Omar Weaver Rosales v. Commission for Lawyer Discipline ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00725-CV
Omar Weaver Rosales, Appellant
v.
Commission for Lawyer Discipline, Appellee
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-002039, THE HONORABLE BRANDON BIRMINGHAM, JUDGE PRESIDING
MEMORANDUM OPINION
The Commission for Lawyer Discipline filed a petition asserting that appellant
Omar Weaver Rosales had violated various disciplinary rules. Rosales sought dismissal of the
suit under the Texas Citizens’ Participation Act (TCPA), see Tex. Civ. Prac. & Rem. Code
§§ 27.001-.011. The trial court denied the motion to dismiss, and Rosales filed this interlocutory
appeal. See id. § 27.008. On appeal, he argues that the TCPA applies; that even assuming the
Commission established a prima facie case of each element of its claims, a preponderance of the
evidence establishes that Rosales did not violate the rules as alleged in the Commission’s
petition; and that the Commission’s claims are barred by res judicata. He further asserts that he
is entitled to attorney’s fees, costs, and sanctions under the TCPA. See id. § 27.009. As
explained below, we affirm the trial court’s order denying Rosales’s motion to dismiss.
BACKGROUND
This is not the first time these parties have appeared before this Court. The
Commission filed an earlier disciplinary proceeding against Rosales in state court in 2017,
asserting that he had committed professional misconduct related to demand letters he had served
on several businesses in Texas. The trial court dismissed the proceeding pursuant to the TCPA,
but this Court reversed, determining that although the TCPA applied, the Commission had met
its burden of establishing a prima facie case of its claim. See Commission for Lawyer Discipline
v. Rosales, 577 S.W.3d 305, 309, 318-19 (Tex. App.—Austin 2019, pet. denied) (Rosales I). 1
This proceeding arises from six of the more than 300 federal lawsuits Rosales has
filed on behalf of Jon Deutsch, asserting violations of the Americans With Disabilities Act
(ADA) and other related statutes. In 2016, a federal magistrate judge issued a lengthy sanctions
order in those six federal cases, determining that Rosales had committed professional misconduct
and assessing sanctions for that behavior—that order was affirmed by the federal district judge
and the 5th Circuit. Deutsch v. Henry, No. A-15-CV-1238-LY-ML, 2016 WL 7165993, at *23
(W.D. Tex. Dec. 7, 2016), aff’d, No. 1:15-CV-490-LY, 2017 WL 5652384 (W.D. Tex. Mar. 28,
2017), aff’d sub nom. Deutsch v. Phil’s Icehouse, Inc., 716 F. App’x 361 (5th Cir. 2018), cert.
denied, 139 S. Ct. 193 (2018). The magistrate determined that Rosales had repeated in numerous
court filings false and abusive statements about opposing counsel James Harrington, conduct the
magistrate described as “habitual, bad faith misconduct” that demeaned Harrington and the
1
In 2019, after Rosales I was decided, the legislature amended the TCPA to provide that
the act does not apply to “a disciplinary action or disciplinary proceeding brought under Chapter
81, Government Code, or the Texas Rules of Disciplinary Procedure.” See Act of May 17, 2019,
86th Leg., R.S., ch. 378, § 9, 2019 Tex. Gen. Laws 684, 686 (codified at Tex. Civ. Prac. & Rem.
Code § 27.010). However, those amendments do not apply to this proceeding, which was filed
before the amendment’s effective date. See id. § 11, 2019 Tex. Gen. Laws at 687.
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federal judicial system; fabricated an email to make it look like it had been sent to Harrington by
changing the “recipient” field and then attached a copy of the altered email to a court filing to
support an assertion that Harrington had not responded to the email; and filed a groundless police
report and application for a temporary restraining order alleging that Harrington was stalking
him. Id. at *17-19. The magistrate referred the matter to the Western District of Texas
Disciplinary Committee, and a year later, a federal judge issued a disciplinary order adopting the
findings of misconduct set out in the district disciplinary committee’s report and suspending
Rosales for three years from practicing in the United States District Court for the Western
District of Texas. In re Disciplinary Complaint Against Rosales, No. SA 16 MC 1326 DAE,
2017 WL 8180454, at *1 (W.D. Tex. July 11, 2017), aff’d sub nom. In re Rosales, 716 F. App’x
364 (5th Cir. 2018). 2 In that order, the court found that Rosales had violated various rules of
professional conduct and
acted intentionally and in bad faith when, among other things, he: (1) took out an
ex parte TRO against Harrington for alleged stalking, terroristic threat, and
intimidation, later determined to be baseless, to disrupt or avoid appearing at a
hearing in front of [United States Magistrate] Judge Lane against Harrington; (2)
knowingly fabricated, according to credible forensic testimony, an email that
served as an evidentiary exhibit to a brief filed with the Court, and failed to retract
this falsified evidence or take reasonable remedial measures; (3) knowingly and
repeatedly made false and abusive statements to and regarding Harrington, even
after admonition from Judge Lane throughout the litigation; and (4) blatantly
disregarded and violated the [Texas Disciplinary Rules] and Local Rules for
attorney behavior through motion practice and in hearings and interactions with
the Court and with Harrington as demonstrated in the above-discussed
misconduct.
Id. at *24-28.
2
As a result of the federal disciplinary order, Rosales was also suspended for three years
from practicing law in New York. See generally Matter of Rosales, 176 A.D.3d 107 (N.Y. App.
Div. 2019) (per curiam).
3
In 2018, while Rosales I was pending in this Court, the Commission filed this
disciplinary action pursuant to the State Bar Act, see Tex. Gov’t Code §§ 81.001-.156, seeking
disciplinary action and alleging Rosales had acted in bad faith in those six federal lawsuits by:
filing frivolous pleadings; falsely alleging that Harrington was stalking Rosales and had made a
terroristic threat against him; taking positions that unreasonably increased costs and delayed
resolution of the cases; failing to comply with court orders to make witnesses available for
deposition; filing “multiple baseless requests for sanctions” against Harrington; making
“numerous false and/or inflammatory statements” about Harrington in pleadings; and fabricating
an email and offering it as an exhibit attached to a pleading. The Commission asserted that
Rosales had violated several rules of professional conduct. See Tex. Disciplinary R. Prof’l
Conduct 3.01 (lawyer shall not bring or defend proceeding or assert or controvert issue without
non-frivolous basis for doing so), .02 (lawyer shall not unreasonably increase costs or delay
resolution of case), .03(a)(5) (lawyer shall not knowingly use or offer evidence he knows is
false), .04(b) (lawyer shall not falsify evidence, advise witness to give false testimony, or offer
compensation to witness contingent upon content of testimony or outcome of case), 4.04(a)
(lawyer shall not use means that lack substantial purpose other than to embarrass, delay, or
burden third party), (b)(1) (lawyer shall not present or threaten to present criminal or disciplinary
charges solely to gain advantage in civil matter), 8.04(a)(3) (lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation), reprinted in Tex. Gov’t Code, tit. 2,
subtit. G, app. A. Rosales again sought dismissal pursuant to the TCPA. The trial court denied
his motion to dismiss, and Rosales filed this appeal.
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DISCUSSION
In their briefs, the parties first debate whether the TCPA applies to the
Commission’s claims. However, this Court held in Rosales I that the version of the TCPA in
effect when this case was filed applies to proceedings such as this one, see 577 S.W.3d at 313-
15, and we decline the Commission’s invitation to revisit the issue, instead limiting our
consideration to Rosales’s other two issues: whether the Commission’s complaints are barred by
res judicata and whether Rosales established by a preponderance of the evidence that he had not
violated the rules.
Res Judicata
We first consider Rosales’s claim that under the doctrine of res judicata, the fact
that he was sanctioned and disciplined by the federal courts bars the Commission from bringing
this proceeding.
“The party relying on the affirmative defense of res judicata must prove (1) a
prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims as were or could
have been raised in the first action.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.
2010). Rosales insists that there “is privity between the [Commission] and the parties in the
prior federal lawsuit” because the “claims of both parties derived from the same source” and
because the Commission’s claims rely “solely on the affidavit of the same attorney who
prosecuted the federal lawsuit.”
As noted by the Commission, however, federal courts do not have jurisdiction to
act against an attorney’s state law license, and the federal disciplinary proceeding only took
action against Rosales’s ability to practice in federal court. See Kaufman v. Commission for
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Lawyer Discipline, 197 S.W.3d 867, 872 (Tex. App.—Corpus Christi-Edinburg 2006, pet.
denied) (attorney admitted to practice in Texas state courts is “subject to the disciplinary
jurisdiction of the Texas Supreme Court and the Commission for Lawyer Discipline, a
committee of the State Bar”). “Attorney disciplinary proceedings are among those judicial
proceedings invested with sufficiently important State interest to warrant a federal court to
abstain from exercising jurisdiction to avoid interference in State judicial proceedings.” Id. The
federal court confined itself to considering Rosales’s misconduct affecting his ability to practice
in federal court, not his Texas law license, whereas the Commission’s petition presents purely
state law matters involving Rosales’s Texas license to practice law. See id.
Furthermore, although the Western District requires attorneys who practice before
it to comply with Texas’s professional rules, see W.D. Tex. Loc. R. AT-7(a), the Western
District may only take action against an attorney’s ability to practice in the district, see id. R.
AT-7(d). Here, on the other hand, the Commission seeks to take action against Rosales’s state
law license, an issue that could not have been litigated in the federal proceeding.
Finally, we disagree with Rosales that the Commission’s claims brought in this
case could and should have been brought in its earlier disciplinary proceeding. The
Commission’s petition in Rosales I was filed in September 2017 and involved statements made
in demand letters sent to various businesses in Texas. The trial court signed its order of
dismissal in February 2018, and the Commission appealed in early March 2018. The
Commission’s petition in this proceeding, filed in late April 2018, involved allegations related to
misconduct during litigation in six federal cases. Thus, the claims made in Rosales I were not
the same as those made in this matter, nor do they arise out of the same trial court proceedings or
the same facts. Nor have we located any rule or caselaw that would require the Commission to
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amend its pleadings as new, unrelated allegations of misconduct arise so as to consolidate every
disciplinary allegation into one omnibus proceeding.
We hold that res judicata does not bar the underlying state disciplinary
proceeding. 3 See Kaufman, 197 S.W.3d at 872.
Rosales’s Defense to Commission’s Claims
We next consider Rosales’s contention that, assuming the Commission
established a prima facie case, an issue he does not dispute, he established a defense to the
Commission’s claims because he showed he had not violated the professional rules as alleged.
Under the version of the TCPA in effect at the time, Rosales was only entitled to
dismissal if he “establishe[d] by a preponderance of the evidence each essential element of a
valid defense to the nonmovant’s claim.” Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 2,
2013 Tex. Gen. Laws 2499, 2499. As explained by our sister court, this means:
it is the defendant’s burden to establish a valid defense to the plaintiff’s claim.
Therefore, in order to defeat the plaintiff’s establishment of a prima facie claim,
the defendant must establish, as a matter of law, each essential element of at least
one valid defense as to each of the nonmovant plaintiff’s claims.
Batra v. Covenant Health Sys., 562 S.W.3d 696, 708 (Tex. App.—Amarillo 2018, pet. denied).
The standard of review employed in considering whether a movant established a valid defense so
as to be entitled to dismissal is “essentially equivalent to a motion for summary judgment on an
3
We also decline to hold that because Harrington’s affidavit was the basis of this
disciplinary proceeding and because he is opposing counsel in the federal cases out of which this
proceeding arose, there is privity between Harrington, his clients, and the Commission.
Harrington, as the complainant who reported Rosales’s conduct to the Commission, is a potential
witness but not a party to the Commission’s disciplinary proceeding. See Daniels v. Commission
for Lawyer Discipline, 142 S.W.3d 565, 571 (Tex. App.—Texarkana 2004, no pet.). It is the
Commission that is “the party petitioner” and that “exercises all rights characteristically reposed
in a client.” Id.
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affirmative defense,” meaning we should consider the pleadings and evidence in favor of the
nonmovant, taking evidence favorable to the nonmovant as true and indulging reasonable
inferences and resolving doubts in favor of the nonmovant. Id. We then ask whether, when the
evidence is so viewed, the movant established that there is no genuine issue of material fact as to
his entitlement to the defense. Id.
Rosales does not refer to our standard of review. Instead, he simply states that his
affidavit established that his conduct did not violate the various rules. In his affidavit, Rosales
stated that: in litigating his 385 lawsuits, he “zealously and passionately represented” his client;
he faced “stiff opposition from Harrington and the other opposing counsel”; he never took “any
action or step in the litigation that was designed to harass opposing counsel or delay the
litigation”; “[e]verything I did I felt was justified by existing law or was a good faith argument to
change the law”; he “steadfastly denied” that he had fabricated an email and presented it in court;
Harrington and his office staff “regularly” referred to him as “El Sapo,” which is Spanish for
“toad” and “a derogatory comment tied to nothing more than my Hispanic heritage”; Harrington
“threatened or verbally attacked” Rosales on multiple occasions; Harrington told Rosales “that
he knew the car I drove, which I believe is a threat that he knows what I drive, where I live, and
that he was watching or following me”; Harrington’s statements made Rosales fear for his safety
and the safety of his family and caused Rosales to file complaints against Harrington; and
Harrington told Rosales he would “get even” with him and that he would file a disciplinary
complaint if Rosales did not withdraw the complaints made against Harrington.
The Commission presented an affidavit by Harrington that tells a very different
story. Harrington asserted that because he believed Rosales and his client were abusing the ADA
and “running a money-making scam” by suing hundreds of small business “with boiler-plate
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pleadings and then settling with them for a few thousand dollars,” Harrington began defending
some of those businesses pro bono, at which time Rosales “became extremely vitriolic, caustic,
and personally abusive.” Harrington once mentioned that he knew Rosales drove an expensive
car, which he knew from observing Rosales at the court house, and based on that statement,
Rosales falsely claimed that Harrington was stalking him and had made a terroristic threat,
making a police report and obtaining a temporary restraining order, which was dissolved after a
hearing. Harrington also averred that Rosales had falsified an email and filed it as evidence in
court, an allegation that the federal courts found to be true, and filed baseless and harassing
motions and made personal attacks against Harrington (including calling Harrington racist, anti-
Semitic, and a “lying draft dodger”), which served no purpose other than to increase litigation
costs, delay resolution of the cases, embarrass Harrington, and disrupt the lawsuits. The
Commission also produced as evidence the federal magistrate’s sanctions order and the federal
disciplinary order, both of which support Harrington’s version of events and set out in detail
Rosales’s misconduct.
Rosales’s self-serving averments that he was simply being a zealous advocate
who had been victimized by Harrington in no way “establish” his defense of innocence. Indeed,
as we stated in Rosales I, a statement such as those made in Rosales’s affidavit “does not
establish a defense to the Commission’s allegation here because it is self-serving and
conclusory—meaning that it is not even sufficient to raise a fact issue, much less sufficient to
establish the matter by a preponderance of the evidence.” 577 S.W.3d at 318; see In re Lipsky,
460 S.W.3d 579, 592 (Tex. 2015) (“Bare, baseless opinions do not create fact questions, and
neither are they a sufficient substitute for the clear and specific evidence required to establish a
prima facie case under the TCPA.”); see also Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex.
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1996) (“Conclusory affidavits are not enough to raise fact issues,” “[t]hey are not credible, nor
susceptible to being readily controverted,” and “[a]n interested witness’ affidavit which recites
that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support summary
judgment.”). Further, Rosales’s assertions of innocence are rebutted by the Commission’s
evidence, including two federal courts’ findings of fact.
Assuming without deciding that Rosales’s assertion that he did not commit
misconduct can be raised as an “affirmative defense” under the TCPA, the evidence does not
establish by a preponderance of the evidence that Rosales had not committed the misconduct
alleged in the Commission’s petition. Rosales therefore did not show his entitlement to
dismissal under the TCPA. We overrule Rosales’s claim that he established a defense to the
Commission’s claims.
CONCLUSION
Having overruled Rosales’s arguments on appeal, we affirm the trial court’s
denial of his motion to dismiss pursuant to the TCPA.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Kelly and Smith
Concurring Opinion by Justice Kelly
Affirmed
Filed: April 22, 2020
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