Onwuteaka v. Commission for Lawyer Discipline (Tex. App. – Houston [14th Dist.] Mar. 12,
2009, pet denied July 2009)(Substituted opinion by Justice Hedges)
(attorney disciplinary proceeding, grievance)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Guzman and Brown
14-07-00544-CV Joseph Onwuteaka v. Commission for Lawyer Discipline
Appeal from 151st District Court of Harris County
Judge not shown on docket sheet
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 “just 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
“Commission”), 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 “advance 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 “In 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.- San Antonio 2003, no pet.);
Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 530 (Tex. App.- Dallas
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.- Dallas 2003, no pet.); Tate v. Tate, 55 S.W.3d 1, 8 n.4 (Tex. App.-El Paso 2000, no
pet.); Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.- Houston [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.-Houston [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 “no 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.- Dallas 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.-Houston
[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 “trust” or “escrow” 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 “Misconduct,” 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.- San 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 “prove 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 “purged.” 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.- Houston [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.-Fort 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, “subject 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 “a 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.
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[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.