Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Before the 5th Court is relator’s June 14, 2007 motion for rehearing and supplemental motion for rehearing. The 5th Court grants the motion for rehearing and withdraws its June 13, 2007, supplemental opinion and order. This is now the supplemental opinion of the court. For background facts the 5th Court refers to its April 18, 2007, opinion in this original proceeding. Almost one month before the 5th Court issued that opinion (and an order of the same date based thereon), the trial court conducted a hearing on relator’s, the city of Lancaster’s, post-judgment motions. Specifically, the trial court heard the city’s Motion for Rehearing, Motion to Set Aside Summary Judgment and for New Trial, and Alternative Motion to Modify Judgment and Request for Findings of Fact and Conclusions of Law. Thereafter, on March 20, 2007, the trial court entered a new Summary Judgment, which mooted some – but not all – of the city’s grounds for seeking a writ of mandamus. The propriety of the trial court’s consideration of – and ruling on – the city’s post-judgment motions is not at issue. By design, nothing in the 5th Court’s Feb. 21, 2007, stay order prohibited or otherwise impinged on the trial court’s plenary powers with respect to such actions. However, counsel for the city did not communicate to the 5th Court that the trial court had revised the summary judgment that was the basis for the city’s petition, or that the city’s petition was moot in whole or in part. On April 18, 2007, the 5th Court issued its original opinion, granting the city’s petition in part. Two days later, the city filed an Agreed Motion to Dismiss the original proceeding, bringing to the 5th Court’s attention for the first time the March 20, 2007 summary judgment. Therefore, on April 25, 2007, the 5th Court entered an order vacating its April 18 order (but not the opinion). The 5th Court also ordered the city to file a sworn copy of the trial court’s modified summary judgment, which was referred to in the city’s Agreed Motion to Dismiss. Such document has been filed with the 5th Court. The 5th Court did not rule on the Agreed Motion to Dismiss and left pending the original proceeding and the 5th Court’s Feb. 21, 2007 stay order. On May 17, 2007, the 5th Court ordered: “Robert E. Hager and Karen Nelson, counsel for relator City of Lancaster, to EACH file a response . . . setting forth why . . . this Court should not: (1) refer either or both of said counsel to the State Bar of Texas disciplinary authority; and/or (2) impose a monetary penalty as a sanction. Such responses shall necessarily include, for each attorney, a sworn affidavit from that attorney as to the facts relating to his or her response.” Nelson and Hager both filed responses. At the time of the issuance of the June 13, 2007 supplemental opinion, the record did not contain a response from Hager. Subsequently, with the filing of his motion for rehearing, Hager presented to the 5th Court his response bearing a timely file mark from the 5th Court. Attached to the supplemental motion for rehearing is an affidavit from Nelson stating that both her response and Hager’s response were delivered to the 5th Court on May 25, 2007, for filing by courier. She additionally stated that, after the issuance of the June 13, 2007, Supplemental Opinion, she realized that her files contained both the returned file-marked copies of Hager’s response and his original response. Whether the original Hager response was not filed with the 5th Court after being file-marked due to the error of the court’s clerk or the relator’s courier is not relevant and does not affect the outcome of this matter. Hager’s and Nelson’s responses note that the new summary judgment did not moot the original proceeding in toto, as it still authorized the district clerk to issue a writ of mandamus to enforce the trial court’s judgment against the city during the pendency of the appeal. This issue remained in dispute until the issuance of the 5th Court’s April 18 opinion, which, among other things, held that such a provision constituted a clear abuse of discretion for which the city had no adequate remedy at law. Thereafter, according to Hager and Nelson, counsel for Clopton agreed: to pay costs of the original proceeding (as ordered by the 5th Court); that the city could raise its remaining substantive issues regarding the trial court’s award of mandamus relief in the direct appeal (as held by the 5th Court in denying a portion of the city’s petition); and that he would not request the district clerk to issue a writ of mandamus while the appeal was pending. Hager and Nelson stated it was this subsequent agreement, along with the 5th Court’s opinion and order, that formed the basis for the Joint Motion to Dismiss. Hager and Nelson stated that in filing the Joint Motion to Dismiss their intent was not to request that the 5th Court vacate the April 18 opinion and order (although that would be the effect of granting a motion to dismiss based on mootness); rather, they sought to inform the 5th Court that no further action was necessary against the respondent trial court judge. In other words, Hager and Nelson sought to apprise the 5th Court that the writ of mandamus, conditionally granted, need not issue, as well as somehow avoid the portion of the 5th Court’s order directing the trial court judge to file documents with the 5th Court indicating that he had complied with the 5th Court’s opinion. HOLDING:Agreed motion to dismiss denied, writ of mandamus not issued, stay order vacated and order issued that clerk treat the case as administratively closed. OPINION:The 5th Court agrees the trial court’s subsequent summary judgment did not moot the issues in this original proceeding in their entirety. The 5th Court then turns to the issue of sanctions. In the 5th Court’s May 18 Order to Show Cause, it noted that the Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court. See Texas Disciplinary Rules of Professional Conduct 3.03(a)(1), reprinted in Texas Government Code Annotated, Title 2, subtitle G, appendix A (Vernon 2005) Texas State Bar Rules Article X �9. A lawyer shall not knowingly make a false statement of material fact . . . to a tribunal. Texas Disciplinary Rules of Professional Conduct 3.03(a)(1). Further, Disciplinary Rule 3.03(b) provides: “If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.” The duties set forth in Disciplinary Rules 3.03(a) and (b) “continue until remedial legal measures are no longer reasonably possible.” Texas Disciplinary Rule of Professional Conduct 3.03(c). The 5th Court’s May 18 Order to Show Cause also noted that the duty of honesty and candor a lawyer owes to the appellate court includes fairly portraying the record on appeal. Schlafly v. Schlafly, 33 S.W.3d 863, 873(Tex.App.-Houston [14th Dist.] 2000, pet. denied). Texas Rule of Appellate Procedure 52.11 makes clear that a lawyer has the same duty in original proceedings. Factual misrepresentations not only violate a lawyer’s duty to the appellate court but also subject offenders to sanctions. Schlafly, 33 S.W.3d at 873; Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 242 (Tex.App.-El Paso 1999, pet. denied). Similarly, both the Texas Lawyer’s Creed and the Texas Standards of Appellate Conduct admonish counsel against making misrepresentations to a court. Schlafly, 33 S.W.3d at 873. In Section IV of the Texas Lawyer’s Creed, the lawyer steadfastly pledges “I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.” Texas Lawyer’s Creed, Lawyer and Judge 6. The Texas Standards of Appellate Conduct instruct appellate counsel to not “misrepresent, mischaracterize, misquote or miscite the factual record or legal authorities.” Texas Standards of Appellate Conduct, Lawyer’s Duties to the Court 4. The signature lines on the city’s petition, its motion for stay and for expedited relief, and its motion to dismiss all indicate that such documents were signed by Nelson, as counsel for the city. The rules of appellate procedure also require the factual statements in a petition for mandamus to be “verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated.” Texas Rule of Appellate Procedure 52.3. Here the city’s petition was sworn to by Hager. The Texas Rule of Appellate Procedure provide that the appellate court may impose sanctions on a party or attorney who is not acting in good faith as indicated by any of the following: 1. filing a petition that is clearly groundless; 2. bringing the petition solely for delay of an underlying proceeding; 3. grossly misstating or omitting an obviously important and material fact in the petition or response; or 4. filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. Texas Rule of Appellate Procedure 52.11. Additionally, courts possess inherent power to discipline an attorney’s behavior. See Merrell Dow Pharm ., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex.1997)(order on rehearing). The Supreme Court also indicated that Chapter 10 of the Civil Practice & Remedies Code applies to motions and other documents filed before an appellate court. See id.Chapter 10 is a legislatively-provided mechanism for courts to sanction counsel who violate �10.001 of the Civil Practice & Remedies Code, which applies to persons who sign “pleadings or motions as required by the Texas Rules of Civil Procedure.” See Texas Civil Practice & Remedies Code �10.001-10.006. Hager’s and Nelson’s responses to the Order to Show Cause state that they “absolutely did not offer false material evidence to this [C]ourt.” The 5th Court agrees. As noted in the May 18 Order to Show Cause, the 5th Court presumes the facts stated in the petition, filed by Nelson and sworn to by Hager, were correct when the petition was filed. However, this does not end the inquiry. As stated in the May 18 Order to Show Cause, it appeared that thereafter – after the 5th Court had granted a stay and requested a response to the city’s petition, and while the matter was pending before the 5th Court – events transpired rendering the facts stated and sworn to in the petition no longer true; that Hager and Nelson knew such sworn statements were no longer true; and that they did nothing to communicate that knowledge to the 5th Court. Thus, the issue is whether attorneys Nelson and/or Hager complied with Disciplinary Rules 3.03(b) and (c) and, if not, why not. Hager’s and Nelson’s responses argue that they complied because the 5th Court had actual notice of the modified order. This argument is based on Nelson’s filing with the 5th Court a notice of a supplemental docketing statement in the direct appeal, Cause No. 05-07-00210-CV, stating that the summary judgment had been modified, along with a copy of a notice of appeal of the modified (new) summary judgment, which was attached to the supplemental docketing statement. Hager stated he personally reviewed “those pleadings.” Nelson stated that she “sincerely did not believe it was necessary to file a duplicate notice of the modified summary judgment in this proceeding. That was an apparent mistake; a duplicate notice should have been filed in this cause number in an abundance of caution.” Hager stated that “[c]ounsel made a good faith effort to notify this Court of the modified judgment within one day of its entry, and counsel subjectively believed that notice had been provided in an adequate manner.” In the context of an original proceeding seeking the issuance of a writ of mandamus, the statements in the petition-filed by Nelson and sworn to by Hager-constitute material evidence in the original proceeding. When Hager and Nelson later came to know that Hager’s affidavit, even though true when submitted, was rendered false by subsequent events, Disciplinary Rules 3.03(b) and (c) obligate Hager and Nelson to correct or withdraw the false evidence and disclose the true facts. This obligation is not met by filing a supplemental docketing statement in another proceeding-with or without a copy of the new summary judgment. Rather, Hager and Nelson were obligated to file – in the original proceeding – either an amended, sworn petition setting forth the correct facts, or (at the very least) another affidavit correcting the statements made and sworn to in the prior petition. The 5th Court rejects Hager and Nelson’s argument to the contrary. Further, when determining an original proceeding, the appellate court must necessarily presume that the facts set forth in the petition and sworn to according to Rule 52.3 are correct, and that they remain correct during the pendency of the original proceeding .Otherwise, to obtain mandamus relief a petitioner would be in the ludicrous position of having to file regularly additional supplements to the petition assuring the appellate court that such sworn facts remain correct, and thus that mandamus relief is still appropriate. This is not the law. Thus, the 5th Court reads Texas Rules of Appellate Procedure 52.3 and 52.11 as necessarily imposing the same obligation as Disciplinary Rules 3.03(b) and (c), i.e. that counsel signing a petition in an original proceeding or swearing to the material facts in such a petition have an obligation to inform the appellate court of any changes in such sworn material facts which render those allegations or affidavit false. Based on the record, including Hager’s and Nelson’s responses to the May 18 Order to Show Cause, the 5th Court concludes that Hager and Nelson failed to comply with Disciplinary Rules 3.03(b) and (c) and Appellate Rules 52.3 and 52.11. Hager and Nelson have apologized to the 5th Court, and indicated that any failure on their part was not intentional on their part, but rather was inadvertent. Thus, based on based on the record – including their responses – the 5th Court concludes Hager and Nelson have shown cause why they should not be sanctioned in this case. However, the 5th Court alerts counsel as to their obligations to the court and to the bar that arise when they sign or swear to petitions filed in original proceedings. Because the petition for mandamus was not mooted in its entirety as of April 18, 2007, the date of the 5th Court’s opinion and order, the 5th Court denies the Agreed Motion to Dismiss. However, based on the entry of the March 20, 2007, summary judgment, the 5th Court’s April 18 opinion, and the agreement of parties as contained in the Agreed Motion to Dismiss and as represented to the 5th Court in Hager’s and Nelson’s responses to the 5th Court’s May 18 Order to Show Cause, the 5th Court concludes there is no reason for the actual issuance of a writ of mandamus. Lastly, the 5th Court vacates its Feb. 21, 2007, stay order, and order that the clerk treat the case as administratively closed, subject to a motion for reinstatement asserting a violation of the rulings set forth in our April 18, 2007, opinion. OPINION:Moseley, J.; Moseley, Bridges and Francis, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.