Joe Alfred Izen, Jr. v. Commission for Lawyer Discipline

Opinion issued May 28, 2010

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-01114-CV

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JOE ALFRED IZEN JR., Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

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On Appeal from 129th District Court

Harris County, Texas

Trial Court Cause No. 2004-41123

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O P I N I O N

This appeal concerns a telephone book advertisement and two website advertisements by a Texas attorney, appellant, Joe Alfred Izen Jr., who was prosecuted by the appellee, the Commission for Lawyer Discipline (the "Commission"). Izen appeals the judgment that suspends his license to practice law, probated for 24 months, for various violations of the Texas Disciplinary Rules of Professional Conduct (hereafter, "the Rules"). In six issues challenging the jury's verdict and the trial court's judgment, Izen contends the evidence is legally and factually insufficient; his due process rights were violated; there is a conflict in the jury's answers; the trial court erred in its evidentiary rulings; the trial court erred in its instructions to the jury; and the trial court erred by allowing the jury to deliberate when the judge was outside of Harris County. We conclude that Izen's due process rights were not violated by the Commission's prosecution of the violations of the Rules by the websites and that those violations are each independent grounds sufficient to uphold the judgment. We also conclude that the remainder of Izen's complaints are either waived or are alternative grounds that are unnecessary to support the judgment. We affirm.

Background

Izen, an attorney licensed to practice in Texas, employed Joe D. Sanchez, who was not an attorney. Izen placed three advertisements. One was an advertisement that appeared in a Brady, Texas telephone directory and two were websites. In describing the background of this case, we discuss (A) a description of the three advertisements, (B) the Committee's administrative action, (C) the jury trial, and (D) the post-verdict motions filed by Izen.

A. The Three Advertisements

Izen placed an advertisement that appeared in a Brady, Texas telephone directory. The advertisement's size was one-half page. It stated, "Texas Legal Services Clinic. Divorce $79.00." The advertisement also listed the areas of wills, probate, bankruptcy, "workmans comp.," personal injury, criminal law, and family law. Izen was listed as a "staff attorney" and Joe D. Sanchez was identified as an "associate." In addition to listing a telephone number, the advertisement stated, "Not Certified by the Texas Board of Legal Specialization."

Izen also had a website called www.joeizen.com. It stated,

Joe A. Izen Jr. is considered by many of his clients to be a highly proficient attorney with few peers in the legal profession when it comes to a committed defense of those he represents. Izen has been licensed over 20 years and is the lead attorney for many of the more difficult cases. His practice has grown rapidly across the nation and even into other countries such as Belize, where he stopped the SEC from illegally obtaining records of a resident trust company. He has won numerous battles with the IRS. It can be our hope that we not only can win many more important battles against abusive government agencies, but that we can be part of the reform efforts of some of these agencies in order to bring them back into their proper role of public servants which will then gain back public acceptance.

. . . .

Licensed in Texas - Not Certified by the Texas Board of Legal Specialization. Licensed to practice before the Texas Supreme Court[.] Federally licensed to practice in the U.S. District Courts of the Eastern, Western, Northern and Southern Districts of Texas, Eastern and Western Districts of Arkansas. Also licensed at the appellate level to practice before the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eight[h], Ninth, Tenth, Eleventh, District of Columbia and Federal Circuits, the U.S. Tax Court, the U.S. Court of Claims, U.S. Court of Military Appeals and the United States Supreme Court.

Izen also advertised in another website, www.divorceintexas.net. In pertinent part, that website stated,   

Texas Legal Service Clinic - Divorce in Texas Made Easy

Self Help Divorce Packages STARTING At $12.50

1,000s of satisfied clients throughout Texas!!! Unbelievably low prices!!!

. . . .

Texas Legal Services Clinic (TLSC) is the trade name for the Law Offices of Joe Alfred Izen, Jr., an attorney licensed to practice law for over 20 years and gained considerable experience in all areas of the law.

None of these advertisements were filed with the Advertising Review Committee (hereafter "the Committee") before their dissemination.

B. The Committee's Administrative Action

Following dissemination of the three advertisements, the Committee sent a letter to Izen in January 2003 concerning the Brady advertisement. The letter told Izen that the dissemination of the Brady advertisement violated Part 7 of the Rules because it was not filed with the Committee before its dissemination. The letter also informed Izen that he had 20 days to administratively resolve the violations of Part 7 by filing the advertisement, and paying filing and late-filing fees. The offer of an administrative resolution concerned the Part 7 violations by the Brady advertisement only. A copy of the Brady advertisement was attached to the Committee's letter.

In response to the Committee's letter, Izen submitted an application for review of the Brady advertisement, along with the $300 filing fee, and a copy of the Brady advertisement. Izen did not mention either www.joeizen.com or www.divorceintexas.net in anything he filed with the Committee. The form application sent by Izen had a section to identify the "Nature of advertisement or written solicitation" made the subject of the application. Izen put an "X" in the blank next to "Telephone Directory" and did not mark the blank next to "Other (billboards, websites, etc.)" or indicate any website's URL address in the space indicated on the form. The only mention concerning any internet-related item in Izen's response to the Committee appears in the portion concerning his contact information. This section contains blanks for the applicant to fill in information such as "Lawyer," "Bar Card #," "Firm," "Firm's Principal Office Address," "Phone," "Fax," and "E-mail." In the blank following the term "E-mail," Izen wrote "joeizen@joeizen.com."

The Committee did not administratively resolve any of Izen's violations. The Committee referred the violations in the Brady advertisement, as well as violations it discovered concerning the two websites, to the Commission. The Commission filed a petition in district court.

C. The Jury Trial

The case was tried before a jury and presided over by Judge Jean Boyd, who was appointed by the Texas Supreme Court. See Tex. R. Disciplinary P. 3.02, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005). (providing for appointment of active district judge who does not reside in Administrative Judicial District in which respondent resides). After the close of evidence, the jury began deliberating on Wednesday, September 12, 2007. At the end of that day, the jury was instructed to return to court at 10 a.m. the next morning, although there was concern that "a huge storm, perhaps a hurricane" was approaching Houston. The trial court judge, who was not from the area, left Harris County. The storm, however, was not as bad as anticipated and the jury appeared in court the next day. Sometime during the morning, the jury sent a question to the judge. The judge did not answer the question but instead instructed the bailiff to tell the jury to go home and return the next morning, Friday, September 14. The judge returned to court Friday morning, answered the jury's question, and, later that day, received the jury's verdict.

The jury was asked 12 questions concerning possible violations of the Rules. ⁽¹⁾ The jury found for Izen and against him on certain questions concerning (1) the Brady advertisement, (2) the www.divorceintexas.net website, and (3) the www.joeizen.com website.

1. The Brady Advertisement

Concerning the Brady advertisement, the jury found in favor of the Commission, as follows:

• Question 1 determined that Izen practiced under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name [Rule 7.01(a)];

• Question 2 determined that Izen advertised in the public media or sought professional employment by written communication under a trade or fictitious name [Rule 7.01(e)];

• Question 5 determined that Izen made a false or misleading communication that is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violated these rules or other law [Rule 7.01(a)(2)];

• Question 8 determined that Izen failed to disclose the geographic location of the principal office or days and times that a lawyer will be present or that meetings will be by appointment only [Rule 7.04(j)];

• Question 9 determined that Izen "failed to file with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, either before or concurrently with the advertisements that he placed and failed to file a copy of each advertisement in the public media with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas" [Rule 7.07(b)];

• Question 11 determined that Izen ordered, encouraged, or permitted Joe Sanchez to place the advertisement [Rule 5.03(b)(1)]; and

• Question 12 determined that Izen failed to review and approve in writing the advertisement [Rule 7.04(e)].

The jury found in favor of Izen in five questions concerning the Brady advertisement. Specifically, the jury found in favor of Izen on the following:

• Question 3 determined the evidence failed to show that Izen made a false or misleading communication of the identity, qualifications or services of any lawyer or the firm in the advertisement [Rule 7.02(a)];

• Question 4 determined that the evidence failed to show that Izen made a communication that contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading in the advertisement he placed [Rule 7.02(a)(1)];

• Questions 6 determined the evidence failed to show that Izen violated the Rule prohibiting statements comparing his services with other attorneys [Rule 7.02(a)(3)];

• Question 7 determined that the evidence failed to show Izen violated the Rule requiring a disclaimer that he is not certified by the Texas Board of Legal Specialization [Rule 7.04(b)(3)]; and

• Question 10 determined that the evidence failed to show that Izen violated the Rule that he reasonably supervise Joe Sanchez, a nonlawyer member of his firm [Rule 5.03(a)].

2. The Website "www.divorceintexas.net"

The jury found in favor of the Commission concerning www.divorceintexas.net, as follows:

• Question 1 determined that Izen practiced under a misleading trade name [Rule 7.01(a)];

• Question 2 determined that Izen advertised under a misleading or fictitious trade name [7.01(e)];

• Question 7 determined that Izen did not conspicuously state he was not certified by the Texas Board of Legal Specialization [Rule 7.04(b)(3)];

• Question 8 determined that Izen failed to disclose the days and times he would be at a geographic location [Rule 7.04(j)]; and

• Question 9 determined that Izen failed to file the advertisement with the Committee before or concurrently with its dissemination [Rule 7.07(b)].

Like the Brady advertisement, the jury found in favor of Izen concerning Questions 3, 4, and 6. The jury, however, also found in favor of Izen in Question 5 where it determined the evidence failed to show he made a false or misleading communication about the results the lawyer could achieve.

3. The Website "www.joeizen.com"

Concerning the website www.joeizen.com, the jury found in favor of the Commission, as follows:

• Question 3 determined that Izen made a false or misleading communication of the identity, qualifications or services of any lawyer or the firm in the advertisements that he placed [Rule 7.02(a)]; and

• Question 9 determined that Izen "failed to file with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, either before or concurrently with the advertisements that he placed and failed to file a copy of each advertisement in the public media with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas" [Rule 7.04(b)(3)].

Like the Brady advertisement, the jury found in favor of Izen in Questions 4 and 6. The jury, however, also found in favor of Izen in Question 5.

D. The Post-verdict Motions

After the jury was discharged, Izen filed a motion for new trial and "Motion to Disregard Verdict of Jury on Certain Special Issues, Renewed Motion for Directed Verdict and Motion to Enter Judgment." In this motion, Izen challenged the legal and factual sufficiency of the evidence to support the jury's findings. Izen also identified several jury answers that he contends conflict with one another. The judge did not sign an order denying any of these motions, so they were overruled by operation of law. See Tex. R. Civ. P. 329b(c). The judgment specifically recites that the jury found violations of Rules 7.01(a), 7.01(e), 7.02(a), 7.02(a)(2), 7.04(b)(3), 7.04(j), 7.07(b), 7.04(e), and 5.03(b)(1), and states, "The Court further finds and concludes that the proper discipline of Respondent for each act of professional misconduct as found in this cases is suspension from the practice of law."

Due Process  

In his first issue, Izen contends the judgment of the trial court should be reversed and judgment rendered in his favor "based on the State Bar Advertising Review Committee and the Commission for Lawyer Discipline's violation of their own rules and regulations[,] administrative due process[,] and failure to exhaust administrative remedies." Although he broadly states his issue, Izen's sole complaint concerns his argument that the Committee did not abide by the representations it made in the January 2003 letter. Izen contends that the Committee, by sending him the letter and accepting his late-filing fee, created a right for Izen to have any problems with the Brady advertisement resolved administratively and that the Committee's failure to do so was a denial of due process. Izen asserts the letter from the Committee creates his entitlement to "an initial effort to handle violations administratively before reporting an attorney to the grievance system." Izen contends the letter is a mutually explicit understanding to reach "informal resolution of any [c]omplaint concerning Izen's ads, without a filing of a formal grievance" or "resolve any potential grievance informally." Specifically, Izen states, "The Committee failed to follow the very procedures which it outlined in its letters [sic]: (1) pay a fee, (2) apply for a review of the ad, and (3) resolve any potential grievance informally."

A. Due Process Through Notification of Charges

Disbarment proceedings impose a punishment or penalty on a lawyer and, therefore, a lawyer is "entitled to due process, which includes fair notice of the charge." In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 1226 (1968). Due process, including notice of the charges, is required "in any proceeding which is to be accorded finality." Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899 (1988). Due process, however, is not implicated by a grievance committee investigation because it is not accorded finality; the lawyer has a right to respond to charges either before an evidentiary panel of the grievance committee or at trial in district court. Weiss v. Comm'n for Lawyer Discipline, 981 S.W.2d 8, 13 (Tex. App.--San Antonio 1998, pet. denied); see Minnick v. State Bar of Tex., 790 S.W.2d 87, 90 (Tex. App.--Austin 1990, writ denied) (grievance committee proceeding not final because lawyer had right to de novo trial in district court); Sims v. Comm'n for Lawyer Discipline, No. 34229, 2006 WL 6242395, at *5 (Tex. Bd. Disciplinary Appeals June 8, 2006) (lawyer not entitled to due process during initial investigation by grievance committee because no discipline can be imposed until lawyer given notice and opportunity to choose between evidentiary panel and trial in district court).

In Ruffalo, the Supreme Court held that the due process rights of Ruffalo, an attorney, were violated by lack of notice of the disciplinary charges that had been filed against him by the Ohio Board of Commissioners on Grievance and Discipline. In re Ruffalo, 390 U.S. at 551, 88 S. Ct. at 1226. The Board charged Ruffalo with 12 specific alleged acts of misconduct. Id. at 546, 88 S. Ct. at 1223-24. After the adversarial proceeding had begun, Ruffalo and an investigator he employed in his practice testified. Id., 88 S. Ct. at 1224. Based on the testimony of Ruffalo and the investigator, the Board added a thirteenth charge against Ruffalo. Id., 88 S. Ct. at 1224. The Board found Ruffalo guilty of seven acts of misconduct, including the thirteenth charged act that had been added after the proceeding against him had commenced. Id. at 547, 88 S. Ct. at 1224. The Supreme Court of Ohio found the evidence sufficient to sustain only two of the charges, one of them being the thirteenth charge. Id., 88 S. Ct. at 1224. After the completion of the state proceedings, the federal court of appeals ordered Ruffalo to show cause why he should not be disbarred from practice in that court. Id. at 545, 88 S. Ct. at 1223. The majority of the court of appeals found that Ruffalo's conduct, as alleged in the thirteenth charge, justified disbarring Ruffalo. Id. at 545, 547, 88 S. Ct. at 1223, 1224.

Izen does not present a Ruffalo-type-due-process challenge premised on adequate notice of the allegations, but instead focuses solely on the due process he was entitled to based on his formation of a contract with the Committee. Compare id. Izen's due process challenge in the trial court and in this Court is limited to the failure of the Committee to comply with the representations contained in the January 2003 letter concerning the Brady advertisement; Izen does not assert any other due process challenge either in the trial court or in this Court. We conclude Izen has not presented any due process challenge other than the assertion of a contract with the Committee concerning the Brady advertisement only.

B. Due Process by Formation of Contract  

Izen contends that the January 2003 letter was a contract between him and the Committee that entitled him to the due process described in the letter, which he believed meant an administrative review of the Brady advertisement.

1. Applicable Law

For a due process claim premised on the formation of a contract, the plaintiff must assert a property interest that is protected by the Fourteenth Amendment of the United States Constitution or article I, section 19 of the Texas Constitution. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705 (1972) (noting "due process appl[ies] only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property"); see also Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 671 (Tex. App.--Houston [14th Dist.] 2006, pet. denied) ("The Due Process Clause is only activated when there is some substantial liberty or property interest which is deserving of procedural protections."). "To have a property interest in a benefit, a person . . . must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Nat'l Collegiate Athletic Ass'n v. Yeo, 171 S.W.3d 863, 870 n.19 (Tex. 2005) (quoting Roth, 408 U.S. at 577, 92 S. Ct. at 2701).

A person's property interest may arise from "such rules or mutually explicit understandings that support his claim of entitlement." Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699 (1972). A mutually explicit understanding can be supported by a written contract or an implied contract. Id. at 601-02, 92 S. Ct. at 2699-2700; see also Johnson v. Sw. Miss. Reg'l Med. Ctr., 878 F.2d 856, 858 (5th Cir. 1989) (stating property interest "may be created directly by state statute or by a written contract, or by a 'mutually explicit understanding' enforceable under state law as an implied contract").

Whether express or implied, "[p]arties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding." Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (citing Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.--Houston [1st Dist.] 2007, no pet.)). "'Meeting of the minds' describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract." City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 720 (Tex. App.--Fort Worth 2008, pet. denied).

2. Analysis of Letter's Reference to Brady Advertisement

In its entirety, the January 2003 letter from the Committee to Izen concerning the Brady advertisement stated,

Dear Joe Alfred Izen, Jr:

It has come to the attention of the staff of the Advertising Review Department that you or your firm has disseminated either a public media advertisement or a written solicitation communication in violation of Part 7 of the Texas Disciplinary Rules of Professional conduct. A copy of the ad or writing in question is attached.

Section 7.07 of the Texas Disciplinary Rules of Professional Conduct outlines the filing requirements for advertisements and written solicitations. Most ads and written solicitations are required by Rules 7.07(a) or (b) to be filed with the Advertising Review Committee upon first dissemination. There are certain exemptions to these filing requirements which are delineated in Rule 7.07(d). Ads and writings exempt under 7.07(d) do not have to be filed but still must comply with all other applicable provisions of Part 7. Ads and writings not exempt under 7.07(d) must meet the filing requirements of 7.07(a) or (b) and must also comply with all other applicable provisions of Part 7. Please note that if an ad or writing is non-exempt, the failure to file such ad or writing with the Committee is a violation of the advertising rules even if the ad or writing complies with the rules in all other respects. (Also, please note that any change in the text of a previously filed advertisement or written solicitation letter necessitates a new filing; therefore, if you believe that you have previously filed and received an approval on this material, you should check to ensure that the attached is exactly the same as your previously approved material. If it is, you should contact me immediately with the file number under which the material was previously approved.)

The Committee can report to the appropriate grievance committee any lawyer whom it finds has disseminated an advertisement or writing that violates any portion of Part 7. However, in an initial effort to handle violations administratively before reporting an attorney to the grievance system, the Committee will allow you one opportunity to submit your advertisement or written solicitation for review at this time. Within twenty (20) days of your receipt of this letter, you are requested to file the attached ad or writing with the Advertising Review Department.

An advertisement or written solicitation can only be filed in the form of an official application packet which includes: a copy of the ad or writing, a completed application form, and a $75.00 filing fee. In addition, there is a late filing fee of $225.00 assessed to each advertisement or written solicitation letter that is not timely filed as required by Rule 7.07(a) or (b) but rather is filed in response to a certified letter from the Advertising Review Committee. Therefore, in order for us to accept your application packet for filing, it must be accompanied by a $75.00 standard filing fee and a $225.00 late filing fee for a total of $300.00. These fees should be combined into one check. Each ad or writing must be filed separately. Written solicitations must be accompanied by a sample copy of the envelope in which they are to be mailed. Television or radio commercials must include both a copy of the ad on video or audio tape and a detailed production script. The rules, filing requirements, and application form were published in the June 1995 issue of the Texas Bar Journal. As an accommodation to you, an application form has been enclosed. You may also access these rules and download the application form at www.texasbar.com/members/license/adreview/adreview.asp.

If your completed application packet is not received in this office by the twentieth (20th) day following the date of your receipt of this letter, the Committee will forward this matter to the appropriate grievance committee for disciplinary action. It is absolutely essential that you include your unique file number (referenced above) on all correspondence pertaining to this matter. The inclusion of this number will allow us to accurately remove your file from those pending disciplinary action. Thank you for your cooperation.

(Bold and underlined text in original and italics added for emphasis).

The Committee's letter shows that, in exchange for payment of the filing fee and the late-filing fee by Izen, it would administratively review the violation of the Rules concerning Izen's failure to file the Brady advertisement before or concurrently with the advertisement's dissemination, which was the violation described by Rule 7.07(b). The letter commingles its discussion of all the Part 7 violations that may be in the Brady advertisement. The letter explains that for the Brady advertisement to be in compliance with the Rules it needed to have been filed with the Committee before or concurrently with its dissemination, and it needed to comply "with the rules in all other respects." The letter then explains that the Committee "can report any lawyer who it finds has disseminated an advertisement or writing that violates any portion of Part 7." The letter then offers "to handle violations administratively" if Izen sends in the attached Brady advertisement with his official application packet, filing fee, and late fee. The letter says Izen has "one opportunity" to submit his advertisement "for review at this time."

Assuming Izen is correct that the Committee offered him an administrative resolution of all violations of Part 7 of the Rules concerning the Brady advertisement, and that he accepted that offer by mailing the advertisement to the Committee and paying the filing fees and late fees, the Committee was bound to that agreement. See Perry, 408 U.S. at 601-02, 92 S. Ct. at 2699-2700. The jury found the Brady advertisement violated various portions of Part 7 in its answers to Questions 1, 2, 5, 8, and 12, and we assume the trial court erred to the extent that it included those violations as part of its judgment. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 933 (Tex. 1995).

Having assumed that Izen had a due process interest in administratively resolving the Rule 7 violations caused by the Brady advertisement, we must determine the proper remedy. Izen simply asserts, without analysis or citation to any authority, "The [trial court's] judgment should be reversed and judgment should be rendered in Izen's favor dismissing all counts of the disciplinary complaint." "In general, however, the remedy for denial of due process is due process." Univ. of Tex. Med. Sch., 901 S.W.2d at 933. Here, assuming Izen was not afforded the administrative process in the letter, the Committee should not have referred his Part 7 violations from the Brady advertisement to the Commission, and the Commission should not have filed a charge of misconduct based on those violations. The appropriate remedy for that violation is reversal of the trial court's judgment to the extent it is based on Part 7 violations from the Brady advertisement. See id. Izen, however, is not entitled to dismissal of all the violations in the judgment if there are violations of the Rules unrelated to the Part 7 violations by the Brady advertisement. See Ibarra v. Housing Authority, 791 S.W.2d 224, 226 (Tex. App.--Corpus Christi 1990, writ denied). To prevail in this appeal, Izen must show that each independent basis for the judgment is erroneous. See Cluck v. Comm'n for Lawyer Discipline, 214 S.W.3d 736, 739 (Tex. App.--Austin 2007, no pet.) ("The violation of one disciplinary rule is sufficient to support a finding of professional misconduct."); see also Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.--Houston [1st Dist.] 2002, no pet.) ("[When independent jury findings fully support a judgment, an appellant must attack each independent jury finding to obtain a reversal.").

3. The Rule 5.03 Brady Advertisement Violation and the Two Websites

Excluding the Part 7 violations from the Brady advertisement, the judgment can be upheld by the Rule 5.03 violations from the Brady advertisement, as well as the multiple violations of the Rules by the two websites. Izen's due process rights were not violated by the inclusion of the Rule 5.03 violation by the Brady advertisement because only the Part 7 violations for that advertisement were mentioned in the letter. In Question 11, the jury determined Izen violated Rule 5.03(b)(1) because he ordered, encouraged, or permitted Joe Sanchez to place the Brady advertisement. Because only Part 7 of the Rules was mentioned in the letter, the trial court's judgment properly included the Rule 5.03 violation for the Brady advertisement. See Ibarra, 791 S.W.2d at 226 (reversing portion of judgment obtained in violation of due process violation but affirming portion that did not violate due process).

Similarly, the judgment properly included the violations by the websites because they were not mentioned in the communications between the Commission and Izen. The Committee's letter specified, "A copy of the ad or writing in question is attached." A copy of the Brady advertisement was attached. The Committee never mentioned www.joeizen.com or www.divorceintexas.net. The Committee expressly stated,

In addition, there is a late filing fee of $225.00 assessed to each advertisement or written solicitation letter that is not timely filed as required by Rule 7.07(a) or (b) but rather is filed in response to a certified letter from the Advertising Review Committee. . . . Each ad or writing must be filed separately.

(Emphasis added).

Izen, in his late-filed application for review, did not address www.joeizen.com or www.divorceintexas.net, but only addressed the Brady advertisement. Izen has not produced any evidence that the Committee ever offered any administrative review of the two websites that were undisputedly not mentioned in the letter, nor in Izen's response to the letter. For www.divorceintexas.net, the jury found Izen violated Rules 7.01(a), 7.01(e), 7.04(b)(3), 7.04(j), and 7.07(b). For www.joeizen.com, the jury found Izen violated Rules 7.02(a) and 7.04(b)(3). No evidence shows Izen's due process rights were violated with respect to the www.divorceintexas.net website or the www.joeizen.com website. After excluding all Part 7 violations by the Brady advertisement, the judgment can be he upheld by the eight independent violations of the Rules. See Cluck, 214 S.W.3d at 739; see also Britton, 95 S.W.3d at 681.

C. Policy of Committee

Within his brief, Izen suggests that the Commission's pursuit of all three advertisements violated his due process rights because he believed the Committee would informally resolve any violations in the advertisements. He states that the "record in this case as well as the Committee's official publications and seminars which are subject to judicial notice by this Court . . . establish that the Committee had a policy of allowing attorneys to resolve problems informally." This statement is not contained within the argument section of Izen's first issue concerning due process. Rather, this statement is found within Izen's issue two concerning a conflict in the jury's answers. Specifically, it is part of Izen's argument asserting the jury's answers to Question 9 should be disregarded.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). "Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief conclusory statements, unsupported by legal citations." Id. "Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority . . . ." Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.--Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Similarly, appellate issues are waived when the brief fails to contain a clear argument for the contentions made. See Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.--Dallas 2007, no pet.) (holding issue is waived by brief that makes no attempt to analyze trial court's order within context of cited authority).

Izen does not identify any portion of the record that contains the "Committee's official publications and seminars" nor does he identify a request for the trial court to take judicial notice of the publications and seminars. This single conclusory statement without citation to the record or to relevant authority is insufficient to preserve this issue for appeal. Izen has waived any issue concerning the Committee's purported policy to resolve problems informally. See Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Abdelnour, 190 S.W.3d at 241.

D. The Dissenting Opinion's Analysis of "Safe Harbor"

The dissent is premised, in part, upon the application of former Rule 7.07(c), which a federal court interpreted as a "safe harbor" provision. See Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328, 1367-68 (E.D. Tex. 1995). Rule 7.07(c) provides that a lawyer may seek advance approval of an advertisement by filing for an advanced opinion concerning a proposed advertisement. Tex. Disciplinary R. Prof'l Conduct 7.07(c). This Rule provides a safe harbor for a lawyer by stating the Committee will review the advertisement submitted in advance and that a finding of noncompliance is not binding in a disciplinary proceeding, but a finding of compliance is binding in favor of the lawyer seeking the advance opinion, provided the lawyer is truthful and not misleading in the application for advanced review. Id. To take advantage of the safe harbor, however, the lawyer must file the advertisement in question "not less than thirty (30) days prior to the date of first dissemination." Id.

Here, it is undisputed that Izen did not file any of the three advertisements at issue 30 days in advance of dissemination. Furthermore, Izen does not raise the provisions of Rule 7.07(c) in his brief to this Court, and did not raise the Rule in the trial court. The letter from the Committee is the only source of due process rights Izen raises, and that letter expressly states that Izen failed to file the Brady advertisement prior to its dissemination. Because the record undisputedly shows that Izen did not ask for an advance opinion and he did not meet the filing requirements for an advance opinion, Rule 7.07(c) is inapplicable to this case. Additionally, neither Izen nor the Commission raised this issue of an advance opinion before the trial court or this Court. Rule 7.07(c) is inapplicable to this case and, therefore, any discussion of that matter is an improper advisory opinion. See VanDevender v. Woods, 222 S.W.3d 430, 432-33 (Tex. 2007) (stating courts should not decide constitutional issue not necessary to disposition of appeal, noting that any opinion on such issue would be advisory) (citing, among other authority, Tex. R. App. P. 47.1); see also In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (noting "[i]mportant prudential considerations" require parties to raise complaints at trial before appellate court will address them).

Sufficiency of Evidence  

In his fifth issue, Izen contends the evidence is legally and factually insufficient to support the jury's findings that he committed violations of the Rules. Izen asserts neither he nor his assistant approved the final content of the Brady advertisement; only books and legal forms were sold at the website www.divorceintexas.net; the statement of opinion held by his clients as shown on the website www.joeizen.com complied with the Rules; and the trade name "Texas Legal Services Clinic" is not misleading. Other than these specific arguments, Izen states generally that the evidence is legally and factually insufficient to uphold the jury's answers to Questions 4, 5, 7, 8, 9, 11, and 12. Within his second issue, Izen asserts the evidence is insufficient to support the jury's answers to Questions 1, 2, and 3.

A. Standard of Review  

"The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. at 822. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id. Although the reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it, if the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id.

In determining factual sufficiency, this Court weighs all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ). In an appeal from a bench trial, we may not invade the fact-finding role of the trial court, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex. App.--Houston [1st Dist.] 1997, pet denied).

B. Analysis

Having determined the trial court properly included the Rule 5.03 violation for the Brady advertisement, the Part 7 violations for www.divorceintexas.net, and the Part 7 violations for www.joizen.com, we address whether the evidence is legally and factually sufficient to support any of these violations. Any one of the jury's findings of violations of the Rules is sufficient to support the judgment of suspension. See Cluck, 214 S.W.3d at 739.

Question 9 asked the jury

Do you find by a preponderance of the evidence that Joe Alfred Izen failed to file with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, either before or concurrently with the dissemination of the advertisements that he placed and failed to file a copy of each advertisement that he placed in the public media with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas?

The jury was instructed to answer "yes" or "no" separately for the Brady advertisement, www.joizen.com, and www.divorceintexas.net. The jury answered "yes" for each advertisement.

Within his fifth issue, Izen does not make any specific arguments concerning Question 9. Furthermore, when testifying at trial, Izen stated he did not file a review application for www.joeizen.com. We hold the evidence is legally and factually sufficient to support the jury's finding concerning the failure to file a review application for www.joeizen.com. This finding is sufficient to support the trial court's judgment imposing a probated suspension on Izen. See Cluck, 214 S.W.3d at 739; see also Britton, 95 S.W.3d at 681. We therefore need not address the sufficiency of the evidence to support the findings of other violations.

We overrule Izen's fifth issue.

Conflict in Jury's Answers

In his second issue, Izen contends, "the jury's answers to questions Nos. 1 through 12, upon proper resolution of any conflict, require entry of judgment in favor of Respondent Izen or a new trial."

To preserve error that the jury's findings are inconsistent, the complaining party must raise an objection in the trial court before the jury is discharged. Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., 176 S.W.3d 307, 324 (Tex. App.--Houston [1st Dist.] 2004, pet. denied); see also Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 24 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Before discharging the jury, the trial court expressly asked, "Do the attorneys have any other matter that you would like the Court to take up before I release the jury?" Izen's counsel responded, "No, Your Honor." Almost 30 days after the jury was discharged, Izen filed a motion challenging the lack of evidence to support certain questions and identifying certain purported inconsistences. Izen failed to raise the issue of an inconsistency or conflict in the jury's verdict prior to the jury's discharge, and thus has not preserved this issue for appeal. See Oyster Creek Fin. Corp., 176 S.W.3d at 324; see also Kennedy Ship & Repair, L.P., 210 S.W.3d at 24. We hold Izen has waived his complaint. See Oyster Creek Fin. Corp., 176 S.W.3d at 324; see also Kennedy Ship & Repair, L.P., 210 S.W.3d at 24.

We overrule Izen's second issue.

Admission of Evidence

In his third issue, Izen asserts that the trial court erred in the admission and exclusion of three types of evidence. First, Izen contends the trial court erred in its "[e]rroneous exclusion of admissions as hearsay and denial of right to cross-examination of the Commission's expert." Izen explains that the court should have allowed Izen to cross examine a Committee member with the member's prior statements. Izen identifies evidence pertinent to his claim that the Part 7 violations by the Brady advertisement should have been resolved administratively or informally. Second, Izen asserts the trial court erred in its "[a]dmission of incompetent expert testimony concerning the legal requirements of the Disciplinary rules from a non-lawyer." Izen does not specifically point to any evidence and challenges the witnesses generally. Izen explains the testimony was inadmissible "legal opinion" testimony. Third, Izen contends the trial court erred in its "[e]xclusion of relevant expert testimony." Izen explains that his proffered expert testimony was relevant to the issue of Izen's standing in the legal community.

Izen has failed to show how any of this evidence is relevant to the factual issue of whether Izen failed to file an application for review concerning www.joeizen.com, which is an independent ground to uphold the trial court's judgment. See Cluck, 214 S.W.3d at 739. It is undisputed from Izen's own testimony that he failed to comply with the application requirements for www.joeizen.com. We hold any purported error in the admission or exclusion of evidence is harmless because the evidence pertains to alternative grounds that are unnecessary to support the judgment. See Cluck, 214 S.W.3d at 739; Britton, 95 S.W.3d at 681.

We overrule Izen's third issue.

Jury Charge  

In his fourth issue, Izen asserts, "the trial court improperly charged the jury and erred by granting a directed verdict against respondent Izen on his counter-claims and by refusing to submit any of Izen's required special issues." Izen contends (A) Question 11 did not ask the jury to determine whether Izen or Sanchez approved the contents of the Brady advertisement; (B) the trial court committed error by refusing to submit any of Izen's requested jury instructions concerning Izen's affirmative defenses and counterclaims; and (C) the trial court erred by overruling Izen's vagueness objections to the charge.

A. Question 11

Having determined that the jury's finding in response to Question 9 concerning the lack of a review application for www.joeizen.com is sufficient to support the judgment, we hold that the error, if any, in the submission of Question 11 is harmless. See Cluck, 214 S.W.3d at 739.

We overrule this portion of Izen's fourth issue.

B. Denial of Izen's Requested Instructions

Izen states, "The Court committed error by refusing to submit any of Izen's requested jury instructions." Izen's argument on this portion of his fourth issue states,

Evidence existed in the record which supported submission of Izen's affirmative defenses and counter-claims for selective prosecution, violation of administrative due process, arbitrary, capricious and unreasonable action, restraint of trade, vagueness, failure to exhaust administrative remedies, invidious discrimination, violation of civil rights, and first amendment retaliation. By failing to submit these issues, the Court improperly granted a directed verdict on Izen's counter-claims and affirmative defenses and improperly charged the jury in violation of numerous authorities.

"The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277. "The court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence." Tex. R. Civ. P. 278. "Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment." Tex. R. Civ. P. 278.

Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). As noted above, this requires a party to provide us with a discussion of the facts and relevant authorities. See Tesoro Petroleum Corp., 106 S.W.3d at 128. Conclusory statements, unsupported by legal citations, are not sufficient. See id.

Izen does not cite to any authority or to the record to support his bare assertion that "[e]vidence existed in the record which supported submission" of any counterclaim or affirmative defense. We hold Izen's brief is inadequate to present any challenge to the failure to submit his requested instructions. See Tex. R. App. P. 38.1(i); Tesoro Petroleum Corp., 106 S.W.3d at 128 (stating "brief conclusory statements, unsupported by legal citations" insufficient to present issue).

We overrule this portion of Izen's fourth issue.

C. Izen's Vagueness Objections to the Charge

Izen's entire argument concerning this issue states, "The Court erred by overruling Izen's vagueness objections to the charge. See Ex Parte: Chernosky, 153 Tex. Crim. 52 (1949)." We hold this single conclusory sentence is inadequate to present any challenge to the trial court's overruling of Izen's vagueness objection because it fails to present any argument to explain why Izen believed the court's ruling was in error. See Tex. R. App. P. 38.1(i); Tesoro Petroleum Corp., 106 S.W.3d at 128.

We overrule this portion of Izen's fourth issue.

Judicial Misconduct

In his sixth issue, Izen contends, "Judicial Misconduct (abandoning the jury while the jury was deliberating) requires a new trial."

Izen cites no relevant authority to support his argument. In the "Scope of Review" section of this issue, Izen states,

Whether a Judge has failed to properly supervise, or has undersupervised, Court staff must be determined De Novo. In Re: Rose, 144 S.W.3d 661, 708 (Tex. Rev. Trib. 2004).

Although the clerk performs the physical act of record keeping, the Judge is ultimately responsible for the administration of his Court. See Rose at P.708. Citing In Re: Quick, 553 So. 2d 522, 525 (Miss. 1989).

However, the Rose case has nothing to do with the judge's presence during deliberations and Izen does not attempt to explain how it applies to this case.

Izen also cites Gomez v. U.S., 490 U.S. 858, 109 S. Ct. 2237 (1989). However, the holding in Gomez is that a federal magistrate may not conduct voir dire in a felony case. Gomez, 490 U.S. at 872, 109 S. Ct. at 2246. The Supreme Court also noted that a harmless-error analysis did not apply because a defendant has the basic right "to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside." Id. at 876, 109 S. Ct. at 2248. The instant case is not a criminal case and Izen does not complain about the trial court's actions during voir dire. Izen provides no other explanation or argument concerning the applicability of Gomez to this case.

We hold Izen's issue concerning the jury's deliberations while the judge was outside of Harris County is waived due to inadequate briefing. See Tex. R. App. P. 38.1(i); Tesoro Petroleum Corp., 106 S.W.3d at 128; see also Woodside v. Woodside, 154 S.W.3d 688, 691 (Tex. App.--El Paso 2004, no pet.) (holding issue waived when only authorities cited were "a few irrelevant cases and statutes").

Within this issue, Izen also appears to contend that the trial court's orders issued while the judge was outside of Harris County were void. However, Izen does not specifically identify or complain of any order. The only order mentioned in his argument is the trial court's instruction to the bailiff to tell the jury to "leave, go home, and return [the next day] at 9:00" when the judge would be present. Izen contends the judge committed misconduct because, while outside of Harris County, the judge allowed the jury to deliberate and instructed the jury to stop the deliberation.

Within this section Izen cites In re Barber, 982 S.W.2d 364 (Tex. 1998). Izen erroneously cites this case for the proposition that a person acting under the authority of the judge could affix the judge's signature to a document using a rubber stamp if it was done "under his immediate authority and direction and in his presence." See Barber, 982 S.W.3d at 367. However, the Texas Supreme Court did away with the requirement of the judge's presence. After noting that the judge's physical presence could be unrealistic in certain circumstances, the Supreme Court stated, "We therefore hold that a judge may sign a document by directing another person who is under the judge's immediate authority to affix the judge's signature using a rubber stamp." Id. Barber is inapplicable to jury deliberations. Furthermore, Izen does not suggest that another person signed an order for the judge.

Izen also cites article five, section seven of the Texas Constitution which provides, in relevant part, "The [District] Court shall conduct its proceedings at the County Seat of the County in which the case is pending, except as otherwise provided by law." Tex. Const. art. V, § 7. Case law interpreting article five has stated, "[I]f the court renders judgment or issues an order while sitting outside the county in which suit is pending, such judgment or order is void." Howell v. Mauzy, 899 S.W.2d 690, 699 (Tex. App.--Austin 1994, writ denied). Izen has not shown that the trial court conducted any proceedings outside of Harris County. The judge was present in Harris County when she instructed the jury to return for jury deliberations. While the judge was outside Harris County, the judge did not answer the jury's question. Instead, the only action taken while the judge was outside of Harris County was the ministerial action to tell the bailiff to send the jury home to reconvene at a later date. The ministerial action is not a "proceeding," the issuance of an "order," nor a "judgment." See id.

But assuming the trial court's instruction to the jury to cease its deliberations and return the next day was void because the judge was not present in Harris County, Izen does not explain or analyze how the trial court's action in halting the allegedly improper jury deliberations has harmed him. As a logical matter, if the deliberations were improper as asserted by Izen, the relief he sought was exactly what the trial court granted--a stop to the deliberations until the judge was present in the county. When the trial court judge had returned and before it received the jury's verdict, Izen stated, "I have objections. . . . I believe that I can prove that the jury deliberated in your absence; specifically I make the affirmative claim . . . ." At this point the trial court judge interrupted Izen to state the jury had come in to deliberate and the jury was told to leave and come back to deliberate the next day. Izen did not state the legal basis for his objections and he did not ask for any relief from the court, such as a mistrial. We hold that the error, if any, in the trial court stopping jury deliberations until the judge was in Harris County was harmless. See Tex. R. App. P. 44.1(a)(1) (stating court of appeals may not reverse for trial court's error unless that error "probably caused the rendition of an improper judgment").

We overrule Izen's sixth issue.  

Conclusion  

We affirm the judgment of the trial court.

   Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.  

Justice Keyes, dissenting.

1. See Tex. Disciplinary R. Prof'l Conduct 5.03(b)(1), 7.01(a), 7.01(e), 7.02(a), 7.02(a)(2), 7.04(b)(3), 7.04(j), 7.07(b), and 7.04(e), reprinted in Tex. Gov't code Ann., tit. 2, subtit. G app. A (Vernon 2005). The Rules cited are those in effect at the time of Izen's violations. The Rules have since been amended. For clarity and consistency, we refer to the former Rules as cited by the parties and recited in the judgment.