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Joseph Onwuteaka v. Commission for Lawyer Discipline ( 2009 )


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  • Appellant=s Motion for Rehearing Overruled; Affirmed; Memorandum Opinion of January 20, 2009, Withdrawn

     

    Appellant=s Motion for Rehearing Overruled; Affirmed; Memorandum Opinion of January 20, 2009, Withdrawn.  Memorandum Opinion filed March 12, 2009.

     

                                                                                                                                                               

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-07-00544-CV

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    JOSEPH ONWUTEAKA, Appellant

     

    V.

     

    COMMISSION FOR LAWYER DISCIPLINE, Appellee

     

      

     

    On Appeal from the 151st District Court

    Harris County, Texas

    Trial Court Cause No. 2005-06701

     

      

     

    M E M O R A N D U M   O P I N I O N

    On February 19, 2009, appellant, Joseph Onwuteaka, filed a motion for rehearing.  We overrule appellant=s request for rehearing, withdraw our memorandum opinion of January 20, 2009, and issue this memorandum opinion in its stead.[1] In this appeal from a lawyer disciplinary proceeding, appellant attacks the trial court=s judgment imposing a three-year fully probated suspension from the practice of law and monetary sanctions.  In twelve issues, Onwuteaka challenges the trial court=s judgment on the grounds that: (1)  the trial court erred in failing to file additional findings of fact and conclusions of law; (2) the pleadings are insufficient to support the trial court=s judgment; (3) the evidence is legally and factually insufficient; and (4) the trial court abused its discretion with respect to several evidentiary rulings.  We affirm.

    I.  BACKGROUND

    In April 2001, Edin Perez and Erwin Jimenez sustained personal injuries in an automobile accident and hired Onwuteaka to represent them in their personal injury matters.  Upon becoming dissatisfied with Onwuteaka=s representation, Perez filed a grievance with the State Bar of Texas.  Following the filing of the complaint, an investigatory panel of the grievance committee held two hearings in connection with its investigation of Perez=s allegations of lawyer misconduct.  The record is unclear as to whether the investigatory panel made a finding of Ajust cause@ or made a recommendation for sanctions.  Notwithstanding, Onwuteaka elected to have his disciplinary matter tried in district court before a judge.  In its second amended petition, appellee, the Commission for Lawyer Discipline (the ACommission@), set forth several allegations concerning Onwuteaka=s dealings with the Perez-Jimenez personal injury matter.  It also included allegations regarding false statements that Onwuteaka made during the two investigatory hearings by the grievance committee.  At trial, the Commission presented facts starkly contrasting to the facts presented by Onwuteaka.  The summarized facts here are those asserted by the Commission and supported by the evidence. Onwuteaka disputes most of them.

    Edin Perez and Erwin Jimenez were injured when a bus struck them in an automobile accident.  Shortly after the collision, Perez and Jimenez entered into two separate employment contracts with Onwuteaka for legal representation in their personal injury matters.  The employment contracts provided that Onwuteaka would be paid 33a percent of any gross recovery or settlement before a lawsuit was filed or 40 percent of all recovery obtained after suit was filed.  Onwuteaka then sent letters of protection to medical providers guaranteeing payment of Perez and Jimenez=s medical bills when their claims settled.

    Prior to receiving any monies, Onwuteaka gave cash advances to Perez and Jimenez and paid other miscellaneous expenses related the their personal injury matters.[2] Onwuteaka first recovered two checks for personal injury protection (PIP) coverage, a $2,500 check for Perez and one for Jimenez in the same amount.  The PIP recoveries were dated September 20, 2001 and were deposited in Onwuteaka=s trust account; they posted to the account on October 10, 2001.  On November 2, 2001, Onwuteaka issued two $250.00 checks, one to Perez and the other to Jimenez.  Although Onwuteaka had received Perez and Jimenez=s PIP recoveries at the time he issued these two November 2001 checks, he noted on the checks that the funds were an Aadvance on case.@ Onwuteaka did not disclose the PIP recoveries to Perez or Jimenez.

     In December 2001, Onwuteaka recovered two larger settlements totaling $70,000.00 from the insurer of the bus that hit the car in which Perez and Jimenez were riding.  Both settlement checks were dated December 10, 2002 and were payable in the amounts of $20,000.00, for Jimenez, and $50,000.00, for Perez.  On December 18, 2001, after the settlement checks were deposited into Onwuteaka=s trust account, but before they posted to the account, Onwuteaka drew a check to himself in the amount of $5,000.00.  The two settlement checks posted to Onwuteaka=s trust account on December 20, 2001.

              On the same day the settlement checks posted to the trust account, Onwuteaka issued a check in the amount of $14,250.00; the notation read that the funds were Perez=s API Settlement.@  Onwuteaka also issued a check in the amount of $5,250.00, noting that the funds were Jimenez=s API Settlement.@  On December 24, 2001, Onwuteaka issued a $20,000.00 check to himself with a notation AIn Re: Perez.@  On December 31, 2001, Onwuteaka issued another check to himself in the amount of $50,000.00, noting AIn Re: Perez . . . Jimenez.@   Over the following year, Onwuteaka paid the invoices from various medical providers that had treated Perez and Jimenez.

    Later dissatisfied with his portion of the settlement and Onwuteaka=s representation, Perez filed a grievance with the State Bar of Texas.  After Onwuteaka responded, the grievance committee for the State Bar of Texas conducted two investigatory hearings regarding the allegations of lawyer misconduct.  Onwuteaka ultimately elected to have his case tried in district court.  The Commission filed a lawsuit against Onwuteaka, alleging that Onwuteaka violated Texas Disciplinary Rules of Professional Conduct 1.04(a), 1.14(a)-(c), and 8.04(a)(3).  See Tex. Disciplinary R. Prof=l Conduct 1.04(a) (charging or collecting an illegal fee or unconscionable fee), 1.14(a) (failing to hold funds and other property belonging in whole or part to clients or third persons in a lawyer=s possession separate from the lawyer=s own property), 1.14(b) (upon receiving funds or other property in which a client or third person has an interest, failing to promptly notify the client or third person, to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and to promptly render a full accounting upon request), 1.14(c) (failing to keep funds or other property in which both the lawyer and another person claim interests separate until there is an accounting and severance of their interests), 8.04(a)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998).[3]

    After a bench trial, judgment was entered against Onwuteaka.  The trial court imposed a three-year fully probated suspension from the practice of law and monetary sanctions against Onwuteaka.  On appeal, Onwuteaka raises the following issues: (1)  the trial court erred in failing to file additional findings of fact and conclusions of law; (2) the pleadings are insufficient to support the trial court=s judgment; (3) the evidence is legally and factually insufficient; and (4) trial court abused its discretion with respect to several evidentiary rulings. 

    II.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

    In his first issue, Onwuteaka argues that the trial court erred when it failed to issue initial, and subsequently additional, findings of fact and conclusions of law. On August 16, 2006, without request by either party, the trial court made oral findings of fact and conclusions of law.   Forty-one days later, Onwuteaka filed an objection and moved to strike certain oral findings.  He also filed a motion requesting additional findings and conclusions.  In his request for additional findings, Onwuteaka asked that the trial court add facts surrounding the settlement of the insurance proceeds, the terms of the employment contracts with Jimenez and Perez, and conclusions that his acts were not proscribed by the Texas disciplinary rules.  The trial court denied Onwuteaka=s request for additional findings and conclusions.

              Civil procedure rule 296 states that in a bench trial, a party may request findings of fact and conclusions of law, and such request must be filed within 20 days after the final judgment.  Tex. R. Civ. P. 296.  Upon a timely request, the trial court is required to file findings of fact and conclusions of law within twenty days after the request is made.  Tex. R. Civ. P. 297.  When the trial court fails to adhere the 20-day deadline, the requesting party Ashall, within thirty days after filing the original request,@ file a notice of past due findings of fact and conclusions of law.  Id.  When a party fails to file a notice of past due findings of fact and conclusions of law within 30 days of filing its initial request, it is as if the party had made no initial request, and any complaint about the trial court=s failure to file findings and conclusions is waived.  See In re A.I.G., 135 S.W.3d 687, 694 (Tex. App.CSan Antonio 2003, no pet.); Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 530 (Tex. App.CDallas 2002, pet. denied).


    In this case, no proper findings and conclusions were requested, and none were filed by the trial court.  Onwuteaka did not make a proper initial request for findings under rule 296.  Although the trial court made initial findings and conclusions, they were oral, not written.  Oral findings do not constitute findings and conclusions under rules 296 or 297.  See G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 883 (Tex. App.CDallas 2003, no pet.); Tate v. Tate, 55 S.W.3d 1, 8 n.4 (Tex. App.CEl Paso 2000, no pet.); Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.CHouston [1st Dist.] 1992, no writ).  Thus, no findings were requested, and no findings were filed by the trial court.[4] To the extent that Onwuteaka argues that the trial court erred in failing to file initial findings of fact and conclusions of law, his complaint is not preserved.  Additionally, Onwuteaka=s complaint that the trial court erred by failing to make additional findings and conclusions is without merit because a trial court need not make additional findings of fact and conclusions of law where it did not make initial findings in the case.  See Tex. R. Civ. P. 298 (allowing a party to request additional findings only after the trial court files original findings and conclusions).  We overrule Onwuteaka=s first issue.

    III.  SUFFICIENCY OF THE PLEADINGS

    In issue six, Onwuteaka argues that the Commission=s pleadings do not support the trial court=s judgment.  A judgment cannot stand unless it is supported by pleadings and evidence.  Tex. R. Civ. P. 301.  The purpose of a pleading is to give the adversary party notice of each claim and defense, as well as notice of the relief sought.  Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991).  Pleadings are generally construed in the pleader=s favor.  WorldPeace v. Comm=n for Lawyer Discipline, 183 S.W.3d 451, 457 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).

    In the Commission=s second amended petition, it alleged that Onwuteaka engaged in various conduct that violated disciplinary rules 1.04(a), 1.14(a)-(c), and 8.04(a)(3).  The Commission=s pleadings gave adequate notice that it sought disciplinary action based on these particular disciplinary rules. The  trial court=s judgment mirrored the Commission=s petition, identifying rules 1.04(a), 1.14(a)-(c), and 8.04(a)(3) as the basis for its disciplinary action against Onwuteaka.  We conclude that the allegations set forth in the Commission=s second amended petition support the trial court=s judgment.[5] We overrule Onwuteaka=s sixth issue.

    IV.  SUFFICIENCY OF THE EVIDENCE

    In issues seven through eleven, appellant argues that the evidence is legally and factually insufficient to support the trial court=s judgment that he engaged in misconduct proscribed under Texas disciplinary rules 1.01(a), 1.14(a)-(c), and 8.04(a)(3).  When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference supporting it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence if a reasonable fact-finder could not.  Id. at 827.  There is Ano evidence@ or legally insufficient evidence when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact.  Id. at 810-811.  We look to see whether any record evidence supports the challenged finding.  Bellino v. Comm=n for Lawyer Discipline, 124 S.W.3d 380, 385 (Tex. App.CDallas 2003, pet. denied).  Anything more than a scintilla of evidence is legally sufficient to support the trial court=s finding.  Id.


    When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Eureste v. Comm=n For Lawyer Discipline, 76 S.W.3d 184, 195 (Tex. App.CHouston [14th Dist.] 2002, no pet.). We may set aside a verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust.  Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 384 (Tex. App.CHouston [14th Dist.] 2007, no pet).   The trier of fact is the sole judge of the weight and credibility of the witnesses= testimony.  Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  The appellate court may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence.  Id. 

    Because this was a bench trial without findings of fact and conclusions of law, all facts necessary to support the judgment and supported by the evidence are implied.  Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003);  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

    A.  Rule 1.04(a)

    We first consider whether the evidence is legally and factually sufficient to support the trial court=s finding that Onwuteaka violated disciplinary rule 1.04(a).  Rule 1.04(a) provides that A[a] lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee.@  Tex. Disciplinary R. Prof=l Conduct 1.04(a).  The employment contracts between Onwuteaka and Jimenez and Perez provided that Onwuteaka would be paid 33a percent of any gross recovery or settlement before a lawsuit was filed or 40 percent of all recovery obtained after suit was filed.  Onwuteaka claims that he was entitled to more than 40 percent of the settlement proceeds from each case because he made numerous cash advances to Jimenez and Perez and paid miscellaneous expenses related to the cases.  Although Onwuteaka may have been entitled to reimbursement of any expenses or costs paid prior to settlement, the Commission presented evidence that even after Onwuteaka paid all miscellaneous expenses, medical costs, and cash advances to the clients, Onwuteaka still collected a fee that exceeded 40 percent.

    William Todd Schoettelkotte, a certified public accountant, testified that he reviewed Onwuteaka=s bank records, which were admitted into evidence at trial, and after crediting the medical expenses, client cash advances, and other costs, the fee collected by Onwuteaka exceeded 40 percent in the Jimenez case.  Further, Schoettelkotte testified that, after crediting related expenses and medical costs in Perez=s case, Onwuteaka also charged and collected a fee exceeding 40 percent of the gross recovery. The record reflects that this excessive fee diminished the amount to which Jimenez and Perez were entitled.  Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court=s judgment with respect to Onwuteaka=s violation of disciplinary rule 1.04(a). See id.  We overrule Onwuteaka=s seventh issue.

    B.  Rules 1.14(a)-(c)

    Rule 1.14 provides:

    (a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer=s possession in connection with a representation separate from the lawyer=s own property.  Such funds shall be kept in a separate account, designated as a Atrust@ or Aescrow@ account, maintained in the state where the lawyer=s office is situated, or elsewhere with the consent of the client or third person.  Other client property shall be identified as such and appropriately safeguarded.  Complete records of such accounts shall be preserved for a period of five years after termination of the representation.

    (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

    (c) When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and other person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest.  All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law.  If a dispute arises concerning their respective interests, the portion in dispute shall be kept separated by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately.

    Tex. Disciplinary R. Prof=l Conduct 1.14(a)-(c).

    Initially, Onwuteaka properly deposited the PIP recoveries and settlement proceeds into his trust account. Thereafter, however, he mishandled the funds.  There is evidence that Onwuteaka did not notify his clients upon receiving the PIP recoveries and did not disclose the funds on the final accounting.  See Tex. Disciplinary R. Prof=l Conduct 1.14(b) (providing that upon receiving funds belonging in whole or part to a client, a lawyer must promptly notify the client of such funds and promptly render full accounting upon request).


    Additionally, the record reflects that Onwuteaka failed to hold funds belonging in whole or in part to clients or third persons separate from his own funds.  See Tex. Disciplinary R. Prof=l Conduct 1.14(a)-(c); see also Fry v. Comm=n for Lawyer Discipline, 979 S.W.2d 331, 334-36 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).  The full value of Perez and Jimenez=s settlements totaled $75,000.00.  Once the PIP recoveries and settlement checks posted to Onwuteaka=s trust account, he drew a check to himself for $75,000.00, the full value of the settlement proceeds, and deposited the funds into his operating account.  However, certain third parties,  medical providers who treated Perez and Jimenez, still maintained an interest in the funds at the time Onwuteaka placed the funds into his operating account.  Onwuteaka attempts to excuse his handling of the funds by arguing that he was negotiating final settlements with the medical providers.  Onwuteaka, however, did not place any portion of the funds, disputed or undisputed, belonging to the medical providers in a separate account; it was not until over a year after Onwuteaka received the settlement proceeds that he paid all third parties with an interest in the case.  See id. 1.14(a)(c); see also Fry, 979 S.W.2d at 335-36 (a lawyer must keep funds in dispute in a separate trust account until dispute is resolved).   Additionally, Schoettelkotte testified that Onwuteaka deposited funds belonging in part to Perez and Jimenez in his operating account.

    Applying the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court=s judgment with respect to disciplinary rules 1.14(a)-(c).  We overrule issues eight, nine, and ten.  

    C.  Rule 8.04(a)(3)

    Rule 8.04(a)(3), titled AMisconduct,@ provides that a lawyer shall not Aengage in conduct involving dishonesty, fraud, deceit or misrepresentation.@  Tex. Disciplinary R. Prof=l Conduct 8.04(a)(3).  Fraud is defined as conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.  Eureste, 76 S.W.3d at 198.  Furthermore, any conduct involving dishonesty, deceit, or misrepresentation is prohibited by Rule 8.04(a)(3).  Tex. Disciplinary R. Prof=l Conduct 8.04(a)(3). 

    The record contains a number of instances in which Onwuteaka engaged in conduct involving dishonesty, deceit, or misrepresentations.  There is evidence that Onwuteaka did not disclose the PIP recoveries to his clients.  Onwuteaka made payments, represented as cash advances, to his clients although PIP proceeds had been recovered by Onwuteaka.  Onwuteaka did not disclose the PIP recoveries in his final accounting to his clients.  This evidence reflects conscious acts of deceit and dishonesty.  Onwuteaka also failed to disclose these amounts to the State Bar=s investigatory panel when questioned about the total amount recovered in the cases. 


    Moreover, Onwuteaka charged an illegal fee, collecting a fee exceeding the agreed amount contracted between the parties.  Onwuteaka also paid himself the full value of the settlement recoveries before resolving and paying related expenses in the case.  He did not segregate his fees from monies owed to medical providers and did not promptly pay third parties.  The evidence presented would have enabled reasonable and fair-minded people to conclude that Onwuteaka violated rule 8.04(a)(3).  See City of Keller, 168 S.W. 3d at 827; Bellino, 124 S.W.3d at 388-89.  We find that the evidence is both legally and factually sufficient to show that Onwuteaka engaged in conduct involving dishonesty, fraud, deceit, or misrepresentations.  The trial court did not err in finding Onwuteaka violated rule 8.04(a)(3).  We overrule Onwuteaka=s eleventh issue.      

    V.  EVIDENTIARY COMPLAINTS

    Onwuteaka contends in issues two through five that the trial court erroneously admitted and excluded evidence.  We review a trial court=s decision to admit or exclude evidence for an abuse of discretion.  In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).  A trial court abuses its discretion if its decision is arbitrary, unreasonable, or without reference to guiding principles.  See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).  An appellate court must uphold the trial court=s evidentiary ruling if there is any legitimate basis for the ruling.  Anglo-Dutch Petroleum Intern., Inc. v. Greenberg Peden, P.C., 267 S.W.3d 454, 465 (Tex. App.CHouston [14th Dist.] 2008, pet. filed).  Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment.  Id.; see also Tex. R. App. P. 44.1.

    A.  State Bar Complaint

    In his second issue, Onwuteaka complains that Exhibit 2, the State Bar complaint filed by Perez, was erroneously admitted because: (1) it is hearsay; (2) its admission violates rule of evidence 1009; and (3) the document is fraudulent.  The complaint was offered and admitted for the limited purpose of demonstrating how and why the State Bar investigation commenced against Onwuteaka.

    Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  The State Bar complaint was not admitted to prove an operative fact; the trial court limited the admission of the State Bar complaint as evidence that the complaint was used to launch the State Bar=s investigation against Onwuteaka. Because the complained-of evidence was not admitted to prove the allegations made therein by Perez, it is not hearsay.  See id.; see also Stafford v. State, 248 S.W.3d 400, 407-08 (Tex. App.CBeaumont 2008, pet. ref=d) (stating that an out of court statement which is not offered to prove the truth of the matter asserted therein, but is offered for some other reason, is not hearsay). Onwuteaka=s hearsay challenge is without merit.  Onwuteaka also argues that the State Bar complaint is inadmissible because Perez=s signature on the document is fraudulent.  Because he did not raise this objection below, it is waived on appeal.  See Tex. R. App. P. 33.1(a). 

    Onwuteaka further contends that the trial court abused its discretion by admitting a translated version of Perez=s State Bar complaint. At trial, the Commission offered the original State Bar complaint filed by Perez, which was in Spanish.  Along with the original complaint, the Commission offered an English translation of the document.  Onwuteaka objected to the admission of the English translation on the basis that the Commission failed to comply with rule of evidence 1009.  Rule 1009 provides that a translation of a foreign language document is admissible upon the affidavit of a qualified translator when the affidavit, translation, and foreign language document are served on all parties 45 days prior to trial.  Tex. R. Evid. 1009(a); Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.CSan Antonio 2005, no pet.).  Onwuteaka argues that the affidavit submitted by the Commission failed to articulate the translator=s qualifications as required by rule 1009.   However, the trial court did not admit the English translation.  Rather, the court sustained Onwuteaka=s objection with respect to the English-translated version and admitted only the original Spanish version.  Onwuteaka did not object to the original.  Because the trial court sustained Onwuteaka=s objection to admitting the English-translated version, and Onwuteaka did not object to the original, nothing is presented for review.  See Tex. R. App. P. 33.1(a).  We overrule Onwuteaka=s second issue.

    B.  Disciplinary Hearing Transcript

    In his third issue, Onwuteaka argues that the trial court violated rule of evidence 1002 by admitting a written transcript of the State Bar=s disciplinary proceedings rather than the original audio recording.  Rule 1002, commonly known as the best evidence rule, provides that to Aprove the content of a writing, recording, or photograph, the original . . . is required except as otherwise provided in these rules or by law.@  Tex. R. Evid. 1002.  Although the best evidence rule generally requires that the original writing, recording, or photograph be admitted, a copy may be admitted instead of the original if the exception articulated in rule 1004 is met.  Rule 1004 provides:

    The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

    (a) Original Lost or Destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

    (b) Original Not Obtainable.  No original can be obtained by an available judicial process or procedure . . . .

    Tex. R. Evid. 1004.

    Although the disciplinary proceedings were originally an audio recording, the Commission sought to admit a written transcript.  To support the admission of the written transcript,  Donald Ray Brown, a State Bar investigator, testified that the original audio recording had been Apurged.@  The record reflects that the original recordings were lost or destroyed within the meaning of rule 1004, and there is no evidence that the original recording was lost or destroyed in bad faith.  Accordingly, the trial court did not abuse its discretion in admitting the written transcripts of the hearings.  See Johnson v. State, 846 S.W.2d 373, 376 (Tex. App.CHouston [14th Dist.] 1992) (holding that copy of an original was properly admitted where evidence established the original was unintentionally lost), remanded on other grounds, 853 S.W.2d 574 (Tex. Crim. App. 1993).  We overrule Onwuteaka=s third issue.

    C.  Expert Testimony

    In issue four, Onwuteaka argues that the trial court erred in permitting Schoettelkotte, the Commission=s expert witness, to testify over Onwuteaka=s objection.  More specifically, Onwuteaka argues that because the Commission refused to produce Schoettelkotte for deposition, the trial court should have sanctioned the Commission by excluding Schoettelkotte=s testimony from trial.

    The decision whether to impose sanctions is within the sound discretion of the trial court, and that decision will be reversed only for an abuse of discretion.  Shannon v. Fowler, 693 S.W.2d 54, 56 (Tex. App.CFort Worth 1985, writ dism=d).  Additionally, the sanctions imposed must be just.  TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).  The record reflects that the trial court originally ordered expert depositions to take place on September 8, 9, or 25, 2005.  Onwuteaka did not depose Schoettelkotte on either of these dates.  In November 2005, the trial court expanded the expert deposition dates and ordered the depositions, Asubject to witness availability,@ to take place on December 12-15, 2005 or January 24-26, 2006.  On January 23, 2006, at 7:00 p.m., Onwuteaka sent a notice to take the deposition of Schoettelkotte.  Onwuteaka noticed the deposition for January 25, 2006, little over one day after he sent the notice of his intent to depose the witness.  The Commission was unable to produce Schoettelkotte for deposition with only a day=s notice.


    The discovery rules require that Aa notice of intent to take an oral deposition . . . be served on the witness and all parties a reasonable time before the deposition is taken.@  Tex. R. Civ. P. 199.2(a) (emphasis added).  Based on our record, we cannot conclude that the trial court abused its discretion in allowing Schoettelkotte to testify based on Onwuteaka=s objection that he was unable to depose Schoettelkotte.  The Commission properly designated Schoettelkotte as an expert witness, and the trial court afforded Onwuteaka several opportunities to depose Schoettelkotte.  Still, Onwuteaka failed to properly notice Schoettelkotte for deposition in accordance with the rules of procedure, giving only one day=s notice.  Subjecting the Commission to sanctions by excluding Schoettelkotte=s testimony would not be just in light of Onwuteaka=s inadequate notice to depose Schoettelkotte.  The trial court acted within its sound discretion in allowing Schoettelkotte to testify at trial.  We overrule Onwuteaka=s fourth issue.   

    D.  Unrelated Client File  

    Onwuteaka=s last evidentiary complaint challenges the trial court=s exclusion of evidence regarding his representation of Tomas Reyes, a client unrelated to the instant case. It appears that Onwuteaka sought to introduce documents in the Reyes file to prove that a portion of the $50,000.00, reflecting his legal fees in the Perez-Jimenez case, stemmed also from his representation of Reyes.  At trial, the Commission objected to the admission of any evidence from the Reyes file because Onwuteaka failed to produce the entire client file during discovery.

    A party must respond to a written discovery request within the time provided by court order or the Texas Rules of Civil Procedure.  Tex. R. Civ. P. 193.1.  When a party fails to supplement a discovery response in a timely manner, the evidence should be excluded unless the trial court finds there was good cause for failure to amend or supplement, or the failure will not unfairly surprise or prejudice the other party.  Tex. R. Civ. P. 193.6(a). The burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence.  Tex. R. Civ. P. 193.6(b).  The trial court has discretion to determine whether the offering party has met its burden.  Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994). Furthermore, the record must support a finding of good cause or lack of unfair surprise.  Tex. R. Civ. P. 193.6(b).

    Here, the Commission propounded discovery requesting the Reyes file, and on November 8, 2005, the trial court ordered Onwuteaka to produce the entire file by November 17, 2005.  The trial court further indicated in its order that if Onwuteaka failed to produce the entire file, he would be precluded from offering any evidence from the file at trial.  Although Onwuteaka produced various documents from the Reyes file, he failed to produce the client file in its entirety.  At trial, and for the first time, Onwuteaka attempted to excuse his partial production of the file by insisting that he was no longer in possession of the client file.  We do not find this excuse to be good cause.  When the Commission requested the file and the trial court ordered is production, Onwuteaka was under the obligation to maintain Reyes=s complete file, particularly the accounting.  See  Tex. Disciplinary R. Prof=l Conduct 1.14(a).  Furthermore, to allow Onwuteaka to admit evidence from the Reyes file would have caused unfair surprise upon and prejudice against the Commission.  A considerable part of the Commission=s case focused on the $50,000.00 purporting to be legal fees for representing Perez and Jimenez. The Commission submitted that Onwuteaka violated various disciplinary rules because the fee collected exceeded the amount to which he was entitled, he failed to place the $50,000.00 in a separate account when other parties had an interest in the same funds, and he collected the fee without first resolving the medical expenses related to the case.  We conclude that Onwuteaka did not carry his burden of establishing good cause for his failure to amend or lack of unfair surprise or prejudice.  See Tex. R. Civ. P. 193.6(b). Accordingly, we conclude that the trial court did not abuse its discretion in excluding the Reyes file.  We overrule Onwuteaka=s fifth issue.[6]

    We affirm the trial court=s judgment.

     

     

    /s/      Adele Hedges

    Chief Justice

     

    Panel consists of Chief Justice Hedges and Justices Guzman and Brown.


    [1]  This memorandum opinion corrects an error stated in the January 20, 2009 memorandum opinion regarding Tomas Reyes= involvement in the underlying automobile accident and reflects that Tomas Reyes was not involved in the same accident. Our disposition remains unchanged.

    [2]  At trial, William Todd Schoettelkotte testified that no cash advances were made to Jimenez;  however, the record reflects that four advances were made to Jimenez.  Check numbers 8561, 8613, 8694, and 9004 from Onwuteaka=s account reflect cash advances to Jimenez.

    [3]  The Rules of Disciplinary Procedure were amended after this case commenced effective January 1, 2004.  See Tex.Disciplinary R. Prof=l Conduct, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G, app. A-1 (Vernon 2005).  Because this case commenced prior to the effective date of the amended rules, it is governed by the former rules.  See id. 1.04.  Accordingly, except for the citations in this footnote, all citations to the rules in this memorandum opinion are to the rules in effect at the time this action commenced. 

    [4]  Even if Onwuteaka had made a proper request under rule 296, his complaint on appeal would be deemed waived because he did not file a notice of past due findings.  See In re A.I.G., 135 S.W.3d at 694; JDN Real Estate-McKinney, 74 S.W.3d at 530.

    [5]  Onwuteaka also argues in issue six that the evidence presented at trial does not support the trial court=s judgment.  We address this challenge to the sufficiency of the evidence below.

    [6]  Onwuteaka also argues that if this Court finds error with respect to issues two through eleven, the entire case warrants reversal.  Having overruled issues two through eleven, this issue is moot.  We overrule Onwuteaka=s twelfth issue.