Leonard Hornsby and Sue Allen v. Tarrant County College District ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00445-CV
LEONARD HORNSBY AND SUE ALLEN APPELLANTS
V.
TARRANT COUNTY COLLEGE APPELLEE
DISTRICT
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three issues, Appellant Leonard Hornsby appeals the trial court‘s
summary judgment for Appellee Tarrant County College District (TCCD) and its
order disqualifying his attorney, Appellant Sue Allen. In two issues, Allen
1
See Tex. R. App. P. 47.4.
appeals her disqualification. We affirm the trial court‘s judgment as to Hornsby
and we dismiss Allen‘s appeal for want of jurisdiction.
II. Factual and Procedural Background
Hornsby was already employed by TCCD as an academic advisor when
TCCD advertised in 2004 for two counselor positions for its counseling center.2
Hornsby applied for both positions, and TCCD‘s screening committee placed him
on the list of four candidates that it recommended to Dr. Earnest Thomas, the
south campus president. Dr. Lonzetta Smith-Allen, Hornsby‘s supervisor, also
recommended him for the job. TCCD hired no one and re-advertised the
openings in 2005. The revised job postings stated that bilingual ability was
―highly desired.‖
Hornsby applied again in 2005. The screening committee again
recommended Hornsby, this time to Dean Juan Garcia, who had been placed in
charge of the counseling center. On December 9, 2005, Garcia sent an email to
Smith-Allen requesting the resumes of six specific candidates, all of whom had
Hispanic surnames. After Smith-Allen complied, Garcia sent Thomas an email
indicating that three of the six candidates were scheduled for an interview, but
TCCD again hired no one. Garcia sent a letter to Hornsby on May 31, 2006,
indicating that the positions would be reposted to attract more applicants and that
Hornsby should reapply if he was still interested.
2
The parties dispute whether the 2004 advertisements indicated that
bilingual ability was a desired skill for the positions.
2
The 2006 posting again included the statement that bilingual ability was
―highly desired,‖ and it had a closing date of July 8, 2006. Hornsby reapplied and
was among five candidates recommended by the screening committee. Three
candidates, including Hornsby, were not bilingual; the remaining two candidates
were bilingual but had no counseling degree. The posting required a master‘s
degree in counseling or a related field and three years‘ experience in counseling.
Hornsby had a master‘s degree in counseling. On June 4, 2007, TCCD hired a
bilingual candidate who did not have a counseling degree but had more
academic advising experience than Hornsby, had a master‘s degree in Higher
Education Administration and a minor in counseling, and had a certificate of
completion in psychology.
Hornsby sued pro se on June 26, 2007, alleging race discrimination.3 In
March 2008, TCCD hired Hornsby for the remaining counselor position.
Allen first appeared on Hornsby‘s behalf in his first amended petition on
October 10, 2007. Representing Hornsby, Allen asked Angela Robinson,
TCCD‘s attorney, when she might be able to take screening committee member
Steve Rakoff‘s deposition; in response, Robinson told Allen that Rakoff was one
of her clients and agreed to make him available. Allen then called Rakoff directly
to find out what he knew about the case. Allen also told Rakoff she was
deposing him because of his screening committee knowledge, and she advised
3
Hornsby subsequently added claims for age discrimination, but he does
not appeal the trial court‘s summary judgment on those claims.
3
him of a potential retaliation claim by TCCD against him. Allen also spoke to two
other screening committee members, Freddie Sandifer and Sandra Johnson,
multiple times during the pendency of this suit and advised them on their own
lawsuits against TCCD before she was hired by Hornsby.
Approximately one year after Hornsby hired Allen, TCCD learned that Allen
had contacted TCCD‘s employees and filed a motion to disqualify Allen under
rule 4.02 of the disciplinary rules of professional conduct. Allen asked for, and
the trial court granted, time for her to retain counsel before the hearing on
TCCD‘s motion.
Before the hearing on TCCD‘s motion, the trial court informed the parties
that it wanted to address alternative sanctions at the hearing, including striking
Rakoff, Sandifer, and Johnson as witnesses instead of disqualifying Allen. At the
hearing, TCCD argued that during trial it might be ―[b]oxed into . . . having to call
those witnesses,‖ so their exclusion would possibly harm TCCD more than
Hornsby because the jury would wonder ―[w]hy aren‘t we hearing from these
witnesses for [TCCD]?‖ TCCD also argued that it would need those witnesses to
rebut Smith-Allen‘s testimony that the screening committee told her that Hornsby
was the top candidate and Hornsby‘s theory that TCCD ―changed its procedure
in the way it hired counselors.‖ The trial court ultimately ordered Allen
disqualified.
The trial court made the following findings of fact as to the disqualification:
4
18. Attorney Sue Allen admits that she communicated with the
Current [TCCD] Employees and Ms. Smith-Allen concerning the
Hornsby Lawsuit.
19. Attorney Sue Allen further admits that Mr. Rakoff, Ms. Johnson
and Mr. Sandifer are current employees of [TCCD] and were
employees at the time of the communication.
20. Attorney Sue Allen admits that [s]he spoke with the Current
[TCCD] Employees outside of the presence of counsel for [TCCD]
and without the consent of [TCCD]‘s Counsel.
21. At the time of her communications with the Current [TCCD]
Employees, Attorney Sue Allen was representing Leonard Hornsby.
22. At the time of her communications with the Current [TCCD]
Employees, Attorney Sue Allen communicated with those employees
about the subject matter of the Hornsby Lawsuit.
23. At the time of her communications with the Current [TCCD]
Employees, Attorney Sue Allen was not authorized by law to do so.
....
25. [TCCD]‘s counsel had not been notified of any meeting between
[Mr. Sandifer, Ms. Johnson,] and Attorney Sue Allen relating to the
Hornsby Lawsuit.
....
28. The billing records submitted by Attorney Sue Allen on the
Hornsby Lawsuit show a conference with Mr. Sandifer on August 13,
2008, two days prior to his deposition and which lasted one half
hour.
29. Attorney Sue Allen spoke with both Ms. Johnson and Mr.
Sandifer after their depositions.
....
32. At his deposition, Mr. Rakoff stated under oath that Attorney
Sue Allen had called him at his office at [TCCD]‘s South Campus
and he had a conversation with her concerning the Hornsby Lawsuit.
5
33. During the ex parte communication with Mr. Rakoff, Attorney
Sue Allen discussed the issue of retaliation as it related to Mr.
Rakoff‘s testimony in the Hornsby Lawsuit.
....
38. On September 16, 2010 [TCCD]‘s Motion for Sanctions and to
Disqualify Counsel was heard.
39. At the Motion hearing [TCCD] presented Mr. Sandifer, Ms.
Johnson, Mr. Rakoff and Attorney Sue Allen as witnesses.
40. The demeanor of the Current [TCCD] Employees was guarded,
intimidated and they demonstrated selective memories.
41. Attorney Sue Allen‘s influence over the Current [TCCD]
Employees was evident during their testimony in their words,
recollection and demeanor.
42. In response to an inquiry to Mr. Sandifer as to why he called Ms.
Allen after his deposition rather than [TCCD]‘s attorney, Mr. Sandifer
responded ―Because she [pointing to Attorney Sue Allen] is my
attorney.‖
43. As members of the search or screening committee involved in
the screening of candidates for the counseling position, Mr. Rakoff,
Mr. Sandifer and Ms. Johnson are persons whose conduct is part of
the subject of the Hornsby Lawsuit.
....
46. In support of Hornsby‘s Opposition to Summary Judgment the
testimony of Mr. Rakoff and Mr. Sandifer was offered by the Plaintiff
to support Mr. Hornsby‘s assertion that these witnesses were acting
on behalf of [TCCD] as members of the screening committee and
they found Mr. Hornsby more qualified for the position sought than
the candidate which was selected.
....
6
48. This evidence [finding of fact #46] contradicts Ms. Allen‘s
September 16, 2010 representations that the testimony of the
Current [TCCD] Employees has no bearing on the Hornsby Lawsuit.
....
51. Attorney Sue Allen engaged in conduct prohibited by the Texas
Rules of Disciplinary Conduct 4.02 when she improperly contacted
the Current [TCCD] Employees.
52. As members of the search committee, the Current [TCCD]
Employees are persons whose acts or omissions may make [TCCD]
vicariously liable for the matter at issue.
53. Attorney Sue Allen, in order to avoid the appearance of
impropriety, should have avoided contact with the Current [TCCD]
Employees outside the presence of [TCCD]‘s counsel.
54. Attorney Sue Allen‘s continued representation of the Plaintiff in
this case would result in irreparable prejudice to [TCCD]‘s ability to
defend.
55. Disqualifying Attorney Sue Allen from this case and abating the
trial for thirty days will not cause a rendition of an improper judgment
or prevent Mr. Hornsby from properly presenting his case to this
Court.
56. Disqualifying Attorney Sue Allen is the least sanction which can
be imposed while still balancing the rights of [TCCD] to not be
prejudiced.
57. Unethical conduct has occurred, is admitted by Attorney Sue
Allen and the proper measure to be taken by this Court is
disqualification.
In its conclusions of law, the trial court stated:
1. Texas Rule of Disciplinary Conduct 4.02 specifically prohibits an
attorney from contacting a party the attorney knows to be
represented by counsel.
....
7
2. [TCCD] is a governmental entity. In the case of an organization
of [sic] entity of government, Texas Rule 4.02 of Disciplinary
Conduct prohibits communications by a lawyer for one party
concerning subject of the representation with persons having a
managerial responsibility on behalf of the organization that relates to
the subject of the representation and with those persons presently
employed by such organization or entity whose act or omission may
make [the] organization or entity vicariously liable for the matter at
issue. The rule is based on the presumption that such persons are
[so] closely identified with the interests of the entity of government
that [its lawyers] will represent them as well.
3.
....
During the discovery process, Attorney Sue Allen improperly
contacted the Current [TCCD] Employees who participated on the
search committee. The appropriate sanction for this improper party
contact is disqualification of Attorney Sue Allen from the Hornsby
Lawsuit.
4.
....
Attorney Sue Allen, in order to avoid the appearance of
impropriety, should have avoided any form of contact with the
Current [TCCD] Employees outside of the presence of [TCCD]‘s
Counsel. [Because she] failed to do so, [TCCD] was unfairly
prejudiced to a greater extent than Mr. Hornsby will be in retaining
new counsel.
5.
....
. . . Attorney Sue Allen admits to having conferred with Mr.
Rakoff, Mr. Sandifer and Ms. Johnson about the Hornsby Lawsuit
without the knowledge of [TCCD]‘s counsel. This conduct was
inappropriate and establishes that a specific identifiable impropriety
did occur. . . . [TCCD] has shown that the likelihood of public
suspicion or obloquy outweighs the social interest which would be
served by Attorney Sue Allen‘s continued participation in the
Hornsby Lawsuit.
8
The Court has balanced the limited, but substantial right of Mr.
Hornsby to select counsel against the conduct of Attorney Sue Allen.
Attorney Sue Allen‘s continued representation of the plaintiff in
this case would result in ―irreparable prejudice‖ to [TCCD]‘s ability to
defend.
6. Public policy concerns are readily apparent given the multiple
conversations Attorney Sue Allen had with the Current [TCCD]
Employees regarding the subject matter of Mr. Hornsby‘s claim. In
such a case, the law is clear that a court is obligated to take
measures against such conduct occurring in connection with any
proceeding before it. [Citation omitted.]
7. Discussion of a retaliation claim necessarily involves discussion
of the underlying lawsuit because the two are inextricably linked.
This is sufficient to support a disqualification of counsel. [Citation
omitted.]
8.
....
The sanction of disqualifying Attorney Sue Allen is the least
sanction which can be imposed while still balancing the rights of
[TCCD] to not be prejudiced by Attorney Sue Allen‘s
communications with Steve Rakoff, Freddie Sandifer and Sandra
Johnson.
Following Allen‘s disqualification, Hornsby and Allen petitioned this court
for a writ of mandamus, which we denied. See In re Hornsby, No. 02-10-00482-
CV, 2011 WL 582663, at *1 (Tex. App.—Fort Worth Feb. 15, 2011, orig.
proceeding) (mem. op.). No attorney appeared for Hornsby thereafter in the trial
court, even though the trial court gave him time to find new counsel, and he did
not attend the summary judgment hearing that was postponed and reset after his
attorney was removed from the case.
9
TCCD filed a second motion for summary judgment on Hornsby‘s claims
and its affirmative defenses, and the trial court granted the motion. This appeal
followed.
III. Summary Judgment
In his first issue, Hornsby asserts that the trial court erred by granting
summary judgment because record shows the existence of genuine issues of
material fact as to whether Hornsby was rejected or denied the positions in
question, whether Hornsby was qualified for the positions, whether TCCD had
nondiscriminatory reasons for the hiring delay, and whether TCCD had proved a
business necessity for its actions.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). When, as here, the trial court‘s judgment
rests upon more than one independent ground or defense, the aggrieved party
must assign error to each ground, or the judgment will be affirmed on the ground
to which no complaint is made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex.
App.—Fort Worth 1994, writ denied).
In its second motion for summary judgment, TCCD raised five grounds. Its
third ground was that Hornsby failed to complete the necessary administrative
prerequisites to sue under the Texas Commission on Human Rights Act
(TCHRA), including filing a complaint with the Texas Workforce Commission–
Civil Rights Division within 180 days of the alleged discriminatory act. See
Tarrant Reg’l Water Dist. v. Villanueva, 331 S.W.3d 125, 129–30 n.3, 134 (Tex.
10
App.—Fort Worth 2010, pet. denied) (noting that failure to file a complaint and
pursue administrative remedies within the 180-day window for filing a
discrimination claim under the TCHRA creates a jurisdictional bar). Because
Hornsby does not challenge this ground on appeal, we overrule his first issue.
See Scott, 890 S.W.2d at 948.
IV. Disqualification
In his second issue, Hornsby asserts that the trial court abused its
discretion by disqualifying his attorney and that the trial court‘s findings in support
of the disqualification were arbitrary and unreasonable.
A. Standard of Review
We review the disqualification of an attorney for an abuse of discretion.
See Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App.—
Fort Worth 2007, pet. denied) (citing Metropolitan Life Ins. Co. v. Syntek Fin.
Corp., 881 S.W.2d 319, 321 (Tex. 1994)). A trial court abuses its discretion if it
acts without reference to any guiding rules or principles, that is, if the act is
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire
v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
B. Findings of Fact and Conclusions of Law Challenged by Hornsby
In an abuse of discretion review, findings of fact and conclusions of law
explain the trial court‘s ruling and aid us in reviewing the propriety of the ruling. 4
4
Findings of fact, although not required, can properly be considered by the
appellate court in an appeal from any judgment based in any part on an
11
See In re M.J.G., 248 S.W.3d 753, 761 (Tex. App.—Fort Worth 2008, no pet.).
Conclusions of law may not be challenged for factual sufficiency, but they may be
reviewed to determine their correctness based upon the facts. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If the reviewing
court determines that a conclusion of law is erroneous but the trial court rendered
the proper judgment, the erroneous conclusion of law does not require reversal.
Id.; H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.—Fort Worth
2012, no pet.).
On appeal, Hornsby challenges findings of fact numbers fifty-four and fifty-
six and the italicized portion of conclusion of law number five:
54. Attorney Sue Allen‘s continued representation of the Plaintiff in
this case would result in irreparable prejudice to [TCCD]‘s ability to
defend.
56. Disqualifying Attorney Sue Allen is the least sanction which can
be imposed while still balancing the rights of [TCCD] to not be
prejudiced.
5.
....
evidentiary hearing. See IKB Indus. (Nigeria) v. Pro-Line Corp., 938 S.W.2d 440,
443 (Tex. 1997); see also Int’l Union v. General Motors Corp., 104 S.W.3d 126,
128–29 (Tex. App.—Fort Worth 2003, no pet.) (holding that findings of fact and
conclusions of law are appropriate following an evidentiary hearing if the trial
court is called upon to determine questions of fact based on conflicting evidence,
but not when the trial court rules without determining questions of fact);
Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706, 710 (Tex. App.—
Fort Worth 2002, no pet.) (holding that when the abuse of discretion standard of
review applies to a trial court‘s ruling, findings of fact and conclusions of law,
while helpful, are not required).
12
. . . Attorney Sue Allen admits to having conferred with Mr.
Rakoff, Mr. Sandifer and Ms. Johnson about the Hornsby Lawsuit
without the knowledge of [TCCD]‘s counsel. This conduct was
inappropriate and establishes that a specific identifiable impropriety
did occur. . . . [TCCD] has shown that the likelihood of public
suspicion or obloquy outweighs the social interest which would be
served by Attorney Sue Allen’s continued participation in the
Hornsby Lawsuit.
The Court has balanced the limited, but substantial right of Mr.
Hornsby to select counsel against the conduct of Attorney Sue Allen.
Attorney Sue Allen‘s continued representation of the plaintiff in
this case would result in ―irreparable prejudice‖ to [TCCD]‘s ability to
defend. [Emphasis added.]
C. Analysis
Rule 4.02 of the disciplinary rules of professional conduct states in part:
(a) In representing a client, a lawyer shall not communicate or cause
or encourage another to communicate about the subject of the
representation with a person, organization or entity of government
the lawyer knows to be represented by another lawyer regarding that
subject, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.
....
(c) For the purpose of this rule, organization or entity of government
includes:
(1) those persons presently having a managerial responsibility
with an organization or entity of government that relates to the
subject of the representation, or
(2) those persons presently employed by such organization or
entity and whose act or omission in connection with the
subject of representation may make the organization or entity
of government vicariously liable for such act or omission.
Tex. Disciplinary Rules Prof‘l Conduct R. 4.02, reprinted in Tex. Gov‘t Code Ann.,
tit. 2, subtit. G, app. A, art. 10, § 9 (West 2013). Comment four to this rule states,
13
This Rule is based on the presumption that [persons presently
employed by the entity in question] are so closely identified with the
interests of the organization or entity of government that its lawyers
will represent them as well. If, however, such an agent or employee
is represented in the matter by his or her own counsel that
presumption is inapplicable. In such cases, the consent by that
counsel to communicate will be sufficient for purposes of this Rule.
Id. cmt. 4.
A trial court can abuse its discretion by not disqualifying an attorney who
violates the disciplinary rules of professional conduct. See In re Basco, 221
S.W.3d 637, 639 (Tex. 2007). However, it is not necessary for an attorney to
violate a disciplinary rule in order to be properly disqualified. In re Nitla S.A. de
C.V., 92 S.W.3d 419, 422 (Tex. 2002). Even if a lawyer violates a disciplinary
rule, the movant must show that it was actually prejudiced by the lawyer‘s
conduct. Id.
When an attorney‘s conduct gives the strong appearance of impropriety,
casting doubt upon the integrity of the legal profession, the court should act to
guard that integrity. See, e.g., Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d
123, 129, 131–32 (Tex. 1996). The appearance of impropriety requires a
specifically identifiable occurrence of improper conduct and the ―likelihood of
public suspicion or obloquy outweigh[ing] the social interest in obtaining counsel
of one‘s choice.‖ Ussery v. Gray, 804 S.W.2d 232, 237 (Tex. App.—Fort Worth
1991, no writ).
The choice of sanctions, including disqualification, is within the trial court‘s
discretion, subject to the requirement that the sanction be ―‗just.‘‖ Richmond
14
Condos. v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 661 (Tex.
App.—Fort Worth 2008, pet. denied) (op. on reh‘g) (quoting TransAm. Natural
Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991) (orig. proceeding)).
Here, the record reflects that Allen was told that Rakoff was represented
by TCCD‘s counsel before she contacted him. Further, Rakoff, Sandifer, and
Johnson were decision makers in the counselor selection process, and they
eliminated over eighty applicants for the positions in question. Indeed, Hornsby
relied on the screening committee‘s recommendations to support his
discrimination claim. Thus, Allen was prohibited by rule 4.02 from contacting
them but nonetheless proceeded to do so. See Tex. Disciplinary Rules Prof‘l
Conduct R. 4.02(c)(2). By the time that Allen took Hornsby‘s case, she had
talked to Johnson and Sandifer over thirty times, and she continued to
communicate with them during the pendency of this suit. She had also advised
them on their own suits against TCCD before she was hired by Hornsby.
In its unchallenged findings of fact, the trial court found that Allen‘s
influence over Rakoff, Sandifer, and Johnson was apparent by their ―words,
recollection and demeanor‖ during their testimony at the hearing on TCCD‘s
motion to disqualify Allen, and the record of the hearing supports this finding.
Thus, TCCD demonstrated that it was prejudiced by Allen‘s prohibited contact
with Rakoff, Sandifer, and Johnson. See Nitla, 92 S.W.3d at 422.
Additionally, the trial court asked for and received argument on lesser
sanctions at the hearing. Robinson argued that Allen‘s disqualification was the
15
only way the trial court could preserve TCCD‘s ability to call Rakoff, Sandifer, and
Johnson as witnesses without Allen‘s influence. Thus, the record supports the
trial court‘s finding that Allen‘s disqualification was the least sanction available.
See Richmond Condos., 245 S.W.3d at 661. The trial court also found that to
avoid the appearance of impropriety, Allen should have avoided contact with
TCCD‘s current employees outside the presence of TCCD‘s attorney. By
representing screening committee members, engaging in ex parte
communications with them, and advising them on retaliation ramifications while
suing their employer over an issue in which they had played a role, Allen created
the appearance of impropriety and created public suspicion or obloquy such that
her disqualification was required. See Ussery, 804 S.W.2d at 237. Thus, we
cannot say that the trial court abused its discretion by disqualifying Allen for her
contacts with TCCD‘s employees. See Low, 221 S.W.3d at 614. We overrule
Hornsby‘s second issue.
V. Waiver
In his third issue, Hornsby claims that TCCD waived the right to raise
Allen‘s disqualification by waiting an unreasonable time before presenting the
issue for decision. However, Hornsby points us to no place in the record where
he or Allen complained to the trial court that TCCD had waived its right to move
for Allen‘s disqualification. See Tex. R. App. P. 33.1(a); see also Euler v. Marks,
No. 09-09-00344-CV, 2011 WL 378972, at *3 (Tex. App.—Beaumont Feb. 3,
2011, pet. dism‘d w.o.j.) (holding that affirmative defenses and avoidance claims
16
must be pleaded to the trial court to preserve them for appellate review).
Therefore, we overrule Hornby‘s third issue.
VI. Allen’s Appeal
In two issues, Allen attempts to appeal her disqualification by the trial
court, alleging that the trial court‘s finding that she violated rule 4.02 by
communicating with TCCD‘s employees was arbitrary and unreasonable and that
her disqualification was arbitrary absent proof of an ethical violation that harmed
TCCD. However, because Allen was not a party named of record in the trial
court, she has no standing to bring this appeal. See In re J.M.R., No. 02-07-013-
CV, 2007 WL 1502103, at *1 (Tex. App.—Fort Worth May 24, 2007, no pet.)
(mem. op.). Consequently, we dismiss Allen‘s appeal for want of jurisdiction.
VII. Conclusion
Having overruled Hornby‘s three issues, we affirm the trial court‘s
judgment. Because Allen has no standing to appeal her disqualification, we
dismiss her appeal for want of jurisdiction.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: May 16, 2013
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