COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00197-CV
AARON CHRISTOPHER BITTER APPELLANT
V.
COMMISSION FOR LAWYER APPELLEE
DISCIPLINE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
----------
NO. 02-12-00198-CV
AARON CHRISTOPHER BITTER APPELLANT
V.
COMMISSION FOR LAWYER APPELLEE
DISCIPLINE
----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
----------
NO. 02-12-00199-CV
AARON CHRISTOPHER BITTER APPELLANT
V.
COMMISSION FOR LAWYER APPELLEE
DISCIPLINE
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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This consolidated appeal arises from two default judgments of suspension
and a default judgment of disbarment rendered against Appellant Aaron
Christopher Bitter in three disciplinary actions brought against him by Appellee
the Commission for Lawyer Discipline. Bitter complains in three issues about the
trial court’s denial of his motions for new trial, the denial of his motion to recuse
the judge assigned to hear the disciplinary actions, and the sanctions rendered
against him in one of the actions. Because we hold that Bitter did not show his
entitlement to new trials or to have the assigned judge removed from the case
and that the trial court’s sanctions were supported by the record, we affirm.
1
See Tex. R. App. P. 47.4.
2
On September 6, 2011, the Commission filed three disciplinary actions
against Bitter in Denton County. Cause number 2011-50731-367 concerned
Bitter’s representation of clients Cindy Hasio and Alba Argueta. In that case, the
Commission alleged that Bitter had failed to respond to Hasio’s requests for
information regarding the status of her case and failed to provide any meaningful
legal services. The Commission further alleged that Bitter had failed to respond
to Argueta’s reasonable requests for information regarding the status of her case,
had failed to provide any meaningful legal services on Argueta’s behalf, and had
closed his law office and changed his contact information without any notice to
Argueta.
Cause number 2011-40731-362 concerned Bitter’s representation of
Renee Michelle Spencer. The Commission alleged that Billy Bardwell gave Bitter
permission to charge his credit card account for a $750 initial payment of
attorney’s fees on Spencer’s behalf and that “[t]hereafter, without notice to
Bardwell or his permission, [Bitter] charged to Bardwell’s credit card account
$1,000 on December 10, 2009; $750 on January 24, 2010; and $1,000 on
February 2, 2010.”
Cause number 2011-10732-16 concerned Bitter’s representation of Krissy
Burke and Melissa Noriega. The Commission alleged that Bitter had failed to
respond to Noriega’s reasonable requests for information regarding the status of
her case, had failed to explain the matter to the extent reasonably necessary to
permit Noriega to make informed decisions regarding the representation, had
3
failed to appear for scheduled appointments, and had failed to appear at a
hearing on temporary orders. With respect to Burke, the Commission alleged
that Bitter had failed to respond to Burke’s requests for information regarding the
status of her case, informed her that he had provided certain legal services that
had not been done, had failed to appear for scheduled appointments with Burke,
had failed to inform Burke that he had moved his office and that his contact
information had changed, and, after Burke fired Bitter, had failed to provide an
accounting and a refund.
Around the same time that the Commission filed the three disciplinary
actions against Bitter, Bitter was defending a criminal case against him in Denton
County. He also had two other grievance matters against him in Denton
County—cause number 2011-20417-158 in the 158th District Court and case
number D0060937626 before an evidentiary panel of the District 14 Grievance
Committee—neither of which is a part of this appeal.
The Supreme Court of Texas assigned Judge Jack Skeen Jr. to preside
over the three disciplinary actions giving rise to this appeal. On February 21,
2012, the Commission moved for a no-answer default judgment in each of the
three cases. The Commission also asked for sanctions and for a hearing on its
request for sanctions. On the same date, the trial court held a hearing at which
the court found Bitter guilty of professional misconduct and granted default
judgment against Bitter in each of the three cases. The court then heard
testimony from Hasio, Burke, and Noriega on the sanctions issue.
4
On the same date, the trial court signed a default judgment of active
suspension in cause numbers 2011-50731-367 and 2011-10732-16, suspending
Bitter from the practice of law for four years. In the judgment in cause number
2011-50731-367, the trial court assessed sanctions against Bitter, ordering him
to pay $600 restitution to Hasio and $1,895.51 in attorney’s fees to the State Bar
of Texas. The judgment in 2011-10732-16 ordered Bitter to pay $2,700
restitution to Burke; $2,500 restitution to Noriega; and $1,895.51 in attorney’s
fees to the State Bar. In cause 2011-40731-362, the trial court signed a default
judgment of disbarment and ordered Bitter to pay $1,895.51 in attorney’s fees as
a sanction.
Bitter filed pro se motions to set aside the default judgments, each
supported by an affidavit asserting that his failure to file an answer in each case
was not intentional or the result of conscious indifference. Bitter asserted that on
September 16, 2011, he had hired attorney Stephen Wohr to represent him in the
three disciplinary cases. Bitter stated that he believed that Wohr would file an
answer in each of the disciplinary actions. He also claimed that he had a
meritorious defense in each case and that new trials would not cause delay.
The Commission filed responses to Bitter’s motions, attaching to each an
affidavit from Wohr controverting the assertions in Bitter’s motions and affidavits
with respect to Bitter’s failure to answer. The Commission’s responses also
asserted that Bitter had not set up a meritorious defense in any of the motions
5
because the motions were not supported by affidavit or other evidence on the
defenses asserted.
Each of Bitter’s motions had attached to it a request for a hearing on his
motions. Bitter subsequently retained an attorney to represent him and filed an
objection to the assignment of Judge Skeen. The motion asserted that Judge
Skeen’s court coordinator had notified Bitter that Judge Skeen was in a murder
trial and unavailable to hear Bitter’s motions for new trial. Judge Skeen overruled
the objection. The order overruling the objection listed the dates that Judge
Skeen had been unavailable due to jury selection in the murder trial and noted
what date the following month that the trial was scheduled to start. Nothing in the
record shows any further effort to set the motions for a hearing, and the motions
were overruled by operation of law. Bitter then filed this consolidated appeal.
In Bitter’s first issue, he argues that the trial court abused its discretion by
not setting his motions for new trial for a hearing and by not granting new trials
after Bitter established all three prongs of the Craddock test. 2 Under Craddock, a
trial court must set aside a default judgment if (1) “the failure of the defendant to
answer before judgment was not intentional, or the result of conscious
indifference on his part, but was due to a mistake or an accident”; (2) “the motion
for a new trial sets up a meritorious defense”; and (3) granting the motion “will
2
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d
124, 126 (Tex. 1939).
6
occasion no delay or otherwise work an injury to the plaintiff.” 3 We review a trial
court’s ruling on a motion for new trial for an abuse of discretion. 4 When a
movant meets all three elements of the Craddock test, the trial court abuses its
discretion if it does not grant a new trial. 5
The term “conscious indifference” as used in the first prong of Craddock
refers to “the failure to take some action that would appear obvious to a
reasonable person under similar circumstances.” 6 When the movant’s factual
assertions with respect to the first prong are not controverted, the trial court must
determine the question of conscious indifference in the same way that the
question of a meritorious defense must be determined. 7 That means that (1) the
trial court must take the uncontroverted assertions in a defendant’s verified
motion and affidavit as true, and (2) the movant satisfies the first prong of
3
Sutherland v. Spencer, 376 S.W.3d 752, 754 (Tex. 2012) (citing Craddock
133 S.W.2d at 126).
4
Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268
(Tex. 1994).
5
Id.
6
In re C.M.D., No. 02-12-00237-CV, 2012 WL 5949506, at *2 (Tex. App.—
Fort Worth Nov. 29, 2012, no pet.) (mem. op.) (citing Prince v. Prince, 912
S.W.2d 367, 370 (Tex. App.—Houston [14th Dist.] 1995, no writ)).
7
Evans, 889 S.W.2d at 268; Strackbein v. Prewitt, 671 S.W.2d 37, 38–39
(Tex. 1984).
7
Craddock if those assertions, taken as true, would negate intentional or
consciously indifferent conduct. 8
Case law is not entirely in accord about when a movant’s assertions on
conscious indifference must be taken as true and under what circumstances a
trial court must hold an evidentiary hearing on the question of whether the
defendant’s failure to answer was intentional or the result of conscious
indifference. 9 Although cases on the question have reached different
conclusions, depending on whether the assertions in the defendant’s motion and
supporting evidence satisfy the first Craddock element, whether those assertions
are controverted, and whether a hearing is requested, we can discern the
following general rules. The trial court looks to the entire record to see if the
defendant’s assertions regarding conscious indifference are controverted. 10 If
anything in the record (including any evidence submitted by the plaintiff in
8
Sutherland, 376 S.W.3d at 754–55; Strackbein, 671 S.W.2d at 38–39.
9
Compare Healy v. Wick Bldg. Sys., Inc., 560 S.W.2d 713, 721 (Tex. Civ.
App.—Dallas 1977, writ ref’d n.r.e.) (op. on reh’g) (observing that the trial court
did not hold an evidentiary hearing even though the facts were disputed and
holding that under the circumstances, “a court cannot make findings of fact solely
from the record on file without hearing evidence” and that in such a case, “the
court is bound to accept as true the affidavits of the movant unless his opponent
requests an evidentiary hearing”), with Katin Corp. v. Loesch, No. 03-05-00412-
CV, 2007 WL 2274835, at *6 (Tex. App.—Austin Aug. 10, 2007, pet. denied)
(mem. op.) (“[C]ontroverted assertions related to a defendant’s excuse for its
default need not be taken as true, even if the plaintiff does not request an
evidentiary hearing.”).
10
Evans, 889 S.W.2d at 269.
8
response to the motion for new trial) controverts the assertions on conscious
indifference, the trial court need not take the movant’s assertions as true and
should hold an evidentiary hearing to resolve the fact questions raised. 11 If the
defendant’s motion and supporting evidence meet the Craddock test and nothing
in the record otherwise controverts the defendant’s assertions, a plaintiff may
request an evidentiary hearing to refute the defendant’s assertions. 12 But if no
hearing is requested or held, or if the record does not controvert the assertions
on conscious indifference that are made in the defendant’s sworn pleadings or
supporting evidence, the trial court must take those assertions as true. 13 But
11
Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993) (“The
trial court generally may not resolve disputed fact issues regarding intent or
conscious indifference on affidavits alone.”); see also Hensley v. Salinas, 583
S.W.2d 617, 618–19 (Tex. 1979) (“[W]hen a motion presents a question of fact
upon which evidence must be heard, the trial court is obligated to hear such
evidence when the Motion for New Trial alleges facts, which if true, would entitle
the movant to a new trial and when a hearing for such purpose is properly
requested.”).
12
See Healy, 560 S.W.2d at 721; see also Averitt v. Bruton Paint & Floor
Co., 773 S.W.2d 574, 576 (Tex. App.—Dallas 1989, no writ).
13
See Van Der Veken v. Joffrion, 740 S.W.2d 28, 31 (Tex. App.—
Texarkana 1987, no pet.) (“[W]hen the movant properly raises his points by
sworn pleadings or affidavit and requests a hearing, as in the present case, and
no evidentiary hearing is held, the court is bound to accept the sworn pleadings
or affidavit of the movant as being true.”); Healy, 560 S.W.2d at 721 (stating that
trial court had to take the defendant’s assertions as true because the plaintiff
opponent did not request an evidentiary hearing); see also Fid. & Guar. Ins. Co.
v. Drewery Const. Co., 186 S.W.3d 571, 576 (Tex. 2006) (when the movant’s
evidence is uncontroverted, the trial court may not disregard it.). But see Katin
Corp., 2007 WL 2274835, at *6 (stating that the movant’s assertions must be
taken as true only if they are not controverted, regardless of whether the plaintiff
requested an evidentiary hearing).
9
before a trial court examines the record to see if the defendant’s assertions are
controverted, the defendant’s motion and supporting affidavit must meet the first
prong of Craddock and show a lack of intentional or consciously indifferent
conduct. 14
Generally, when a party relies on an attorney to file an answer, the party
must establish that the failure to answer was not intentional or the result of
conscious indifference of either the party or the attorney. 15 The acts of an
attorney can demonstrate or negate conscious indifference, depending on the
facts of the case. 16
Bitter’s motions for new trial were essentially identical with respect to the
first Craddock prong. In the motions, he asserted that he had retained Wohr to
represent him in the case, paying him a retainer fee of $2,000 and a later
14
See Evans, 889 S.W.2d at 269 (“If the factual assertions in the
defendant’s affidavit are not controverted by the plaintiff, the defendant satisfies
his burden if his affidavit sets forth facts that, if true, negate intentional or
consciously indifferent conduct by the defendant.”) (emphasis added); see also
Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 196 (Tex. App.—Houston
[1st Dist.] 1998, no pet.) (“If the movant’s allegations are uncontroverted and
meet the test of the Craddock requirements, the court is compelled to grant the
motion”) (emphasis added).
15
McMurrey, 858 S.W.2d at 391; Holt Atherton Indus., Inc. v. Heine, 835
S.W.2d 80, 83 (Tex. 1992).
16
See Dodd v. Savino, No. 14-12-00555-CV, 2014 WL 242881, at *9–10
(Tex. App.—Houston [14th Dist.] Jan. 16, 2014, no. pet. h.) (op. on reh’g);
C.M.D., 2012 WL 5949506, at *2; see also Levine v. Shackelford, Melton &
McKinley, L.L.P., 248 S.W.3d 166, 169 (Tex. 2008) (upholding default judgment
when parties’ attorney had a pattern of ignoring deadlines and warnings from the
opposing party).
10
additional payment of $1,000, and, accordingly, he believed that Wohr would file
an answer in the case. He pointed to the fact that Wohr represented him in the
two other Denton County grievance matters as evidence of an attorney-client
relationship that established Bitter’s reasonably reliance on Wohr to file an
answer. He also asserted that before retaining Wohr in those two matters, he
had filed answers in the cases, which was “highly probative to suggest that
[Bitter] would have filed a timely answer in [these three cases]” had he not relied
on Wohr to file an answer. He asserted that as of the date of the default
judgments, he was under the impression that an answer had been filed by Wohr.
Bitter did not, however, state that he was under this impression based on any
affirmative representation that Wohr made to him about the status of his case. 17
He argued alternatively that “if [the Commission] attempts to argue that [Bitter]
did not hire Wohr on this case, [Bitter] reasonably believed that he had hired
Wohr on this case.”
In his affidavit, Bitter attempted to further explain why he believed Wohr
would file an answer in the three cases. He stated that on September 16, 2011,
he hired Wohr for representation in these three cases, ten days after the petitions
17
See, e.g., Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied) (considering a case in which the defendant relied
on a lawyer to file an answer but the lawyer failed to do so and holding that
“where (1) the lawyer has misled the client, or wholly failed to perform his or her
professional duties, and (2) the client is free of responsibility and knowledge, the
client meets the first prong of Craddock by showing her own lack of knowledge or
lack of responsibility”).
11
were filed. He again asserted that he had paid Wohr a retainer of $2,000 and
later paid him an additional $1,000 toward fees for the cases.
Bitter stated that he was served with citation in these three cases on
November 21, 2011, while at the Denton County courthouse on another matter
for which Wohr was representing him, and Wohr was present at the time. When
Bitter was served, he told Wohr that he had been served with process in the
matters.
Bitter further asserted that he was not aware that Wohr had not filed an
answer in these actions and that prior to hiring Wohr for the two unrelated
grievance matters, Bitter represented himself in those matters and filed timely
answers to them. Bitter asserted that he did not file an answer because he
believed Wohr would do so and that “it stands to reason that I would have filed
an Answer in [these cases], had I not reasonably relied on [Wohr] to file such
Answer[s].”
Bitter further asserted that prior to the rendering of the default judgments,
Wohr told him several times that Wohr was in the process of negotiating a
settlement on all of Bitter’s grievances, that he and Wohr had “significant
discussions on such settlement,” and that he and Wohr “had several discussions
on what he purported to be the State Bar of Texas ‘settlement offer’ of a 2-year
suspension with the first 90 days served actively and the remaining 21 months
probated.” He asserted that “[b]ased on the fact that I had retained [Wohr]’s
services for representation in this case and his statements to me that he was in
12
the process of negotiating a settlement on all of my grievances, my failure to file
an answer was not intentional” and was not “the result of conscious indifference.”
He also asserted that he was incarcerated from January 11, 2012 through
January 15, 2012 and from January 18, 2012 through March 1, 2012.
Noticeably absent from these assertions is any excuse for Wohr’s failure to
file an answer on Bitter’s behalf. Because Bitter asserted that he relied on his
attorney to file an answer, he had to explain why his attorney did not file an
answer. 18 He offered no explanation whatsoever for his attorney’s failure to file
an answer, and he did not assert that his attorney misrepresented to him that an
answer had been filed. 19 And although settlement negotiations can in some
circumstances excuse a failure to answer, Bitter did not offer any assertions or
evidence that Wohr did not answer because he believed that ongoing settlement
negotiations made answering the suits unnecessary. 20 Nothing in the motions or
supporting affidavits, taking the statements in them as true, demonstrated that
Wohr’s failure to answer was not intentional or the result of conscious
indifference. Accordingly, Bitter failed to allege facts that, if true, would entitle
him to relief and therefore did not show his entitlement to new trials.
18
See McMurrey, 858 S.W.2d at 391.
19
See Lowe, 971 S.W.2d at 724.
20
Gotcher v. Barnett, 757 S.W.2d 398, 402 (Tex. App.—Houston [14th
Dist.] 1988, no writ).
13
This case presents an unusual procedural situation, however, because
although the Commission did not have to controvert Bitter’s allegations (since he
did not satisfy Craddock), it filed responses that, along with the affidavit of Wohr
attached to those responses, support the first Craddock element in the limited
sense that they provide what Bitter’s affidavit was missing—an explanation for
why Wohr did not file an answer. It is not, however, an explanation that
ultimately helps Bitter because it controverts Bitter’s allegation that he reasonably
relied on Wohr. In short, Wohr’s explanation for why he did not file an answer for
Bitter is that he did not represent Bitter in these actions.
Regarding his representation of Bitter, Wohr stated unequivocally that he
was not hired to represent Bitter in these three cases. He then explained that
Bitter had hired him to represent him in an unrelated criminal matter, stating that
I was hired as attorney of record to represent [Bitter] in a criminal
case . . . on September 12, 2011, in the lobby of the courtroom, at a
hearing where Bitter had previously assured the Court [that] he was
going to appear with counsel. I was paid a fee solely in that case,
and that case has been subsequently been disposed.
Regarding the other two grievance matters in which Wohr represented Bitter,
Wohr stated,
I had at some point after September 12, 2012 become aware
specifically of [the other two grievance actions]. I briefly discussed
these two matters with [Bitter] and offered to assist him in resolving
the issues in them as I was sympathetic to his desire to retain his
license. I contacted counsel for [the Commission] in those cases,
and made an appearance in those specific cases.
14
But as to the three cases on appeal here, Wohr stated that he did not
receive a fee to represent Bitter in those matters, was not present when Bitter
was served with citation for them, did not tell Bitter that he would file an answer
on his behalf, and was not told by Bitter that he had been served with citation in
them. He further stated that Bitter did not give him a copy of the citation or
petition in these three matters and did not discuss them with him. Wohr learned
during his representation of Bitter in the other two disciplinary matters that “there
were likely other pending disciplinary actions at different stages.” Wohr offered
to help Bitter prepare pro se answers if Bitter brought the complaints to his office,
but Bitter “never brought any of the complaints or provided [Wohr] with any
specifics regarding them.”
As to Bitter’s assertion that Wohr was supposedly negotiating a settlement
on all of his grievances, Wohr stated that he never told Bitter that he was
negotiating a settlement on all of his grievances. He did speak with Bitter about
a negotiation of the other two grievance matters, and Wohr gave his opinion “that
were [Bitter] to enter into agreements on those cases and show the State Bar he
was serious about addressing his issues and reimbursing the clients, that it
would be favorable in settling other cases that arose during the same time
period.” Wohr summarized his involvement on those cases by saying,
To be very clear, I represent Bitter in two grievances: (1) Cause No.
2011-20417-158 pending in the 158th Judidical District Court of
Denton County and (2) Case No. D0060937626 pending before an
Evidentiary Panel of the District 14 Grievance Committee. I have
discussed possible settlements of those two cases with counsel for
15
[the Commission] and relayed those discussions to Bitter. These
were two specific settlement discussions on only the two
reference[d] cases in which I have made an appearance and
represent Bitter.
Wohr also made statements that he did not believe that he had done
anything that would have led Bitter to believe that Wohr would file an answer on
his behalf in the three cases involved in this appeal, to believe that Wohr would
represent him in those cases, or to believe that he was in the process of
negotiating a settlement on all of Bitter’s grievances, “as [Wohr] was not then,
and [is] not now, aware of how many or any specifics of his other grievances, and
had no knowledge of” the specific grievances involved in these three cases.
Looking at the two affidavits, one cannot reasonably conclude that
ambiguous acts or statements by Bitter or Wohr gave rise to a misunderstanding
between them about whether Wohr represented Bitter. Bitter claimed that Wohr
was present when he was served with citation in these actions; Wohr stated that
he was not present at the time. Bitter stated that Wohr told him that he was
engaged in settlement negotiations with the State Bar on these disciplinary
actions; Wohr stated that he told Bitter no such thing. Bitter stated that he paid
Wohr to represent him in these actions; Wohr stated that Bitter did not. Bitter
stated that Wohr agreed to represent him in these three actions; Wohr stated that
he told Bitter that, if Bitter brought the pleadings to Wohr’s office, Wohr would
help Bitter draft pro se answers.
16
Looking at all the evidence in the record, the trial court did not abuse its
discretion by determining that Bitter did not meet the Craddock requirements.
Even though the trial court did not hold a hearing and even though there was a
dispute about whether Wohr represented Bitter, Bitter’s and Wohr’s statements
are so directly contradictory that the trial court would have to believe one or the
other but not both. The affidavits do not portray conversations or actions that
could give rise to multiple interpretations such that Bitter could reasonably
believe that Wohr represented him and Wohr could at the same time reasonably
believe that he did not. And if either person is correct, then Bitter failed to meet
his burden as to Craddock’s first prong. If Wohr’s affidavit is correct, then Bitter
provides no explanation for why he personally did not file an answer that would
satisfy Craddock. If Wohr represented Bitter, then we have no explanation for
Wohr’s failure to answer that would negate conscious indifference.
Notably, Bitter does not argue on appeal that Wohr misstated the facts in
his affidavit or that Wohr made any misrepresentations to him that an answer had
been filed. 21 He argues only that Wohr’s affidavit shows that there was a
misunderstanding. He asserts that “[a]lthough Wohr testifies that he did not
represent Bitter on these specific matters—just other disciplinary and criminal
matters—Wohr has not testified that he actually told Bitter that he would not
represent him in the lawsuits now on appeal.” And he states that “an attorney
21
See, e.g., Lowe, 971 S.W.2d at 722–23.
17
who has represented a client over a substantial period in a variety of matters has
a duty to notify his client whether an attorney-client relationship still exists, so that
the client will not mistakenly assume the lawyer is looking after the client’s
affairs.” But Wohr did state that he was not present when Bitter was served with
citation, did not know that Bitter had been served with citation in these specific
cases, never saw these petitions, did not receive a fee for these cases, told Bitter
that he would help him prepare pro se answers to disciplinary actions in which he
did not represent Bitter, and was never told of the specifics of these actions.
Before Wohr had any obligation to tell Bitter that he did not represent him in
these matters, he first had to have been told about them. 22
In summary, the record gives rise to only two possible explanations. The
first explanation is that Bitter’s affidavit is not true. In that case, he offered no
explanation that would satisfy Craddock for why he did not file an answer. The
second possibility is that Wohr’s affidavit is not true. Bitter does not dispute the
validity of Wohr’s affidavit, but even if he did, Wohr’s affidavit would then show
rather than negate conscious indifference. 23 And even in that case, Bitter’s
affidavit does not contain any statements about any specific representations that
22
See, e.g., McMurrey, 858 S.W.2d at 391 (“[A]n attorney is under no duty
to answer a lawsuit until the client is actually served and requests the attorney to
file an answer.”).
23
See, e.g., Dodd, 2014 WL 242881, at *9–10 (holding that an attorney’s
acts showed conscious indifference).
18
Wohr made to him about having filed an answer. Bitter, as an attorney, knows
the importance of filing an answer.
Bitter takes one part of Wohr’s affidavit out of context—that Wohr did not
“believe” he had done anything to cause Bitter to believe that Wohr was
negotiating a settlement on Bitter’s behalf—to argue that this does not show
conscious indifference. But Bitter ignores the context in which that statement
was made—an affidavit flatly contradicting the factual assertions of Bitter’s
affidavit. We overrule Bitter’s first issue.
In his second issue, Bitter asserts that in appeal 02-12-00198-CV (trial
court cause number 2011-40732-362), the trial court abused its discretion by
disbarring him and by ordering him to pay restitution to Bardwell because the
sanctions were arbitrary and not supported by any guiding principles or evidence
in the record. The judgment in that case did not order restitution paid to
Bardwell. Although at the conclusion of the hearing, the trial court stated that it
ordered restitution in the amount of $2,750, the signed judgment contained no
such order. We therefore consider only Bitter’s arguments relating to his
disbarment.
The relevant part of the trial court’s order states:
The Court, based upon all the pleadings and papers on file in
this case and the law applicable thereto, is of the opinion and so
finds that the material allegations of Petitioner’s Disciplinary Petition
are true, and that the acts and conduct on the part of the
Respondent set forth in Petitioner’s Disciplinary Petition on file
herein constitute conduct in violation of Rules 8.04(a)(2), 8.04(a)(3),
and 8.04(a)(8) of the Texas Disciplinary Rules of Professional
19
Conduct. The Court further finds as to each such violation that
Respondent, Aaron Christopher Bitter, has committed professional
misconduct as defined in Rule 1.06 of the Texas Rules of
Disciplinary Procedure.
The Court, after considering all of the factors listed in Rule
3.10 of the Texas Rules of Disciplinary Procedure, finds that the
proper discipline of the Respondent for each occurrence of
professional misconduct is disbarment.
It is, accordingly, ORDERED, ADJUDGED, and DECREED
that the Respondent is DISBARRED as an attorney at law in the
State of Texas and that his license to practice law is revoked.
Bitter argues that before ordering his disbarment, the trial court was
required to consider the factors listed in disciplinary procedure rule 3.10 and that
there is no evidence in the record to support the trial court’s consideration of any
of these factors.
The trial court’s judgment reflects that it considered the factors listed in rule
3.10. Those factors are as follows:
A. The nature and degree of the Professional Misconduct for which
the Respondent is being sanctioned;
B. The seriousness of and circumstances surrounding the
Professional Misconduct;
C. The loss or damage to clients;
D. The damage to the profession;
E. The assurance that those who seek legal services in the future
will be insulated from the type of Professional Misconduct found;
F. The profit to the attorney;
G. The avoidance of repetition;
H. The deterrent effect on others;
20
I. The maintenance of respect for the legal profession;
J. The conduct of the Respondent during the course of the
Committee action;
K. The trial of the case; and
L. Other relevant evidence concerning the Respondent’s personal
and professional background. 24
The rule also allows the trial court to consider the respondent’s disciplinary
record.
Nothing in the rule requires the trial court to make a finding that the
sanction is warranted based on every factor, and under the rules, the trial court
may consider the trial of the case. Accordingly, the trial court could consider the
facts in the petition, which were deemed admitted upon the granting of the
default judgment finding professional misconduct. 25
Bitter contends that the Commission argued that Bitter should be disbarred
based on his charging of Bardwell’s credit card but that it produced no testimony
on the matter, that it was “undisputed” that the amounts charged to the card were
refunded to Bardwell, and that there was no evidence that Bitter did not perform
the legal work for which he charged the card. But by the default judgment, Bitter
admitted to the allegations in the Commission’s petition. In its petition, the
24
Tex. Rules Disciplinary P. R. 3.10, reprinted in Tex. Gov’t Code Ann., tit.
2, subtit. G, app. A-1 (West 2013) (emphasis added).
25
See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009)
(“In cases of no-answer default . . . a defaulting defendant admits all facts
properly pled in the plaintiff’s petition except for the amount of unliquidated
damages.”).
21
Commission alleged that Bitter had Bardwell’s permission to charge an initial
payment of attorney’s fees of $750; that Bitter subsequently made three charges
on the card of $1,000, $750, and $1,000, respectively; and that these charges
were made without notice to or permission from Bardwell. Furthermore, in
assessing sanctions, the trial court was permitted to consider other relevant
evidence concerning Bitter’s professional background and his disciplinary record.
Under the facts of this case, we cannot hold that the trial court abused its
discretion by rendering a judgment of disbarment.
Bitter further argues that he testified that he did have Bardwell’s
authorization to make the charges. This testimony, however, was by way of the
affidavit he attached to his motion for new trial, not evidence that the trial court
had before it when it rendered the judgment of disbarment. 26 And we note that
although Bitter asserts that Bardwell admitted in an affidavit filed in the response
to his new trial motion that the charges were reversed, Bardwell’s statement was
that the charges were reversed by his credit card company after he disputed the
charges, not because Bitter voluntarily refunded the money. We overrule Bitter’s
second issue.
26
See Finley v. Steenkamp, 19 S.W.3d 533, 540 n.3 (Tex. App.—Fort
Worth 2000, no pet.) (stating that we review the actions of a trial court based on
the evidence before the court at the time it acted); Methodist Hosps. of Dallas v.
Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is
axiomatic that an appellate court reviews actions of a trial court based on the
materials before the trial court at the time it acted.”).
22
In Bitter’s third issue, he argues that the trial court abused its discretion by
overruling his objection to Judge Skeen’s appointment and his request that a
replacement judge be appointed. He contends that the overruling of his objection
denied him the opportunity to have his motion for new trial heard.
Bitter filed a motion objecting to Judge Skeen’s assignment in which he
stated that he had first learned of Judge Skeen’s appointment when he received
the default judgment. He stated that Judge Skeen’s court coordinator had
notified him that Judge Skeen “is in a murder trial and unavailable to hear”
Bitter’s motion for new trial, and, accordingly, he requested the appointment of a
replacement judge within thirty days. Judge Skeen overruled the objection in an
order that listed the dates on which he would be unavailable due to the murder
trial.
Rule 3.02 of the rules of disciplinary procedure states that upon receipt of
a disciplinary petition, the Supreme Court of Texas shall appoint a judge to
preside in the case. The rule further provides that
[t]he judge appointed shall be subject to objection, recusal[,] or
disqualification as provided by law. The objection, motion seeking
recusal[,] or motion to disqualify must be filed by either party not
later than sixty days from the date the Respondent is served with the
Supreme Court’s order appointing the judge. In the event of
objection, recusal[,] or disqualification, the Supreme Court shall
appoint a replacement judge within thirty days. 27
27
Tex. Rules Disciplinary P. R. 3.02, reprinted in Tex. Gov’t Code Ann., tit.
2, subtit. G, app. A-1 (West 2013) (emphasis added).
23
Bitter contends that the language of the rule dictates that because he filed
an objection to Judge Skeen’s appointment, he was automatically entitled to a
replacement judge. The Commission counters that Bitter is reading the last
sentence of the rule out of context. It points out the earlier sentence stating that
the assigned judge is “subject to objection . . . as provided by law” and argues
that this part of the rule “is a gate through which a party must pass before getting
to the final sentence of the rule.” The Commission also contends that Bitter did
not file his objection in time to prevent the overruling of his motions for new trial
by operation of law prior to the deadline of assigning a replacement judge.
We agree with the Commission that the last sentence of the rule must be
read together with the rest of that rule and that a replacement judge must be
appointed within thirty days in the event of an objection, recusal, or
disqualification as provided by law. We therefore must look at the provisions
provided elsewhere in the law for objecting to the appointment of a trial judge.
Bitter points out that the order appointing Judge Skeen states that the
assignment was made “pursuant to Texas Government Code, § 74.057,” 28 and
he argues that when a party objects to an assignment made under that chapter
of the government code, removal of the assigned judge is mandatory.
28
Tex. Gov’t Code Ann. § 74.057(a) (West 2013) (“In addition to the
assignment of judges by the presiding judges as authorized by this chapter, the
chief justice may assign judges of one or more administrative regions for service
in other administrative regions when he considers the assignment necessary to
the prompt and efficient administration of justice.”).
24
Government code section 74.053 addresses objections to assignments made
under that chapter. Subsection (b) states that “[i]f a party to a civil case files a
timely objection to the assignment, the judge shall not hear the case.” 29
Subsection (e) provides, however, that “[a]n active judge assigned under this
chapter is not subject to an objection.” 30 Accordingly, as provided by law, a
judge appointed under this chapter is not subject to objection if the judge is an
active judge. 31 Section 3.02 of the disciplinary rules of procedure specifically
requires that a judge appointed under that rule be an active district judge. 32
Bitter points to no other basis for his argument that Judge Skeen was
automatically obligated to remove himself from the case upon Bitter’s objection.
Furthermore, we note that the basis of Bitter’s objection was that Judge Skeen
would be unavailable to hear the motion for new trial, but the order overruling the
objection indicated that Judge Skeen was available between the dates on which
he heard voir dire and the date that the case was set for trial. We overrule
Bitter’s third issue.
Conclusion
Having overruled Bitter’s issues, we affirm the trial court’s judgments.
29
Id. § 74.053 (West 2013).
30
Id. § 74.053(e).
31
See id. § 74.041 (West 2013) (defining “active judge” as “a person who is
a current judicial officeholder”).
32
Tex. Rules Disciplinary P. R. 3.02.
25
26
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: May 15, 2014
27
Aaron Christopher Bitter v. Commission for Lawyer Discipline
Combined Opinion