INTHE COURT OF APPEALS FORTHEFIRSTDISTRICT OF TEXAS HOUSTON, TEXAS
No. 01

-13

-00635

-CV
D. PATRICK SMITHERMAN, Appellant, 

## v. COMMISSIONFORLAWYERDISCIPLINE, Appellee
On appeal from the I

### 29thJudicialDistrict Court

Of Harris County, Texas Trial Court CauseNo. 2010

-10256 SpeciallyAppointedJudgeRichardA
.BeacomPresiding APPELLANT'S MOTIONFORENBANCRECONSIDERATION
D. PATRICK SMITHERMAN StateBarNo. 24027992

1044 W. 25th Street#E Houston, Texas 77008 Telephone: (832) 712

-1842 ProSe

1 ACCEPTED 01-13-00635-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 4/14/2015 12:46:23 PM CHRISTOPHER PRINE

CLERKTABLEOF CONTENTS PAGE PROCEDURALIllS TORY
............................ . .......... ... ...... ... . ....... .. ....3 BASES FORENBANCRECONSIDERATION
.........................................3 ISSUESFORRECONSIDERATION
......................................................8 CONCLUSION
................................. ..... . ... ....................................10 PRAYER
.......... . ............ ....... ................................. .... ..................11 CERTIFICATEOF SERVICE
............................................................!! CERTIFICATION
................. ......... .... ..... ...... .... ....... ...... .... ........ .....11

2PROCEDRUALHISTORY The Panel's Opinion was issued on February 26, 2015. Appellant timely filed a Motionfor Rehearing beforethe Panel onMarch 4, 2015. The Appellee did notfile a response to same. The Motion for Rehearingwas overruled onMarch 31, 2015. This Motion for En Bane Reconsideration is timely filed subsequent to the decision by the Panel to deny the Motion for Rehearing, and according to the Texas Rules ofAppellate Procedure. Appellant requests a ruling on this Motion forEnBane Reconsiderationwithinthe Court's plenaryjurisdiction. BASESFORENBANCRECONSIDERATION Extraordinary circumstances require en bane consideration of this case. Appellant will not re-briefherein the argument Appellant has already made in his Brief, Reply Brief, and Motion for Rehearing

- such argument has already been made. Rather, Appellant cites those same pleadings and incorporates them herein in their entirety. Appellant requests reconsideration en bane ofevery single Issue thathehas argued inthis appellate proceeding. Why do extraordinary circumstances exist such that this case should be reviewed before the entire Court? There are several reasons, any ofone ofwhich the Appellant respectfully submits should result in the Court granting the en bane considerationrequestedhereinby Appellant:

31) Appellant won a jury Verdict, which the Opinion does not seem to address. In fact, the rather one-sided Opinion reveals that the Panel did not seekto fmd any evidence in support ofthe Verdict, butrather sought only to support the Final Judgment. As the Final Judgment was based upon a claim and argument that was never made attrial (in fact, the CFLD argued the direct opposite argument to thejury), this sets a rathertroubling precedentnotjustin disciplinary casesbutin all civil cases. Appellant submitsthisjustifiesen banereconsideration. 2) The Panel inexplicably refused to address several Issues presented by Appellant it was required to rule upon under the Texas Rules of Appellate Procedure. Appellant used these omissions as bases for his request rehearing, but ultimately to no avail. One ofthe Issues not addressed in the Opinion

- thatthe Final Judgment was not supported by the pleadings- was the very first Issue briefed by Appellant and one of the Appellant's strongest arguments in favor of reversal. Appellant is at a loss for why the Panel would not address one ofhis strongest arguments for why the Final Judgment was obviously improper. To not rule upon this Issue as well as the other Issues the Panel did not address suggests the Panel punted in this regard. This has necessitated en banereconsideration. 3) The Panel used the incorrect standard for reviewing the granting ofa JNOV, which was involved in this case (the trial court granted the CFLD'srequest for a JNOV). Instead, the Panel usedthe standardfor reviewing the denial ofa JNOV. As the Opinion shows, the Panel consistently addressed what the evidence purported to "conclusively show" in support ofthe Final Judgmentrather than whether there was any evidence in support ofthe Verdict. Appellant used this as a basis for rehearing, but to no avail. Appellant believes this be somewhat obvious error, and so respectfully requests en bane reconsideration to address this error. 4) As alluded to above, the Panel refused to address the evidence in support of the Verdict, including the testimony of Mr. Perry and Appellant. The Panel focused exclusively on what evidence it considered to be in support ofthe Final Judgment. Appellant used this as a basis for rehearing, but ultimately to no avail. Thisjustifies en banereconsideration.

45) The Panel avoided review of the sanction on the grounds that Appellant waived his argument, when clearly Appellant did not. This justifies en banereconsideration. 6) The Panel's Opinion regarding thejudicial admissions made by the CFLD should be reversed. Respectfully, the Panel seemed to make findings on these obvious admissions that were in complete opposite tothe law. Thisjustifies en banereconsideration. 7) Quite notably, the trial court acknowledged during the sanctions hearing that the remaining $276,000 in funds (all of the funds remaining from the Petrosearch settlement that were at issue during the disciplinary hearing) were clearly disputed, which begs the question then as to why the trial court granted the JNOV. Given that the trial court admitted during the sanctions hearing that the entire basis upon which it granted the JNOV during the evidentiary phase meant the trial court should have denied the JNOVjustifies en bane reconsideration. In addition to not addressing

- at all

- Appellant's Issue that the Final Judgment did not conform to the pleadings (Point 2, above), the Opinion: completely ignored Appellant's argument that the State Bar's own guidelines on disputed funds state that Appellant's actions were completely ethical and in accordance with the Rules. Appellant is left to wonder why the Panel sought to avoid these Issues, especially given a fair treatment ofthese Issues would lead to reversal ofthe FinalJudgment. Moreover, the fact that the trial court acknowledged during the sanctions hearing that all ofthe relevant funds were in dispute is particularly deserving of reconsideration considering thatthe claim that these funds were notin dispute (less the $50,000) was the entire foundation ofthe Rule 1.14( c) violation as alleged by 5the CFLD, and as such the entire foundation for the granting ofthe JNOV by the trial court. Admittedly, the Appellant chose to focus on this admission by the trial court during the sanctions hearing by way ofhis Motion for Rehearing in manner in which he had not during his Brief. But the fact remains, the trial court made a fmding on the record that completely undermines the granting ofthe JNOV and indeed the entirebasis ofthe Final Judgment. The trial court found the funds were all disputed. This alone justifies reversal. Because the trial court would not address this argument by way of rehearing, Appellant seeks en bane reconsideration. Thejury in this case vindicated Appellant, and Appellant intends to honor that and to reclaim the Verdict that was rightfully awarded to him. With all due respect to the Panel, it seems as though the Panel did not attempt at all to look for evidence in support of the Verdict, and unfortunately

- perhaps unfairly

- discounted all such evidence in favor ofAppellant. The Panel's Opinion makes it
seem as though no Verdict was actually ever awarded to the Appellant, when clearly one was. Given the seriousness involved in disturbing ajury verdict, and giventhe onerous standards that mustbe met for doing so, Appellant seeks en bane reconsideration. Appellant requests that entire Court review this matter under the proper standard and conduct a fair analysis ofthe evidence in support ofthe Verdict as

6well as thejudicial admissions that were clearly made by the CFLD. Should this occur, the Appellant is confident that the Court will reach the proper result, which is reversal ofthe Final Judgment. Appellant realizes that as a 

### pro se attorney in the disciplinary process, he
was not expected to prevail at a disciplinarytrial. However, Appellant did prevail. The jury evaluated the sole piece of evidence presented by the CFLD

- the testimony ofBradPerry, and found it lackingbecause, interalia, Appellantproved Mr. Perry was not telling the truth on many material issues attrial. Once thejury decided Mr. Perry was not a credible witness, the case was effectively over. The record proved this. The legal gymnastics engaged in by the CFLD since that adverse jury verdict are just so much attempted deflection from this very salient and incontrovertible fact: Mr. Perry tried to be untruthful on the stand, and Appellantimpeachedhim for it. That cannotbe glossed over. Appellant, with the utmost respect, requests this Court to give him his verdict back. Appellant was rightfully awarded it at trial, and has proved during the appellate process why it was rightfully awarded to him. Reversing the Final Judgment will go a long way towards re-instilling respect among the Bar in our disciplinary system.

7ISSUES FORRECONSIDERATION Appellant incorporates each and every Issue and argument briefed by him in the Appellant's Brief, Reply Brief, and Motion for Rehearing, and requests reconsideration ofsame. Should the Court notbe inclinedto review all the Issues, the Appellant would ask to the Court pay particular attention to the following issues, any one ofwhich should result in en bane reconsideration ofthe Court's Opinion: Issue 1:

Issue 2:

Issue 3:

Issue4:

Issue 5: The Court's Opinion did not address Appellant's argument that the Final Judgment did not conform to thepleadings, even after this was pointed out in the Appellant's Motion for Rehearing [see Issue 1, pg. 21 ofBrief; Issue 1, Motion for Rehearing]. The Court's Opinion did not address Appellant's argument that the State Bar Guidelines on disputed funds support the actions that Appellant took [see Issue 7, pgs. 35-6 of Brief; Issue 7, Motion for Rehearing]. The Court's Opinion applies the incorrect standard for purposes ofreviewing the granting ofa JNOV [see Issue 6, Motion for Rehearing]. The Court's Opinion did not address Appellant's argument that the alleged rule violation date of October 16, 2008 was a controlling fact that should have been submitted to thejury [see pgs. 6-9, Reply Brief; Issue 4,MotionforRehearing]. The Court's Opinion did not address Appellant's argument that the CFLD never alleged prior to the JNOV nor offered any evidence at trial that only $50,000 ofthe funds were in dispute onOctober 16, 2008, which goes to fair notice [see Issue 2, pgs. 23-26, Brief; Issue 2, Motionfor Rehearing].

8Issue 6: That the Court's Opinion holds that up to 40% ofMr. Perry's recovery was subject to dispute

- an argument never advanced bythe CFLD

- proves Appellant's pointthatitwas unclear how much money was in dispute [see Issue 3, Motion for Rehearing]. Issue 7: The Court's Opinion did not address Appellant's argument that John Ogren did not receive his settlement funds on October 16, 2008. In fact, the Court's Opinion was based in part on its mistaken beliefthat Mr. Ogren did receive settlement funds on October 16, 2008 [see pgs. 36-7 ofBrief; Issue 5, Motion for Rehearing]. Issue 8: The Court erred in affirming the sanction on the grounds that "Smitherman violated Rule 1.14(c) continuously and deliberately for approximately one year" given that no evidence was adduced at trial beyond what occurred in the Fall of2008 [see Issue 8, Motionfor Rehearing]
. Issue 9: The CFLD made ajudicial admission in its request for a JNOV

- relative to the issue of the sanction

- that nothing that occurred after October 16, 2008 bore any relevance to the determination ofthe sanction. Issue 10: The CFLD did not allege "alternate legal theories" in the Third Amended Disciplinary Petition relative to the alleged violation date ofRule 1.14(c), rather, it made a judicial admission that Appellant's obligation to release funds to Perry arose after Appellant's receipt ofthe October 22, 2008 letter from Bergner [see Issue 10,MotionforRehearing]. Issue 11: The trial court acknowledged during the sanction hearing that the funds at issue

- including the $276,000 that at first went undistributed

- were all disputed [see pg. 41, Motion for Rehearing]. This begs the question then as to how the trial court could have granted theJNOV. Issue 12: The statement in the Third Amended Disciplinary Petition that "Since approximately $271,000 was not distributed to Respondent, Bergner's offer to put $50,000 into escrow meant that Respondent should have given approximately $221,000.00
9to Perry in late October or early November of2008" was not a legal conclusion [see Issue 11, Motion for Rehearing]. Issue 13: The CFLD's remarks during closing regarding how the Rule violation occurred did not merely state the minimum level of disbursement that might have been acceptable, but rather were quite clearlyjudicial admissions that could not be denied later in connection with the JNOV [see Issue 12, Motion for Rehearing]. Issue 14: The Court's Opinion did not address Appellant's argument that the CFLD took inconsistent and contradictory positions as to how the Appellant allegedly violated Rule 1.14(c) [see Issue 13, Motion forRehearing]. CONCLUSION The Appellantrequests en banereconsideration becausehe believes fairness, justice, and indeed the Texas Rules of Civil Procedure require that the Court consider all the evidence and argument Appellant presented attrial and presented to the Panel. Appellant believes en bane review is required because of the extraordinary circumstances presented by the Panel's Opinion, including the Panel's refusal to consider that the trial court acknowledged during the sanctions hearing that all the funds betweenPerry and Appellant were in fact disputed. This
was clearly not a mistake on the trial court's part. The trial court reiterated this finding at the sanctions hearing. Given this acknowledgment and admission, the JNOV should never have been granted. Indeed this disciplinary case never should havebeenbrought.

10PRAYER 

### Forthe foregoing reasons, Appellant respectfully asks the Court to grant en bane 

### reconsideration, and ultimately enter an order reversing the Final Judgment, and for all and further reliefto which Appellantmay bejustly entitled.
D. PATRICK SMITHERMAN 

### 1044W. 25th STREET HOUSTON, TEXAS 

### 77008 STATEBARNO. 24027992 /s/ D. 

### Patrick Smitherman APPELLANT
CERTIFICATE OF SERVICE 

### This is to certify that the above and foregoing response has been served on the CFLD on April14, 2015.
Is/

### D. Patrick Smitherman

CERTIFICATION 

### Pursuant to the Texas Rules of Appellate Procedure, the enclosed contains approximately 2,402 words, which is less than the total words permitted by the TRAP. Appellant relies on the word count of the computer program used to preparethis Motion for EnBane

### Reconsideration
.

11