Court of Appeals of Texas, San Antonio.
Amado ABASCAL, Appellant
The STATE BAR of Texas, Appellee
Dec. 19, 1996.
Appeal from the 365th District Court of Maverick County Trial Court No. 92-08-11485-CV, Honorable J.F. Clawson, Judge Presiding
OPINION ON APPELLANT’S MOTION FOR REHEARING
ALMA L. LÓPEZ
APPELLANT’S MOTION FOR REHEARING GRANTED; REVERSED AND RENDERED
*1 We withdraw our opinion dated October 4, 1995 and issue the following opinion in its place based on appellant’s motion for rehearing.
Appellant seeks reversal of trial court findings of professional misconduct under the State Bar Rules. He raises three points of error on appeal: (1) the trial court’s finding that appellant violated the Rules by abbreviating the required legal specialization disclaimer in his yellow pages advertisement violated appellant’s constitutional rights to freedom of speech and due process; (2) the evidence was legally insufficient to support the judgment, which included the finding relating to the abbreviation, plus a finding that appellant falsely held himself out as a partner with another lawyer, and; (3) the evidence was factually insufficient to support the judgment. We reverse the judgment of the trial court and render judgment in favor of appellant.
In the late Summer or early Fall of 1989, Amado Abascal, appellant, and Larry Woods, a lawyer from Tyler, Texas, entered into some type of a business agreement. As a result of this agreement, Woods placed multiple yellow pages advertisements, offering legal services in several areas of specialization under the name of “Abascal and Woods.” Shortly thereafter, appellant was elected to the district court bench.
The District 2A Grievance Committee of the State Bar of Texas (State Bar) notified appellant, by letter dated November 27, 1990, that he was under investigation for possible violations of 7.04(d).1
Appellant received a hearing, and on October 4, 1991 the grievance committee executed a proposed public reprimand against him, which was subject to his approval, for violating 8.04(a)(1) and/or 8.04(a)(3).3 See STATE BAR RULES art. 10 § 14(D) (1988), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. (Vernon 1988).
The trial court conducted a de novo hearing, then issued a judgment of public reprimand against appellant, finding that he had committed professional misconduct by violating 8.04(a)(3). The trial court issued findings of fact and conclusions of law, specifically finding that appellant:
(1) improperly abbreviated a disclaimer of certification by the Texas Board of Legal Specialization in a Yellow Pages advertisement in violation of rule 7.01(c)(3);
(2) in violation of 7.04(d), improperly held himself out as a partner with another attorney when in fact he was not, so that the other attorney could have a more advantageous position in the yellow pages; and
(3) through the prior two acts, violated the rules and/or knowingly assisted another to do so [8.04(a)(1) ], and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation [8.04(a)(3) ].
*2 Appellant asserts in his first point of error that “disciplining [him] for abbreviating a reference to board certification in an advertisement is not constitutionally or otherwise legally permissible.” TEX. DISCIPLINARY R. PROF. CONDUCT 7.01(c)(3)(1989).
Appellant and Larry Woods placed an advertisement in the yellow pages which announced several areas of specialization, including personal injury, workers’ compensation, social security disability, and medical malpractice. The advertisement included the following disclaimer, in small capital letters: “NOT BD CERT TX BD LEG SPEC.” Appellant contends that the judgment against him based on Rule 7.01(c)(3) is constitutionally and legally impermissible on two grounds, freedom of speech and due process.
a. Freedom of Speech
Appellant first contends that to discipline him for using an abbreviated version of the required disclaimer violates his federal and state constitutional rights to freedom of speech. The State Bar counters that this issue is not properly before our court and cannot be considered because appellant did not bring the freedom of speech issue before the trial court. In his original answer, appellant did not allege that the disciplinary action violated his constitutional right to free speech, rather appellant complained that his due process rights were violated and that the disciplinary action constituted selective prosecution. There is nothing in the transcript, the statement of facts, or in the exhibits introduced at trial which indicates, either directly or by implication, that appellant contended to the trial judge that discipline based on an abbreviated disclaimer violated his right to free speech.
Parties on appeal are restricted to raising only issues raised in the trial court, and absent fundamental error, we cannot consider new arguments and theories not previously presented to the trial court for its consideration and ruling. McCraw, 717 S.W.2d at 742. Appellant has waived any error as to his freedom of speech defenses under the Texas Constitution or the United States Constitution.4 PH0H b. Due Process
Appellant next contends that the trial court ruling on the disclaimer issue violated his due process rights “because [appellant] never received notice of this accusation until after his hearing before the [grievance] Committee when the Committee sent him a proposed judgment.”5 The record on appeal reflects that the original notice letter appellant received from the grievance committee did not mention 7.04(d), neither of which concerns a disclaimer requirement. The proposed public reprimand executed after appellant’s hearing before the committee was based on a violation of the disclaimer requirement alone. Because appellant did not accept this reprimand, it was ineffective. He complains that the lack of notice as to the alleged violation of the disclaimer rule before his hearing with the grievance committee violated his right to due process.
*3 At a minimum, the Due Process Clause requires that deprivation of life, liberty or property by adjudication be preceded by notice and an opportunity for hearing, appropriate to the nature of the case. Wilson v. State, 582 S.W.2d 484, 486 (Tex.Civ.App.-Beaumont 1979, no writ) (grievance committee does not decide contested cases, since it can only make a final determination with the accused’s consent). The proposed reprimands issued by the grievance committee are not final judgments. If the accused does not agree to accept the proposed reprimand, the State Bar can bring a petition in the district court for a trial de novo. See STATE BAR RULES art. 10 § 14(D), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G art.10 § 14(D) (Vernon 1988).
We have found no case on point considering due process ramifications in a situation in which an attorney did not receive a particular complaint from the State Bar until the proposed reprimand is issued, after the attorney’s hearing on different matters. However, notwithstanding the fact that the State Bar may have circumvented its own internal procedural rules by not giving appellant proper notice,6 appellant’s constitutional due process rights are only triggered by a proceeding which is accorded finality. In Sabine River Auth. v. McNatt, the supreme court held that a proposed report by an agency, which lacked finality unless found acceptable by those affected, did not trigger the due process rights of those affected when the statute at issue provided for a trial de novo. 161 Tex. 551, 560, 342 S.W.2d 741, 746 (1961). In the instant case, the State Bar Rules clearly provide for a trial de novo.7
Appellant cites Galindo, 535 S.W.2d at 930. This did not occur in the instant case. Appellant received sufficient notice of the claims against him prior to the de novo hearing in district court through the State Bar’s petition. Neither the grievance committee’s judgment nor the transcript of any hearings before the grievance committee were admitted into evidence at trial; the trial was a true de novo proceeding. Because appellant received adequate notice, we cannot say that appellant was denied due process in this case. Point of error one is overruled.
SUFFICIENCY OF THE EVIDENCE
*4 In points of error two and three, appellant complains that the evidence was legally and factually insufficient to support the trial court’s findings that he violated the four disciplinary rules upon which the State Bar based its accusations.
The trial court filed its findings of fact and conclusions of law after trial before the bench. A statement of facts is also in the appellate record. The findings of fact are reviewable for legal and factual sufficiency by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence to support jury findings. Kirkwood v. City of Corsicana, 871 S.W.2d 544, 546 (Tex.App.-Waco 1994, no writ). They will be upheld if the judgment can be sustained on any legal theory supported by the evidence. Valencia, 765 S.W.2d 898.
In considering a “no evidence” or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Valencia, 765 S.W.2d at 896.
a. Disclaimer-Rules 7.01(c)(3)
Appellant complains that the evidence is legally and factually insufficient to support the finding that his use of the abbreviation “NOT BD CERTT TX BD LEG SPEC” violated the O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex.1988).
There is no question that appellant attempted to comply with Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.-San Antonio 1989, writ denied).
*5 We agree with appellant that the trial court’s finding that he violated Rule 7.01(c)(3).
b. Holding out as Partnership-8.04(a)(3)
Appellant further contends that the evidence was legally and factually insufficient to support the judgment of public reprimand for falsely holding attorney Larry Woods and himself out as partners in a yellow pages advertisement in violation of Rule 7.04(d). Appellant specifically asserts that he and Woods were in fact partners. The State Bar responds that appellant and Woods were associates, not partners who are jointly and severally liable for each other’s actions.
A partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” Vrocher v. Texas Liquor Control Bd., 350 S.W.2d 349, 354 (Tex.Civ.App.-Dallas 1961, no writ).
We note that whether a partnership exists is a question of fact. Fuller, 518 S.W.2d at 252.
The key item of evidence in appellant’s favor is the deemed admission stating that “[i]n the Fall of 1989, [appellant] and Larry Woods entered into an agreement to become partners under the name of “Abascal and Woods.” Although this admission was never mentioned at trial, when the record indicates that no answers to requests for admissions are filed, the admissions become deemed. See Resolution Trust Corp. v. Thurlow, 820 S.W.2d 51, 53 (Tex.App.-San Antonio 1991, no writ).
*6 The oral testimony at trial included only that of appellant and Woods. Both testified that they fully intended to be partners, and that they understood this would entail joint and several liability. They also both discussed their intent to form a statewide practice using appellant’s trial experience and Woods’ marketing knowledge. They did not have a concrete agreement onhow they would share profits and losses, but had left those issues to be resolved at a later date. It was agreed that they would split cases according to their areas of practice and geographic location.
Some of the testimony as well as the documentary evidence could be considered inconsistent with the deemed admission. Woods, from Tyler, first contacted appellant, in Eagle Pass, by telephone in the summer or early fall of 1989 and they agreed to become partners shortly thereafter. In December of 1989, appellant resigned as District Attorney and decided to run for district judge. Appellant received a check from Larry Woods for $1,000 in January of 1990, to help with costs in setting up the new business relationship. The check bears the notation, “association agreement.” Appellant deposited the check in his own professional corporate account named “Amado Abascal, Inc.,” indicating at trial that his corporate account was the only open bank account he had at the time.
Although appellant won the primary election for district judge on March 13, 1990 and would run unopposed in the general election, assuming there were no write-in opponents, an assumed name certificate was filed in Smith County forming an “association” under the name of “Abascal and Woods” in April of 1990. The assumed name certificate form, signed by both appellant and Woods and notarized on March 31, 1990, listed the “business to be conducted” as “other,” and “association” was written in the space provided. The form offered the options of “general partnership” or “limited partnership,” but neither of these options were checked off. However, appellant testified that he signed the form without the designation of the business relationship. There was no assumed name certificate filed in Eagle Pass or Maverick County, where appellant practiced.
Appellant had no stationery, letterhead or business cards identifying the Abascal & Woods partnership. Woods testified that he had “Abascal & Woods” letterhead in his office in Tyler, but he was not requested to produce it at trial. Appellant testified he never jointly handled a lawsuit with Woods, never referred a case to Woods, and never had a case referred by Woods to him. Woods testified that there were partnership cases, but he could not identify them. Appellant authorized Woods to set up toll free number for the business and agreed to have Woods place the yellow pages advertisements in as many as a dozen telephone books in northeast Texas for the year 1990.
Appellant had a legal right to enter into a partnership with Larry Woods, providing he ended the partnership when he took the bench. The evidence is clear that appellant had a period of over one year to practice in the partnership before he took the bench in January of 1991. Although the tangible evidence that a partnership existed was not concrete, the deemed admission, gone uncontroverted, established the issue as a matter of law. The State Bar never introduced clear evidence contradicting the intention of appellant to enter into a partnership. The notation on an assumed named certificate does not establish a change in the legal relationship of the parties. Resolution Trust Corp., 820 S.W.2d at 53.
*7 Although we have no authority to set aside the trial court’s findings merely because we could draw different conclusions from the evidence, 8.04(a)(3)(1989). We reverse the judgment of the trial court and render that no violation of the State Bar Rules occurred based on the evidence presented.
CHAPPA, Chief Justice, concurring.
In late l989, appellant Amado Abascal of Del Rio, Texas, and Larry Woods of Tyler, Texas, both attorneys, agreed to form a partnership to be known as “Abascal & Woods” to provide legal representation statewide, particularly in the field of personal injury. The agreement, according to both parties, was to merge the advantages that each would bring to the partnership for the purposes of a profit. Shortly thereafter, appellant was drafted as a judicial candidate for the district court. His subsequent election prevented any further administrative actions to promote the partnership, and the partnership was dissolved.
Meanwhile, a telephone directory advertisement of “Abascal & Woods,” published in Tyler, Texas, resulted in the District 2A Grievance Committee of the State Bar of Texas notifying appellant on November 27, l990, that he was under investigation for possible violations of Rule
7.04(d)1 of the Texas Disciplinary Rules of Professional Conduct. However, for reasons known only to the Bar, appellant was never given notice of a possible violation of Rule 701(c)(3)2 during the entire administrative proceedings. Nevertheless, when appellant refused to approve the proposed public reprimand regarding the alleged violation of 8.04(a)(3).3
Although I concur with the result reached by the majority, I believe that appellant’s argument regarding the sufficiency of the evidence to support the finding of a violation under Rule 7.04(d) warrants further and more detailed discussion.
State’s Burden of Proof
State Bar “[d]isciplinary actions are civil rather than criminal in nature ... and are to be governed by the Texas Rules of Civil Procedure.” Johnson v. Harless, 651 S.W.2d 259, 260 (Tex.1983).
*8 Basically, with regard to the allegations under Rule 7.04(d), the State Bar alleged that the appellant entered into an agreement with Larry Woods to become partners under the name of “Abascal and Woods”; that appellant and Woods placed an advertisement in the Tyler telephone directory; that after appellant was elected as a district judge, the parties dissolved the partnership; and that the partnership was established solely for the advantage of attorney Woods in that it enabled Woods to have a more advantageous position in the telephone listings.
As the majority notes, the Texas Uniform Partnership Act defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” TEX.REV.CIV.STAT. ANN. art. 6132b § 6(1) (Vernon 1970) (emphasis added).
A partnership is a relationship between or among two or more persons having a common enterprise and a community of interest therein, the pursuance of the common enterprise for the joint benefit of the parties, the right of each of the parties to participate to some extent in the profits and an obligation of each of the parties to bear some portion of the losses, if any, sustained by the business.
Rule 7.04(d) is to prevent lawyers from misleading the public through the use of a firm name into believing the lawyers have assumed joint professional responsibility for the clients’ legal services.” Tex. Comm. on Professional Ethics, Op. 478, 56 TEX. B.J. 293 (1993). “A reasonably prudent person would conclude that lawyers practicing as members of ‘the Law Offices of A & B’ have represented to the general public the existence of a partnership, since the general public is not privy to private arrangements between the lawyers.” Id.
The Bar rules do not prohibit attorneys from becoming partners, placing advertisements in telephone directories, or dissolving partnerships, whether or not one is later elected district judge, nor does the Bar so contend. The rules also do not prohibit a partnership from utilizing advantageous advertising in the pursuit of a profit, nor does the Bar so contend. Nor do the rules regulate reasons why attorneys may go into partnerships, so long as they do not mislead the public, nor does the Bar so contend. Therefore, by its pleadings, the State Bar assumed the heavy burden of proving by a preponderance of the evidence that appellant never intended to form a partnership, that the formation of the partnership was for no purpose other than to provide Larry Woods a more advantageous position in the telephone listings, and that the agreement misled the public into believing that the appellant and Woods had assumed joint responsibility for their services when, in fact, they had not.
*9 The record reflects unanswered requests for admissions directed to the State Bar by the appellant, requesting admissions: (1) that both appellant and Larry Woods are attorneys; (2) that appellant is a district judge; (3) that in the fall of l989, appellant and Larry Woods entered into an agreement to become partners under the name of “Abascal and Woods”; (4) that the State Bar has no evidence that appellant saw the ad attached to their petition prior to its placement in the Tyler telephone directory; (5) that appellant and Larry Woods dissolved their partnership after appellant was nominated for district judge; (6) that no member of the public has ever complained about appellant; (7) that no member of the public has ever complained of the ad; 8) that no member of the public has ever complained that the partnership was established to have a more advantageous position in telephone listings; (9) that the State Bar had no evidence that appellant and Larry Woods agreed that each would be subject to joint and several liability for any liability created by the other during the course of the partnership business; (10) that the State Bar had no evidence that Larry Woods did not agree not to represent criminal defendants during the course of the partnership so long as appellant was a district attorney; 11) that the State Bar had no evidence that the appellant and Larry Woods did not intend for their partnership to handle client cases in South Texas; (12) that the letter of the State Bar dated November 27, l990, is the only notice of allegations of misconduct sent by appellee to the appellant; and (13) that the State Bar has never sent appellant notice that it considered the disclaimer in the advertisement attached to their petition to violate any Texas Disciplinary Rules. “Unanswered requests for admissions are automatically deemed admitted, unless the court on motion permits their withdrawal or amendment. Id. at 155.
*10 Because the record reflects no answer to the request for admissions and fails to show any motion or order permitting the withdrawal of amendment of any of the admissions, they are judicial admissions which may sustain a judgment if sufficient. As pointed out by the majority, appellant’s trial counsel did not argue specifically on the basis of the deemed admissions in either the trial court or on appeal. However, the appellant has brought a factual sufficiency challenge to the trial court’s judgment on appeal, which necessarily encompasses a review of the entire record. See Marshall, 767 S.W.2d at 700.
Pertaining to the partnership allegations, the admissions establish that appellant and Woods agreed to be partners under the name of “Abascal and Woods” in the fall of l989, that the partnership agreement anticipated handling clients in south Texas and included an agreement by Larry Woods not to practice criminal law as long as appellant was a district attorney, that appellant and Larry Woods dissolved their partnership after appellant was nominated for a district judgeship, and that no member of the public has ever complained about appellant, the ad, or the partnership. Moreover, the Texas Professional Ethics Committee has announced that “[a] reasonably prudent person would conclude that lawyers practicing as members of [‘Abascal & Woods’] have represented to the general public the existence of a partnership....” Tex. Comm. on Professional Ethics, Op. 478, 56 TEX. B.J. 293 (1993) (emphasis added). The issue, then, is whether these judicial admissions by the State Bar are sufficient to entitle appellant to judgment as a matter of law. See Barker, 752 S.W.2d at 155.
The State Bar was required to establish by a preponderance of the evidence that appellant never entered into a partnership with Larry Woods. The Bar judicially admitted that in the fall of l989, the appellant and Larry Woods agreed to form a partnership under the name of “Abascal and Woods.” The Bar was required to establish by a preponderance of the evidence that the formation of the partnership was for no other purpose than to provide Larry Woods a more advantageous position in the telephone listing. The Bar judicially admitted that appellant and Larry Woods agreed to form a partnership which included representation of clients in south Texas, and an agreement by Larry Woods to not practice criminal law during the time that appellant was a district attorney, which terms clearly indicate purposes other than simply benefitting Larry Woods in the telephone listings. The Bar also judicially admitted that appellant and Larry Woods dissolved their partnership after appellant was nominated as district judge. It would be inconsistent to dissolve a partnership that never existed. The Bar was required to establish by a preponderance of the evidence that the agreement misled the public into believing that appellant and Larry Woods had assumed joint responsibility for their services when, in fact, they had not. The Bar judicially admitted that no member of the public ever complained about the appellant, the ad, or the partnership. Clearly, the admissions of the Bar established the existence of a partnership as a matter of law, and Abascal was entitled to judgment. Resolution Trust Corp., 820 S.W.2d at 53.
*11 The State relied on two witnesses to present its case: the appellant, a former district attorney and sitting district judge, and Larry Woods, an officer of the court. It also relied on a $1,000.00 check from Larry Woods to appellant, the ad in question, and an assumed name certificate filed by Larry Woods in Tyler, Texas. Both witnesses-either jointly or individually-clearly, directly, and positively established: (1) that appellant, who had been in a partnership earlier in his career, had been contemplating more extensive private practice to avail himself of the lucrative personal injury practice in south Texas; (2) that appellant and Larry Woods verbally agreed to form a partnership in late l989 to avail themselves of the advantages that each would bring to the partnership; (3) that they contemplated that the advantages that Larry Woods would bring were his established expertise in personal injury and worker’s compensation cases, particularly in the Tyler area, his established office operation geared in the direction of personal injuries and worker’s compensation cases, and his established ability and knowledge of advertising to attract that type of clientele; (4) that they contemplated that the advantages that appellant would bring were appellant’s Hispanic background and name in the south Texas area, his extensive trial experience, and his established practice in the south Texas area; (5) that although they were not going to share profits on a 50% basis but, rather, based on which partner obtained the client and performed the work, they nevertheless specifically recognized the liability responsibility that each would assume as partner and openly advertised and held themselves out as partners; (6) that in furtherance of the partnership Larry Woods established partnership letterhead, a toll-free telephone line, and partnership income tax reporting procedures with his accountant, conducted extensive telephone communications with appellant, made two trips to appellant’s office in Del Rio with his employee-wife for purposes of discussing possible office changes and improvements to accommodate the partnership, and determined that his malpractice insurance covered the partnership; (7) that in Woods’s Tyler office there were cases that came in for the partnership together with accompanying documents involving cases of the partnership; (8) that in order to show his good faith towards establishing the partnership, Larry Woods voluntarily gave appellant a $1,000.00 check to help defray some of the anticipated expenses involved in the expected changes; (9) that the reason Larry Woods stated “association agreement” on the check was because the partnership was not a general partnership in which they were to share on a fifty percent basis; (10) that appellant deposited the $1,000.00 in his office account because it was the only account he had with which to pay the bills; (11) that appellant never saw the ad submitted by Larry Woods to the Tyler telephone directory prior to its submission; (12) that although appellant signed the instrument,4 it was Larry Woods who prepared and filed an assumed name certificate form in Tyler for “Abascal & Woods”; (13) that Woods checked the item on the form marked “other” and typed in the word “association” instead of checking the item marked “general partnership” because the partnership in question was not one in which the partners were to share on a fifty percent basis; and (14) that administrative procedures towards the partnership tapered off when it became apparent that appellant was to assume the bench and the partnership was dissolved.
*12 Black’s Law Dictionary defines an association as “[t]he act of a number of persons in uniting together for some special purpose or business.” BLACK’S LAW DICTIONARY 121 (6th ed.1990). The Texas Uniform Partnership Act defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Haney v. Fenley, et. al., 618 S.W.2d 541, 542 (Tex.1981).
A certificate of assumed name is merely “a convenient mode of designating all the owners” and does not create or “change the legal relationship of the several owners....” Negrini v. Plus Two Advertising, Inc. 695 S.W.2d 624, 631 (Tex.App.-Houston [1st Dist.] 1985, no writ).
The State relies almost exclusively on the designations of “association” on the check to appellant and the assumed name certificate and the fact that appellant deposited the $1,000.00 in the only account he had with which to pay bills as impeaching and contradictory evidence to the clear and direct testimony of appellant and Woods of their intent to form and the formation of a partnership. Initially we note that the evidence indicates that appellant had nothing to do with either of the “association” designations, but were the result of Wood’s actions.5 Further, the Texas Uniform Partnership Act and the Texas Supreme Court define a partnership as an “association.” Barker, 752 S.W.2d at 155.
*13 Even if the deemed admissions are ignored, appellant was nevertheless entitled to judgment as a matter of law based on direct, positive, and uncontradicted evidence that a partnership in fact existed. “Although the trial judge [is] permitted, even required, to evaluate the credibility of the testimony heard, he may not completely disregard the only positive evidence he heard....” Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex.App.-Fort Worth 1990, no writ). It is an abuse of discretion to disregard such evidence. Id.
It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury. But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstance tending to cast suspicion therein, it is taken as true, as a matter of law.
Collora v. Navarro, 574 S.W.2d 65, 70 (Tex.1978) (quoting 3 R. McDonald, Texas Civil Practice, § 11.28.6 at 250).
Although an interested witness, appellant, who is a former district attorney and a sitting district judge, nevertheless testified clearly, directly, and positively that he intended to and in fact formed a partnership with Larry Woods for all intents and purposes during the period in question. The evidence the State Bar contends is contradictory is not clear evidence to the contrary, as heretofore set out. See Resolution Trust Corp., 820 S.W.2d at 53. Further, the State Bar introduced into evidence the partnership telephone ad of “Abascal & Woods” in the Tyler directory, thereby vouching for the authenticity of the document. This written publication was clear and direct uncontradicted evidence of the partners’ holding out to the world the existence of the partnership, thereby publicly assuming liability as partners.6 Moreover, the Texas Professional Ethics Committee binds the Bar with the quasi-presumption that “[a] reasonably prudent person would conclude that lawyers practicing as members of ‘the Law Offices of A & B’ have represented to the general public the existence of a partnership[.]” Tex. Comm. on Professional Ethics, Op. 478, 56 TEX. B.J. 293 (1993).
*14 In addition, the uncontradicted testimony of Larry Woods, an officer of the court, substantiated and corroborated appellant’s testimony not only by presenting uncontradicted testimony that he and appellant in fact formed the partnership, but with specific direct testimony regarding existing physical evidence substantiating the partnership, i.e., partnership letterhead, partnership telephone lines, partnership income tax activities, and partnership cases and documents, all of which he testified were in his office in Tyler, Texas. Woods was not crossexamined by the Bar regarding these items, and there is no indication in this record that the State Bar ever attempted to controvert this testimony with subpoenas duces tecum, depositions, or otherwise. Lending credence to Woods’s testimony is the fact that Woods made admissions against interest which legally exposed him to open liability from any client who may have had a malpractice claim against appellant during the period of the partnership. Since no crossexamination was conducted regarding the physical partnership evidence in Woods’s office, the reasonable inference is that the State Bar either made no effort to controvert Woods’s testimony, or, if such efforts were made, the results substantiated Woods’s testimony. See Cyrus, 601 S.W.2d at 778.
Sufficiency of the Evidence
Ignoring the foregoing, there is nevertheless insufficient evidence to sustain the trial court’s findings, and the judgment should be reversed. Findings of fact are reviewable for legal and factual sufficiency by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence to support jury findings. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).
In order to justify its judgment in this case, the trial court had to conclude that the State Bar established by a preponderance of the evidence that appellant, a repeatedly elected former district attorney and a sitting district judge, intentionally jeopardized his legal and private reputation in Del Rio and south Texas, his district bench, and his license to practice law, by dishonestly, fraudulently, and deceitfully misrepresenting the existence of a partnership for the sole purpose of providing a total stranger from Tyler, Texas,7 the meager advantage of advancing his name in the Tyler telephone directory roster. The state of this record makes this conclusion impossible to justify. Moreover, such a conclusion defies common sense. There is nothing dishonest, fraudulent, or deceitful in attorneys forming a partnership, and there can be no misrepresentation when attorneys hold themselves out to the world as partners by way of public written advertisement in telephone directories, thereby exposing themselves to tremendous additional liabilities. See Brewer, 378 S.W.2d 951 (citing 8.04(1), (3) (1994). Moreover, the state of this record justifies judgment for appellant on several bases: (1) deemed admissions; (2) uncontroverted direct and positive evidence; and (3) insufficiency of the evidence to sustain the State Bar’s burden.
*15 The facts and holding in Negrini v. Plus Two Advertising, Inc. 695 S.W.2d 624 (Tex.App.-Houston [1st Dist.] 1985, no writ), are instructive in this case. The suit in Negrini was on a sworn account for advertising services rendered by Plus Two Advertising, Inc., on behalf of “The Sea Breeze Restaurant.” The allegations were that “The Sea Breeze Restaurant” was a partnership formed by J.L. Negrini and his wife Helen Negrini, their son Al Negrini, and Earl Israel. J.L. and Helen Negrini defended on the basis that they were never partners in “The Sea Breeze Restaurant.” The trial court found that they were partners and were thus liable for the advertising services rendered. The appellate court held that there was insufficient evidence of a partnership and reversed and rendered as to J.L. and wife Helen Negrini.
The evidence disclosed that the three Negrinis and Earl Israel had discussions concerning doing business under the name “The Sea Breeze Restaurant.” The business was to be located on the land owned by J.L. Negrini and Helen Negrini. An assumed name certificate specifically indicating that it was a general partnership was signed by the three Negrinis and Israel and filed at the county courthouse. Al Negrini and Earl Israel approached the president of Plus Two Advertising, Inc., and indicated that they needed his services on behalf of “The Sea Breeze Restaurant,” which they were going to open along with J.L. Negrini and Helen Negrini. Plus Two Advertising agreed to perform services for them. Unknown to Plus Two Advertising, articles of incorporation were signed for the new restaurant thereafter, and another assumed name certificate was filed by the corporation under the name of “The New Sea Breeze, Inc.” After Israel failed to obtain financing for the construction of the building, J.L. and Helen Negrini obtained financing for the construction of the building by providing security with their real property. Several invoices from Plus Two Advertising were paid by check on the “New Sea Breeze Inc. Restaurant” corporate account, but a balance of $21,245.00 was left outstanding when the restaurant closed and the corporation filed for federal bankruptcy under Chapter 11. All the invoices had been sent to “The Sea Breeze Restaurant.” After the bankruptcy, J.L. and Helen Negrini formed a new corporation which obtained the name and assets of “The Sea Breeze Restaurant.” The outstanding balance was the subject of the lawsuit against the three Negrinis and Israel based upon allegations of an existing partnership.
At trial, the Negrinis testified that they never intended to form a partnership but, rather, entered into a relationship in which Al Negrini and Israel were to build the restaurant on their land, even though they did secure the loan for the building by a deed of trust on their land when financing became impossible for Israel.
The appellate court held that while the assumed name certificate executed by all the Negrinis and Israel stated it was a general partnership, it “did not change the legal relationship of the parties with respect to the ownership of the [restaurant].” Id. at 631. The court concluded that while there may have been circumstantial evidence indicating “the involvement of Helen and J.L. Negrini in the affairs of the restaurant, it is insufficient to support the trial court’s finding that Helen Negrini and J.L. Negrini intended to be and were associated co-owners with their son Al Negrini and Earl Israel under the firm name ‘The Sea Breeze Restaurant[.]’ ” Id. at 632.
*16 Where the petitioner in Negrini had the burden of establishing the existence of a partnership, the State Bar in the present case had the burden of establishing the nonexistence of a partnership. Nevertheless, the result is the same, for there was insufficient evidence in the record to establish the burden of each petitioner in both cases. In fact, the record before us presents even stronger justification for reversal since judgment for appellant was justified not only because of the insufficiency of the evidence, but also by the deemed admissions and the uncontroverted direct evidence of a partnership.
All the testimony, which was incidently presented by the State, established directly and positively that appellant and Woods intended to and did form a partnership as heretofore set out. The uncontroverted testimony of Woods described clear and positive existing physical evidence of the intent and existence of the partnership in the form of letterheads, a toll-free telephone number, tax procedures, cases and associated documents, and telephone and personal contacts involving the partnership. The partnership telephone directory advertisement, which the State introduced, further corroborated the intent to form a partnership and was, in fact, direct uncontroverted evidence of a holding out of appellant and Woods as partners.8 In final arguments to the court below, the Bar relied on the “association” remarks placed by Woods on the $1,000.00 check and the assumed name certificate, and the fact that appellant deposited the check in his only office account. As stated previously, however, the “association” remarks cannot be attributed to appellant unless the State concedes the existence of a partnership; a partnership is legally described as an “association”; and an assumed name certificate does not create or change an existing legal relationship. See generally Brewer, 378 S.W.2d at 951.
In addition to being entitled to judgment as a matter of law based on the deemed admissions and uncontroverted evidence, appellant is also entitled to judgment based on both legal and factual insufficiency of the evidence. I therefore concur with the opinion of the majority.
Prior Rule 7.01(a)(1) stated:
A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or law firm. A statement is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Any statement about fees must include the amount of the fee, whether contingent or otherwise, and must state whether the client may be obligated for all or for some portion of the costs involved.
Prior 7.04(d)(1989), reprinted in 52 TEX. B.J. 430 (May 1989) (current version in TEX. GOV’T CODE ANN. titl. 2, subtitl G. app. A (Vernon Supp.1996) (STATE BAR RULES art. X § 9)).
Prior Rule 7.01(c)(3) stated:
(c) A lawyer who advertises through public media with regard to any area of the law in which the lawyer practices shall: ...
(3) If the lawyer has not been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, state with respect to each area, “Not Certified by the Texas Board of Legal Specialization,”...
TEX. DISCIPLINARY R. PROF. CONDUCT 7.01(C)(3)(1989).
Rules 8.04(a)(1) and (3) states:
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another ...
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ... TEX. DISCIPLINARY R. PROF. CONDUCT 8.04 (1989), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. (Vernon Supp.1996) (STATE BAR RULES art. X § 9).
We note that a practitioner’s attempt to comply with the disclaimer rule is “especially perilous” in light of the fact that there is virtually no precedent or guidance on how the rule should be interpreted. See Vincent R. Johnson, 100 F.3d 953 (5th Cir.1996) (overruling freedom of speech challenge to amended disclaimer rule which expressly prohibits abbreviations). This court perused the disciplinary actions section of the Texas Bar Journal, going back to 1986, and did not find one instance in which an attorney was disciplined for abbreviating the disclaimer. The published reports of the reprimands that the State Bar publishes are too brief to offer any guidance for compliance with the disclaimer rule with respect to the wording of the disclaimer.
The State Bar contends that appellant did not file any objection or motion with the trial court complaining that his due process rights were violated in this instance, and thus he waived this point of error. We do not agree. Appellant asserted the defense that his due process rights were violated in his original answer, at trial in his opening statement, testimony and closing argument, and finally in his motion for a new trial. The issue is thus adequately preserved for review. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983).
Article 10, section 14(A) of the State Bar Rules states:
(A) Committee Action. If the grievance committee finds that respondent has engaged in conduct constituting professional misconduct ... and respondent has had reasonable notice of the complaint and an opportunity to respond thereto, the committee, after a hearing if not waived and if any interested party so requests after notice, shall determine appropriate sanctions.
STATE BAR RULES art. 10 § 14(A), reprinted in TEX.GOV’T CODE ANN. tit. 2 subtit. G. app. (Vernon 1988) (emphasis added).
Article 10, section 14(D) of the State Bar Rules states:
(D) Nonacceptance; Trial De Novo. In instances in which the respondent does not accept a proposed judgment ... counsel shall thereafter institute suit by disciplinary petition and trial shall be de novo in the district court.
STATE BAR RULES art. 10 § 14(D), reprinted in TEX.GOV’T CODE ANN. tit. 2 subtit. G. app. (Vernon 1988).
The new amendments to the State Bar disciplinary rules expressly prohibit abbreviation of the board certification disclaimer. Texans Against Censorship, 888 F.Supp. 1328 (overruling freedom of speech challenge to amended disclaimer rule which expressly prohibits abbreviations).
The version of TEX. DISCIPLINARY R. PROF. CONDUCT 7.04(d) (1989), reprinted in 52 TEX. B.J. 430 (May 1989).
The version of Rule 7.01(c) in effect at the time in question provides in pertinent part:
A lawyer who advertises through the public media with regard to any area of the law in which the lawyer practices shall:
(3) If the lawyer has not been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, state with respect to each area, “Not Certified by the Texas Board of Legal Specialization,” but if the area of law so advertised has not been designated as an area in which a lawyer may be awarded a certificate of special competence by the Texas Board of Legal Specialization, the lawyer may also state, “No designation has been made by the Texas Board of Legal Specialization for a Certificate of Special Competence in this area.”
TEX. DISCIPLINARY R. PROF. CONDUCT 7.01(c) (1989), reprinted in 52 TEX. B.J. 430 (May 1989).
The version of Rule 8.04 in effect at the time in question provides in pertinent part:
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another[.]
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]
TEX. DISCIPLINARY R. PROF. CONDUCT 8.04(a)(1), (3) (1989), reprinted in, 52 TEX. B.J. 430 (May 1989).
The record is not clear whether appellant signed the assumed name certificate before or after Woods had filled it in.
“Where two or more unite in partnership for carrying on a particular trade or other purpose, they become in point of law, so identified with each other that the acts and admissions of any one with reference to the common object are the acts and declarations of all and are binding upon all.” TEX.REV.CIV. STAT. ANN. art. 6132b § 9 (Vernon 1970) (formalizing mutual agency relationship which characterizes partners at common law). If the State Bar attributes responsibility upon the appellant for the actions of Woods, it necessarily concedes that a partnership existed. If not, then the Bar cannot attribute responsibility upon the appellant for the actions of Woods.
“Hence, if a person has represented himself to be a partner, and has been trusted as such, he is bound by that representation, and it is no defense for him to show that he was not in fact a partner ...Id. at § 15.
All the testimony during the trial indicated that appellant and Larry Woods had never met each other prior to the time that Woods contacted appellant for the purposes of creating the partnership.
“[I]f a person has represented himself to be a partner, and has been trusted as such, he is bound by that representation, and it is no defense for him to show that he was not in fact a partner....” TEX.REV.CIV. STAT. ANN. art. 6132b § 16 (Vernon 1970). It would therefore be impossible under the circumstance of this case for Abascal to defend himself by denying the existence of the partnership if the need were to arise. It is ironic that now he finds himself in a situation in which he is damned if he claims a partnership, and damned if he denies the existence of a partnership.