, if Mr. Olsen had had – counter-factually – any intent
to be dishonest or to misrepresent, a more effective answer would have been:
―She is at Ashley‖ instead of ―she was at Ashley before.‖
Mr. Olsen thought the language he had employed under the circumstances
informed Judge Price of this reality, which is why the statement concerning
a visitation order to Ashley court did not make sense to Mr. Olsen. (CR 230)
But after Judge Price had hurriedly closed down the hearing while waiving
off the issues raised by the various counsel, Mr. Olsen asked the bailiff
whether any orders had been signed and heard the bailiff state to him that
none had been.
(CR 230)
Judge Price confirms in his deposition that he
never signed any order regarding visitation at Ashley Court. (CR 268)
28
Nor
did Judge Price receive a draft of such an order. (CR 268-9).
Nor did Judge
Price order Mr. Olsen to draft such an order. (CR 269).
The summary judgment evidence provided by the Commission consists solely
of two items: (1) six admissions Mr. Olsen made with regard to basic factual
predicates: i.e. that he represented at and accompanied Mary Ellen to the
January 31, 2005 hearing (Olsen Admissions #8 and #10; CR 36), and knew
prior to the hearing that Mary Ellen had checked out and been discharged
from Ashley Court (Olsen Admissions #4, #6, #10, #11; CR 37). (2) Judge
Price‘s
October
3,
2008
Affidavit.
(CR
113)
The
Commission
offers
no
evidence that Mr. Olsen intended to deceive Judge Price.
The Commission does not dispute that seven days later (Feb. 7, 2005), any
misunderstanding that Judge Price had was gone (CR 283; CR 296; CR 371; CR
414) and that Judge Price took no action against either Mr. Olsen (CR 283;
CR 284; CR 296) or with regard to compelling Mary Ellen to return to Ashley
Court. (CR 368-402)
In fact, four days further on (Feb. 11, 2005), Judge
Price denied Giron‘s Application for Temporary Guardianship. (CR 308)
Judge
Price never granted Giron‘s Motion for Emergency Orders. (CR 289)
The key summary judgment evidence offered by the Commission is Judge
Price‘s affidavit signed three years, eight months, and three days after the
fact.
The Price Affidavit was written by the Commission (CR 257; CR 291),
presented by the Commission to Judge Price (CR 257; CR 291), and accompanied
by no documents. (CR 257)
Judge Price reviewed only the transcript of the
January 31, 2005 hearing; not the follow-up February 7th and 11th, 2005
transcripts. (CR 257; CR 258; CR 291).
Judge Price signed the Commission‘s
affidavit without him having any memory at the time he signed the affidavit
of the outcome of Giron‘s guardianship action. (CR 259)
Before signing the Commission‘s affidavit, Judge Price did not review
Giron‘s Motion for Emergency Orders that triggered the February 7, 2005
hearing (CR 291), he did not review the transcripts of the hearings of
29
February 7 and February 11, 2005 (CR 291), nor did he review any of the
pleadings that were filed nor the orders that he signed. (CR 291)
Judge Price did not even recall that he had denied Giron‘s Application
for
Temporary
Guardianship.
(CR
259:
―Q.
Do
you
remember
denying
the
application for appointment of a temporary guardianship? A. [Judge Price] I
don’t recall denying it.‖). (emphasis added)
What this boils down to is that Judge Price just took the Commission‘s
word that Mr. Olsen had mislead him, and performed no due diligence to
investigate the merits or the context of the Commission‘s allegation. ―Q:
And you didn‘t review any of the motions that were filed? A. [Judge Price] I
just dealt with what happened on this January 31st.‖ (CR 291; emphasis added)
As summary judgment evidence, Judge Price‘s affidavit had to be construed
in conjunction with Judge Price‘s deposition testimony and weighed in favor
of the non-movant, Mr. Olsen.
fact
to
consider
testimony,
Judge
Judge
Price‘s
At a minimum, it should be up to a trier of
Price‘s
actual
affidavit,
testimony
in
his
revealing
court
subject
deposition
to
cross-
examination, and Mr. Olsen‘s rebuttal testimony in determining whether Mr.
Olsen violated the disciplinary rules by correctly using the past tense to
answer Judge Price‘s compound question in the rush to adjournment that Judge
Price himself had insisted on.
Giron‘s February 2, 2005 Motion for Emergency Order made the very same
allegation to Judge Price that the Commission now makes (CR 415: ―Olsen did
not
inform
the
Court
that
Respondent
discharged from the nursing facility.‖).
[Mary
Ellen]
had
already
been
At the time, Judge Price did
nothing, he did not find Mr. Olsen in contempt of court for allegedly being
dishonest or misrepresenting a material fact. (CR 283; CR 284; CR 296)
Giron‘s February 2, 2005 Emergency Order Motion was filed two days after
Mary Ellen returned home to her residence of fifty-five (55) years (CR 125),
and two days after the first January 31, 2005 hearing.
30
In her motion, Giron
as ―Applicant asks this court to order MARY ELLEN LOGAN BENDTSEN to return
to Ashley Court at Turtle Creek . . . to be admitted into the assisted
living section of such institution.‖ (Emergency Order Motion at 1; CR 414)
Giron states that ―it was inferred that MARY ELLEN LOGAN BENDTSEN would
remain at Ashley Court until the hearing on the Application for Temporary
Orders was resolved.‖ (Emergency Order at 1-2; CR 414-415).
Giron states
that ―On February 1, 2005, Kenny [Giron‘s attorney] learned that Olsen did
not inform the Court that Mr. Olsen had already been discharged from the
nursing facility. . . ― (Emergency Order at 2; CR 415).
Giron further
claimed that ―The Respondent‘s [Mary Ellen‘s] attorney failed to adequately
inform the Court and did not obtain permission for Respondent [Mary Ellen]
to return to her home . . .‖ (Emergency Order at 3; CR 416).
Thus, the very charges that the Commission alleged against Mr. Olsen were
also alleged by Giron‘s attorney Ms. Kenney directly to Judge Price in her
February 2, 2005 Motion for Emergency Order three (3) years and eight (8)
months earlier.
continued
the
Judge Price heard Giron‘s Motion on February 7, 2005, then
hearing
to
February
11,
2005,
when
he
denied
Giron‘s
Application for Appointment of Temporary Guardian in its entirety (CR 308).
He later ordered Giron to pay Mary Ellen‘s attorney-ad-litem‘s attorney fees
of $10,470.00 personally. (CR 307)
Thus, at the very time in question, Judge Price considered the same
allegations that the Commission now alleges and found them to be without
merit.
If he had found them to be of merit, he would have found Mr. Olsen
in contempt but never did. (CR 252)
G: ISSUE SIX: The trial court erred in granting summary judgment that Mr.
Olsen violated 8.04(a)(3), 3.03(a)(1) & 3.03(b), and in granting summary
judgment that Mr. Olsen’s Opposition to Giron’s Motion for Emergency Orders
was dishonest, constituted a misrepresentation to the court, and that Mr.
Olsen was not candid with the court and intended to mislead the court.
The Commission alleges that ―Mr. Olsen‘s statement in the Opposition to
Applicant‘s
Motion
for
Emergency
Order
31
is
dishonest
and
constitutes
a
misrepresentation to the Court.‖ (The Commission‘s MPSJ at p.11of 18; CR 38)
The Commission makes this claim because Mr. Olsen stated therein that he had
―informed the Court that [Bendtsen] was discharged from Ashley Court.‖
(The
Commission‘s MPSJ at p.11 of 18; CR 38)
In full, what Mr. Olsen wrote is: ―Seeking guidance from this Court, Mr.
Olsen‘s Counsel informed the Court that Respondent [i.e. Mary Ellen] was
discharged
from
Ashley
Court
and
that
her
postmarked that evening to avoid a penalty.‖
property
taxes
had
to
be
Mary Ellen‘s Opposition to
Applicant’s Motion for Emergency Order, at 1-2 of 6 (filed February 7, 2005
at 2:52 p.m., just prior to the Court‘s 3:00 p.m. hearing on this matter.
Contrary to the Commission‘s characterization, this statement accurately
reflects what Mr. Olsen thought he had informed the Court the previous week.
(CR 231) Mr. Olsen‘s statement in Mary Ellen‘s Opposition to Applicant’s
Motion for Emergency Order accurately reflects his memory of what he thought
he had represented to the Court and was what he had intended to represent to
the
Court.
(CR
231)
Mr.
Olsen
believed
when
he
wrote
Mary
Ellen‘s
Opposition to Applicant’s Motion for Emergency Order that the words he had
used in court had informed Judge Price that Mary Ellen had been discharged
from Ashley Court. (CR 231-232)
Subsequently review of the January 31, 2005
hearing transcript reveals that better words could have been employed, but
when Mr. Olsen
wrote Mary Ellen‘s
Opposition to Applicant’s Motion for
Emergency Order, he did not have a copy of the January 31, 2005 hearing
transcript.
(CR
232)
The
January
31,
2005
hearing
transcript
was
not
produced until February 9, 2005, (see page 30 of hearing transcript of
January 31, 2005 hearing; CR 340).
Consequently, Mr. Olsen wrote Mary
Ellen‘s Opposition on February 6-7, 2005 from memory. (CR 403)
Finally, lawyers frequently have only their memories to go by in drafting
rebuttal legal documents. As example, in Giron‘s Applicant’s Motion for
Emergency Order Ms. Kenney states: ―At the end of the hearing, the Court,
32
ordered that no one visit the Respondent [Mary Ellen] without prior Court
Order and directed Attorney EDWIN C. OLSEN, IV to draw up that Order and the
Order
denying
Applicant‘s
Motion
in
Limine.‖
(Applicant’s
Motion
for
Emergency Order at 1; bolding, underline added).
Ms. Kenny‘s statement is not true as (1) demonstrated by the hearing
transcript and (2) confirmed by Judge Price in his deposition: ―Q. And did
you instruct me to prepare such an order?
A. [Judge Price]. No.‖. (CR 269)
A review of the hearing transcript shows that the Court ordered Mr. Olsen
to draft only one order, not two: namely the Order denying Giron‘s Motion in
Limine. (CR 316)
Judge Price in his deposition confirms that Mr. Olsen was
ordered solely to draft one order, the Order denying Applicant‘s Motion in
Limine (CR 269), and that he, Judge Price, had not ordered any attorney to
draft the order directed at Ashley Court. (CR 268-9)
Judge Price himself found no issue with Mr. Olsen‘s drafting of Mary
Ellen‘s Opposition to Applicant’s Motion for Emergency Order.
Again, four
days after it was first heard, he denied Giron‘s Application for Appointment
of a Temporary Guardian in its entirety. (CR 308)
Mr. Olsen‘s did not intend to mislead the Court, the Court failed to
consider, much less find, that Mr. Olsen mislead it as alleged by Giron, and
never considered finding Mr. Olsen in contempt. (CR 232; CF 296)
The Commission, alleged that ―Mr. Olsen‘s mislead the Court‖, a violation
of Rule 3.03(a)(1) and Rule 3.03(b). (The Commission‘s MPSJ at p.12 of 18;
CR 39)
Regarding Rule 3.03(a)(1), Mr. Olsen did not ―knowingly make a false
statement of material fact or law to a tribunal‖ when he wrote the statement
at issue. (CR 233)
Mr. Olsen believed that he had communicated to Judge
Price that Mary Ellen was gone from Ashley Court, and the document Mr. Olsen
filed on February 7th – Mary Ellen‘s Opposition to Applicant’s Motion for
Emergency Order — reflected that belief. (CR 230; CR 232; CR 233)
Finally,
misleading
the
Court
was
33
factually
impossible.
Mary
Ellen‘s
Opposition
scheduled
was
filed
3:00
p.m.
at
2:52
start
p.m.
time
of
(CR
the
Emergency Order on February 7, 2005.
403),
eight
hearing
on
minutes
before
the
Giron‘s
Motion
for
Judge Price never read Mr. Olsen‘s
last minute filing. (Price Deposition, lines 14-15; CR 282)
H: ISSUE SEVEN: The trial court erred in granting summary judgment that Mr.
Olsen violated Rule 8.04(a)(1).
The Commission finally alleged that Mr. Olsen violated rule 8.04(a)(1),
because he allegedly violated others of listed disciplinary rules discussed
above.
Mr. Olsen incorporates in full that preceeding analyses herein. As
the trial court erred in ruling he had violated any disciplinary rules, it
thus errs in ruling that Mr. Olsen violated rule 8.04(a)(1).
I: Procedural History of the Disciplinary Case:
This factual history applies to
Issues Eight through
Fifteen and is
derived from the District Clerk‘s ―Case Summary‖, at CR 469-472.
08 October 2008:
The Commission‘s Motion for Partial Summary Judgment
[hereinafter ―MPSJ‖] filed (CR 28); included as Exhibit 6 the October 03,
2008 Affidavit of Judge Price. (CR 113)
29 October 2008:
Date of Mr. Olsen‘s letter requesting two hours
depose Judge Price regarding his October 3, 2008 Affidavit. (CR 303)
to
31 October 2008:
Date of the Commission‘s letter notifying Mr. Olsen of
MPSJ hearing date and time, stating set for ―teleconference hearing . . .on
December 5, 2008, at 10:30 a.m.‖ (CR 149)
06 November 2008:
Date of Deposition of Judge Price (CR 252), adjourned
by Judge Price (CR 296, line 17-20) after fifty-five minutes (CR 252, line
21: ―from 2:04 p.m. to 2:59 p.m.).
21 November 2008:
Mr. Olsen‘s Verified Motion to Continue Summary
Judgment Hearing filed (CR 143), requested continuance because of (1) need
to conclude deposition of Judge Price (set for December 12, 2008) (CR 144),
and (2) conflicting hearing settings (Giron‘s wrongful death suit against
Mr. Olsen – representing himself pro se (CR 6) – had hearing set for
December 5, 2008, at 10:00 a.m. [thirty minutes before setting of
teleconference hearing in MPSJ]. (CR 144; CR 154; CR 155)
25 November 2008:
The Commission‘s Response to Mr. Olsen‘s Verified
Motion to Continue Summary Judgment Hearing filed. (CR 188) In it, the
Commission asserted that ―Petitioner [the Commission] has learned that this
conflicting setting does not involve Respondent [Mr. Olsen].‖ (CR 188) The
Commission further asserted that ―Since these hearings do not involve
Respondent [Mr. Olsen], he is free to attend the summary judgment hearing
set in this matter on December 5.‖ (CR 189)
The Commission provided no
34
evidence nor source for its assertions.
emailed to Mr. Olsen on 24 November 2008.
The Commission‘s
Response was
24 November 2008:
Mr. Olsen‘s Verified Reply to the Commission‘s Response
to Mr. Olsen‘s Verified Motion to Continue Summary Judgment Hearing filed
(CR 170).
Mr. Olsen disputed the Commission‘s assertions, attaching as
evidence the affidavit of Nicholas Acuff, counsel for Mr. Burgess and Mr.
McCay (the primary beneficiaries of Mary Ellen‘s Last Will and Testament,
and the other two defendants in Giron‘s wrongful death suit).
Mr. Acuff
states regarding Giron‘s December 5, 2005 wrongful death hearing:
In particular, there is an ongoing battle over discovery. To date,
Ms. Giron’s attorney has not produced a single document in any of
defendants’ request for production of documents (either for my
clients’ requests, Mr. Olsen’s requests, or those of the Baylor
Defendants).
I expect this issue concerning document production to
arise at the hearing on December 5, 2008.
Additionally, there are long standing motions to dismiss that have
not been ruled on, and I expect Judge Emily G. Tobolowsky to give
guidance to the parties regarding these outstanding issues as well as
to the future scheduling of this case.
As such, I consider it important for me to be at this hearing on
December 5, 2008 even though my clients are not the direct subject of
the motions on the docket.
I would also understand why Mr. Olsen
would consider it important for he to be there as well. (CR 184-185)
28 November 2008:
Mr. Olsen‘s MPSJ Response timely filed. (CR 216)
02 December 2008:
Order denying Mr. Olsen‘s continuance motion signed by
Judge Quisenberry, presiding judge. (CR 203)
02 December 2008:
Mr. Olsen‘s Verified Objection to Conducting Summary
Judgment Hearing via Telephone, Verified Emergency Motion for Continuance,
Request for Hearing on his Verified Emergency Motion for Continuance, and
Request for the Presence of a Court Reporter filed. (CR 191) Mr. Olsen
attached Giron‘s wrongful death attorney‘s December 1, 2005 email to Mr.
Olsen as Exhibit B (CR 200), which stated that issues directly germane to
Mr. Olsen would be the subject of the conflicting December 5, 2008 wrongful
death hearing [Giron the complainant] [(CR 200; bolding in original)]:
A hearing is set December 5, 2008 at 10:00 a.m. along with
Plaintiff’s Motion for Summary Judgment as to Request for Declaratory
Judgment and Plaintiff’s Third Motion to Compel Discovery.
Next, at the hearing I will also ask the Court about a new trial
date.
Please let me know when you think we can reset the trial is
this case. If our trial will conflict with your criminal trial [Giron
the complainant] or with your state bar trial [Giron the complainant],
we can work around those dates. Please advise.
04 December 2008:
The Commission‘s Reply to Mr. Olsen‘s Response to the
Commission‘s MPSJ filed. (CR 204)
The Commission objects to Mr. Olsen‘s
verified Response, and all of Mr. Olsen‘s affidavits (his, Mr. Burgess‘ and
Mr. McCay‘s). (CR 204, 205, 206)
04 December 2008:
Mr. Olsen‘s Verified Emergency Motion for Continuance
granted (CR 455: The Commission confirms: ―2. Respondent‘s Motion for
Continuance Was Granted.‖)
The Commission cites Mr. Olsen‘s 08 June 2009
35
Affidavit at p. 2 (CR 455), which states in part:
On December 4, 2008, at approximately 6:00 o’clock p.m. I [Mr.
Olsen]
retrieved
a
voice
message
from
a
clerk
of
Judge
Quisenberry’s Court in Weatherford advising me that the motion for
continuance had been Granted and that I would later be advised of
the rescheduled date and time [of the hearing on the Commission‘s
MPSJ]. (CR 439)
04 December 2008:
Deposition conducted by Giron‘s attorney Dunleavy of
Mark McCay, defended by Mr. Olsen, concludes close to 9:00 p.m. Mr. Olsen
received the Commission‘s MPSJ Reply after 9:00 p.m. upon returning to his
office. (CR 209-210)
05 December 2008:
10:00 a.m. hearing conducted in Frances Ann Giron v.
Mark McCay, Justin Burgess, Edwin C. Olsen IV, Baylor Health Care System,
and Baylor University Medical Center, DC-06-02257-M, 298th Judicial District
Court Dallas County, Texas. Concludes at approximately 11:00 a.m. (CR 439)
05 December 2008:
At approximately 11:16 a.m., Mr. Olsen received a
voicemail from a clerk of Judge Quisenberry‘s Court in Weatherford advising
Mr. Olsen that the hearing on the Commission‘s MPSJ was re-set for 2:00 p.m.
that afternoon, less than three hours later. (CR 439; CR 210)
05 December 2008:
Mr. Olsen‘s Request To Serve Additional Affidavits and
Summary Judgment Evidence and TRCP 166a(f) Request to Amend Affidavits filed
at 1:27 p.m. (CR 209), after which Mr. Olsen commenced driving to Judge
Quisenberry‘s court in Weatherford, Texas.
05 December 2008:
Judge Quisenberry convened the telephonic hearing on
the Commission‘s MPSJ at approximately 2:00 p.m.
05 December 2008:
Mr. Olsen objected to the hearing being conducted over
the phone, citing his 02 December 2008 Verified Objection to Conducting
Summary Judgment Hearing via Telephone, filed on the basis of the
Commission‘s reliance on Mr. Olsen‘s videotape of Mary Ellen‘s will signing
and of the amount of documents involved. (CR 439) Judge Quisenberry allowed
Mr. Olsen to finish driving to Weatherford. (CR 439)
05 December 2008:
Mr. Olsen presented Judge Quisenberry the file-stamped
courtesy copy of Mr. Olsen‘s 05 December 2008 Request To Serve Additional
Affidavits and Summary Judgment Evidence and TRCP 166a(f) Request to Amend
Affidavits. (CR 212) Mr. Olsen verbally repeated his filed written request
for record of the proceedings. (CR 440)
Even though Judge Quisenberry‘s
court reporter was present in court through the hearing, Judge Quisenberry
denied Mr. Olsen‘s request for the creation of a record. (CR 440)
05 December 2008:
Judge
Quisenberry
conducted
the
hearing
on
Commission‘s MPSJ. (CR 215)
He sustained the Commission‘s December
objections to Mr. Olsen‘s verification and affidavits, striking them;
not permit Mr. Olsen to approach the bench to present documents for
Court‘s consideration, and did not permit Mr. Olsen to play or analyze
Olsen‘s videotape of Mary Ellen‘s will signing, which was attached by
Commission as Exhibit 4 to it‘s MPSJ. (CR 215; CR 35)
11 December 2009:
and striking Mr.
the
4th
did
the
Mr.
the
Orders signed granting the Commission‘s MPSJ (CR 214),
Olsen‘s Verification and Affidavit, and sustaining
36
objections to the Affidavits of Mr. Burgess and Mr. McCay regarding Mary
Ellen‘s Will. (CR 215)
12 January 2009:
Mr. Olsen Motion for New Trial, Request To Serve
Additional Affidavits and Summary Judgment Evidence and TRCP 166a(f) Request
to Amend Affidavits filed. New affidavits from Mr. Olsen, Mr. McCay and Mr.
Burgess attached, curing the defects alleged by the Commission. (CR {missing
from the clerk’s record}; listed on the District Clerk‘s ―Case Summary‖:
―01/12/2009 MOTION – NEW TRIAL‖; CR 471)
08 May 2009:
Default Final Judgment of Disbarment signed. (CR 423)
The
default judgment notes that ―Respondent, Edwin Carl Olsen IV, State Bar
Number 00789527, did not appear.‖ (CR 423; emphasis added)
08 May 2009:
Mr. Olsen Verified Motion To Continue Sanctions Hearing
[―VMCSH‖] filed (CR {missing from the clerk’s record}; listed on the
District Clerk‘s ―Case Summary‖: ―05/08/2009 MOTION – CONTINUANCE Party:
DEFENDANT OLSEN, EDWIN CARL, IV SANCT HEARING”; CR 471)). In it Mr. Olsen
states his belief (CR 440) that ―Petitioner‘s request for a Sanctions
Hearing has a first setting of May 9, 2009‖ (VMCSH, p. 1), and requests a
continuance because he has just secured representation, quoting ―T.R.C.P. 7
―May Appear by Attorney‖, which provides: ―Any party to a suit may appear
and prosecute or defend his rights therein, either in person or by an
attorney of the court.‖
Respondent heretofore has be[en] pro se.
In the
interest of justice and fair adjudication, Respondent has concluded that
being represented by counsel is essential.‖ (VMCSH, p. 1). Mr. Olsen states
therein that undersigned council, R. Deryl Edwards, Jr., agreed on May 2,
2009 to represent Mr. Olsen if he was admitted pro hac vice. (VMCSH, p. 1)
Mr. Olsen asked for the continuance to allow pro hac vice status to be
granted: ―On this basis, Respondent respectfully requests a continuance of
this Sanctions Hearing until a determination of Mr. Edwards‘ pro hac vice
application is made.‖ (VMCSH, p. 2)
09 May 2009:
Mr. Olsen arrived for the 9:00 a.m. at the 162nd Judicial
Court of Dallas County, Texas with his five witnesses – Dixie Tidwell, Bea
Grayson, Cary Richards, Mark McCay and Justin Burgess. (CR 440)
09 June 2009: Mr. Olsen‘s First Amended Verified Motions for New Trial,
Reconsideration, Set Aside Final Judgment, and Set New Sanctions Hearing
Date filed by counsel Jeff Forrest Smith. (CR428; CR 6)
19 June 2009: The Commission‘s Response to Mr. Olsen‘s First Amended
Verified Motions for New Trial, Reconsideration, Set Aside Final Judgment,
and Set New Sanctions Hearing Date filed. (CR 454)
02 July 2009: Order denying Mr. Olsen‘s First Amended Verified Motions for
New Trial, Reconsideration, Set Aside Final Judgment, and Set New Sanctions
Hearing Date signed without conducting hearing. (CR 466)
J: ISSUE EIGHT: The trial court erred in giving Mr. Olsen only three hour’s
notice of the re-set December 5, 2008 summary judgment hearing date and
time, and erred in not complying with the procedural requirements of
T.R.C.P. 166a.
On
December
4,
2009,
Mr.
Olsen‘s
Verified
Emergency
Motion
for
Continuance was granted (CR 455) and the summary judgment hearing on the
37
Commission‘s Motion for Partial Summary Judgment was continued to a date and
time
not
yet
set.
On
December
5,
2009,
Mr.
Olsen
was
informed
at
approximately 11:16 a.m. that the re-setting of the Commission‘s MPSJwas
that afternoon at 2:00 p.m. (CR 439; CR 210)
Less than three hours notice of the re-setting of a summary judgment
hearing is not proper and is an abuse of discretion. ―Proper notice of a
summary judgment proceeding is itself a prerequisite to summary judgment.‖
Birdwell
v.
Texins
Credit
Union,
843
S.W.2d
246,
249-50
(Tex.
App.
–
Texarkana 1992, no writ).
―Reasonable notice‖ of the re-setting of a summary judgment hearing is
required under Texas law. Birdwell, Id.
―Reasonable notice‖ is defined as a
period of time that is a minimum of ―seven days‖. Birdwell, Id. (―All that
is required thereafter is ‗reasonable notice‘ of the re-set hearing, which
is at least seven days in advance of the hearing.‖) (emphasis added)
Three hours notice is not reasonable, as such the trial court erred, and
did not comply with the procedural requirements of T.R.C.P. 166a.
The
ruling of the trial court was arbitrary, unreasonable and constitutes an
abuse of discretion.
K: ISSUE NINE:
The trial court erred in denying Mr. Olsen’s written and
oral request for the creation of a written record, and erred in not
permitting the court reporter to perform her duty as mandated by the Texas
Rules of Appellate Procedure.
T.R.A.P. 13.1 ―Duties of Court Reporters and Court Recorders‖ provides:
―The
official
sessions
and
court
make
a
reporter
full
or
record
court
of
recorder
the
must:
proceedings
(a)
attend
unless
court
excused
by
agreement of the parties.‖ (emphasis added)
Mr. Olsen timely requested by written motion filed three days in advance
of the hearing the creation of a written record by the court reporter. See
Mr.
Olsen‘s
02
December
2008
Verified
Objection
to
Conducting
Summary
Judgment Hearing via Telephone, Verified Emergency Motion for Continuance,
38
Request for Hearing on his Verified Emergency Motion for Continuance, and
Request for the Presence of a Court Reporter. (CR 216)
At the re-set summary judgment hearing conducted on December 5, 2008, Mr.
Olsen orally re-urged his request for the creation of a written record by
the court reporter. (CR 440)
Mr. Olsen never agreed to excuse the court
reporter from making a full record of the proceedings. (CR 440)
Even
though
Judge
Quisenberry‘s
court
reporter
was
present
in
court
through the hearing, Judge Quisenberry denied Mr. Olsen‘s request for the
creation of a record. (CR 440)
This ruling is in violation of the Texas Rules of Appellate Procedure,
which provide that the official court reporter ―must attend court sessions
and make a full record of the proceedings unless excused by the agreement of
the parties.‖ T.R.A.P. 13.1.
The trial court ‘s denial of the request for a
court reporter constitutes an abuse of discretion as Mr. Olsen was thereby
denied of his right to a record for appellate review of the proceedings.
―[W]hen a trial court conducts a hearing and an appellant exercising due
diligence is unable to obtain a proper record of the evidence introduced
through no fault of his own, a new trial is required if the appellant‘s
right to appellate review cannot be preserved in any other way.‖ Smith v.
Smith, 544 S.W.2d 121, 123 (Tex. 1976).
The ruling of the trial court denying Mr. Olsen‘s request for a written
record by the court‘s reporter was arbitrary, unreasonable and constitutes
an abuse of discretion.
L: ISSUE TEN:
verification and affidavit, and in sustaining the Commission’s objections to
Mr. McCay’s and Burgess’ affidavit portions pertaining to Mary Ellen’s will.
The trial court struck Mr. Olsen‘s verification of his MPSJ Response and
attached affidavit; sustained the Commission‘s objections to the affidavits
of Mr. McCay and Mr. Burgess regarding Mary Ellen‘s Will. (CR 215)
The trial court did so on the basis on the Commission‘s Reply to Mr.
39
Olsen‘s Response to the Commission‘s Motion for Partial Summary Judgment.
Because the Commission‘s Reply was untimely, the trial court should not have
considered the Commission‘s objections to Mr. Olsen‘s verification of his
Response to the Commission‘s MPSJand attached affidavit, nor sustained the
Commission‘s objections to the affidavits of Mr. McCay
and Mr. Burgess
regarding Mary Ellen‘s Will.
The Commission‘s Reply was filed on December 4, 2008 at 2:36 p.m. (CR
204), less than twenty hours before the original hearing time (CR 438) and
less than twenty three and one-half hours before the re-set hearing time (CR
438).
The summary judgment hearing took place on December 5, 2008. (CR 214)
Under
the
Local
Rules
of
The
Commission‘s Reply was untimely.
Civil
Courts
of
Dallas
County,
the
Local Rule 2.09 ―Briefs‖ provides: ―Rely
briefs in support of a motion for summary judgment must be filed and served
no less than three days before the hearing.‖
The
without
trial
court
merit.
also
As
a
erred
pro
se
because
the
respondent,
Commission‘s
Mr.
Olsen‘s
Commission‘s MPSJ was written by himself on his behalf.
case cited by the Commission is does not apply.
objections
Response
to
were
the
Consequently, the
In Webster v. Allstate
Insurance Co., 833 S.W.2d 747, 749 (Tex. App.—Houston [1st Dist.] 1992, no
writ),
a
response
was
filed
on
behalf
of
―plaintiffs‖
entities], which was ―verified by their attorney‖. Id.
[i.e.
plural
Thus, in Webster,
the actual parties filing the summary judgment response did not themselves
verify
the
response.
Compounding
matters
is
that
there
were
multiple
persons on whose behalf the summary judgment response was filed.
Webster is thus distinguishable, because Mr. Olsen was not represented by
counsel during the summary judgment proceeding, so Mr. Olsen personally
authored and signed his Response (CR 236), in addition to verifying his
Response. (CR 237)
And, as Mr. Olsen is a single person, there was no
question as to which party was verifying which fact.
40
Also, Mr. Olsen‘s attached affidavit specifically ―incorporate[d] all the
factual statements‖ made in his verified Response ―as if stated in full
herein‖. (CR 238)
‗the
affidavit
competence,
The Commission asserts that ―To satisfy Rule 166a(f),
itself
and
the
must
set
allegations
forth
facts
contained
in
and
it
show
must
the
be
affiant‘s
direct
and
unequivocal, so that perjury can be assigned to it.‘ Webster at 749.‖ (CR
205, emphasis the Commission‘s)
Webster has already been distinguished, but the test set forth in Webster
is satisfied by Mr. Olsen‘s Response.
The Commission quotes Webster for the
test that ―the allegations contained in it [the affidavit] must be direct
and unequivocal, so that perjury can be assigned to it.‘ Id. at 749.‖
Mr.
Olsen Response meets the Webster test, as he is the sole author of his
Response, signed it, and verified it by swearing to it before a notary.
Perjury can thus be assigned to it if the factual statements Mr. Olsen made
in his Response were shown to be false. Since Mr. Olsen wrote his entire
Response
and
swore
to
it
by
attaching
his
Verification,
there
is
no
possibility that Mr. Olsen could blame someone else for the words therein.
This is why the Webster test is met by Mr. Olsen‘s Response, but not by
the verified response in Webster written by the plaintiffs‘ attorney on
behalf of the multiple plaintiffs.
with a perjury
charge could
written
the
down,
attorney
There, any of the plaintiffs confronted
blame
could
their attorney for
blame
any
of
the misstatements
the
plaintiffs
for
misinforming him, the plaintiffs could blame each other.
The Commission‘s emphasis on ―the affidavit itself‖ (CR 205) implies that
affidavits cannot incorporate other documents. This is gainsaid by T.R.C.P.
166a(f), which provides that ―Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or
served therewith.‖
Mr. Olsen‘s Response is a ―sworn . . . paper‖, ―attached
to his affidavit‖ and was ―served‖ with it upon the Commission.
41
Lastly, the Commission‘s objections to the affidavits of Mr. McCay and
Mr. Burgess pertained to the inadvertent collation error of not attaching an
exhibit of Mary Ellen‘s will.
This error was cured with the January 12,
2009 re-filing of the affidavits of Mr. McCay and Mr. Burgess with Mr.
Olsen‘s Motion for New Trial, Request To Serve Additional Affidavits and
Summary Judgment Evidence and TRCP 166a(f) Request to Amend Affidavits.
There was only one will that was produced on February 22, 2005 and signed
by Mary Ellen on February 22, 2005.
Thus there was no ambiguity regarding
the will Mr. McCay and Mr. Burgess are referring to in their affidavits.
Since the Commission filed a certified copy of Mary Ellen‘s will as Exhibit
2 to its MPSJ (CR 49-53), a copy of the will in question was already part of
the summary judgment record.
For example, Mr. Burgess‘ sworn affidavit states:
The three page document he [Mr. Olsen] printed out on my computer
on February 22, 2005 is the same as the three page document that is
attached hereto as Exhibit 1. This is the same three page document
that I couriered to Dallas County Probate Court for filing on March
2, 2005. The first two pages of this three page document are the
same two pages that Mr. Olsen explained and presented to Mary Ellen
on February 22, 2005. The second page is the same page that Mary
Ellen signed in my presence in the Baylor University Emergency Room
on February 22, 2005. (CR 242)
Because Mr. Burgess and Mr. McCay couriered Mary Ellen‘s will to the
Dallas County Probate Court for filing (as they testifiy), that means that
the will they are referring to is the one that the Commission attached to
its MPSJ, as the Commission attached a copy of Mary Ellen‘s will certified
to by the Dallas County Probate Court. (CR 49)
Striking the language in
their affidavits pertaining to ―exhibit 1‖ – i.e. striking ―is the same as
the three page document that is attached hereto as Exhibit 1‖ – does not
diminish the factual content of Mr. Burgess‘ affidavit, nor Mr. McCay‘s.
Consequently, even with the striking of Mr. Olsen‘s verification and Mr.
Olsen‘s affidavit, and the striking of the references to ―Exhibit 1‖ in Mr.
Burgess‘ affidavit and Mr. McCay‘s affidavit, still left in the summary
42
judgment record is unrefuted evidence that the two-page will seen in the
video signed by Mary Ellen on February 22, 2005, was the first two pages of
the three page will document filed on March 2, 2005.
Consequently, the ruling of the trial court was arbitrary, unreasonable
and constitutes an abuse of discretion.
M: ISSUE ELEVEN:
The trial court erred in denying Mr. Olsen’s motion to
cure the alleged defects in the affidavits attached to his Response, his
motion to supplement the record with additional affidavits and discovery,
and his motion to continue the summary judgment hearing until the deposition
of Judge Price was completed.
The Commission, in its untimely December 4, 2008 Reply to Mr. Olsen‘s
Response to the Commission‘s MPSJ objected to Mr. Olsen‘s affidavit and the
affidavits of Mr. Burgess and Mr. McCay. (CR 204) TRCP 166a(f) provides that
―Defects in the form of affidavits or attachments will not be grounds for
reversal unless specifically pointed out by objection by an opposing party
with opportunity, but refusal, to amend.‖ (emphasis added).
Mr.
Olsen,
pursuant
to
TRCP
166a(f),
expressly
agreed
to
amend
and
requested the opportunity to amend those affidavits on December 5, 2008. (CR
209)
Mr. Olsen did so in his motion filed on December 5, 2005: Request To
Serve Additional Affidavits and Summary Judgment Evidence and TRCP 166a(f)
Request to Amend Affidavits. (CR 209) Mr. Olsen had no opportunity to do so
prior to the summary judgment hearing:
Respondent [Mr. Olsen] only received Petitioner’s December 4,
2008 Reply on December 4, 2008 after 9:00 p.m. upon returning from
the Deposition of Mark Patrick McCay conducted by complainant
Frances Ann Giron’s attorney William Dunleavy. Respondent spen[t]
the following morning – i.e. this morning December 5, 2008 -preparing for and participating in the conflicting hearing
scheduled for 10:00 a.m. regarding the motions filed by Frances Ann
Giron’s attorney William Dunleavy in Giron v. McCay et al., Cause
No. 06-02257-M, in the 298th District Court of Dallas County, Texas.
Respondent did not learn until late morning at approximately
11:15 a.m. on December 5, 2005 . . . that this Court, having
granted Respondent’s Verified Emergency Motion for Continuance, was
resetting the hearing for 2:00 p.m. that same afternoon. (CR 209210; bolding added)
Mr. Olsen requested additional time to conclude the deposition of Judge
43
Price,
file
supplemental
affidavits,
and
supplement
the
record
with
additional discovery in his motion. (CR 210; CR 211):
Respondent [Mr. Olsen] has previously noticed the Court – in
his, inter alia, Verified Motion To Continue Summary Judgment
Hearing – that Judge Price’s complete deposition is essential to
this case and is set for conclusion on December 12, 2008.
Further, Affiant Mark McCay’s deposition was conducted in
part by Frances Ann Giron’s attorney William Dunleavy from 10:15
a.m. to 7:00 p.m. with breaks yesterday, December 4, 2008. In his
deposition, Mr. Dunleavy specifically asked Mr. McCay about several
of the components of Petitioner’s Motion for Partial Summary
Judgment.
Mr. McCay gave sworn testimony directly probative on
Petitioner’s Motion for Partial Summary Judgment.
His deposition
transcript is not yet available.
These depositions are directly germane to Petitioner’s Motion
for Partial Summary Judgment and vitally important to Respondent’s
defense. Consequently, Respondent requests the opportunity to
supplement the summary judgment evidence with additional affidavits
and deposition testimony. . . .
TRCP 166a(g) provides that “the court . . . may order a
continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had . . .”
Respondent requests such a continuance to permit said and
additional affidavits to be obtained and said depositions to be
taken. (CR 210; CR 211; bolding added)
Mr. Olsen properly filed his verified Emergency Motion for Continuance
(CR 219) because he had not had an adequate opportunity for discovery before
the summary judgment hearing. ―When a party contends that it has not had an
adequate opportunity for discovery before a summary judgment hearing, it
must file either an affidavit explaining the need for further discovery or a
verified motion for continuance.‖ Tenneco Inc. v. Enterprise Products Co.,
925 S.W.2nd 640, 647 (Tex. 1996).
Nevertheless, the trial court did not permit Mr. Olsen to do so.
The
ruling of the trial court was arbitrary, unreasonable and constitutes an
abuse of discretion.
N: ISSUE TWELVE: The trial court erred in granting summary judgment to the
Commission, there by denying Mr. Olsen’s right to a trial by jury and his
right to due process.
The
Texas
State
Constitution
grants
a
right
to
trial
by
jury.
―The
function of the summary judgment is not to deprive a litigant of his right
to a trial by jury, but to eliminate patently unmeritorious claims and
44
untenable defenses.‖ City of Houston v. Clear Creek Basin Authority, 589
S.W.2d 671, 678 n.5 (Tex. 1979).
For the reasons set forth above, the trial court should not have granted
the Commission‘s Motion for Partial Summary Judgment.
Nevertheless, the
trial court did grant the Commission‘s Motion for Partial Summary Judgment.
The ruling of the trial court denied Mr. Olsen‘s right to a trial by jury
and
his
right
to
due
process,
and
was
arbitrary,
unreasonable
and
constitutes an abuse of discretion.
O: ISSUE THIRTEEN: The trial court erred in not following the Texas Rules
of Disciplinary Procedure’s requirement to consider all the factors set
forth in § 3.10 in determining the appropriate sanction for attorney
misconduct.
Texas
Rule
of
Disciplinary
requires the trial
Procedure
court to consider
twelve elements is mandatory:
3.10
―Imposition
twelve elements.
of
Sanctions‖
Considering all
―In determining the appropriate Sanctions,
the court shall consider: A . . . L‖ (T.R.D.P. 3.10, emphasis added).
A
thirteenth (13th) element is admissible, namely the respondent‘s disciplinary
record:
private
―In addition, the Respondent‘s disciplinary record, including any
reprimands,
in
admissible
on
the
appropriate
Sanction
to
be
imposed.‖ (T.R.D.P. 3.10).
The
Supreme
Court
of
Texas
emphasizes
that
considering
all
twelve
elements is mandatory, holding that the trial court ―must‖ consider all
twelve elements of T.R.D.P. 3.10:
In determining the appropriate sanction for attorney misconduct, a
trial court must consider the nature and degree of the sanctioned
misconduct, the seriousness of the misconduct and the surrounding
circumstances, the loss or damage to clients, the damage to the
profession, the assurance that future clients will be insulated
from this type of professional misconduct, the profit to the
attorney, the avoidance of repetition, the deterrent effect on
others, the maintenance of respect for the legal profession, the
attorney's conduct during the course of the Commission action, the
trial of the case, and other relevant evidence concerning the
attorney's
personal
and
professional
background.
TEX.
R.
DISCIPLINARY P. 3.10; State Bar of Texas v. Kilpatrick, 874 S.W.2d
656, 659 (Tex. 1994) (emphasis added).
45
The court reporter‘s transcript of the May 8, 2009 default sanctions
hearing shows that the Commission only presented testimony on two of the
twelve elements, specifically ―D. The damage to the profession.‖ (RR 10,
lines 14-16), and ―I. The maintenance of respect for the legal profession.‖
(RR 34, lines 4-20)
Because only one of the two witnesses presented by the Commission was
sworn in, the Commission only presented admissible evidence on only one of
the twelve elements, specifically ―I. The maintenance of respect for the
legal profession.‖ (RR 34, lines 4-20).
The Commission‘s witness regarding
―I.‖ was Giron, who was the only witness sworn in. (RR 11, line 15)
Giron testified that Mr. Olsen had NOT damaged the maintenance of respect
for the legal profession, so her testimony was actually exculpatory for Mr.
Olsen.
The testimony presented by the Commission pertaining to ―I. The
maintenance of respect for the legal profession.‖ (RR 34, lines 4-20) was as
follows:
Q. [Commission]: Okay. Has the Respondent’s [Mr. Olsen’s] conduct
in the last few months of your life and in dealing with your
mother’s estate affected your perception of the legal profession?
A. [Giron]: Yes.
But it’s ever -- you know, it’s -- every
profession, and it doesn’t matter which one, every profession has
its bad apples. And I have been ex -- and -- and he’s a bad apple.
There’s no two ways about it. But I’ve been very blessed because I
have a group of attorneys that have stood by me and hung in there
with me and been on my side and are moral, good people. And I have
friends that are attorneys, and I chose to think that they’re the
majority, and he’s the minority.
Q. [Commission]: Okay. And when you say who, you’re referring to?
A. [Giron]: Mr. Olsen.
The other witness presented by the Commission was Judge Price, who
addressed only ―D. The damage to the profession.‖ (RR 10, lines 14-16).
His
unsworn (RR 7, lines 4-5) testimony was as follows:
Q. [the Commission]:
In your opinion, did the Respondent’s [Mr.
Olsen’s] conduct in your court damage the legal profession?
A. [Judge Price]: It did. (RR 10, lines 14-16).
Judge Price‘s testimony is inadmissible, because he was not sworn in.
Further, as Judge Price was offering opinion testimony, he should have
46
been designated as an expert by the Commission.
Answer
requested
Rule
194.2
Disclosures.
(CR
Mr. Olsen‘s 29 May 2008
12)
T.R.C.P.
194.2(f)(3)
requires that ―for any testifying expert‖ that ―the general substance of the
expert‘s mental impressions and opinions and a brief summary of the basis
for them . . .‖ be provided to the opposing party.
The Commission did not designate Judge Price as a testifying expert nor
provide the information required by T.R.C.P. 194.2(f)(3) to Mr. Olsen.
Commission established that Judge Price was not a lay witness.
examination, Judge
The
Under direct
Price testified that he was ―Judge of Dallas County
Probate No. 2‖ (RR 7, line 11), that he had been ―Presiding Judge of that
court‖ ―Since September the 30th, 1986‖ (RR 7, lines 12-14), that he was
licensed to practice law in the State of Texas (RR 7, lines 15-17), and that
he had been licensed since ―September the 30th of 1954‖ (RR 7, lines 18-20).
Because the Commission did not comply with the requirements of T.R.C.P.
194.2(f)(3), Judge Price‘s unsworn testimony is not admissible.
Because the Commission offered no negative admissible evidence against
Mr. Olsen at the default sanctions hearing (recall Giron‘s testimony was
exculpatory], the Court had otherwise before it only the summary judgment
evidence.
This evidence the trial court had to interpret in accordance with
summary judgment law, namely construing all material facts in favor of the
non-movant, Mr. Olsen.
While the summary judgment evidence did address Section 3.10 elements A &
B, it did not address the also required elements C, E, F, G, H and L.
The summary evidence established that:
1.
2.
3.
4.
Mr. Olsen was not a material fact witness needed to establish an
essential fact on behalf of his client and thus he did not need to
withdraw from representation of Mary Ellen‘s Estate under rule 3.08.
The three page will document that was filed was the one that Mary
Ellen signed, so Mr. Olsen did not file a fraudulent document.
The three sentence notary language on page three was inadvertently not
edited after the notary Marian Gibson refused to go to the hospital,
and was not written to deceive the court
Mr. Olsen did not make a statement to mislead the court
47
5.
Mr. Olsen did not file a document that was false.
If Mr. Olsen had been present at the sanctions hearing conducted on May
8, 2009, he would have presented evidence through himself and his five
witnesses on all twelve elements required by T.R.D.P. 3.10, along with the
thirteenth
(13th)
element:
his
disciplinary
record.
Specifically,
the
evidence would have established regarding each element T.R.D.P. 3.10:
A. ―Nature and degree of misconduct‖: The three allegations of misconduct
pertaining to Mary Ellen‘s Will were known to Giron and were never made an
issue of by Giron during the Will Contest before Judge Loving.
The two
aspects of alleged misconduct pertaining to Mary Ellen‘s Guardianship action
were charged by Giron and never acted upon by Judge Price.
B. ―Seriousness of misconduct:‖ Each instance of alleged misconduct took
place at the beginning of both court proceedings, respectively Mgiron‘s
attempted guardianship action and Giron‘s will contest. Neither presiding
judge took any action against Mr. Olsen, thus the alleged misconduct was not
– at minimum – ―serious‖.
C. ―Loss or damage to clients‖: ZERO.
D. ―The damage to the profession‖: ZERO
E.
―Assurance seekers of legal services insulated in future‖: Guranteed.
F. ―Profit to Attorney‖: ZERO
G. ―Avoidance of Repetition‖: GUARANTEED.
H.
―Deterrent effect on others‖: Punishing Mr. Olsen only ―deters‖
attorneys defending elderly persons re actions brought by their children.
I.
―Maintenance of respect for legal profession‖: One Hundred Per Cent (as
concurred in by the Commission‘s witness Giron).
J.
―Conduct of Respondent during Committee action‖: Mr. Olsen actively
participated in the action, timely complied with every element of the
disciplinary case, responding timely to every pleading and discovery
request. The only event Mr. Olsen missed was the disbarment hearing. Judge
Quisenberry notes: ―And he [Mr. Olsen] showed up in my courtroom in
Weatherford, Texas some months ago without a setting, didn‘t he?‖ (RR 40,
lines 10-12)
K.
―The trial of the case‖:
No trial took place.
L. ―Other relevant evidence‖: Mr. Olsen practices law for the purpose of
helping the powerless, and is not driven by pecuniary motivations.
13th: ―Respondent‘s Disciplinary Record‖: Mr. Olsen has never been grieved
by a client.(CR 441-442)
P: ISSUE FOURTEEN: The trial court erred in deciding that the appropriate
sanction for attorney misconduct was disbarment, disbarment was not a “just”
48
punishment under the circumstances.
―The judgment of a trial court in a disciplinary proceeding may be so
light, or so heavy, as to constitutes an abuse of discretion. See State v.
Ingram, 511 S.W.2d 252, 253 (Tex. 1974). At the same time, the trial court
has broad discretion to determine whether an attorney guilty of professional
misconduct should be reprimanded, suspended, or disbarred. Id.; State v.
O'Dowd, 158 Tex. 348, 312 S.W.2d 217, 221 (Tex. 1958). The State Bar v.
Kilpatrick, 874 S.W.2d 656, 659(Tex. 1994). (emphasis added)
The very authorization of a wide range of sanctions for violations of the
disciplinary
rules
contemplates
just
discipline
for
the
misconduct
committed. Daves v. State Bar of Texas, 691 S.W.2d 784, 791 (Tex. App.-Amarillo 1985, writ ref'd n.r.e.), dism'd, 474 U.S. 1043 (1986), citing
State v. Ingram, 511 S.W.2d 252, 253 (Tex. 1974). (emphasis added)
Disbarring
discipline‖.
Mr.
Olsen
for
the
alleged
misconduct
was
not
―just
This ruling of the trial court was arbitrary, unreasonable and
constitutes an abuse of discretion.
Q: ISSUE FIFTEEN: The trial court erred in refusing to conduct a hearing on
Mr. Olsen’s timely filed Verified motion for new trial regarding the default
disbarment judgment.
The trial court signed the Final Judgment of Disbarment on May 8, 2009.
Mr. Olsen timely filed his First Amended Verified Motions for New Trial,
Reconsideration, Set Aside Final Judgment, and Set New Sanctions Hearing
Date on 09 June 2009. (CR428)
Despite timely requests from new counsel Jeff
Forrest Smith‘s Office for the setting of a hearing on Mr. Olsen‘s motion,
the trial court denied Mr. Olsen‘s verified motion without conducting the
required hearing on July 2, 2009. (CR 466) Fluty v. Simmons Co., 835 S.W.2d
664, 667 (Tex. App.—Dallas 1992, no writ) (―A motion for new trial to set
aside a default judgment is a complaint on which evidence must be heard.‖).
R: ISSUE SIXTEEN: The trial court erred in awarding attorney’s fees to the
Commission because no admissible evidence exists in the record supporting
the reasonableness nor amount of the Commission’s alleged attorney fees.
49
At the May 8, 2009 default sanctions hearing, the Commission introduced
no evidence that its alleged attorney‘s fees were reasonable and it provided
no admissible testimony regarding the amount of its alleged attorney‘s fees
because the testimony of Susan Farris was unsworn. (RR 35, lines 6-19).
There is no affidavit in the record regarding the amount of the Commission‘s
attorney fees nor the reasonableness of the Commission‘s attorney fees.
Either sworn testimony is required or an affidavit on file for the award
of attorney’s fees in a disciplinary action. Bastine v. Comm'n for Lawyer
Discipline, 252 S.W.3d 413,416-7 (Tex.App.–Houston [1stDist.] 1996, no writ).
CONCLUSION AND PRAYER
Mr. Olsen requests that this Court reverse the trial court‘s summary
judgment ruling, and find the summary judgment record evidence demonstrates
that the Commission has not met its burden, and thus the Commission‘s Motion
for Partial Summary Judgment should have been denied.
Olsen
requests
that
creates a fact issue.
this
Court
hold
that
the
Alternatively, Mr.
summary-judgment
evidence
As such, Mr. Olsen requests that this court reverse
the trial court‘s summary judgment and remand for new hearing.
Mr. Olsen
requests that this Court order the creation of a written record by the court
reporter at said hearing.
Alternatively, Mr. Olsen requests that this Court order the trial court
to conduct an evidentiary hearing on Mr. Olsen‘s June 9, 2009 Verified
Motion for New Trial. (CR 428)
Mr. Olsen also requests that this Court vacate the trial court‘s default
final judgment of disbarment.
Alternatively, Mr. Olsen requests that this
Court order the trial court to conduct a new sanctions hearing and take
evidence on all twelve elements required by T.R.D.P. 3.10.
Mr. Olsen also requests general relief.
Mr. Olsen respectfully requests
such further and additional relief as the Court deems appropriate.
50
Respectfully submitted,
_________________________
Missouri State Bar #48277
606 S. Pearl Ave.
Joplin, MO 64801
(417) 624-1962 (o)
(417) 624-1965 (f)
ATTORNEY FOR APPELLANT
EDWIN C. OLSEN IV
CERTIFICATE OF SERVICE
I certify that on Monday, March 08, 2010, Appellant‘s brief was
filed with the Fifth District Court of Appeals at Dallas via deposit
into U.S. mail, First Class, Certified, Return-Receipt Requested, and a
copy was mailed First Class, Certified, Return-Receipt Requested to
opposing lead counsel Jeremy Kernodle, Haynes & Boone, L.L.P., 2323
Victory Ave, Suite 700, Dallas, TX 75219.
Additionally, courtesy
copies were mailed to Cynthia W. Hamilton, P.O. Box 12487, Austin, TX
78711-2487 and Jeff Forrest Smith, 6750 Hillcrest Plaza, Suite 214, LB16, Dallas, TX 75230.
______________________
51
APPENDIX INDEX:
1. Mary Ellen‘s Last Will and Testament, February 22, 2005 (CR 49-52)
2. June 12, 2009 Letter of Jeff Forest Smith to Judge Quisenberry
requesting hearing on Mr. Olsen‘s verified motion for new trial.
3. July 2, 2009 Letter of Jeff Forest Smith to Judge Quisenberry
repeating request for hearing on Mr. Olsen‘s verified motion for new
trial.
52

list of parties and counsel

Transcription

Similar documents

Most exciting new variety Best spring color

fall fest - University of Maine Farmington

fall fest - University of Maine Farmington

Recommended Reads

picture yourselfsuccessful - University of Maine Farmington

Cindy and `Fake Jan` Brady at Fluff Festival - Arts

BC Ch. 3 Student PPT

Prayer to Mary, Undoer of Knots

PDF of project data sheet.

October 2010 Newsletter - Stuttgart Chamber of Commerce