|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Pro se |Donald R. Lundberg, Executive |
| |Secretary |
| |Seth T. Pruden, Staff Attorney |
| |115 West Washington Street, Suite 1060|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 48S00-9802-DI-101
MONTAGUE M. OLIVER, JR. )
DISCIPLINARY ACTION
June 9, 2000
Per Curiam
The Indiana Supreme Court Disciplinary Commission alleged that lawyer
Montague M. Oliver, Jr., after failing to overturn a default judgment that
had been entered against his clients, filed a second lawsuit against the
prevailing party in an attempt to relitigate the already-adjudicated
issues. The trial court found that second lawsuit to be frivolous and
groundless after the respondent failed to appear at a key hearing. The
Commission also alleged that the respondent engaged in conduct prejudicial
to the administration of justice by failing to respond to the Commission’s
lawful demands for information in response to the clients’ ensuing
grievance against him. Upon those allegations, this Court appointed a
hearing officer who, following evidentiary hearing, found that the
respondent engaged in professional misconduct. This matter is now before
this Court for final resolution. Our jurisdiction in this case arises from
respondent’s admission to the bar of this state on December 7, 1982.
Although the respondent sought, and was granted by this Court, an
extension of time during which to file a petition for review of the hearing
officer’s findings and conclusions, he ultimately failed to file the
petition. Where the hearing officer’s report is unchallenged, we accept
and adopt the findings contained therein, but reserve final judgment as to
misconduct and sanction. Matter of Lamb, 686 N.E.2d 113 (Ind. 1997).
Within that review framework, we now find that in June 1984, a couple
(the “clients”) hired a contractor to repair the driveway to their home.
The contractor quoted a price of $1,700 for the job, which the clients
accepted. The contractor ordered concrete from a supplier and installed
the a new driveway, but failed to include the cost of the concrete
($1,219.69) in his estimate for the repair. A dispute later arose over who
should pay the concrete supplier’s bill. By August 15, 1984, the
supplier’s bill remained unpaid, prompting the supplier to file an
“Intention to Hold Mechanic’s Lien” against the clients’ property. On
August 30, 1984, without the assistance of counsel, the clients filed suit
against the contractor. While that suit pended, on October 2, 1984, the
supplier filed suit to foreclose its mechanic’s lien on the clients’
property. The clients did not hire counsel or respond to the suit.
On March 14, 1985, the court hearing the clients’ claim against the
contractor ordered that each should pay half of the bill for the concrete
and entered a judgment accordingly. The clients tendered their half of the
bill to the supplier, but the contractor did not pay any remaining portion.
Although the clients had obtained a judgment against the contractor for
the balance of the supplier’s bill, they still did not answer or respond to
the supplier’s foreclosure action. On March 15, 1985, the supplier filed a
“Motion for Default Judgment” which was granted five days later. The
judgment, including costs and attorney fees, totaled $2,329.46. In June
1986, the clients hired the respondent to defend the action.
The supplier attempted collection of the judgment by proceedings
supplemental, with a hearing on July 22, 1986. On July 23, 1986, the
supplier filed a “Motion for Additional Attorney Fees” and submitted notice
to the Sheriff to execute on the foreclosure judgment by sale of the
clients’ property. The clients received notice on July 25, 1986, that
their property would be sold at Sheriff’s sale on September 3, 1986. On
behalf of the clients, the respondent filed a “Motion to Vacate” the
default judgment and an “Emergency Motion to Stay” the Sheriff’s sale. The
clients tendered the judgment amount to the clerk as security and the court
postponed the Sheriff’s sale, conducting a hearing on the clients’ “Motion
to Vacate” the default judgment on November 3, 1986. On November 6, 1986,
the court denied the motion to vacate, and ordered the clerk to release to
the supplier, from the funds deposited by the clients, the balance due on
the judgment, thereby satisfying the default judgment taken against the
clients.
On November 14, 1986, the respondent filed a “Motion to Reconsider”
the court’s refusal to vacate the default judgment. This motion was denied.
On December 1, 1986, the respondent filed a “Motion to Correct Errors”
directed at the court’s order of November 6. A hearing was held on the
motion on February 11, 1987, and taken under advisement by the court. On
March 2, 1987, the court concluded it could not rule on the matter due to a
conflict of interest. A special judge was then appointed and conducted a
hearing on the motion on December 4, 1987, whereupon the motion was denied.
The respondent did not pursue an appeal of the denial of the Motion to
Correct Errors.
On June 16, 1988, the respondent, on behalf of his clients, filed a
lawsuit against the supplier. The new suit asserted two causes of action:
slander of title and abuse of process. These allegations were based on the
theory that the supplier failed to provide notice of the mechanic’s lien as
required by I.C. 32-8-3-1. This theory had not been offered in the
clients’ Motion to Vacate or Motion to Correct Errors. The supplier
responded to the new suit on June 28, 1988, by filing a motion to dismiss.
Accompanying the motion were records from the mechanic’s lien proceeding
that had concluded in the supplier’s favor. The supplier also filed a
counterclaim against the clients asserting that the new action was
frivolous and foreclosed by the previous mechanic’s lien litigation. A
hearing on the motion to dismiss was set for December 1, 1988. Neither the
respondent nor his clients appeared for the hearing and the motion to
dismiss was granted. On December 7, 1988, the respondent filed a “Motion
to Reinstate” his clients’ suit, which the court granted.
The suit proceeded through pretrial conferences, discovery, and a
change of venue to Tipton County. On April 15, 1991, the supplier filed a
“Motion for Summary Judgment” on its counterclaim. A hearing was scheduled
for June 10, 1991, at which respondent and his clients did not appear.
That failure to appear resulted in no argument of any kind being presented
to the trial court in support of the clients’ claims. The court granted
the motion for summary judgment and awarded the supplier a judgment against
the clients, including attorney fees, for $15,535, finding that the
clients’ suit against the supplier was “frivolous, irreasonable [sic] and
groundless.” The day after the hearing the respondent filed a “Motion to
Reschedule Hearing,” claiming he was unable to attend the hearing and
unable to contact the court. The court denied the motion.
On May 10, 1993, the supplier filed a “Complaint to Foreclose Judgment
Lien” against the clients’ property. The respondent appeared for the
clients and requested a “Change of Venue” from the court. A panel of
prospective judges was issued, but the respondent failed timely to strike
from the panel, so the court struck for him and appointed a special judge.
The respondent objected to the court’s order appointing the special judge,
and despite the fact that he had failed to strike from the panel created by
his motion, the court granted the request.
The complaint filed by the supplier recited the procedural history in
the preceding cases and made a demand for foreclosure of the judgment lien.
The respondent filed a one-sentence answer denying the facts of the
complaint. On December 3, 1993, the supplier filed a “Motion for Summary
Judgment” on its complaint, which was set for hearing August 23, 1995. On
September 7, 1995, the court granted the supplier’s motion and entered a
judgment against the clients for the original judgment of $15,535, plus
approximately $6,000 in additional interest which had accrued over the
years the suit pending, and attorney fees, for a total judgment of
$24,926.40. The clients’ property was ordered to be sold at Sheriff’s
sale. The day before the Sheriff’s sale, the clients fired respondent and
entered into a settlement with the supplier, paying $20,000.
By letter dated July 17, 1996, the Executive Secretary of the Indiana
Disciplinary Commission demanded that the respondent respond to a grievance
submitted by the clients. Despite an extension of time during which to
respond, the respondent failed to provide an answer. The Commission sent a
second demand for a response on December 12, 1996, to which the respondent
also failed to respond.
Pursuant to Ind.Professional Conduct Rule 3.1, lawyers shall not bring
or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous, which includes a good
faith argument for an extension, modification or reversal of existing law.
After the respondent’s clients were unsuccessful in their suit against the
supplier at the trial court level, the respondent chose to file another
suit against the supplier in an attempt to relitigate the previously
decided case rather than pursue his clients’ position through formal appeal
of the controlling trial court decision. The respondent thereafter missed
the June 10, 1991 hearing at which he might have put forth arguments in
support of his claims. After he failed to appear at that hearing, the
trial court found that the suit was frivolous and groundless. Accordingly,
we find that the respondent violated Prof.Cond.R. 3.1.
Indiana Professional Conduct Rule 1.3 provides that lawyers shall act
with reasonable promptness and diligence in representing clients. While
representing his clients, the respondent failed to attend key hearings and
failed timely to strike from the panel brought about by his own motion for
change of venue. As such, we find that he failed diligently to attend to
his clients’ legal affairs while representing them in violation of
Prof.Cond.R. 1.3.
Professional Conduct Rule 8.4(d) provides that it is professional
misconduct for a lawyer to engage in conduct that is prejudicial to the
administration of justice. As a result of the respondent’s frivolous suit
against the supplier, years of delay and needless additional litigation
ensued and what began as a judgment against his clients of approximately
$2,300 ballooned to almost $25,000. As such, we find that his conduct was
prejudicial to the administration of justice.
Pursuant to Ind.Admission and Discipline Rule 23(10)(a)(2),[1] the
Commission on two occasions demanded that the respondent respond to
allegations of misconduct contained in the clients’ grievance. Though he
was granted an extension of time to reply, the respondent never properly
responded to the Commission’s requests and therefore violated Prof.Cond.R.
8.1(b), which provides that a lawyer in connection with a disciplinary
matter shall not knowingly fail to respond to a lawful demand for
information from a disciplinary authority.
Having found misconduct, we now turn to the issue of proper sanction.
Among the factors we examine in this assessment is the nature of the
respondent’s misconduct. The respondent’s assertion of a frivolous and
groundless claim on behalf of his clients, as well as his failure to
respond to the Commission’s demands for information leads us to conclude
that a period of suspension is warranted, with the requirement that the
respondent demonstrate his fitness before being readmitted to practice and
again allowed to represent the interest of others.
It is, therefore, ordered that the respondent, Montague M. Oliver,
Jr., be suspended from the practice of law for a period of not fewer than
thirty (30) days, beginning July 14, 2000. At the conclusion of that
period of suspension, the respondent may petition this Court for
reinstatement to the bar, provided he can satisfy the requirements of
Admis.Disc.R. 23(4).
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and to provide the clerk of the
United States Court of Appeals for the Seventh Circuit, the clerk of each
of the United States District Courts in this state, and the clerks of the
United States Bankruptcy Courts in this state with the last known address
of respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
-----------------------
[1] That provision provides:
(2) If the Executive Secretary determines that [a grievance] does
raise a substantial question of misconduct, [the Executive Secretary shall]
send a copy of the grievance by certified mail to the attorney against whom
the grievance is filed (hereinafter referred to as "the respondent") and
shall demand a written response. The respondent shall respond within
twenty (20) days, or within such additional time as the Executive Secretary
may allow, after the respondent receives a copy of the grievance. In the
event of a dismissal as provided herein, the person filing the grievance
and the respondent shall be given written notice of the Executive
Secretary's determination. In the event of a determination that a
substantial question exists, the matter shall proceed to (b) hereinafter.