Ronald F. Avery
Ms. Tavie Murphy,
In the District Court
25th Judicial District
Plaintiff’s Motion for Default Judgment Against Seguin ISD, and Contempt and Sanctions Against Attorneys Lopez and Santos
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes, Ronald F. Avery, Plaintiff, with his motion for
Default Judgment, against Seguin ISD (District), and Contempt and Sanctions against
Attorneys Lopez and
<![if !supportLists]>1. <![endif]>Facts – District Action and Reaction of Plaintiff
At 1:00 PM on December 27, 2006, Seguin ISD filed their Original Answer, Affirmative Defenses, and Requests for Disclosures ( Exhibit A ) in this Court signed by attorney Ricardo R. Lopez of Feldman & Rogers, L.L.P. At 9:25 AM on January 2, 2007, Seguin ISD filed their Plea to the Jurisdiction and second Original Answer, Affirmative Defenses ( Exhibit B ) and Special Exceptions ( Exhibit C ) in this Court signed by attorney Joe A. De Los Santos of Walsh, Anderson, Brown, Schulze & Aldridge, P.C. All three of these filings by the Seguin ISD were within the required time to answer Plaintiff’s suit, namely, 10:00 AM on the first Monday after the expiration of 20 days (Monday was New Year’s Day allowing filing on January 2, 2007). Plaintiff would not deny the right of Defendant, Seguin ISD, to change their attorney immediately by filing a second round of Answers and Defenses with a second attorney that would substitute for the first round of Answers and Defenses filed by the first attorney. In fact, Seguin ISD, insisted on reserving their right to “answer the allegations contained in Plaintiff’s Original Petition more fully at a later date when the facts concerning same may be more exactly developed, such right being held pursuant to the Constitution and the laws of the State of Texas and the Texas Rules of Civil Procedure,” in their first Original Answer paragraph II. Therefore, under rule #65 of the Texas Rules of Civil Procedure (TRCP #65) the Plaintiff, on January 5, 2007, responded to the second Original Answer, Affirmative Defenses and Special Exceptions of the second attorney, as the Plaintiff perceived the first round of Original Answers, Affirmative Defenses and Request for Disclosures were abandoned by Defendant, Seguin ISD, by their actions under TRCP #65 as it states:
“Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.”
Neither the Plaintiff nor any other party
to this suit excepted to the abandonment of the District’s first Original
Answer or other filings by their first attorney. The Plaintiff presumed the
Seguin ISD had merely changed attorneys early in the suit in a way that was not
in strict conformance with the TRCP #10 but in a way that did not injure the
Plaintiff. But, on January 9, 2007, the Plaintiff received a letter (
) from attorney Joe De Los Santos, the second
attorney for the District, informing the Plaintiff that neither
that the Guadalupe County Clerk informed us this afternoon that according to its records, which control, this “first” Original Answer filed by my office is the only Answer in the Court’s file. Therefore, our Answer is controlling, and you are obligated to respond to my Request for Disclosure within the applicable period of time set forth in the applicable Texas Rules of Civil Procedure.
Plaintiff has attached certified Court
documents, Exhibits B and C, clearly showing that the Lopez letter is not
correct as the Court Record reveals that the District’s second Original Answers
and filings by their second attorney are indeed filed in the case and on the
docket summary as being in the case. Under TRCP #65 the Defendant,
District, is permitted, especially under its own Reservation to Amend in its
first Original Answer to file a second Original Answer with another attorney.
The second Original Answer becomes the live pleading under TRCP #65 with the
new attorney having filed it on behalf of the District under the District’s
right. The Plaintiff was lead by the actions of the District and both of their
attorneys to respond to the second superseding Original Answers by
<![if !supportLists]>2. <![endif]>Plaintiff’s Perception of the Current File Docket Summary - Default
The Plaintiff is of the opinion that the District has a right to file a second Original Answer by the same or a new attorney and by that, abandon their first Original Answer and its included Request for Disclosures prior to the deadline for filing its Original Answer. If two Original Answers are filed as an initial filing the second filing is the live pleading under TRCP #65. The new filings supersede the earlier filings without regard for TRCP #10 which really appears only to protect a party from abandonment by their own attorney rather than restricting the action of a party from filing a new Original Answer replacing the old one. The Plaintiff can understand the action of the District if it was unhappy with the work of the first attorney in their Original Answers and Request for Disclosures and attempted to get a better defense by filing a second and substituting Original Answer, Affirmative Defenses and Special Exceptions by another attorney before the deadline. But the result of this action appears to be a default for the District because it has no live pleadings under TRCP #65 on file that have been signed by the “attorney of record” under TRCP #8 and #10. The live pleadings of the District were signed by an attorney who does not and did not represent the District on the deadline of January 2, 2007. There are no live pleadings on file for the District which have been signed by the “attorney of Record” as insisted by the District and both of their attorneys. However, the District and their attorneys now perceive what is evident to all, namely, there are no live pleadings on file on behalf of the District signed by the attorney of record by the deadline to Answer the suit. As a result of this recognition, both attorneys for the District have attempted to get the Plaintiff to act is a way that will waive his rights and agree to respond to dead pleadings filed by the attorney of record.
<![if !supportLists]>3. <![endif]>District and both Attorneys misled and damaged Plaintiff in violation of TRCP #8, #10, #13
The attorneys for the District insist that the District did not and could not change their attorney in any way other than that method described in TRCP #10:
An attorney may withdraw from representing a party only upon written motion for good cause
shown. If another attorney is to be substituted as attorney for the party, the motion shall state: the
name, address, telephone number, telecopier number, if any, and State Bar of Texas identification number of the substitute attorney; that the party approves the substitution; and that the withdrawal is not sought for delay only. If another attorney is not to be substituted as attorney for the party, the motion shall state: that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines. If the motion is granted, the withdrawing attorney shall immediately notify the party in writing of any additional settings or deadlines of which the attorney has knowledge at the time of the withdrawal and has not already notified the party. The Court may impose further conditions upon granting leave to withdraw. Notice or delivery to a party shall be either made to the party in person or mailed to the party's last known address by both certified and regular first class mail. If the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule 21a. (Bolding added)
It may be true that the District could not change their attorney by any means other than that provided in TRCP #10, but that does not mean that the District could not file substituting documents that replace the pleadings of the attorney of record under TRCP #65. Further, TRCP #8 says that the attorney filing the initial documents is the attorney of record:
On the occasion of a party's first appearance through counsel, the attorney whose signature first
appears on the initial pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party.
All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.
The District and both their attorneys violated TRCP #13 under this same scenario as the District’s filing of their second Original Answer, Affirmative Defenses and Special Exceptions representing to the Court and the Plaintiff that these documents were the lawful intention and good faith pleadings of the District to substitute the earlier filings.
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.
Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.
Under this scenario, the District and both their attorneys mislead the Court and the Plaintiff by filing a second and different Original Answer, Affirmative Defenses and Special Exceptions by a second attorney without noticing the Plaintiff or the Court in violation of TRCP #8, #10, and #13. But, the fact is that the District did file a substituting Original Answer with substituting Affirmative Defenses and Special Exceptions with new attorneys to their own detriment. This means the District as of the deadline to answer does not have live pleadings on file with this Court signed by the attorney of record resulting in their own default.
<![if !supportLists]>4. <![endif]>Sanctions against the District’s Attorneys
It is clear from the certified copies of the Court Record Exhibit B and Exhibit C that attorney Ricardo
Lopez mislead the Plaintiff by telling him in a letter Exhibit E that the District’s second Original Answer,
Affirmative Defenses and Special Exceptions were not filed in this case. It
appears to the Plaintiff that the District’s attorneys realized that it had violated
various rules of civil procedure and that upon the due date to file their
answer to the Plaintiff’s claims (10:00 AM, January 2, 2007) that they had no
live Pleading on file by the attorney of record. This means that they were in
default unless they could get the Plaintiff to go along with their scheme to
answer the District’s dead pleadings (first Original Answer, Affirmative
Defenses and Request for Disclosures) which would act as waiver on the part of
the Plaintiff of the application of the Texas Rules of Civil Procedure. The
second attorney, Joe De Los Santos, went along with the attempt to get the
Plaintiff to waive his response to the filings of
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays:
<![if !supportLists]>1. <![endif]>That no other motion by any party to this suit be held until this motion be determined by this Court finding for all the parties who the attorneys are for the District and what pleadings on file are alive, if any;
<![if !supportLists]>2. <![endif]>That Defendant, Seguin Independent School District, be found in default as of the due date of 10:00 AM January 2, 2007 for having no live pleadings on file signed by the attorney of record under TRCP #8, #10, #15, #65 constituting a failure of the District to answer by a lawful entity;
<![if !supportLists]>3. <![endif]>That attorney, Joe De Los Santos, be found in contempt and sanctions be imposed on him for filing substituting pleadings on behalf of the District without authority to act as the attorney of record for the District under TRCP #8, #10, #13, #65 and deceiving the Plaintiff and this Court;
<![if !supportLists]>4. <![endif]>That attorney, Ricardo Lopez, be found in contempt and sanctions be imposed on him for purposely bearing false witness to the Plaintiff concerning the existence of substituting documents on file with the Clerk in this case for the purpose of getting the Plaintiff to respond to dead pleadings of Lopez and thereby waive Plaintiff’s rights under the law and the Texas Rules of Civil Procedure under TRCP #8, #10, #13, #65.
<![if !supportLists]>5. <![endif]>That, additional time be given to the Plaintiff to respond to any dead filings of the District that were abandoned by the filings of the second attorney but that may be resurrected by the rulings of this Court regardless of the merit of the Court’s decision.
Certificate of Service
I hereby certify that a true and correct copy of the foregoing Plaintiff’s Motion for Default Judgment Against Seguin ISD, and Contempt and Sanctions Against Attorneys Lopez and Santos was forwarded by certified mail, return receipt requested on this the _____ day of ____________, 2007 to the following as identified below:
# 7006 0810 0004 3827 1951 to:
Attorney of Record for Defendants Tavie Murphy and the
Kirk Swinney / Matthew Tepper
McCreary, Veselka, Bragg & Allen, P.C.
# 7006 0810 0004 3827 1968 to:
Attorney of Record for
Ricardo R. Lopez
Feldman & Rogers L.L.P.
# 7006 0810 0004 3827 1975 to:
Joe A. De Los
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
100 N.E. Loop 410 Suite 1000
Ronald F. Avery