No. 05-09-00945-CV Edwin C. Olsen IV, Appellant v. Commission

Transcription

ORAL ARGUMENT REQUESTED
No. 05-09-00945-CV
________________________________________________________________________
IN THE FIFTH COURT OF APPEALS
DALLAS, TEXAS
________________________________________________________________________
Edwin C. Olsen IV,
Appellant
v.
Commission for Lawyer Discipline,
Appellee.
________________________________________________________________________
ON APPEAL FROM THE 162ND DISTRICT COURT
DALLAS COUNTY, TEXAS
________________________________________________________________________
BRIEF OF APPELLEE
________________________________________________________________________
Linda A. Acevedo
Cynthia Canfield Hamilton
OFFICE OF THE CHIEF DISCIPLINARY
COUNSEL
STATE BAR OF TEXAS
P. O. Box 12487
Austin, Texas 78711-2487
Telephone: 512-427-1350
Telecopier: 512-427.4167
Jeremy D. Kernodle
State Bar No. 24032618
HAYNES AND BOONE, L.L.P.
2323 Victory Ave., Suite 700
Dallas, Texas 75219
Telephone: (214) 651-5159
Telecopier: (214) 651-5940
ATTORNEYS FOR APPELLEE
TABLE OF CONTENTS
PAGE
Table of Authorities............................................................................................................. v
Statement of the Case .......................................................................................................... x
Issues Presented.................................................................................................................xii
Statement Regarding Oral Argument ................................................................................ xv
Statement of Facts ............................................................................................................... 1
1.
2002: Bendtsen executes a Will leaving her estate to her daughter............. 1
2.
January 12 – January 19, 2005: Bendtsen is admitted to the hospital
for a head injury and is determined to have dementia................................... 1
3.
January 21 – February 8, 2005: Bendtsen’s daughter fights Olsen
for guardianship of her mother...................................................................... 2
4.
February 22 – March 2, 2005: Bendtsen is admitted to the hospital,
and while in the emergency room, Olsen presents Bendtsen with a
new Will ........................................................................................................ 3
5.
March 3, 2005: Bendtsen dies and Olsen immediately files the
Emergency Room Will for probate ............................................................... 5
6.
2008: The Commission files this action....................................................... 6
SUMMARY OF THE ARGUMENT ............................................................................................ 7
ARGUMENT .......................................................................................................................... 9
I.
The trial court properly entered partial summary judgment based upon
Olsen’s violations of the Disciplinary Rules............................................................ 9
A.
Standard of Review ....................................................................................... 9
B.
Olsen violated Disciplinary Rule 3.08(a) because he continued
representing Dixie Tidwell in the will contest even though he knew
or believed that he could be a witness in that proceeding........................... 10
ii
C.
II.
Olsen violated Disciplinary Rule 8.04(a)(3) in four independent
ways because he engaged in various acts involving dishonesty,
fraud, deceit or misrepresentation ............................................................... 15
1.
Olsen violated Rule 8.04(a)(3) by filing a false jurat ...................... 17
2.
Olsen violated Rule 8.04(a)(3) by filing a 3-page will when
Bendtsen had signed a 2-page will................................................... 19
3.
Olsen violated Rule 8.04(a)(3) by misleading the probate
court during the guardianship hearing.............................................. 20
4.
Olsen violated Rule 8.04(a)(3) by misleading the probate
court in a filing after the guardianship hearing ................................ 22
D.
Olsen violated Disciplinary Rules 3.03(a)(1) and 3.03(b) because he
made material false statements to the probate court ................................... 23
E.
Olsen violated Disciplinary Rule 8.04(a)(1) because he “violated
these rules.” ................................................................................................. 25
F.
Olsen’s remaining arguments are without merit, or were harmless
error ............................................................................................................. 25
1.
The trial court properly struck Olsen’s summary judgment
evidence............................................................................................ 25
2.
The trial court properly denied Olsen a chance to amend his
defective summary judgment evidence............................................ 28
3.
The trial court properly gave Olsen notice of the summary
judgment hearing and did not err in refusing Olsen’s request
to transcribe the hearing ................................................................... 29
4.
The trial court did not deny Olsen’s right to trial by jury ................ 31
5.
The trial court did not err in refusing to set a hearing on
Olsen’s motion for new trial ............................................................ 32
The trial court properly disbarred Olsen and required him to pay the
Commission’s attorneys’ fees ................................................................................ 33
A.
Standard of Review ..................................................................................... 33
iii
B.
The trial court did not err in ordering Olsen’s permanent disbarment........ 33
C.
The trial court did not err in ordering Olsen to pay reasonable and
necessary attorneys’ fees ............................................................................. 36
Conclusion and Prayer....................................................................................................... 38
Certificate of Service ......................................................................................................... 40
APPENDIX
A.
Final Judgment (3 CR 423-427)
B.
Emergency Room Will (Ex. 2 to Commission’s motion for partial summary
judgment) (1 CR 49-52)
C.
Terminology Section of the Texas Disciplinary Rules of Professional Conduct
D.
Texas Disciplinary Rule of Professional Conduct 3.08
E.
Opinion 439 (Ex. 11 to Commission’s motion for partial summary judgment)
(1 CR 141-142)
F.
G.
H.
Texas Rule of Disciplinary Procedure 3.10
I.
Texas Rule of Disciplinary Procedure 1.06
iv
TABLE OF AUTHORITIES
PAGE
Cases
Acevedo v. Comm'n for Lawyer Discipline,
131 S.W.3d 99 (Tex. App. - San Antonio 2004, pet. denied) .......................... 11, 16
All American Telephone, Inc. v. USLD Communications, Inc.,
291 S.W.3d 518 (Tex. App. - Fort Worth 2009, pet. denied) ................................ 31
Banda v. Garcia,
955 S.W.2d 270 (Tex. 1997) .................................................................................. 37
Bastine v. Comm’n for Lawyer Discipline,
252 S.W.3d 413 (Tex. App. – Houston [1st Dist.] 1996, no writ) ......................... 38
Bd. of Law Examiners v. Stevens,
868 S.W.2d 773 (Tex. 1994) .................................................................................. 15
Bellino v. Comm'n for Lawyer Discipline,
124 S.W.3d 380 (Tex. App. - Dallas 2003, pet. denied) ........................................ 16
Bosch v. Armstrong,
2009 WL 1635318 (Tex. App. - Houston [1st Dist.] 2009, pet. denied) ............... 29
Brown v. Comm'n for Lawyer Discipline,
980 S.W.2d 675 (Tex. App. - San Antonio 1998, no pet.)......................... 15, 16, 23
CA Partners v. Spears,
274 S.W.3d 51 (Tex. App. - Houston [14th Dist.] 2008, pet. denied) ....... 25, 28, 29
Cire v. Cummings,
134 S.W.3d 835 (Tex. 2004) .................................................................................. 25
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) .................................................................................. 30
Cohn v. Comm'n for Lawyer Discipline,
979 S.W.2d 694 (Tex. App. - Houston [14th Dist.] 1998, no pet.)........................ 24
Coleman v. Woolf,
129 S.W.3d 744 (Tex. App. - Fort Worth 2004, no pet.) ....................................... 28
v
Cornelison v. Newbury,
932 S.W.2d 729 (Tex. App. - Waco 1996, no writ) ................................... 14, 22, 24
Davis v. State of Texas,
130 S.W.3d 519 (Tex. App. - Dallas 2004, no pet.)............................................... 38
Eureste v. Comm'n for Lawyer Discipline,
76 S.W.3d 184 (Tex. App. - Houston [14th Dist.] 2002, no pet.)........ 16, 19, 25, 33
Flume v. State Bar of Texas,
974 S.W.2d 55 (Tex. App. – San Antonio 1998, no pet.) ...................................... 17
Fluty v. Simmons Co.,
835 S.W.2d 664 (Tex. App. - Dallas 1992, no writ) .............................................. 32
Ford Motor Co. v. Engleke,
1992 WL 234904 (Tex. App. - Houston [1st Dist.] 1992, no writ)........................ 37
Goldstein v. Comm'n for Lawyer Discipline,
109 S.W.3d 810 (Tex. App. - Dallas 2003, pet denied) ................................... 35, 37
Gorrell v. Tex. Utilities Elec. Co.,
915 S.W.2d 55 (Tex. App. - Fort Worth 1995, writ denied)............................ 28, 29
Great Western Drilling, Ltd. v. Alexander,
305 S.W.3d 688 (Tex. App. - Eastland 2009, no pet.) ........................................... 31
Hamilton v. Pechacek,
2010 WL 851410 (Tex. App. - Fort Worth 2010, no pet.)..................................... 32
Hamilton v. Williams,
298 S.W.3d 334 (Tex. App. - Fort Worth 2009, no pet.) ....................................... 32
Harmon v. Bank of the West,
2003 WL 1564826 (Tex. App. – Fort Worth 2003, no pet.) .................................. 27
Hidalgo v. Surety Sav. & Loan Ass'n,
462 S.W.2d 540 (Tex. 1971) .................................................................................. 26
In re American Media Consol.,
121 S.W.3d 70 (Tex. App. - San Antonio 2003, no pet.)....................................... 30
vi
In re Estate of Mary Ellen Logan Bendtsen,
229 S.W.3d 845 (Tex. App. - Dallas 2007, no pet.)................................................. 6
230 S.W.3d 832 (Tex. App. - Dallas 2007, pet. denied) .......................................... 6
230 S.W.3d 823 (Tex. App. - Dallas 2007, pet. denied) .................................... 4, 18
Joe v. 239 Jt. Venture,
145 S.W.3d 150 (Tex. 2004) .................................................................................. 10
Jones v. Pollan,
2010 WL 1856172 (Tex. App. - Dallas 2010, no pet.) .......................................... 29
Kabbani v. Papadopolous,
2009 WL 469546 (Tex. App. - Houston [1st Dist.] 2009, pet. denied) ...........26, 27
Laidlaw Waste Systs., Inc. v. City of Wilmer,
904 S.W.2d 656 (Tex. 1995) .................................................................................. 26
Landis v. Landis,
307 S.W.3d 393 (Tex. App. - San Antonio 2009, no pet.)..................................... 33
Love v. State Bar of Texas,
982 S.W.2d 939 (Tex. App. - Houston [1st Dist.] 1998, no pet.) .......................... 33
Lynn v. Bd. of Law Examiners,
1999 WL 46683 (Tex. App. - Austin 1999, no pet.) .............................................. 15
Maan v. First ATM, Inc.,
2008 WL 5210923 (Tex. App. - Austin 2008, no pet.) .......................................... 26
Martin v. Cohen,
804 S.W.2d 201 (Tex. App. - Houston [14th Dist.] 1991, no writ) ....................... 30
May v. Crofts,
868 S.W.2d 397 (Tex. App. - Texarkana 1993, no writ) ....................................... 12
McIntyre v. Comm'n for Lawyer Discipline,
169 S.W.3d 803 (Tex. App. - Dallas 2005, pet. denied) ...................... 16, 20, 21, 23
vii
Miller v. Ferguson,
2001 WL 845764 (Tex. App. - Dallas 2001, no pet.) ................................................ 37
Minnick v. State Bar of Texas,
790 S.W.2d 87 (Tex. App. - Austin 1990, writ denied) ......................................... 35
Morris v. Hughes,
2010 WL 252283 (Tex. App. - Eastland 2010, pet. denied) .................................. 32
Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35 (Tex. 1998) .................................................................................... 25
Pooser v. Cox Radio, Inc.,
2009 WL 200449 (Tex. App. - San Antonio 2009, no pet.)................................... 30
Quanaim v. Frasco Rest. & Catering,
17 S.W.3d 30 (Tex. App. - Houston [14th Dist.] 2000, pet. denied) ......... 14, 26, 29
Smith v. Smith,
544 S.W.2d 121 (Tex. 1976) .................................................................................. 31
State Bar of Texas v. Kilpatrick,
874 S.W.2d 656 (Tex. 1994) ...................................................................... 34, 35, 36
Steinberg v. Comm'n for Lawyer Discipline,
Teter v. Comm'n for Lawyer Discipline,
261 S.W.3d 796 (Tex. App. - Dallas 2008, no pet.)......................................... 10, 24
Valdez v. Francis,
1992 WL 33019 (Tex. App. - Dallas 1992, no writ) ........................................37, 38
Walter v. Comm’n for Lawyer Discipline,
2005 WL 1039970 (Tex. App. - Dallas 2005, pet. denied ...............................15, 16
Weiss v. Comm'n for Lawyer Discipline,
981 S.W.2d 8 (Tex. App. - San Antonio 1998, pet. denied) .................................. 35
Whiteside v. Ford Motor Credit Co.,
viii
Rules and Statutes
Texas Disciplinary Rule of Disciplinary Procedure 1.06........................................ 8, 36, 37
Texas Disciplinary Rule of Disciplinary Procedure 3.10...........................................passim
Texas Disciplinary Rule of Professional Conduct 3.03 .............................................passim
Texas Disciplinary Rule of Professional Conduct 3.08 ............................................ x, 8, 34
Texas Disciplinary Rule of Professional Conduct 8.04 ............................................passim
Tex. Probate Code § 75 ..................................................................................................... 19
Texas Rule of Civil Procedure 166a(f).......................................................................passim
Other Authorities
Tex. Center for Legal Ethics and Professionalism, Opinion 439 (March 1987)............... 11
WEBSTER’S THIRD NEW INT’L DICTIONARY 650 (1981) .................................................. 15
ix
STATEMENT OF THE CASE
This case arises out of attorney Edwin C. Olsen IV’s professional misconduct
surrounding the guardianship and estate of Mary Ellen Logan Bendtsen.
Ms. Bendtsen died on March 2, 2005, at the age of 88. Her final days and her
estate – which included an old and large but dilapidated house on historic Swiss Avenue
– became the subject of a contentious dispute between Bendtsen’s only daughter and two
antique dealers claiming to be Ms. Bendtsen’s friends.
Edwin Olsen represented
Bendtsen in a contested guardianship proceeding several weeks before her death,
prepared a Will that named the antique dealers as beneficiaries, presented the Will to
Bendtsen while she was in the emergency room following a stroke, and represented the
alleged independent executrix of the emergency room Will in a subsequent will contest.
Ms. Bendtsen’s daughter filed a complaint with the State Bar of Texas. After an
investigation, the State Bar determined that there was just cause to believe that Olsen
committed one or more acts of professional misconduct. Olsen elected to have the
resulting complaint heard by a district court. The Commission for Lawyer Discipline, a
committee of the State Bar of Texas, filed a petition in the district court of Dallas County.
On October 10, 2008, the Commission filed an amended petition, alleging that Olsen
violated Texas Disciplinary Rules of Professional Conduct 3.03, 8.04(a)(3), and 3.08(a),
among other provisions.
(1 CR 23-27.)
By order of the Texas Supreme Court,
Honorable Graham Quisenberry, Judge of the 415th District Court, Weatherford,
presided over the disciplinary action. (1 CR 9-11.)
x
The Commission moved for partial summary judgment on October 10, 2008,
based in large part upon Olsen’s answers to Requests for Admissions. (1 CR 28-45.) On
December 11, 2008, Judge Quisenberry granted the Commission’s motion. (1 CR 214.)
On January 12, 2009, Olsen filed a motion for new trial, which was overruled by
operation of law on March 30, 2009. (1 Supp. CR 7-48.) On May 8, 2009, a sanctions
hearing was held with Judge Quisenberry presiding pursuant to his appointment by the
Texas Supreme Court. (3 CR 423; RR 1-44.) That same day, Judge Quisenberry entered
a Final Judgment of Disbarment, permanently enjoining Olsen from practicing law in
Texas and ordering Olsen to pay the State Bar’s attorneys’ fees. (3 CR 423-427, Tab A.)
Olsen subsequently filed a motion for new trial, which was overruled. (3 CR 466.) On
August 6, 2009, Olsen filed a Notice of Appeal. (3 CR 467.)
xi
ISSUES PRESENTED
Olsen’s Claimed Issues
(Olsen Br. viii-ix)
“Issue One: the trial court erred in granting
the Commission for Lawyer Discipline’s
Motion for Partial Summary Judgment.”
“Issue Two: The trial court erred in
granting summary judgment that Mr. Olsen
violated Rule 3.08(a).”
“Issue Three: The trial court erred in
violated Rule 8.04(a)(3) regarding Mary
Ellen’s February 22, 2005 Will and
accompanying notary jurat, and in granting
summary 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: The trial court erred in
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: The trial court erred in
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.”
“Issue Six: The trial court erred in granting
xii
Section(s) in Appellee’s Brief
Responding to Claimed Issues
Part I.
Part I.B.
Part I.C.2.
Part I.C.1.
Parts I.C.3. and I.D.
Parts I.C.4. and I.D.
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.”
“Issue Seven: The trial court erred in
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. 1661.”
“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.”
“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.”
“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.”
xiii
Part I.E.
Part I.F.3.
Part I.F.3.
Part I.F.1.
Part I.F.2.
Part I.F.4.
“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.”
xiv
Part II.B.
Part II.B.
Part I.F.5.
Part II.C.
STATEMENT REGARDING ORAL ARGUMENT
The Commission for Lawyer Discipline requests oral argument. The trial court
properly granted partial summary judgment on the issue of attorney misconduct based
upon uncontroverted evidence showing that Edwin C. Olsen IV violated several
provisions of the Texas Disciplinary Rules of Professional Conduct. The court then
entered final judgment, disbarring Olsen as an attorney in the State of Texas. Olsen’s
appeal raises sixteen issues. Oral argument will aid the Court in understanding the record
in this case and resolving those issues on appeal.
xv
STATEMENT OF FACTS
1.
2002: Bendtsen executes a Will leaving her estate to her daughter.
Mary Ellen Logan Bendtsen was an elderly widow whose primary asset was a
large and historic but rundown home on Swiss Avenue.
(1 CR 50-51.)
In 2002,
Bendtsen executed a Will leaving her entire estate to her only child, Frances Ann Giron,
and naming Giron executrix. (1 CR 130-134; 2 CR 216.)
2.
January 12 – January 19, 2005: Bendtsen is admitted to the hospital
for a head injury and is determined to have dementia.
On January 12, 2005, Bendtsen fell at her home, where she was living alone at the
age of 88. (1 CR 81-82; 2 CR 216.) She was admitted to the hospital with a head injury
and stayed for several weeks. (1 CR 81-82; 2 CR 216.) While in the hospital, on January
14, Bendtsen executed a medical power of attorney giving her daughter authority to make
decisions about her care.
(2 CR 216.)
On January 18 and 19, 2005, a licensed
psychiatrist examined Bendtsen and determined that she had dementia. (1 CR 79-83.)
During Bendtsen’s hospital stay, two antique dealers who had previously
befriended her – Mark McCay and Justin Burgess – visited Bendtsen. (1 CR 157; 2 CR
216-217.) McCay and Burgess were single men in their 40s who had met Bendtsen in
2002, and immediately showered her with attention and began holding parties at her
Swiss Avenue home. (RR 18-20, 25.) McCay had a history of taking financial advantage
of elderly individuals. (1 CR 158.) On January 18, unbeknownst to her daughter,
Bendtsen executed a second medical power of attorney, but this one gave power of
attorney to Mark McCay. (1 CR 157; 2 CR 217.) Attorney Edwin C. Olsen IV, who was
1
a personal friend of McCay and Burgess, prepared the power of attorney. (1 CR 157; 2
CR 216-217.) Olsen also prepared a Declaration of Revocation that revoked the power of
attorney previously given to Bendtsen’s daughter. (1 CR 158.)
The following day, Giron tried to move her mother to another facility, but
discovered that she was unable to do so because of the new power of attorney. (1 CR 9697, 157; 2 CR 217.)
3.
January 21 – February 8, 2005: Bendtsen’s daughter fights Olsen for
guardianship of her mother.
On January 21, 2005, Frances Giron filed an application seeking temporary and
permanent guardianship of Bendtsen. (1 CR 156-164.) Giron was alarmed and worried
that Burgess, McCay and Olsen were taking advantage of her mother. (1 CR 156-164.)
In her application, Giron asserted that Bendtsen was “totally incapacitated due to senility
and dementia,” and that McCay’s January 18 power of attorney was “fraudulent” and
“done in secret.”
(1 CR 156-157.)
Giron further asserted that Edwin Olsen had
committed “fraudulent acts” in obtaining Bendtsen’s consent. (1 CR 157-158.) That
same day, on January 21, Bendtsen was released from the hospital and taken to Ashley
Court at Turtle Creek, a rehabilitation facility. (1 CR 29.)
On January 31, Bendtsen was discharged from Ashley Court without her
daughter’s knowledge, and taken to the courthouse to attend the hearing on Giron’s
Motion for Emergency Order in the guardianship case. (1 CR 73; 2 CR 414-417.) Olsen
purported to represent Bendtsen during the hearing.
(1 CR 30, 71-102.)
At the
conclusion of the hearing, the court stated that it wanted to continue the hearing until
2
February 19, and then asked Olsen “where is Ms. Bendtsen now? What is her current
residence?” (1 CR 98.) Although Olsen knew that Bendtsen had been discharged from
Ashley Court and would be going to her home after the hearing, Olsen replied: “[S]he
was at Ashley Court before.” (1 CR 98; 1 CR 60, 54) Based upon this answer, the court
believed that Bendtsen was still a patient at Ashley Court and therefore ordered “the
nursing home” not to permit anyone to visit Bendtsen “without the prior approval of this
Court.” (1 CR 99; 1 CR 113.) Olsen did not correct the court’s misunderstanding and
did not inform the court that Bendtsen had been discharged from Ashley Court. (1 CR
98-99; 1 CR 30.)
A few days later, Giron was stunned to discover that Bendtsen was no longer at
Ashley Court and was instead staying at her home. (2 CR 414-417.) Giron immediately
filed a Motion for Emergency Order to return Bendtsen to Ashley Court, and asserted that
Olsen had previously “failed to adequately inform the Court” regarding Bendtsen’s
whereabouts. (2 CR 414-417.) In response, Olsen represented to the court that, at the
January 31 hearing, he had in fact “informed the Court that [Bendtsen] was discharged
from Ashley Court.” (1 CR 115-120.)
4.
February 22 – March 2, 2005: Bendtsen is admitted to the hospital,
and while in the emergency room, Olsen presents Bendtsen with a new
Will.
On February 22, 2005, without her daughter’s knowledge, Bendtsen was admitted
to the hospital after suffering a stroke. (RR 26-27.) Within hours, and while Bendtsen
was still in the emergency room, Olsen presented Bendtsen with a two-page Will
bequeathing all of Bendtsen’s property, except a few personal items, to Mark McCay and
3
Justin Burgess. (1 CR 50-52.) Olsen himself had prepared the Will, and the Will
expressly stated that it consisted of only two pages. (1 CR 51, 54, 63.) The Will
provided that Bendtsen’s daughter Frances Giron would receive only a “‘cradle’ rocking
chair,” and it named Dixie Tidwell (who was unrelated to Bendtsen and was a friend of
McCay and Burgess) as independent executrix. (1 CR 50.) With Olsen standing over
Bendtsen’s hospital bed and persuading her, Bendtsen signed the Will. (1 CR 51; __
Supp. CR __1.)
Bendtsen executed the Will in the presence of two of McCay and Burgess’s
friends, who purported to sign the attestation clause in Bendtsen’s presence.2 (1 CR 51.)
Olsen asked a hospital employee who was a notary public to notarize the Will, but the
employee refused. (1 CR 64, 54.) Olsen therefore took the Will to a friend living nearby
who was a notary public. (1 CR 52; 2 RR 225; Br. of Appellant at 14.) On a new third
page, the friend signed and notarized a jurat, stating that the Will had been “subscribed
and sworn to before me by the said Mary Ellen Logan Bendtsen, Testatrix, and Rose
Cline and Dixie L.J. Tidwell, Witnesses, this 22nd day of February, 2005.” (1 CR 52.)
1
The Commission has requested the trial court clerk to include in the Supplemental Clerk’s
Record the original DVD showing the signing of the emergency room Will. The Commission
included the DVD in its summary judgment evidence to show that Olsen presented Bendtsen
with a two-page Will, but the trial court clerk included only a copy of the disk cover in the
Clerk’s Record. (1 CR 70.) Although the current state of the record is sufficient for this Court to
affirm the judgment (because the DVD is cumulative evidence that the emergency room Will
was only two pages, see 1 CR 51), the Commission will continue to work with the trial court
clerk to include the DVD itself in the Supplemental Clerk’s Record.
2
Despite claims to the contrary, one of the witnesses failed to sign the attestation clause of the
Will in Bendtsen’s presence, and the Will was later set aside for this reason. See In re Mary
Ellen Logan Bendtsen, 230 S.W.3d 823, 826 (Tex. App. – Dallas 2007, pet. denied) (“Tidwell’s
signature below the attestation clause was not entered in Bendtsen’s presence, and the notary was
not present when Bendtsen signed the will.”).
4
Bendtsen was still in the hospital and was not present when the jurat was signed and
notarized. (1 CR 65, 54.)
Bendtsen’s daughter Frances Giron was unaware of any of this. (1 CR 136-140.)
5.
March 3, 2005: Bendtsen dies and Olsen immediately files the
Emergency Room Will for probate.
Bendtsen died in the early morning hours of March 2, 2005. (1 CR 47.) At 8:04
a.m., Olsen filed in the probate court an Application for Probate of Will and Issuance of
Letters Testamentary on behalf of Dixie Tidwell. (1 CR 47-48.) Olsen also filed a threepage Will consisting of the two-page Will that Bendtsen had signed in the emergency
room and the one-page jurat later signed and notarized by the notary. (1 CR 49-52; 1 CR
65, 54; Tab B.)
At 11:55 a.m., Bendtsen’s daughter filed an Application for Probate of Will and
Issuance of Letters Testamentary seeking to have the 2002 Will probated. The following
day, after discovering that Olsen had filed the emergency room Will, Giron filed an
Original Petition Contesting Will, arguing that the emergency room Will “was obtained
at a time when the Decedent was weak and infirm and was under the control of others,”
“was signed and executed at a time when [Bendtsen] lacked testamentary capacity and
was unduly influenced,” and was therefore invalid and should be set aside. (1 CR 136140.)
Notwithstanding Giron’s allegations – which were directed in part at Olsen
himself and of which Olsen had personal knowledge – Olsen did not withdraw from
representing Tidwell as the independent executrix. (1 CR 66, 54.) The probate court
5
later granted Giron’s motion for summary judgment, set aside the emergency room Will,
and admitted the 2002 Will to probate. This Court affirmed. See In re Mary Ellen Logan
Bendtsen, 230 S.W.3d 823, 824 (Tex. App. – Dallas 2007, pet. denied).3
6.
2008: The Commission files this action.
Frances Giron filed a complaint against Olsen with the State Bar of Texas. After
investigating, the State Bar determined that there was just cause to believe that Olsen had
committed one or more acts of professional misconduct. (1 CR 31.) The Commission
for Lawyer Discipline thereafter filed a petition in the district court of Dallas County
alleging numerous violations of the Texas Disciplinary Rules of Professional Conduct.
(1 CR 31.) After Olsen admitted numerous Requests for Admission, the Commission
filed a motion for partial summary judgment, arguing that the undisputed facts
established Olsen’s violations as a matter of law. (1 CR 28-45.) Olsen filed a “verified”
response in opposition to the Commission’s motion, and attached affidavits that were
substantively defective.
(2 CR 216-419.)
The Commission objected to Olsen’s
“verified” response as improper and moved to strike the affidavits. (1 CR 204-208.)
The trial court set a hearing on the Commission’s motion for the morning of
December 5, 2008. (1 CR 149.) Olsen moved to continue the hearing (1 CR 143-147),
3
Bendtsen’s death and the subsequent fight over her estate were the subject of two other
opinions by this Court. See In re Estate of Mary Ellen Logan Bendtsen, 229 S.W.3d 845 (Tex.
App. – Dallas 2007, no pet.) (holding that order by probate court granting estate administrator’s
application for authority to sell property was not final for purposes of appeal); In re Estate of
Mary Ellen Logan Bendtsen, 230 S.W.3d 832 (Tex. App. – Dallas 2007, pet. denied) (holding
that contestant had no standing to contest will because she was not an “interested person”).
6
which the court granted (3 CR 439). The hearing was held the afternoon of December 5,
2008, and Olsen appeared in person. (3 CR 439.)
On December 11, the court entered an order sustaining the Commission’s
objections regarding Olsen’s summary judgment evidence, ordered that the evidence be
stricken from the record, and granted the Commission’s motion for partial summary
judgment. (1 CR 214, 215.) On January 12, 2009, Olsen filed a motion for new trial,
which was overruled by operation of law. (1 Supp. CR 7-48.)
On May 8, 2009, the trial court held a sanctions hearing pursuant to Rule 3.02 of
the Texas Rules of Disciplinary Procedure. (RR 1-44.) Olsen failed to appear. (3 CR
423.) After the Commission presented evidence and argument, the trial court on May 8,
2009, entered a final judgment permanently disbarring Olsen from the practice of law in
the State of Texas and ordering Olsen to pay the Commission’s attorneys’ fees in the
amount of $10,732.70. (3 CR 423-427; Tab A.) On June 8, 2009, Olsen filed an
amended motion for new trial (3 CR 428), which the trial court denied on July 2, 2009 (3
CR 466).
This appeal followed.
SUMMARY OF THE ARGUMENT
This case arises out of Edwin Olsen’s role in a scheme to exploit an elderly widow
suffering from dementia by using his law license to get documents signed, mislead the
courts, and control the subsequent litigation. Notwithstanding Olsen’s effort to make this
look like a factually-intensive and disputed case, the material facts are straightforward
and uncontroverted.
7
Olsen’s own answers to Requests for Admissions and other uncontroverted
summary judgment evidence establish that: Olsen materially misled the probate court
during Bendtsen’s guardianship proceeding and then compounded this misrepresentation
by later claiming to the court that he had in fact said something different; knowingly filed
a will with a false jurat; knowingly filed a three-page will even though the decedent Mary
Ellen Bendtsen had executed a two-page will; and represented the independent executrix
in the subsequent will contest even though he could be a witness to establish Bendtsen’s
testamentary capacity (or lack thereof).
This conduct violates Disciplinary Rules 3.03(a)(1), 3.03(b), 3.08(a), 8.04(a)(1),
and 8.04(a)(3) as a matter of law. After hearing evidence, the trial court properly ordered
that Olsen be permanently disbarred and pay the State Bar’s attorneys’ fees pursuant to
Rule 1.06(y). This Court can – and should – affirm the trial court’s judgment, including
the imposition of sanctions, if the summary judgment evidence establishes only a single
rule violation. As shown below, the evidence establishes multiple violations.
Olsen seeks to escape all this by claiming that there were disputed fact issues and
numerous ancillary “errors” in the proceeding below. But Olsen’s arguments are without
merit. He repeatedly asserts that he presented controverting summary judgment evidence
showing that he did not intend to violate the Disciplinary Rules – that he merely made a
“mistake” – and that summary judgment was therefore improper. But the trial court
struck this evidence because it did not comply with the Rules of Procedure and was
incompetent. Although Olsen now argues that he should have been given an opportunity
to amend, the defects were substantive and no such amendment is required. In addition
8
and in any event, Olsen’s self-serving statement about his intent – even if it were
competent evidence – does not create a fact issue sufficient to defeat summary judgment.
Olsen also argues that disbarment was improper because the Commission did not
present evidence on all the factors in Disciplinary Rule 3.10. But the Texas Supreme
Court has expressly held that no such evidence is necessary and that a court need only
“consider” the factors.
Here, the trial court heard testimony regarding Olsen’s
misconduct and its effects on the individuals involved, as well as on the legal profession,
and plainly stated that, after “consider[ing] all of the factors listed in Rule 3.10,”
disbarment was appropriate. This is sufficient. Finally, Olsen’s argument regarding
attorneys’ fees is without merit because the Commission presented uncontroverted
testimony regarding fees and Olsen did not object. There was therefore ample evidence
to support the amount of the fees sanction, and the trial court did not rule arbitrarily or
unreasonably in finding that the Commission’s fees were reasonable.
The judgment should be affirmed.
ARGUMENT
I.
The trial court properly entered partial summary judgment based upon
Olsen’s violations of the Disciplinary Rules.
A.
Standard of Review.
Summary judgment is proper where the movant establishes that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law on the issues expressly set out in the motion. See TEX. R. CIV. P. 166a(c).
The Court reviews a grant of summary judgment de novo, taking as true all evidence
9
favorable to the nonmovant, and indulging every reasonable inference and resolving any
doubts in the nonmovant’s favor. See Joe v. 239 Jt. Venture, 145 S.W.3d 150, 156 (Tex.
2004). The Court must affirm the summary judgment “if any of the theories presented to
the trial court and preserved for appellate review are meritorious.” Id. at 157.
Here, the Commission presented undisputed evidence establishing that Olsen
violated the Disciplinary Rules in a number of ways.
The trial court granted the
Commission’s motion without specifying the grounds upon which it was relying. (1 CR
214.) This Court should therefore sustain the trial court’s order if it determines that the
undisputed facts establish a single violation. See, e.g., Teter v. Comm’n for Lawyer
Discipline, 261 S.W.3d 796, 799 (Tex. App. – Dallas 2008, no pet.). As shown below,
the evidence establishes all of them.
B.
Olsen violated Disciplinary Rule 3.08(a) because he continued
representing Dixie Tidwell in the will contest even though he knew or
believed that he could be a witness in that proceeding.
Disciplinary Rule 3.08(a) provides that a “lawyer shall not accept or continue
employment as an advocate before a tribunal . . . if the lawyer knows or believes that [he]
is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s
client.”4 (Tab D.)
4
The Rule also includes five exceptions, none of which is applicable here, see infra, note 8:
“(1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter
of formality and there is no reason to believe that substantial evidence will be offered in
opposition to the testimony; (3) the testimony relates to the nature and value of legal services
rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the
lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter
and disqualification of the lawyer would work substantial hardship on the client.”
10
Olsen’s own admissions and the pleadings filed in the will contest – presented by
the Commission as summary judgment evidence – show that: (a) Olsen prepared the
emergency room Will and was present when Bendtsen signed it (1 CR 63, 54); (b)
Bendtsen’s daughter Frances Giron filed a petition contesting the emergency room Will,
arguing that the Will “was obtained at a time when the Decedent was weak and infirm
and was under the control of others,” including Olsen, and that Bendtsen “lacked
testamentary capacity and was unduly influenced” when she executed it (1 CR 136-140);
(c) Olsen had “knowledge of Mary Ellen Logan Bendtsen’s mental capacity at the time
she signed a will on February 22, 2005” (1 CR 67, 54; cf. 1 CR 76 (Olsen opining about
Bendtsen’s competency at guardianship hearing)); (d) yet, Olsen continued to represent
Dixie Tidwell, the executrix of the emergency room Will, throughout the will contest
(including during the appeal) and did not withdraw (1 CR 66, 54).5
These undisputed facts establish a violation of Rule 3.08(a) as a matter of law.
See Tex. Center for Legal Ethics and Professionalism, Opinion 439 (March 1987)
(attorney who prepared will “may not continue to act as attorney for the Independent
Executrix and sole beneficiary when a contest of the will questions . . . testamentary
capacity”) (Tab E).6 See also, e.g., Acevedo v. Comm’n for Lawyer Discipline, 131
5
Olsen is simply incorrect in stating that “the only summary judgment evidence offered by the
Commission . . . regarding Mr. Olsen’s alleged violation of Rule 3.08 are his two admissions that
he represented Ms. Tidwell on behalf of Mary Ellen’s estate and did not withdraw.” Olsen Br.
11.
6
Olsen argues that Opinion 439 is distinguishable because the attorney in that case also
“notarized” the will. Olsen Br. 12. But nothing in the opinion draws that distinction. The
opinion instead focuses on whether “it is learned or it is obvious that [the attorney] or his firm
11
S.W.3d 99, 102, 105-06 (Tex. App.—San Antonio 2004, pet. denied) (affirming
summary judgment finding violation of Disciplinary Rule based in part on deemed
admissions). The Disciplinary Rules define the term “believes” to include “actually
suppos[ing] the fact in question to be true,” and defines “knows” to denote “actual
knowledge of the fact in question.” Disciplinary Rules, Terminology (Tab C). Both
definitions provide that “[a] person’s belief [or knowledge] may be inferred from the
circumstances.”
Id. (Tab C).
Here, Olsen’s knowledge can be inferred from the
uncontroverted facts: Bendtsen’s daughter alleged that Bendtsen lacked testamentary
capacity and was unduly influenced by others (including Olsen) when Bendtsen signed
the emergency room Will (1 CR 136-140), and Olsen was present when all of this
occurred.
Olsen does not (because he cannot) dispute any of these facts. He instead argues
that there is an “exception to Rule 3.08 in the context of will contests,” and he cites May
v. Crofts, 868 S.W.2d 397 (Tex. App. – Texarkana 1993, no writ). Olsen Br. 9. But that
case involved a motion to disqualify opposing counsel during a will contest, and the court
was concerned that the movant was using the Rule “as a tactical weapon to deprive the
opposing party of the right to be represented by the lawyer of his or her choice.” Id. at
399.
The court held that in such situations the movant must “demonstrate actual
prejudice to itself resulting from the opposing lawyer’s service in dual roles.” Id. The
court expressly distinguished disciplinary proceedings like the one here, explaining: “the
may be called as a witness on behalf of his client” to testify about the decedent’s testamentary
capacity – which is precisely the situation here. Opinion at 1 (Tab E).
12
primary function of the [disciplinary] rules is to define proper conduct for purposes of
professional discipline.” Id. The Comments to Rule 3.08 in fact provide that the Rule
“sets out a disciplinary standard and is not well suited to use as a standard for procedural
disqualification.” Rule 3.08, cmt. 9 (emphasis added) (Tab D.) Although the Rule may
provide “some guidance” in a procedural disqualification of a lawyer with dual roles, the
issue of the lawyer’s professional misconduct should “be resolved . . . in a subsequent
disciplinary proceeding.” Rule 3.08, cmt. 10 (Tab D). Thus, conduct that may not
automatically require disqualification in an ongoing proceeding may nonetheless subject
the lawyer to professional discipline. See id.
Olsen also argues that he did not violate the Rule because there was no evidence
that he intended to call himself as a witness in presenting his client’s case. Olsen Br. 1011. But Olsen is misreading the Rule. It does not matter whether the lawyer intends to
call himself as a witness. The issue is whether the lawyer “is or may be a witness”
required to establish an essential fact on behalf of his client. Rule 3.08 (Tab D). The
“principal concern” of Rule 3.08 is “the possible confusion that those dual roles could
create for the finder of fact.” Rule 3.08, cmt. 4 (Tab D). “If the lawyer’s testimony
concerns a controversial or contested matter, combining the roles of advocate and witness
can unfairly prejudice the opposing party” and may confuse the jury. Id. Here, Olsen
was the principal architect of the will preparation and signing and could have been a
necessary fact witness to establish Bendtsen’s capacity (or lack thereof). It does not
matter that Olsen may not have initially intended to call himself as a witness because he
could have later been compelled to do so – to establish on behalf of his client Dixie
13
Tidwell that Bendtsen was competent and that the emergency room Will was therefore
valid.7 See Opinion 439 (Tab E).
Finally, Olsen asserts that he “testified in his Response and affidavit that he did
not know nor believe himself to be a [necessary] witness.” Olsen Br. at 12-13. But, as
explained above, Olsen’s “belief” about being a witness should be inferred from the
circumstances, and those circumstances establish Olsen’s knowledge or belief as a matter
of law. In addition, the trial court properly struck Olsen’s verification because verified
responses are not proper summary judgment proof, see, e.g., Quanaim v. Frasco Rest. &
Catering, 17 S.W.3d 30, 42 (Tex. App. – Houston [14th Dist.] 2000, pet. denied), and
struck Olsen’s affidavit because it failed to set forth the facts Olsen was testifying about,
see Tex. R. Civ. P. 166a(f). (1 CR 215.) See also infra, part I.F.1. There is therefore no
summary judgment evidence that Olsen knew or believed anything other than the
possibility that he would be a necessary witness in the will contest. Moreover and in any
event, a self-serving affidavit from an interested party testifying about his own intent
does not create a fact issue sufficient to defeat summary judgment. See, e.g., Cornelison
v. Newbury, 932 S.W.2d 729, 731 (Tex. App. – Waco 1996, no writ).8
7
It is also possible that Olsen “possess[ed] information pertinent to the representation that
would [have been] substantially adverse to the client were it to be disclosed.” Rule 3.08, cmt. 3
(Tab D) (emphasis added). This is another reason Rule 3.08 requires the lawyer in such a
situation to withdraw from representation. Id.
8
Olsen also mentions in passing that “Rule 3.08 offers an exception” – where withdrawal would
create a “substantial hardship on the client.” Olsen Br. 11. But Olsen fails to cite any evidence
showing that this exception applied here. In fact, there is no evidence that Olsen “promptly
notified” opposing counsel that he “expect[ed] to testify” in the will contest, and there is no
evidence that his withdrawal would have “work[ed] substantial hardship” on Dixie Tidwell.
Rule 3.08(a)(5) (Tab D).
14
Accordingly, the summary judgment evidence established that Olsen violated Rule
3.08(a), and the Court should affirm the judgment for this reason alone.
C.
Olsen violated Disciplinary Rule 8.04(a)(3) in four independent ways
because he engaged in various acts involving dishonesty, fraud, deceit
or misrepresentation.
Disciplinary Rule 8.04(a)(3) provides: “A lawyer shall not . . . (3) engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.”
(Tab F.)
The
Disciplinary Rules define “fraud” to include “conduct having a purpose to deceive and
not merely negligent misrepresentation or failure to apprise another of relevant
information.”
Disciplinary Rules, Terminology (Tab C).
“dishonesty,” “deceit,” or “misrepresentation.”
The Rules do not define
Courts have given those terms their
ordinary meanings, and concluded that they generally denote a “lack of honesty, probity,
or integrity in principle” and a “lack of straightforwardness.” E.g., Brown v. Comm’n for
Lawyer Discipline, 980 S.W.2d 675, 680 (Tex. App. – San Antonio 1998, no pet.)
(quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 650 (1981)).
To establish a violation of Rule 8.04(a)(3), the Commission does not have to prove
the attorney’s subjective intent, but may instead show by the surrounding circumstances
that the attorney’s conduct lacked integrity, honesty, or candor. See Lynn v. Bd. of Law
Examiners, 1999 WL 46683, at *3 (Tex. App. – Austin 1999, no pet.) (“The Board is not
required to prove ‘intent’ to justify a finding of dishonesty.”) (citing Bd. of Law
Examiners v. Stevens, 868 S.W.2d 773, 780 (Tex. 1994)).9
9
Alternatively, the
In an unpublished memorandum opinion, the Court in Walter v. Comm’n for Lawyer
Discipline, 2005 WL 1039970 (Tex. App. – Dallas 2005, pet. denied), stated that Rule 8.04(a)(3)
15
Commission may establish a Rule 8.04(a)(3) violation by providing evidence from which
a court “could infer an intent to deceive.” Eureste v. Comm’n for Lawyer Discipline, 76
S.W.3d 184, 198 (Tex. App. –Houston [14th Dist.] 2002, no pet.). Applying these
standards, courts have found the following types of conduct to violate Rule 8.04(a)(3),
even though there was no direct evidence of the attorney’s subjective intent to deceive:
• Attorney stated that he would pay medical providers from insurance proceeds
but nevertheless deposited the proceeds into a joint account and used part of
the money for his own purposes. See Brown, 980 S.W.2d at 680.
• Attorney “held himself out as an Arizona attorney even though he has never
been licensed to practice law there.” Steinberg v. Comm’n for Lawyer
Discipline, 180 S.W.3d 352, (Tex. App. – Dallas 2005, no pet.).
• Attorney filed documents in a court proceeding on behalf of his client without
first consulting with the client, and made representations in the documents “for
which he had no knowledge of the truth thereof.” McIntyre v. Comm’n for
Lawyer Discipline, 169 S.W.3d 803, 813 (Tex. App. – Dallas 2005, pet.
denied).
• Attorney settled claim without client consent. See Bellino v. Comm’n for
Lawyer Discipline, 124 S.W.3d 380, 388 (Tex. App. – Dallas 2003, pet.
denied).
A Rule 8.04(a)(3) violation, moreover, may be established at summary judgment.
See Acevedo v. Comm’n for Lawyer Discipline, 131 S.W.3d 99 (Tex. App. – San Antonio
2004, pet. denied). In Acevedo, the court affirmed a partial summary judgment finding a
Rule 8.04(a)(3) violation where the summary judgment evidence showed that:
the
attorney had agreed to represent a client in a pending deportation matter, the attorney told
“prohibits intentionally engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” Id. at *1. But the Court in that case was addressing the narrow question of
whether Rule 8.04(a)(3) could in some instances violate an attorney’s “protected speech,” and
held that it could not because the Rule requires “an intentional falsehood.” Id. The Court
affirmed the trial court’s judgment finding a violation of Rule 8.03(a)(3).
16
the client he had hired an investigator for $1200 when he had not, and the attorney
misrepresented the deportation process to the client. See id. at 105. The court also
affirmed the summary judgment on the separate ground that the attorney had agreed to
represent a client regarding her real property, the attorney transferred the property to his
wife without the client’s consent, and the attorney misrepresented the nature of the
transfer documents to the client. See id. at 106.
As shown below, the summary judgment evidence in this case established that
Olsen’s conduct surrounding the Bendtsen guardianship and estate involved dishonesty,
fraud, deceit, or misrepresentation as a matter of law, in at least four independent ways.
1.
Olsen violated Rule 8.04(a)(3) by filing a false jurat.
The summary judgment evidence shows that: (a) Bendtsen executed the
emergency room Will while in the hospital (1 CR 63, 54; see also Olsen Br. at 20); (b)
the notary public was not present at the hospital when Bendtsen executed the Will (1 CR
65, 54; Olsen Br. at 20); (c) the notary public in fact signed and notarized the jurat later
outside of Bendtsen’s presence (1 CR 65, 54; see also Olsen Br. at 20); (d) but the jurat
itself states that the Will was “subscribed and sworn to before me” by Bendtsen, Rose
Cline and Dixie Tidwell (1 CR 52, Tab B). Olsen was aware of all this and yet filed the
false jurat in the probate court hours after Bendtsen died in an attempt to legitimize a will
that was executed by an 88-year-old stroke victim in the emergency room. (1 CR 46-52.)
The trial court properly concluded that this conduct involved “dishonesty, fraud, deceit or
misrepresentation.” Rule 8.04(a)(3) (Tab F). See, e.g., Flume v. State Bar of Texas, 974
17
S.W.2d 55, 61 (Tex. App. – San Antonio 1998, no pet.) (attorney violated Rule 8.04(a)(3)
for serving invalid TRO on client’s husband who was a non-lawyer).
In his appellate brief, Olsen does not dispute that the jurat was false. Olsen Br. 21.
He instead argues that the emergency room Will was nonetheless valid – even with the
false jurat. Olsen Br. at 18-19 (“A defective self-proving affidavit does not invalid[ate]
the will it accompanies.”).10 But, even if correct, this is beside the point. Olsen’s
dishonest conduct was not simply seeking to probate an invalid will, but was obtaining
and then filing a will for probate knowing that it included a false statement. The false
statement here, moreover, was not an immaterial defect, but was central to the issue of
whether the emergency room Will could be self-proven. This is undoubtedly why Olsen
filed the false jurat in the first place: he knew that the emergency room Will would be
the subject of a fierce contest with Bendtsen’s daughter, and he wanted to avoid having to
prove its validity in the probate court. That will contest, in fact, did not end well for
Olsen and his friends. The trial court found the Will to be invalid, and this Court
affirmed, in part because Dixie Tidwell – one of the attesting witnesses – “did not sign
the attestation clause in Bendtsen’s presence.” In re Mary Ellen Logan Bendtsen, 230
10
Olsen tries to manufacture a “fact issue” by claiming that “Texas law holds that the validity of
a self-proved affidavit is a fact issue, and thus cannot be resolved through a summary judgment
proceeding.” Olsen Br. at 18-19. But whether the affidavit is valid is not the point. The point is
that Olsen knew the affidavit included a materially false statement but filed it anyway. (1 CR
63-65, 54).
18
S.W.3d 823, 826 (Tex. App. – Dallas 2007, pet. denied) (noting also that “the notary was
not present when Bendtsen signed the will”).11
Olsen next argues that he was required to file the Will as-is, even knowing that it
included a false jurat. Olsen Br. 22-23 (citing Tex. Probate Code § 75). But nothing in
Texas law requires an attorney to knowingly file a document with a materially false
statement. And in any event, Olsen could have avoided this problem by not preparing
and obtaining the emergency room Will – with the false jurat – in the first place. None of
this changes the undisputed facts here, which show that Olsen knowingly obtained a false
jurat and filed it in court knowing that it would be material in a subsequent will contest.
The Court should affirm the judgment for this reason alone.
2.
Olsen violated Rule 8.04(a)(3) by filing a 3-page will when
Bendtsen had signed a 2-page will.
Olsen’s filing the false jurat is not the only problem with the emergency room
Will. The summary judgment evidence also shows that: (a) Bendtsen signed a two-page
will that on its face stated that it “consist[s] of this and one preceding page” (1 CR 51);
(b) Olsen presented only these two pages to Bendtsen in the emergency room when she
signed the Will (1 CR 51; see also Olsen Br. 15); (c) yet, when Olsen filed the
application to have the Will probated, he attached a three-page Will, the third page being
the false jurat discussed above (1 CR 46-52). These undisputed facts establish a violation
11
Olsen also asserts that the false jurat was not “intentional[ly] done for dishonest reasons or
reasons of misrepresentation.” Olsen Br. 21. But Olsen fails to cite any summary judgment
evidence to substantiate that statement. And, as explained above, Olsen’s subjective intent is not
relevant, see Lynn, 1999 WL 46683, at *3, and in any event, can be inferred from the
circumstances, see Eureste, 76 S.W.3d at 198-99.
19
of Rule 8.04(a)(3) as a matter of law.
See, e.g., McIntyre v. Comm’n for Lawyer
Discipline, 169 S.W.3d 803, 813 (Tex. App. – Dallas 2005, pet. denied).
Again, Olsen does not (because he cannot) dispute these facts. Rather, Olsen
claims that the emergency room Will was actually three pages all along, that the third
page was in his briefcase when Bendtsen signed the Will, and that therefore there is a
“material fact at issue” precluding summary judgment. Olsen Br. 14-15. But there is no
evidence to support this theory. Olsen cites only the affidavits of Justin Burgess and
Patrick McCay, Olsen Br. 16 (citing 2 CR 242, 245), but those affidavits were deficient.
Both affidavits referenced an “Exhibit 1” that was supposed to be attached to the affidavit
(presumably a three-page will), but was not.
(2 CR 242, 245.)
The Commission
therefore objected to those affidavits on that basis (1 CR 206 (citing Rule 166a(f)), and
the trial court properly sustained the objection (1 CR 215). See infra, part I.F.1.
3.
Olsen violated Rule 8.04(a)(3) by misleading the probate court
during the guardianship hearing.
The summary judgment evidence shows that: (a) at the conclusion of the January
31, 2005 guardianship hearing, the court stated that it wanted to continue the hearing and
then asked Olsen “where is Ms. Bendtsen now? What is her current residence?” (1 CR
98); (b) Olsen stated that Bendtsen “was at Ashley Court before,” even though Olsen
knew that Bendtsen had been discharged from Ashley Court and would be going to her
home after the hearing (1 CR 98; 1 CR 60, 54); (c) Olsen’s response misled the court into
believing that Bendtsen was still at Ashley Court (1 CR 113); (d) the court therefore
stated that it would issue an order to the nursing home to prohibit visitors from visiting
20
Bendtsen “without the prior approval of this Court” (1 CR 99, 113); yet, (e) Olsen did not
correct the court’s misunderstanding and did not inform the court that Bendtsen had been
discharged from Ashley Court (1 CR 98-99; 1 CR 30). This constitutes “dishonesty,
fraud, deceit or misrepresentation.” See, e.g., McIntyre, 169 S.W.3d at 813 (attorney
violated Rule 8.04(a)(3) by, among other things, making representations in court
documents “for which he had no knowledge of the truth thereof”).
Olsen tries to finely splice the court’s question and his answer, arguing that “‘was’
is the past tense of ‘is’” and that his statement about Bendtsen’s whereabouts was not
actually misleading. Olsen Br. 25-28. But in the context it was clear that the court
understood Olsen to be saying that Bendtsen would remain at Ashley Court until the next
guardianship hearing, and this is why the court then stated that it would issue an order
prohibiting the “nursing home” from allowing anyone to visit Bendtsen in the meantime.
(1 CR 98-99.) The court was trying to maintain the status quo until the guardianship
proceeding concluded – which would be a couple of weeks away. Judge Robert E. Price,
who presided over the guardianship hearing, subsequently testified that, if he had known
that Bendtsen was already discharged from Ashley Court, “I would have ordered that she
return to Ashley and that she have no visitors without my permission.” (1 CR 113.)
Despite all this, Olsen did nothing to correct the court’s misunderstanding. (1 CR 98-99.)
Olsen also claims that he did not actually intend to mislead the court. Olsen Br.
28-29. But again Olsen relies solely upon his verified response to the Commission’s
motion for partial summary judgment and his own affidavit, both of which were struck as
incompetent summary judgment evidence. (1 CR 215.) See infra, part I.F.1. And, in any
21
event, Olsen’s self-serving statements about intent are not enough to defeat summary
judgment. See, e.g., Cornelison, 932 S.W.2d at 731.12
4.
Olsen violated Rule 8.04(a)(3) by misleading the probate court in
a filing after the guardianship hearing.
Olsen later had an opportunity to come clean with the probate court and, if true,
explain that he had misunderstood the court and wanted to correct the misunderstanding.
But Olsen instead chose to continue his pattern of dishonesty.
A few days after the hearing, Bendtsen’s daughter learned that Bendtsen had been
discharged from Ashley Court and that others were visiting her at her home on Swiss
Avenue. (2 CR 414-417.) She filed a motion for emergency order requesting that
Bendtsen be returned to Ashley Court, and stated that “Olsen failed to adequately inform
the court” where Bendtsen would be staying. (2 CR 414-417.) Olsen opposed the
motion and claimed that, during the guardianship hearing, he had “informed the Court
that [Bendtsen] was discharged from Ashley Court . . . .” (1 CR 116-117.) But, as
explained above, Olsen did not inform the court that Bendtsen had been discharged, and
in fact had misled the court into believing that Bendtsen was still a patient at Ashley
Court. (1 CR 98-99.) Olsen’s untrue statement in a court pleading further indicates his
“lack of honesty, probity, or integrity in principle” and a “lack of straightforwardness.”
12
Olsen also argues that perhaps his response did not actually mislead the court in the
guardianship hearing. Olsen Br. 29-30. But it is clear from the transcript of the hearing that the
court understood Olsen to be saying Bendtsen was still a patient at Ashley Court, which is why
Judge Price stated that he wanted to prohibit the “nursing home” from allowing any visitors. (1
CR 98-99.) Judge Price subsequently testified that Olsen’s response “misled me into believing
Mrs. Bendtsen was still at Ashley and was . . . material in my decision to issue an order to the
nursing home.” (1 CR 113.) There is no controverting evidence in the summary judgment
record.
22
Brown, 980 S.W.2d at 680; McIntyre, 169 S.W.3d at 813 (filing pleadings with untrue
statements violates Rule 8.04(a)(3)).13
D.
Olsen violated Disciplinary Rules 3.03(a)(1) and 3.03(b) because he
made material false statements to the probate court.
As explained in parts I.C.3 and I.C.4, Olsen misled the probate court when the
court asked him where Bendtsen would be residing during the pendency of the
guardianship proceeding, and then failed to correct the court’s misunderstanding during
the hearing or in subsequent pleadings. This conduct also violated Rule 3.03(a)(1), which
prohibits “knowingly . . . mak[ing] a false statement of material fact or law to a tribunal,”
and Rule 3.03(b), which requires a lawyer to “make a good faith effort to persuade the
client to authorize the lawyer to correct or withdraw [] false evidence” once the lawyer
“comes to know of its falsity.” (Tab G.) The Disciplinary Rules define “knowingly” to
mean “actual knowledge of the fact in question . . . [which] may be inferred from
circumstances.” Disciplinary Rules, Terminology (Tab C.)
The summary judgment evidence establishes these violations as a matter of law.
Olsen’s representation to the probate court that Bendtsen was a patient at Ashley Court (1
CR 98) was false because he knew that Bendtsen had been discharged from Ashley Court
and would be returning home (1 CR 61, 54). Olsen’s statement – and his failure to
correct the court’s misunderstanding – were “material” because they caused the probate
13
Olsen claims in his appellate brief that he thought he had told the probate court that Bendtsen
was discharged. Olsen Br. at 32. But there is no evidence in the record to support this view (see
id. (citing only his opposition to the Commission’s motion for partial summary judgment)), and
it is contrary to the undisputed facts – Olsen’s own statement in the guardianship hearing (1 CR
98-99) and the court’s response indicating that the court understood Olsen to be saying that
Bendtsen was still a patient there (1 CR 99).
23
court to declare that the “nursing home” should not permit anyone “to visit with Mrs.
Bendtsen without the prior approval of the Court” (1 CR 99). See, e.g., Cohn v. Comm’n
for Lawyer Discipline, 979 S.W.2d 694 (Tex. App. – Houston [14th Dist.] 1998, no pet.)
(“materiality [under Rule 3.03] encompasses matters represented to a tribunal that the
judge would attach importance to and would be induced to act on in making a ruling”).
Judge Price later testified that Olsen’s representation was “material in my decision to
issue an order to the nursing home.” (1 CR 113.)
Finally, Olsen “knowingly” made the material false statement and omission, as
inferred from the uncontroverted summary judgment evidence: Olsen’s admission that
he knew Bendtsen had been discharged (1 CR 60, 54), his statements to the probate court
that she was still there (1 CR 98-99), and his failure to correct the record in a subsequent
filing (1 CR 116-17). See Cohn, 979 S.W.2d at 699. Although Olsen has argued in his
appellate brief that he “believed that he had communicated to Judge Price that [Bendtsen]
was gone from Ashley Court,” there is no evidence in the summary judgment record to
support that claim. Olsen Br. 33 (citing only his opposition to the Commission’s motion
for partial summary judgment, which is not evidence). And, in any event, Olsen’s selfserving claim regarding intent cannot create a fact issue. See, e.g., Cornelison, 932
S.W.2d at 731. Summary judgment is therefore proper on this claim as well. See, e.g.,
Teter, 261 S.W.3d at 800 (affirming grant of summary judgment on Commission’s claim
that lawyer violated Rule 3.03(a)(1)).
24
E.
Olsen violated Disciplinary Rule 8.04(a)(1) because he “violated these
rules.”
Rule 8.04(a)(1) states that “[a] lawyer shall not violate these rules, knowingly
assist or induce another to do so, or do so through the acts of another, whether or not such
violation occurred in the course of a client-lawyer relationship.” Once a determination
has been made that Olsen violated the Disciplinary Rules, Olsen has violated Rule
8.04(a)(1) as a matter of law. See Eureste, 76 S.W.3d at 201 (“All that is necessary to
establish a violation of Rule 8.04(a)(1) is a violation of another rule.”).
F.
Olsen’s remaining arguments are without merit, or were harmless
error.
1.
The trial court properly struck Olsen’s summary judgment
evidence.
Standard of Review: Abuse of discretion. See CA Partners v. Spears, 274
S.W.3d 51, 63 (Tex. App. – Houston [14th Dist.] 2008, pet. denied) (citing
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).14
In opposition to the Commission’s motion for partial summary judgment, Olsen
submitted a “verified” response and three substantively defective affidavits – his own,
Justin Burgess’s and Mark McCay’s. (2 CR 216-245.) After the Commission objected (1
CR 204-208), the trial court sustained the objections and struck the verification and
Olsen’s affidavit in its entirety, and sustained the objections regarding the defective
portions of the Burgess and McCay affidavits. (1 CR 215.) This was proper.
14
“The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action, but whether the court acted without
reference to any guiding rules and principles. [Citations omitted] The trial court’s ruling should
be reversed only if it was arbitrary or unreasonable.” E.g., Cire v. Cummings, 134 S.W.3d 835,
838-39 (Tex. 2004) (citation and quotation omitted).
25
The trial court struck Olsen’s verification because “verified responses are not
proper summary judgment proof.”
Quanaim v. Frasco Restaurant & Catering, 17
S.W.3d 30, 42 (Tex. App. – Houston [14th Dist.] 2000, pet. denied). “It is well settled
that neither the motion for summary judgment, nor the response, even if sworn, is ever
proper summary judgment proof.” E.g., id. (citing cases, including Hidalgo v. Surety
Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971)). The Texas Supreme Court has
explained that “orderly judicial administration” requires this rule to avoid “constant
problems” concerning whether the person was “personally acquainted with the facts and
was competent to testify.” Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656,
660-61 (Tex. 1995) (same). Thus, a party may not support its response to a motion for
summary judgment “with a document in the form of an affidavit in which [the party]
attempt[s] to verify the truth and correctness of all ‘allegations and facts’ in the
response.”
E.g., Kabbani v. Papadopolous, 2009 WL 469546, at *7 (Tex. App. –
Houston [1st Dist.] 2009, pet. denied). This is precisely what Olsen tried to do, and the
trial court correctly struck the verified response as a result. (1 CR 215.)15
15
Olsen argues that this rule does not apply to him because he was representing himself pro se.
Olsen Br. 40-41. But the rule applies in all cases – even to pleadings drafted by a “pro se”
litigant, see, e.g., Maan v. First ATM, Inc., 2008 WL 5210923, at *10 n.7 (Tex. App. – Austin
2008, no pet.) – and is based upon “orderly judicial administration,” not on who signs the
verification, e.g., Hidalgo, 462 S.W.2d at 545. In addition, Olsen’s opposition included
numerous facts of which Olsen himself could not possibly have personal knowledge. See, e.g., 2
CR 217 (“Giron also during this time frame removed the entire contents . . . of Mary Ellen’s
checking account . . . .”); 2 CR 218 (“Mary Ellen suffered a stroke on February 22, 2005, and
was transported to Baylor Hospital.”). This is precisely why the Texas Supreme Court has held
that such verified responses are not competent summary judgment evidence. See Laidlaw, 904
S.W.2d at 660-61.
26
The court likewise struck Olsen’s own affidavit because it failed to “set forth facts
and show the affiant’s competence,” and did not contain “direct and unequivocal”
statements as required by Texas Rule of Civil Procedure 166a(f). (1 CR 215.) Instead,
Olsen’s affidavit merely “incorporat[ed] all the factual statements made [in]
Respondent’s Response to Petitioner’s Motion for Partial Summary Judgment AS IF
STATED IN FULL HEREIN . . . .” (2 CR 238 (emphasis in original).) This is improper.
See, e.g., Kabbani, 2009 WL 469546, at *7 (affidavit attempting “to verify the truth and
correctness of all ‘allegations and facts’ in [summary judgment] response” does not
satisfy Rule 166a); Harmon v. Bank of the West, 2003 WL 1564826, *4 (Tex. App. – Fort
Worth 2003, no pet.) (“To effectively oppose a motion for summary judgment, the
affidavit must itself set forth facts and show that the affiant is competent to testify to
those facts.”) (emphasis in original).
Olsen claims that his affidavit was compliant because he “is the sole author of the
Response” and his affidavit “incorporated all the factual statements made in his verified
Response.” Olsen Br. 41. But Rule 166a requires the affidavit to specifically identify
each fact the affiant is testifying about, show how the “affiant is competent to testify
those facts,” and demonstrate “how the affiant became personally familiar with the facts
so as to be able to testify as a witness.” E.g., Harmon, 2003 WL 1564826, at *4 (citing
cases). Olsen’s affidavit did not – and cannot – do this. Indeed, Olsen’s summary
judgment response is littered with “factual statements” about which he could not possibly
have personal knowledge. See, e.g., 2 CR 216 (“Giron induced Mary Ellen to sign a
medical power of attorney giving Giron power over Mary Ellen.”); 2 CR 219 (“Mary
27
Ellen’s stroke was to the motor skills hemisphere of her brain . . .”); see also supra, note
15.
Finally, the trial court properly sustained the Commission’s objections regarding
the Burgess and McCay affidavits, which referenced an “Exhibit” that had not been
attached to the affidavits. Rule 166a(f) states: “Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or served therewith.”
Failure to attach a document referenced in an affidavit “constitut[es] a defect in the
substance of the affidavit.” See, e.g., Gorrell v. Tex. Utilities Elec. Co., 915 S.W.2d 55,
60 (Tex. App. – Fort Worth 1995, writ denied). Olsen provides no reason to question this
ruling.
2.
The trial court properly denied Olsen a chance to amend his
defective summary judgment evidence.
Standard of Review: Abuse of discretion. See CA Partners v. Spears, 274
S.W.3d 51, 63 (Tex. App. – Houston [14th Dist.] 2008, pet. denied).
Olsen argues that the trial court erred by not giving him an opportunity to cure the
defects in his summary judgment evidence. Olsen Br. 43-44. But Rule 166a(f) provides
that only “defects in the form of affidavits” may be amended under certain circumstances.
(Emphasis added.) Substantive defects, in contrast, do not require an opportunity to
amend. See, e.g., CA Partners, 274 S.W.3d at 63. A defect is substantive if “the
summary judgment proof is incompetent; it is formal if the summary judgment proof is
competent but inadmissible.” E.g., Coleman v. Woolf, 129 S.W.3d 744, 748 (Tex. App. –
Fort Worth 2004, no pet.).
Here, all of the summary judgment evidence that was stricken was incompetent
28
and contained substantive defects.
See, e.g., Quanaim, 17 S.W.3d at 42 (verified
responses are incompetent summary judgment evidence); Jones v. Pollan, 2010 WL
1856172, at *2 (Tex. App. – Dallas 2010, no pet.) (“An affidavit that is conclusory is
substantively defective.”); Gorrell, 915 S.W.2d at 60 (failure to attach document to
affidavit is a “defect in the substance of the affidavit” and the court “was not required to
give the offering party the chance to amend”).16 The trial court therefore did not abuse its
discretion in refusing to permit Olsen an opportunity to cure the defects. See, e.g., CA
Partners, 274 S.W.3d at 63.17
3.
The trial court properly gave Olsen notice of the summary
judgment hearing and did not err in refusing Olsen’s request to
transcribe the hearing.
Standard of Review: Abuse of discretion. See Bosch v. Armstrong, 2009 WL
1635318, at *2 (Tex. App. – Houston [1st Dist.] 2009, pet. denied) (“It is purely
within a trial judge’s discretion as to whether to hold an oral hearing on a
summary judgment motion.”).
Olsen lodges two complaints about the December 5, 2008 summary judgment
hearing. First, Olsen claims that he had “only three hours’ notice” of the hearing, and
16
Olsen also argues that the Commission’s “reply was untimely” and thus “the trial court
should not have considered the Commission’s objections” to his summary judgment evidence.
Olsen Br. 40. Putting aside whether the reply was timely, the trial court may consider
substantive defects to summary judgment evidence at any time. See, e.g., Jones, 2010 WL
1856172, at *2 (“substantive defects [in summary judgment evidence] are not waived by the
failure to object”).
17
Olsen also suggests that he did not have an adequate opportunity for discovery before the
summary judgment hearing because one deposition had been continued and another did not yet
have an official transcript. Olsen Br. 43-44. But Olsen did not show in the trial court – and fails
to show in this Court – how those depositions (one of which was Olsen’s own witness) were
necessary before the summary judgment hearing. See id.; see also 1 CR 209-210. He merely
states, in conclusory terms, that the depositions were “essential” and “directly germane” to the
summary judgment briefing. See id.; 1 CR 210-211. He has therefore failed to show how the
trial court abused its discretion in refusing to grant (another) continuance of the summary
judgment hearing, and has failed to show how he was harmed by any error.
29
that this constituted “an abuse of discretion.” Olsen Br. 38. But Olsen has acknowledged
that he received notice of the December 5, 2008 hearing as early as October 31, 2008 (1
CR 143, 149), and that he in fact attended the December 5 hearing in person (3 CR 439).
Olsen’s real complaint is that the hearing on December 5 was moved from the morning
until the afternoon, and that he was not told of this until that day. Olsen Br. 38; 3 CR
439. But the court moved the hearing to accommodate Olsen, who had requested a
continuance because of a morning conflict. Olsen Br. 37-38. Under these circumstances,
the court did not abuse its discretion in re-setting the hearing. See, e.g., Pooser v. Cox
Radio, Inc., 2009 WL 200449, at *5 (Tex. App. – San Antonio 2009, no pet.) (no abuse
of discretion where, among other things, party had actual notice of hearing).
Second, Olsen argues that the trial court erred “in denying Mr. Olsen’s . . . request
for the creation of a written record.” Olsen Br. 38. But no such record is required. See
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (having “a
court reporter record summary judgment hearings” is “neither necessary nor appropriate
to the purposes of such a hearing”); Martin v. Cohen, 804 S.W.2d 201, 203 (Tex. App. –
Houston [14th Dist.] 1991, no writ) (“The trial court must decide the merits of the
[summary judgment] motion based on the pleadings, discovery responses, stipulations,
and any sworn affidavits.”). Indeed, “[p]arties are not entitled to a hearing on a motion
for summary judgment.” E.g., In re American Media Consol., 121 S.W.3d 70, 74 (Tex.
App. – San Antonio 2003, no pet.). The trial court’s denial of Olsen’s request to
transcribe the hearing is therefore not an abuse of discretion.
30
In addition, Olsen fails to show how either ruling – moving the hearing to the
afternoon to accommodate Olsen’s schedule, or refusing a request for a court reporter –
harmed Olsen on appeal. The trial court did not take any evidence at the summary
judgment hearing, but rather heard only legal argument. Nothing has prevented Olsen
from presenting his summary judgment arguments on appeal, and this Court has all the
pleadings, summary judgment briefing, and summary judgment evidence necessary to
review those arguments. Any error is therefore harmless.18 See, e.g., Great Western
Drilling, Ltd. v. Alexander, 305 S.W.3d 688, 697 (Tex. App. – Eastland 2009, no pet.)
(“no judgment should be reversed on appeal on the ground of trial court error unless the
error complained of probably caused the rendition of an improper judgment”); Whiteside
v. Ford Motor Credit Co., 220 S.W.3d 191, 194-95 (Tex. App. – Dallas 2007, no pet.)
(any error in failing to properly notify defendant of summary judgment submission was
harmless because defendant “filed a response” and “does not describe what further
response he wished to make” or “any evidence he was precluded from presenting”).
4.
The trial court did not deny Olsen’s right to trial by jury.
Standard of Review: De novo. See, e.g., All American Telephone, Inc. v. USLD
Communications, Inc., 291 S.W.3d 518, 526 (Tex. App. – Fort Worth 2009, pet.
denied).
Olsen argues that he was denied his “right to trial by jury” under the Texas
Constitution because the trial court “should not have granted the Commission’s Motion
18
Olsen’s reliance on Smith v. Smith, 544 S.W.2d 121 (Tex. 1976), is misplaced. Olsen Br. 39.
The court granted a new trial in that case, in part because the parties had introduced evidence in a
hearing on the merits, and the supreme court affirmed because the appellant could not obtain
adequate review on appeal. See id. at 123. Here, however, no evidence was presented in the
summary judgment hearing, and Olsen’s appeal may be reviewed in other ways than through the
record of the hearing on the summary judgment motion.
31
for Partial Summary Judgment.” Olsen Br. 44-45. But, as explained above, the trial
court properly granted partial summary judgment because the undisputed facts
established Olsen’s violations as a matter of law. Olsen was therefore not deprived of his
right to a jury trial. See, e.g., Morris v. Hughes, 2010 WL 252283, at *2 (Tex. App. –
Eastland 2010, pet. denied) (“Parties have broad rights to a jury trial, but when they
cannot show a material fact issue, there is nothing to submit to a jury, and the granting of
summary judgment to the opposing party does not violate the constitutional right to a jury
trial.”).
5.
The trial court did not err in refusing to set a hearing on Olsen’s
motion for new trial.
Standard of Review: Abuse of discretion. See Hamilton v. Pechacek, 2010 WL
851410, at *2 (Tex. App. – Fort Worth 2010, no pet.).
Olsen claims that the trial court “erred in refusing to conduct a hearing on [his]
timely filed Verified motion for new trial,” and he cites Fluty v. Simmons Co., 835
S.W.2d 664, 667 (Tex. App. – Dallas 1992, no writ). But Fluty involved “a motion for
new trial to set aside a default judgment,” in which “evidence must be heard,” Fluty, 835,
S.W.2d at 667) (emphasis added). Olsen’s motion for new trial, in contrast, did not seek
to set aside a “default judgment” because no such judgment had been entered here. (3
CR 428-437 (motion for new trial); 3 CR 423 (final judgment).) Nor did Olsen seek to
present new evidence that he could not have presented earlier – e.g., evidence of juror
misconduct, 3 CR 428-437. See, e.g., Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex.
App. – Fort Worth 2009, no pet.). Rather, Olsen made only legal arguments in his new
trial motion – e.g., that Olsen was not properly notified of the summary judgment hearing
32
and that the summary judgment evidence did not establish “the absence of a material
fact.” (3 CR 428-437.) Accordingly, the trial court did not abuse its discretion in
refusing to hold a hearing. See, e.g., id.; Landis v. Landis, 307 S.W.3d 393, 394 (Tex.
App. – San Antonio 2009, no pet.) (“Generally, a hearing on a motion for new trial is not
mandatory. . . . A trial court is only required to conduct a hearing on a motion for new
trial when a motion presents a question of fact upon which evidence must be heard.”).
II.
The trial court properly disbarred Olsen and required him to pay the
Commission’s attorneys’ fees.
A.
Standard of Review
“A trial court has broad discretion to determine the consequences of professional
misconduct.” E.g., Love v. State Bar of Texas, 982 S.W.2d 939, 944 (Tex. App. –
Houston [1st Dist.] 1998, no pet.) (citing State Bar of Texas v. Kilpatrick, 874 S.W.2d
656, 659 (Tex. 1994)). Although a court may abuse its discretion if the sanction is too
“light” or too “heavy,” a court of appeals will generally affirm a trial court’s sanction as
long as the court considered the relevant factors set forth in Texas Rule of Disciplinary
Procedure 3.10 and the sanction is not “arbitrary and unreasonable.” E.g., id.; Eureste v.
Comm’n for Lawyer Discipline, 76 S.W.3d 184, 201-02 (Tex. App. – Houston [14th
Dist.] 2002, no pet.). “[T]he mere fact that a trial court may decide a matter differently
than an appellate court does not demonstrate an abuse of discretion.” Love, 982 S.W.2d
at 945.
B.
The trial court did not err in ordering Olsen’s permanent disbarment.
After the trial court granted the Commission’s partial summary judgment, it held a
33
sanctions hearing on May 8, 2009, in which the Commission presented evidence. (RR 144; 3 CR 423.) Olsen did not appear. (Id.) Judge Robert Price, who had presided over
Bendtsen’s guardianship proceeding, testified that Olsen had not been candid with the
court and that this adversely affected the public’s trust in the judicial system and
damaged the legal profession, and that disbarment was appropriate.19 (RR 8, 10-11.)
Bendtsen’s daughter also testified.
She described Olsen’s efforts to take
advantage of her 88-year-old ailing mother, who had been diagnosed with dementia; his
role in discharging Bendtsen from the nursing home and taking Bendtsen home, which
may have contributed to Bendtsen’s death; and his attempts to prevent Bendtsen’s
daughter from visiting Bendtsen in the hospital in the days before her death. (RR 14-15,
18, 20, 22, 24-28.) Bendtsen’s daughter also testified that Olsen’s conduct – along with
that of his friends Justin Burgess and Mark McCay – caused her to incur “about a half a
million dollars” in legal fees contesting the guardianship and emergency room Will. (RR
30.) She said that Olsen was “a bad apple” who affected her perception of the legal
profession and that he should be disbarred. (RR 34.) The trial court found that Olsen had
violated Disciplinary Rules 3.03(a), 3.03(b), 3.08(a), 8.04(a)(1), and 8.04(a)(3), and
stated that it had “consider[ed] all of the factors listed in Rule 3.10 of the Texas Rules of
Disciplinary Procedure, [and] finds that the proper discipline of [Olsen] for each
19
Olsen argues that Judge Price was not “sworn in” and was not properly designated as an
expert witness, and thus cannot provide evidence on the Rule 3.10 factors. Olsen Br. 46. But it
is customary for judges, as officers of the court, to testify without taking an oath. In foregoing
the oath, the trial court was merely extending a judicial courtesy to Judge Price. Moreover,
Judge Price did not present testimony as an expert witness, but as a fact witness only, testifying
about Olsen’s conduct in his courtroom and his reliance on statements of attorneys in court
proceedings. (3 RR 7-10.) Finally, and in any event, disbarment was proper even without Judge
Price’s testimony.
34
occurrence of professional misconduct is disbarment.” (3 CR 424.)
Under these circumstances, the trial court’s sanction of disbarment was not an
abuse of discretion. See, e.g., Kilpatrick, 874 S.W.2d at 659 (disbarment proper, even
though attorney had engaged in only “a single act” of misconduct, where “the facts and
circumstances” showed that disbarment was not “disproportionate to [attorney’s]
misconduct”); Weiss v. Comm’n for Lawyer Discipline, 981 S.W.2d 8, 25 (Tex. App. –
San
Antonio
1998,
pet.
denied)
(disbarment
proper
where
attorney
made
misrepresentations to committee); Minnick v. State Bar of Texas, 790 S.W.2d 87, 92
(Tex. App. – Austin 1990, writ denied) (disbarment proper where attorney misapplied
trust funds).
Olsen makes two arguments on appeal. First, he asserts that the Commission did
not present evidence on all of the factors in Rule 3.10. Olsen Br. 45-48. But nothing
requires the Commission to present such evidence. The Texas Supreme Court has held
that a court need only “consider” the Rule 3.10 factors in sanctioning an attorney, and is
not required to hold “an evidentiary hearing [or] take evidence on these [factors].”
Kilpatrick, 874 S.W.2d at 659. See also Goldstein v. Comm’n for Lawyer Discipline, 109
S.W.3d 810, 815 (Tex. App. – Dallas 2003, pet denied) (“interpretation of the
disciplinary rules is a question of law for the trial court”). A court, moreover, is not
required to find that every factor has been satisfied before ordering disbarment. See, e.g.,
Minnick, 790 S.W.2d 93 (disbarment not an abuse of discretion even though some of the
factors “appear to weigh in [attorney’s] favor”); Weiss, 981 S.W.2d at 25. Here, the trial
court heard evidence on factors A (nature and degree of misconduct), B (seriousness of
35
and circumstances surrounding misconduct), C (loss or damage to clients), D (damage to
the profession), F (profit to the attorney), I (respect for legal profession), and L (other
relvant evidence). (RR 1-44.) And the trial court expressly stated that it “consider[ed] all
of the factors listed in Rule 3.10” in determining that disbarment was appropriate. (3 CR
424.) That is sufficient. See, e.g., Kilpatrick, 874 S.W.2d at 659.
Second, Olsen argues that disbarment is unjust and “was arbitrary, unreasonable
and constitutes an abuse of discretion.”
unconscionable.
Olsen Br. 48-49.
But Olsen’s conduct is
As demonstrated to the trial court, Olsen violated numerous
Disciplinary Rules (3 CR 423); used his role as a licensed attorney to take advantage of
an elderly widow (RR 14-35); treated Bendtsen in a way that arguably contributed to her
death (RR 32-33); cost Bendtsen’s daughter hundreds of thousands of dollars in legal fees
to fight what was rightfully hers by law (RR 30-31); and showed no remorse about it.
Indeed, given these circumstances, the trial court properly held that disbarment is “the
proper discipline of [Olsen] for each occurrence of professional misconduct.” (3 CR 424
(emphasis added).) Permanent disbarment was therefore proper, just, and reasonable.
See, e.g., Kilpatrick, 874 S.W.2d at 659 (disbarment not an abuse of discretion even
though attorney had engaged in only “a single act” of misconduct).
C.
The trial court did not err in ordering Olsen to pay reasonable and
necessary attorneys’ fees.
In addition to disbarment, the trial court ordered that Olsen “pay all reasonable and
necessary attorneys’ fees and direct expenses to the State Bar of Texas in the amount of
$10,732.70.” (3 CR 425.) Under Texas Rule of Disciplinary Procedure 1.06(y), a proper
36
sanction may include payment of attorneys’ fees and “all direct expenses associated with
the proceedings.” Rule 1.06(y) (Tab I). See also, e.g., Goldstein, 109 S.W.3d at 815
(trial court may order payment of attorneys’ fees, in addition to disbarment, as sanction
for violating the Disciplinary Rules).
Olsen nevertheless argues that the sanction of attorneys’ fees was improper
because counsel for the Commission “was unsworn” when she testified regarding fees.
Olsen Br. 50. At the sanctions hearing, counsel for the Commission stated that she
intended to “testify as to attorney’s fees,” and the court stated that she could “do so from
there” since counsel is “licensed and in good standing with the State Bar of Texas.” (RR
35.) Counsel then testified that she had “spent 50.51 hours preparing and trying this
case,” at a rate of “$200 per hour,” that her legal assistant had spent “4.7 hours . . . at $75
per hour,” and that the State Bar had incurred a total of $10,454.25 in reasonable and
necessary attorneys’ fees. (RR 36-37.) In addition, counsel testified, the State Bar had
incurred $278.45 in recoverable costs, for a total of $10,732.70. (RR 37.)
Olsen did not even show up for this hearing, and thus did not object to the
testimony and did not present any controverting evidence. The testimony was therefore
competent evidence supporting the attorneys’ fees sanction.
See, e.g., Miller v.
Ferguson, 2001 WL 845764, at *2-3 (Tex. App. – Dallas 2001, no pet.) (unsworn
statement of counsel “constituted evidence before the court” because no objection was
made) (citing Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997)); Valdez v. Francis, 1992
WL 33019, at *2 (Tex. App. – Dallas 1992, no writ) (unsworn testimony of counsel was
sufficient to support award of attorneys’ fees because of “failure to object at the time of
37
the testimony”); Ford Motor Co. v. Engleke, 1992 WL 234904, at *3 n.1 (Tex. App. –
Houston [1st Dist.] 1992, no writ) (“Because [the other party] did not object to [the
attorney’s] statements as being unsworn, we consider them to be of an evidentiary
nature.”). See also Davis v. State of Texas, 130 S.W.3d 519, 521 (Tex. App. – Dallas
2004, no pet.) (“We may accept uncontroverted representations of counsel as
evidence.”).20
Accordingly, the trial court did not abuse its discretion in ordering Olsen to pay
the State Bar’s reasonable and necessary attorneys’ fees.
CONCLUSION AND PRAYER
For these reasons, Appellee Commission for Lawyer Discipline respectfully
requests that the Court affirm the trial court’s judgment and award it all other relief to
which it is justly entitled.
20
Olsen asserts that “[e]ither sworn testimony is required or an affidavit on file for the award of
attorney’s fees.” Olsen Br. (citing Bastine v. Comm’n for Lawyer Discipline, 252 S.W.3d 413,
416-17 (Tex. App. – Houston [1st Dist.] 1996, no writ)). But the court in Bastine held only that
“an award of fees must be based upon evidence in support of the pleadings,” and that the
Commission’s affidavit in that case was sufficient to support the attorneys’ fee award. Bastine,
252 S.W.3d at 416-17. Here, the uncontroverted and unobjected-to testimony of the
Commission’s counsel likewise supports the award of fees in this case. See, e.g., Valdez, 1992
WL 33019, at *2.
38
Respectfully submitted,
_________________________________
Jeremy D. Kernodle
State Bar No. 24032618
HAYNES AND BOONE, L.L.P.
2323 Victory Avenue, Suite 700
Dallas, Texas 75219
Telephone: (214) 651-5000
Telecopier: (214) 651-5940
COUNSEL FOR APPELLEE
COMMISSION FOR LAWYER
DISCIPLINE
39
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Appellee has
been served upon Counsel of Record listed below by Certified United States Mail, Return
Receipt Requested, on this 21ST day of JUNE, 2010:
R. Deryl Edwards, Jr.
606 S. Pearl Avenue
Joplin, Missouri 64801
Jeff Forest Smith
6750 Hillcrest Plaza, Suite 214
LB-16
Dallas, Texas 75230
___________________________
Jeremy D. Kernodle
1852071_1.DOC
40

No. 05-09-00945-CV Edwin C. Olsen IV, Appellant v. Commission

Transcription

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