Can you Call this Texas Lawyer Discipline?
REPUBLISHED BY LIT: OCT 6, 2021
Texas Bar Journal, October 2021 Ed.
REINSTATEMENT
KENNITRA M. FOOTE [#24029552], of Houston, has filed a petition in the 412th District Court of Brazoria County for reinstatement as a member of the State Bar of Texas.
Kennitra M. Foote v. Monica J. Tate–Appeal from 270th District Court of Harris County
Opinion issued January 31, 2008
In The Court of Appeals For The First District of Texas
NO. 01-06-00956-CV
KENNITRA M. FOOTE, Appellant
V.
MONICA J. TATE, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2004-65296
MEMORANDUM OPINION
This is a contract interpretation case. Afer a bench trial, the trial court rendered judgment that appellee Monica J. Tate recover $30,000.00 for breach of contract and $9,000.00 in attorney’s fees from appellant Kennitra M. Foote. In three questions, appellant contends there is legally insufficient evidence of (1) a valid contract, (2) consideration, and (3) Tate’s fraud claim, on which the trial court denied relief. We affirm.
Facts
Van Richard Watkins, Jr. owned a house, but was unable to make the payments. In order to prevent him and his family from being evicted from the family home, Watkins and Tate signed a written contract on March 15, 2004 in which Tate agreed to purchase the home from Watkins. In exchange for Watkins (1) paying Tate $12,000.00 plus expenses and (2) paying Tate’s mortgage payments on the home, Watkins would have 90 days, i.e., until June 8, 2004, in which to repurchase the house from Tate. If the $12,000.00 fee was not paid by June 22, 2004, Tate could sell the house with no further obligations to Watkins.
After Watkins failed to pay Tate the $12,000.00 and expenses, Tate began calling Watkins. Watkins sought help from his attorney, Foote, who called Tate and set up a meeting. At that meeting, the following document was drafted:
Kennitra M. Foote agrees to pay Monica Tate the sum of $32,285.58 (Thirty Two Thousand Two Hundred Eighty Five Dollars and 58/100). This amount is in satisfaction of the debt concerning the payment for services and interest that has accrued as of June 17, 2004. This amount involves payments that are due from Van Richard Watkins, Jr. This amount includes an amount for $2,285.58 which covers the mortgage payment for July 2004. This mortgage payment covers the property located at 3313 Calumet, Houston, Texas 77004.
Kennitra M. Foote agrees to pay Monica Tate or her agents by June 24, 2004.
Signed: /s/ 6-17-04
Kennitra M. Foote Date
Foote paid the July mortgage payment of $2,285.58, but made no further payments.
Discussion
In questions one and two, Foote contents there is legally insufficient evidence to establish a valid contract. 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. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). In reviewing the sufficiency of the evidence, we must consider the evidence in the light most favorable to fact-finder’s decision and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
Foote specifically challenges the existence of a contract on the grounds that (1) Tate did not sign the writing and (2) Tate gave no consideration. Foote also argues that we should look only to the four corners of the writing because Tate did not plead ambiguity. We agree that the writing signed by Foote by its four corners was not a contract, but was instead an offer. Foote argues, however, that the only legally permissible way for Tate to accept would be in writing. We disagree.
Under common law, if an offer does not specify how the acceptance is to be made, then the offeree may accept by any reasonable means. Cantu v. Cent. Educ. Agency, 884 S.W.2d 565, 567 (Tex. App.–Austin 1994, no writ) (citing Restatement (Second) of Contracts 30(2), 63(a), 65 (1981)). Tate accepted the contract when she accepted Foote’s payment of the July mortgage, which is supported by the evidence.
Foote next argues that no consideration exists for the contract. First we note this Court has previously held that consideration need not be recited or expressed in the contract itself. Vass v. Fisher, 405 S.W.2d 866, 867 (Tex. Civ. App.–Houston 1966, no writ). However, the contract agreement provides consideration as Watkins previously had until June 8, 2004, in which to repurchase the house from Tate. Under the agreement with Foote, Tate agreed to forebear her right to sell the house after June 8, 2004. See Restatement (Second) of Contracts 71(1), (3)(b) (1981) (consideration may consist of forbearance). Foote does not argue that consideration was inadequate or unfair, but instead that no consideration existed. Accordingly, we hold there is legally sufficient evidence in the record to establish consideration.
We overrule questions one and two.
In question three, Foote contends there is legally insufficient evidence to support Tate’s fraud claim. The judgment recites that Tate recovered based on breach of contract and that all other claims were denied, so this attack on the judgment is moot.
Conclusion
We affirm the trial court’s judgment.
Sam Nuchia, Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
WILLIE JOSEPH ARRESTED
RESIGNATIONS
On August 27, 2021, the Supreme Court of Texas accepted the resignation, in lieu of discipline, of WILLIE R. JOSEPH JR. [#24106671], of Dallas.
At the time of Joseph’s resignation, there were three pending matters against him alleging professional misconduct.
In the first matter, on February 21, 2020, Joseph pleaded guilty to the charge of battery of a dating partner—intentionally inflicting serious bodily injury (Louisiana Revised Statute 14:34.9M).
Joseph was sentenced to five years hard labor and committed to the Louisiana Department of Corrections. In the second matter, the complainant hired Joseph for representation in a family law matter on or about January 18, 2019.
Joseph failed to communicate with the complainant. Joseph neglected the legal matter by failing to timely file a motion/petition for enforcement, failing to timely set a hearing, failing to obtain citation, failing to submit an amendment to the standing orders, canceling the hearing set on the motion for enforcement, failing to timely withdraw as counsel, and failing to protect the complainant’s interests.
In the third matter, the complainant hired Joseph to represent her in a divorce matter on October 21, 2019. During Joseph’s representation of the complainant, Joseph failed to abide by the complainant’s decisions concerning objectives and general methods of representation. Joseph agreed to and accepted terms of temporary orders without the complainant’s consent or approval.
Joseph failed to keep the complainant reasonably informed about the status of her legal matter, failed to respond to reasonable requests for information, and made misrepresentations to the complainant. Joseph neglected the complainant’s legal matter by, including but not limited to, failing to correct the temporary orders.
Joseph was ordered to pay the complainant $500 in restitution.
Joseph violated Rules 1.01(b)(1), 1.01(b)(2), 1.02(a)(1), 1.02(a)(2), 1.03(a), 1.03(b), 1.15(b)(1), 8.04(a)(2), and 8.04(a)(3).
GIGI STEINER ARRESTED
On August 27, 2021, the Supreme Court of Texas accepted the resignation, in lieu of discipline, of GIGI JORDAN STEINER [#19134900], of Dallas.
At the time of Steiner’s resignation, there was one pending matter against her alleging professional misconduct.
In the first matter, in January 2013, the complainant arranged for the formation of a limited liability corporation, or LLC, regarding an investment in an apartment complex and served as the manager.
While acting as manager, Steiner stole approximately $50,000 from the LLC.
Steiner filed for Chapter 7 bankruptcy and the bankruptcy court issued findings of fact and conclusions of law and found that Steiner did knowingly and fraudulently, in or in connection with her bankruptcy case, make a false oath or account, as contemplated by Section 727(a)(4) of the Bankruptcy Code by:
(1) falsely claiming in her bankruptcy schedules and statements of financial affairs that she is a member and 100% owner of the LLC and falsely claiming the LLC had no value;
(2) falsely testifying at the 341 meeting that she contributed money to the LLC;
and
(3) concealing her theft, embezzlement, and conversion of LLC’s money by failing to report the funds she obtained in her statement of financial affairs.
The bankruptcy court ordered Steiner to pay the LLC $201,000.
On April 12, 2019, Steiner pleaded nolo contendere to a third-degree felony of theft of property $20,000 – $100,000.
Steiner received deferred adjudication and was ordered to pay $50,702.25 in restitution.
Steiner violated Rules 8.04(a)(2) and 8.04(a)(3).
Post Edited: Why Did the State Bar of Texas Cover Up the Former Proud Boy Lawyer’s Death Threats and Misconduct? https://t.co/7bugpaHqPe
— LawsInTexas (@lawsintexasusa) July 11, 2021
COMPARE STEINER SENTENCING WITH…
United States v. Morrison, No. 16-10356, at *1 (5th Cir. Feb. 13, 2017)
No. 16-10356 02-13-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARCIA CARAWAY MORRISON, Defendant-Appellant
PER CURIAM
Appeal from the United States District Court for the Northern District of Texas
USDC No. 4:15-CR-224-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. PER CURIAM:
Marcia Caraway Morrison appeals her 70-month prison sentence for wire fraud.
She challenges the district court’s denial of a reduction of her offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.
Our review is even more deferential than review for clear error, and we will affirm the district court’s decision unless it is without foundation.
United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002).
At her rearraignment, Morrison stated under oath that a written summary of the facts supporting her guilty plea was true and correct.
The summary stated that Morrison transferred $50,000 from a bank account without the owner’s knowledge or consent.
The information to which Morrison pleaded guilty identified this $50,000 transfer as the basis for the wire fraud count.
During a presentence interview, however, Morrison stated that the $50,000 was a loan.
Morrison thus denied conduct comprising the offense of conviction.
See U.S.S.G. § 3E1.1, comment. (n.1(A));
United States v. Galban, No. 93-3844, 1994 WL 399501, at *1 (5th Cir. July 22, 1994) (unpublished);
see also 5TH CIR. R. 47.5.3 (unpublished opinions issue before 1996 are precedent).
The district court’s ruling was not without foundation.
See Solis, 299 F.3d at 458.
AFFIRMED.
SUSPENSIONS
On August 24, 2021, ANDRE DEGARZA [#24059332], of LaGrange, accepted a one-year fully probated suspension effective September 1, 2021.
An evidentiary panel of the District 5 Grievance Committee found that DeGarza willfully, in connection to an adjudicatory proceeding, manifested bias or prejudice based on race.
DeGarza violated Rule 5.08(a).
WHY'S THERE NO PDF IN 2021 (GRANTHAM)
On July 9, 2021, DAVID SHANE GRANTHAM [#24087614], of Richardson, received a 24-month partially probated suspension effective August 1, 2021, with the first six months actively served and the remainder probated.
The 191st District Court of Dallas County found that Grantham committed professional misconduct by violating
Rules 1.05(b)(1)(ii) [A lawyer shall not knowingly reveal confidential information of a client or a former client to anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm],
1.05(b)(3) [A lawyer shall not knowingly use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known],
3.02 [In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter],
3.04(d) [A lawyer shall not knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience],
4.04(a) [In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person],
and
4.04(b)(1) [A lawyer shall not present, participate in presenting, or threaten to present criminal or disciplinary charges solely to gain an advantage in a civil matter].
Grantham was ordered to pay $10,982.95 in attorneys’ fees and direct expenses.
A GROWING SANCTIONS PROFILE FOR JR.
On May 18, 2021, CARL DONALD HUGHES JR. [#10209000], of Dallas, received a 36-month partially probated suspension effective June 1, 2021, with the first 18 months actively served and the remainder probated. An evidentiary panel of the District 6 Grievance Committee found that on or about January 5, 2017, the complainant hired Hughes to file a civil action involving a real estate matter.
Hughes failed to keep the complainant reasonably informed about the status of her case and failed to promptly comply with reasonable requests for information. Hughes failed to explain the legal matter to the extent reasonably necessary to permit the complainant to make informed decisions regarding the representation.
Upon termination of representation, Hughes failed to surrender papers and property to which the complainant was entitled. Upon termination of representation, Hughes also failed to refund advance payments of fees that had not been earned. Hughes also failed to respond to the grievance.
Hughes violated Rules 1.03(a), 1.03(b), 1.15(d), and 8.04(a)(8). He was ordered to pay $13,000 in restitution and $1,734 in attorneys’ fees and direct expenses.
Hughes has filed an appeal.
SANCTIONED BY PRICE L. JOHNSON FOR TEXAS BAR GC.
2021 WASN'T GOOD FOR THIS LAWYER
On August 20, 2021, JANA LEWIS-PEREZ [#24077463], of Pearland, accepted an 18-month partially probated suspension effective September 16, 2021, with the first three months actively served and the remainder probated.
An investigatory panel of the District 5 Grievance Committee found that Lewis-Perez neglected a legal matter entrusted to her and failed to keep her client reasonably informed about the status of her legal matter and promptly comply with reasonable requests for information about the case.
Upon termination of representation, Lewis-Perez failed to refund any advance payments of fees that had not been earned.
Lastly, Lewis-Perez failed to timely respond to the grievance without asserting a privilege or other legal ground for her failure to do so.
Lewis-Perez violated Rules 1.01(b)(1), 1.03(a), 1.15(d), and 8.04(a)(8). She was ordered to pay $500 in restitution and $1,000 in attorneys’ fees and direct expenses.
2021 WASN'T GOOD FOR THIS LAWYER
On August 27, 2021, JOHN VICTOR MASTRIANI [#13184375], of Houston, accepted a 36-month partially probated suspension effective August 26, 2021, with the first 12 months actively suspended.
An evidentiary panel of the District 4 Grievance Committee found that Mastriani neglected a legal matter and failed to keep his client reasonably informed about the status of the case.
Mastriani violated Rules 1.01(b)(1) and 1.03(a).
He was ordered to pay $1,300 in attorneys’ fees and direct expenses.
This lawyer [JOHN VICTOR MASTRIANI]
is loved by @statebaroftexas
– he’s on our upcoming October list AGAIN, that’s 4x in as many months…ridiculous – he should be disbarred.
You just need to SCROLL his sanctions – it’s infinite..@SupremeCourt_TX #txlege #appellatetwitter pic.twitter.com/UEOxpvgR8V
— LawsInTexas (@lawsintexasusa) October 6, 2021
On August 29, 2021, JOHN VICTOR MASTRIANI [#13184375], of Houston, accepted a 36-month partially probated suspension effective August 26, 2021, with the first 12 months actively suspended.
An evidentiary panel of the District 4 Grievance Committee found that Mastriani neglected a legal matter, failed to keep his client reasonably informed about the status of the case, and further failed to refund advance payments of fees that had not been earned.
Mastriani violated Rules 1.01(b)(1), 1.03(a), and 1.15(d).
He was ordered to pay $500 in restitution and $750 in attorneys’ fees and direct expenses.
PUBLIC REPRIMAND
On August 12, 2021, G. DANNY MENA [#13929900], of El Paso, accepted a public reprimand.
An investigatory panel of the District 17 Grievance Committee found that Mena neglected client matters, failed to keep a client reasonably informed, failed to promptly render a full account regarding a client’s funds, and failed to take steps to reasonably protect his client’s interests.
Mena violated Rules 1.01(b)(1), 1.03(a), 1.03(b), 1.14(b), and 1.15(d).
He agreed to pay $800 in attorneys’ fees and direct expenses.
PRIVATE REPRIMANDS
Listed here is a breakdown of Texas Disciplinary Rules of Professional Conduct violations for eight attorneys, with the number in parentheses indicating the frequency of the violation.
Please note that an attorney may be reprimanded for more than one rule violation.
1.01(b)(1)—for neglecting a legal matter entrusted to the lawyer (2).
1.01(b)(2)—In representing a client, a lawyer shall not frequently fail to carry out completely the obligations that the lawyer owes to a client or clients (1).
1.03(a)—for failing to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information (3).
1.03(b)—A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation (2).
1.15(d)—Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of fees that have not been earned.
The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation (2).
3.03(a)(1)—A lawyer shall not knowingly make a false statement of material fact or law to a tribunal (1).
7.03(a)—The following definitions apply to this Rule:
(1)
“Regulated telephone, social media, or other electronic contact” means telephone, social media, or electronic communication initiated by a lawyer, or by a person acting on behalf of a lawyer, that involves communication in a live or electronically interactive manner;
(2)
A lawyer “solicits” employment by making a “solicitation communication,” as that term is defined in Rule 7.01(b)(2).
Respondent filed a notice of appeal on July 2, 2021 (1).
8.04(a)(8)—A lawyer shall not fail to timely furnish to the Office of Chief Disciplinary Counsel or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so (1).
TBJ
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Thank you for your hard work in holding BAR members accountable or at least exposing the corruption of these criminals and the international crime syndicate known as the BAR.