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De Los Santos v. Commission for Lawyer Discipline

Court of Appeals of Texas, Fourth District, San Antonio

May 17, 2017

Hugo Xavier DE LOS SANTOS, Appellant
v.
COMMISSION FOR LAWYER DISCIPLINE, Appellee

         From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-20086 Honorable Tonya Parker, Judge Presiding[1]

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice

          OPINION

          Irene Rios, Justice

         Introduction

         This appeal arises from an attorney disciplinary proceeding in which a jury found Hugo Xavier de los Santos failed to hold funds belonging to a client separate from his own funds, a violation of Texas Disciplinary Rule of Professional Conduct 1.14(a). We affirm the trial court's judgment entered on the jury verdict.

         Background

         In January 2001, Kelle Martinez hired Mr. de los Santos to represent her and her daughter Tara in a personal injury lawsuit resulting from a motor vehicle accident. During this representation, Mr. de los Santos received monies for Kelle Martinez from insurance claims for personal injury protection, which he placed in a client escrow account ("the escrow account"). Mr. de los Santos paid the Martinezes' medical expenses from the escrow account. The personal injury lawsuit eventually settled, resulting in a payment of $85, 000 to Kelle and $6, 000 to Tara, all of which was placed in the escrow account on October 27, 2004.

         Between 2001 and 2011, Mr. de los Santos represented Ms. Martinez in other cases related to injuries sustained in the motor vehicle accident, as well as unrelated cases filed by Ms. Martinez and/or her husband, Pete Martinez. The same escrow account was used in all of the cases in which Mr. de los Santos represented any of the Martinezes.

         In a letter dated February 25, 2011, Ms. Martinez advised Mr. de los Santos she was dissatisfied with the time taken to resolve the outstanding medical bills and "with the time taken to settle [her] motor vehicle accident case." Ms. Martinez stated she intended to file a grievance with the State Bar of Texas. In response, Mr. de los Santos met with Kelle and Pete Martinez on March 18, 2011, and provided them a report which detailed the funds received and the expenses and attorney fees paid with regard to all of the cases in which he represented them. According to this report, Ms. Martinez was due $10, 298.92 for the personal injury lawsuit. Mr. de los Santos gave Ms. Martinez and Pete a check in this amount during the meeting.

         Some time later, Ms. Martinez filed a complaint with the Commission for Lawyer Discipline ("the Commission"). Following an investigation, the Commission filed suit against Mr. de los Santos alleging he violated Texas Disciplinary Rules of Professional Conduct 1.14(a), 1.14(b), and 8.04(a)(3).

         The case proceeded to trial before a jury, which found in favor of Mr. de los Santos on all questions in the jury charge but one. Question Two of the charge asked the jury: "Did Hugo De Los Santos fail to hold funds belonging in whole or in part to clients or third persons, that were in his possession in connection with a representation, separate from his own funds?" The jury responded, "Yes". The trial court determined the jury's affirmative finding to Question Two constituted a violation of Texas Disciplinary Rule of Professional Conduct 1.14(a) (Rule 1.14(a)).[2]The trial court assessed punishment of suspension from the practice of law in the State of Texas for 18 months, with 12 months of the suspension probated. Mr. de los Santos perfected this appeal.

         Analysis

         Issues One and Two: Legal and Factual Sufficiency of the Evidence to Support the Jury Finding on Question Two

         In his first and second appellate issues, Mr. de los Santos argues the jury's answer to Question Two should be set aside because the evidence is legally and factually insufficient to support it. With regard to his legal sufficiency challenge, Mr. de los Santos contends the evidence conclusively proves he held funds belonging to Ms. Martinez or third persons separate from his own funds. In addition, Mr. de los Santos asserts the Commission presented no evidence that he ever failed to deposit any funds belonging to the Martinezes into the escrow account, that he paid any of his firm's bills or expenses from Ms. Martinez's escrow account, or that he failed to hold funds belonging to the Martinezes separate from his own funds.

         Standard of Review

         Legal Sufficiency Challenge

         To successfully challenge the legal sufficiency of evidence to support an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate the record contains no evidence to support the adverse finding. Bennett v. Comm'n for Lawyer Discipline, 489 S.W.3d 58, 65-66 (Tex. App.-Houston [14th Dist.] 2016, no pet.). An appellate court may sustain such a legal-sufficiency (or no evidence) challenge only if the record reveals one of the following: (1) the complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005); Univ. Gen. Hosp., LP v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 551 (Tex. App.-Houston [14th Dist.] 2013, no pet.). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Kroger Tex., Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006); Kellmann v. Workstation Integrations, Inc., 332 S.W.3d 679, 684 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

         In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the appealed finding and indulge every reasonable inference that supports it. City of Keller, 168 S.W.3d at 819-22; Leas v. Comm'n for Lawyer Discipline, 13-10-00441-CV, 2012 WL 3223688, at *4 (Tex. App.-Corpus Christi Aug. 9, 2012, pet. dism'd w.o.j.) (mem. op.). This court must credit favorable evidence and disregard contrary evidence if a reasonable trier of fact would do so. City of Keller, 168 S.W.3d at 821-22; Leas, 2012 WL 3223688, at *4.

         Factual Sufficiency Challenge

         To successfully challenge the factual sufficiency of evidence to support an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding. McMillin v. State Farm Lloyds, 180 S.W.3d 183, 201 (Tex. App.-Austin 2005, pet. denied). When reviewing a challenge to the factual sufficiency of the evidence, an appellate court must examine and weigh all of the evidence in the record, including any evidence contrary to the verdict. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Leas, 2012 WL 3223688, at *4. The appellate court may set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. Pool, 715 S.W.2d at 635; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Leas, 2012 WL 3223688, at *4.

         Evidence ...


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