Opinion
No. 14-02-00344-CV.
Memorandum Opinion filed June 19, 2003.
On Appeal from the 127th District Court, Harris County, Texas, Trial Court Cause No. 01-20963
Affirmed.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
In two points of error, appellant, Zerrie L. Hines, contends that the trial court erred in denying his plea to the jurisdiction because: (1) the Commission for Lawyer Discipline does not have standing to pursue a complaint from a non-client who is a third party to the attorney-client relationship; and (2) the trial court does not have the authority to render a final judgment if it lacks subject matter jurisdiction over the controversy. We affirm.
FACTUAL BACKGROUND
In December of 1998, Hans Keith Broderson, Jr. was convicted of reckless injury to a child. See generally Broderson v. State, No. 14-99-00413-CR, 2001 WL 619559, *1 (Tex.App.-Houston [14th Dist.] Jun 07, 2001, no pet.) (not designated for publication). Hines was hired to represent Broderson during the appellate process. This disciplinary action against Hines ensued from that representation.
On August 1, 2000, Broderson's father completed a State Bar of Texas Grievance Form alleging that Hines had never paid the court reporter for copies of transcripts despite having received the funds to do so by Broderson's father. Both Broderson and his father signed the complaint. On August 7, 2000, the State Bar sent a notice letter to Hines advising him of the complaint and requesting that he respond. Hines did not do so before the requisite deadline.
The Commission instituted a disciplinary action against Hines. In its "Original Disciplinary Petition," the Commission averred:
On or about February 11, 1999, HANS KEITH BRODERSON, SR. (hereinafter referred to as "Complainant") hired Respondent [Hines] to appeal the criminal conviction of Complainant's son. Complainant paid Respondent a total amount of Ten Thousand Seven Hundred and No/100 Dollars ($10,700.00), which included the court reporter's fee for the transcript. On or about November 19, 1999, and May 8, 2000, Respondent received notice from the court of appeals to pay the court reporter's fee for the transcript; however, Respondent failed to forward said payment.
During the course of the representation, Complainant repeatedly made requests for information about the status of the case; however, Respondent failed to respond.
The petition alleged violations of four provisions of the Texas Disciplinary Rules of Professional Conduct, including Rule 1.01(b)(1) (prohibiting lawyers from "neglect[ing] a legal matter entrusted to the lawyer"), 1.03(a) (requiring that a "lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information"), 8.01(b) (prohibiting a lawyer's knowing failure "to respond to a lawful demand for information" from a disciplinary authority), and 8.04(a)(1) (prohibiting violations of the Texas Disciplinary Rules of Professional Conduct).
In response to the petition, Hines filed an answer, generally denying the Commission's allegations. Eleven months after the Commission instituted the proceedings, Hines filed his plea to the jurisdiction alleging that the trial court lacked subject matter jurisdiction to adjudicate the controversy. The trial court denied the plea to the jurisdiction. After the presentation of evidence, both parties entered into an Agreed Judgment of Partially Probated Suspension, which provided for a two year suspension, restitution, and drug testing.
Hines now challenges the denial of the plea to the jurisdiction.
Standard of Review
A party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. See Baw v. Baw, 949 S.W.2d 764, 766 (Tex.App.-Dallas 1997, no writ). Thus, a party's consent to a trial court's entry of judgment waives any error in the judgment, except jurisdictional error. See Chang v. Linh Nguyen, 81 S.W.3d 314, 316 n. 1 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
Hines invokes jurisdictional error. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a dilatory plea is not to force the plaintiff to preview his case on the merits, but to establish a reason why the merits of his claims should never be reached. Id. Appellate courts review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review . Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Throughout this inquiry, we are mindful that subject matter jurisdiction is never presumed and cannot be waived. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). In this context, the Texas Supreme Court recently observed:
In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (citations omitted). In considering a ruling on a plea to the jurisdiction, we may look to evidence outside of the pleadings. Id. at 555 n. 3; Blue, 34 S.W.3d at 555 ("[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised."). Thus, we must decide whether the Commission's pleadings affirmatively demonstrate an incurable defect in jurisdiction or merely constitute a pleading deficiency.
Analysis
In his first point of error, Hines argues that the Commission lacked standing to prosecute this disciplinary cause of action because Broderson's father was never a client. In so doing, Hines points to various cases and disciplinary rules which discuss the relationship and obligations of attorneys to non-clients. See Tex. Disciplinary R. Prof'l Conduct 5.04(c) ("A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."); Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996) (holding that "an attorney retained by a testator or settlor to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust"). We begin by noting that the plaintiff in a disciplinary proceeding is not a client but rather the Commission for Lawyer Discipline, an arm of the State Bar of Texas. See Flume v. State Bar of Texas, 974 S.W.2d 55, 58-59 (Tex.App.-San Antonio 1998, no pet.) (noting that attorney disciplinary suit was properly brought in name of State Bar of Texas). According to section 2.09 of the Texas Rules of Disciplinary Procedure (entitled "Classification of Inquiries and Complaints"), "[e]very written statement, from whatever source, apparently intended to allege Professional Misconduct by a lawyer, shall be promptly forwarded to the Office of the Chief Disciplinary Counsel." See Tex. R. Disciplinary P. 2.09 (emphasis added). Thus, the mere fact that Broderson's father was not a client does not preclude him from filing a complaint on a client's behalf, and it certainly does not deprive the trial court of jurisdiction to hear proceedings instituted by the Commission. Id. Even if it did, we note that Broderson, the client, also signed the grievance form.
Hines does not specifically address how the Commission lacked standing to pursue discipline against him for knowingly failing to respond to a lawful demand for information from a disciplinary authority, an infraction which itself would violate the prohibition on violations of the Texas Disciplinary Rules of Professional Conduct.
Nevertheless, Hines contends that the petition does not allege violations of duties to the client, but rather alleged obligations to the client's father. Thus, Hines argues that the basis of the complaint is not the dissatisfaction of a client but rather that of the client's father, and thus, the dissatisfaction of a non-client cannot form the basis of a grievance complaint. Hines notes that there are no allegations in the pleadings that Broderson ever directed his father to exercise any control in the pursuit of his criminal appeal or consented to his father entering into the attorney-client relationship as a third party. Indeed, the original petition states that Broderson's father "repeatedly made requests for information about the status of the case" and that Hines "failed to respond" to such inquiries. The petition does not reference a failure to respond to Broderson. However, at trial, Broderson's father testified that he "absolutely" had express permission to act on his son's behalf and that his son knew that he was acting on his behalf. Cf. Polland Cook v. Lehmann, 832 S.W.2d 729, 737 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (noting that a client may choose to delegate his right to know the nature and basis of representation to another). Broderson's father also testified that his son expressed dissatisfaction at Hines' failure to keep him well informed about the status of the case.
Considering all of the relevant evidence in the record, we cannot say that the Commission's failure to include such facts in its petition affirmatively negates the existence of jurisdiction. To find that the Commission's original petition affirmatively demonstrates an absence of jurisdiction, it must be true that the Commission could never premise its allegations on these facts and that under no set of circumstances could the petition have been amended to establish jurisdiction. At most, the pleadings of the Commission were vague, and Hines did not file any special exceptions to force a clarification by the Commission. See Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (noting that when a party fails to specially except courts should construe the pleadings liberally in favor of the pleader). Only after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action. See Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 483 (Tex.App.-Houston [14th Dist.] 1991, no writ). Therefore, at most, the Commission's pleadings suffer from a deficiency in pleading which could have been clarified by the filing of special exceptions by Hines. As this is a case involving an agreed judgment, the decree cures every pleading defect and all other errors not going to jurisdiction. See Travelers Ins. Co. v. Williams, 603 S.W.2d 258, 262 (Tex.Civ.App.-Corpus Christi 1980, no pet.). Accordingly, we overrule Hines's first point of error.
In his second point of error, Hines contends that any judgment rendered by a trial court without jurisdiction is void. Because we find that the trial court did have jurisdiction to entertain the Commission's claims, we overrule Hines' second issue.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.