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.