Joseph R. Willie, II v. Commission for Lawyer Discipline

Opinion issued March 8, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00428-CV

———————————

JOSEPH R. WILLIE , II, Appellant

V.

COMMISSION

FOR LAWYER DISCIPLINE , Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Case No. 2007-69255

MEMORANDUM OPINION

Appellant,

Joseph R. Willie, II, has filed a motion for en banc reconsideration of our

November 10, 2011 opinion. In light of

the motion, we withdraw our opinion and judgment of November 10, 2011, and we issue

this opinion in its stead. We overrule the motion for reconsideration en banc

as moot. See Brookshire Bros., Inc. v.

Smith , 176 S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)

(op. on reh’g) (noting that motion for en banc reconsideration becomes moot

when panel issues new opinion and judgment).

In this interlocutory appeal, [1] Willie challenges the trial

court’s order granting the motion of appellee, the Texas Commission for Lawyer

Discipline, to dismiss Willie’s claims for “lack of subject-matter

jurisdiction.” In four issues, Willie contends

that the Commission’s motion to dismiss is “prohibited” under Texas law, the

trial court erred in considering the Commission’s motion to dismiss as a plea

to the jurisdiction, the trial court erred in not permitting his counterclaims

to be filed in the disciplinary proceeding, and the Commission waived its sovereign

immunity.

We affirm.

Background

In its

third amended petition, the Commission alleged that the complainant, Neal

Armstrong, retained Willie to represent him in a federal criminal matter and,

on February 20, 2007, Armstrong filed a grievance against Willie. The Commission further alleged that Willie,

in the course of his representation of Armstrong, failed to abide by

Armstrong’s decisions, keep Armstrong reasonably informed about the status of

the case, promptly comply with reasonable requests from Armstrong for

information, and surrender papers and property to Armstrong to which he was

entitled. [2] The Commission asked the trial court to discipline

Willie by reprimand, suspension, or disbarment and order Willie to pay

restitution to Armstrong, if applicable.

The Commission also generally prayed for all other relief to which it

was entitled, including expenses, court costs, and attorney’s fees.

Willie generally denied the

Commission’s allegations, asserted that the proceedings were time barred, and

filed special exceptions. Willie

subsequently filed counterclaims against the Commission for intentional

infliction of emotional distress, civil conspiracy, and violations of his equal

protection and due process rights. [3] In support of his claim for intentional

infliction of emotional distress, Willie alleged that the Commission “intentionally

misstated the facts” in its petition and the Commission’s acts caused him

severe emotional distress, and he sought damages for his “extreme mental

anguish” as well as exemplary damages on the basis that the Commission acted

with malice. In support of his

conspiracy claims, Willie alleged that the Commission, with its attorneys,

“agreed to file an illegal grievance,” and he sought damages and exemplary

damages for the Commission’s malice.

Willie also sought to recover his attorney’s fees. [4]

The Commission then filed its “Motion

to Dismiss [Willie’s] Counterclaims for Lack or Jurisdiction or, in the

Alternative, Motion for Severance,” in which the Commission asserted that its

motion was the “functional equivalent” of a plea to the jurisdiction. The Commission argued that Willie’s

counterclaims could not be tried in a disciplinary proceeding because the

proceeding is “limited in scope to the issue of professional misconduct” and

the trial judge appointed to preside over the proceeding lacked authority to

consider Willie’s causes of action. The

Commission also asserted that Willie’s claims were barred by sovereign

immunity, Willie could not cure this defect by amending his pleadings, and

“immediate dismissal” of Willie’s counterclaims was proper.

In his response to the Commission’s

motion, Willie asserted that the Commission’s “motion to dismiss” is not

“recognized” under Texas law, nothing in Texas law precludes his filing of

counterclaims, the Commission waived its sovereign immunity by filing suit

against him, and his counterclaims are compulsory counterclaims to the claims

brought by the Commission.

The trial court first signed an

Order Granting [the Commission’s] Motion to Dismiss [Willie’s] Counterclaims

for Lack of Jurisdiction or, in the Alternative, Motion for Severance, stating

only that the motion was “granted.” The

trial court subsequently signed an order entitled “Order Granting [the

Commission’s] Motion for Severance,” in which the trial court ordered that

Willie’s counterclaims “are hereby severed for lack of subject-matter

jurisdiction.” [5]

Standard of Review

We review de novo a trial court’s

ruling on a jurisdictional plea. Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT–Davy , 74 S.W.3d 849,

855 (Tex. 2002). When reviewing a trial

court’s ruling on a challenge to its jurisdiction, we consider the plaintiff’s

pleadings and factual assertions, as well as any evidence in the record that is

relevant to the jurisdictional issue. City of Elsa v. Gonzalez , 325 S.W.3d

622, 625 (Tex. 2010); Bland Indep. Sch.

Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). We construe pleadings

liberally in favor of the plaintiffs, look to the pleader’s intent, and

determine if the pleader has alleged facts affirmatively demonstrating the

court’s jurisdiction. City of Elsa , 325 S.W.3d at 625 ; Miranda , 133 S.W.3d at 226 . A llegations found in pleadings may affirmatively

demonstrate or negate the court’s jurisdiction.

City of Waco v. Kirwan , 298

S.W.3d 618, 622 (Tex. 2009). “If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to

the jurisdiction may be granted without allowing the plaintiffs an opportunity

to amend.” Miranda , 133 S.W.3d at 227 .

Sovereign Immunity

In

his first and second issues, Willie argues that the trial court erred in

granting the Commission’s motion to dismiss because Texas law prohibits the

Commission’s filing of a motion to dismiss rather than a plea to the jurisdiction

and the trial court should not have considered the Commission’s motion to

dismiss as a plea to the jurisdiction.

In his third and fourth issues, Willie argues that the trial court erred

in granting the Commission’s motion to dismiss because nothing in the Texas

Rules of Disciplinary Procedure purports to prohibit the filing of

counterclaims, his counterclaims were compulsory counterclaims that should not

have been severed, and the Commission waived its sovereign immunity by bringing

suit against Willie.

We

initially note that, in its second order granting the Commission’s motion, which

the parties identify as the order being appealed, the trial court stated that

it was “sever[ing]” Willie’s claims “for lack of subject-matter

jurisdiction.” Although the trial court did

not specifically refer to the dismissal of the claims, it is clear from the

language of both orders that the trial court in fact dismissed Willie’s claims

from the underlying proceedings for lack of jurisdiction. See

It’s The Berrys, LLC v. Edom Corner, LLC , 271 S.W.3d 765, 772 (Tex.

App.—Amarillo 2008, no pet.) (“When a trial court lacks subject matter

jurisdiction to render a judgment, the proper procedure on appeal is for the

appellate court to set the judgment aside and dismiss the cause.”). Thus, we will treat this appeal as one from

an order dismissing Willie’s claims for lack of subject-matter jurisdiction.

In regard to Willie’s procedural

complaints about the Commission’s motion, it is well-settled that a challenge

to subject-matter jurisdiction may be raised by a plea to the jurisdiction, as

well as by other procedural vehicles, such as a motion for summary

judgment. Bland

Indep. Sch. Dist. , 34 S.W.3d at 554 .

A motion to dismiss for lack of jurisdiction is the “functional

equivalent” of a plea to the jurisdiction.

Lacy v. Bassett , 132 S.W.3d

119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Here, in its motion to dismiss and

alternative motion to sever, the Commission sought dismissal of Willie’s

counterclaims for lack of subject-matter jurisdiction. The Commission argued that it was immune from

Willie’s counterclaims and the trial judge appointed to preside over the

disciplinary proceedings did not have authority to entertain Willie’s counterclaims. There is no merit to Willie’s argument that

we must reverse the trial court’s order because the Commission sought dismissal

with the wrong procedural vehicle. See State v. Lueck , 290 S.W.3d 876, 884

(Tex. 2009) (stating that “ absence of subject-matter jurisdiction may be

raised by a plea to the jurisdiction, as well as by other procedural vehicles,

such as a motion for summary judgment”); Doctor

v. Pardue , 186 S.W.3d 4, 16 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied) (“[W]e look to an instrument’s substance rather than its form.”).

Accordingly, we address the merits

of the jurisdictional arguments. Sovereign immunity protects the

State from lawsuits for money damages, unless such immunity has been waived. [6] Reata

Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006). Sovereign immunity “extends to various

divisions of state government, including agencies, boards, hospitals, and

universities,” and, as such, extends to the Commission as a standing committee

of the State Bar of Texas. See Ben Bolt–Palito Blanco Consol. Indep.

Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint

Self–Insurance Fund , 212 S.W.3d 320, 324 (Tex. 2006); see also Wichita Falls State

Hosp. v. Taylor , 106 S.W.3d 692 , 694 n.3 (Tex. 2003); T ex. Gov’t Code Ann. § 81.011(a) (Vernon

2005) (“The state bar is a public corporation and an administrative agency of

the judicial department of government.”), § 81.071 (Vernon 2005) (“Each

attorney admitted to practice in this state and each attorney specially

admitted by a court of this state for a particular proceeding is subject to the

disciplinary and disability jurisdiction of the supreme court and the

Commission for Lawyer Discipline, a committee of the state bar.”), § 81.076(b) (Vernon

2005) (“The commission is a standing committee of the state bar.”) (Vernon

2005); see also Willie v. Comm’n for

Lawyer Discipline , No. 14–10–00900–CV, 2011 WL 3064158 , at *4 (Tex.

App.—Houston [14th Dist.] Jul. 26, 2011, pet. filed). Sovereign immunity involves immunity from suit

and immunity from liability. Harris County Hosp. Dist. v. Tomball Reg’l

Hosp ., 283 S.W.3d 838, 842 (Tex. 2009).

Immunity from suit is jurisdictional and bars suit, whereas immunity

from liability is not jurisdictional and protects from judgments. Id.

Sovereign immunity from suit deprives a trial court of subject-matter

jurisdiction. Miranda , 133 S.W.3d at 224 .

Willie agrees that the Commission generally

enjoys sovereign immunity. But, citing Reata

Construction Corporation , Willie argues that, by bringing suit against him,

the Commission has waived immunity for his counterclaims, which he asserts are incident

to or connected with the Commission’s claims. Willie notes that, in its petition, the Commission

seeks “appropriate sanctions,” which he asserts could include monetary damages,

restitution, expenses, costs of court, and attorney’s fees. In his reply brief, he further asserts that it

would be fundamentally unfair to allow the Commission to assert affirmative

claims, such as attorney’s fees, . . . while claiming it had immunity” as to

his counterclaims.

In Reata Construction Corporation , the Texas Supreme Court held that

a governmental entity that otherwise enjoys immunity, but files suit for

monetary damages, waives immunity from suit for “claims against it which are

germane to, connected with and properly defensive” to the claims asserted by

the entity. 197 S.W.3d at 377 . The court noted that once a governmental

entity “asserts affirmative claims for monetary recovery,” then it must

“participate in the litigation process as an ordinary litigant, save for the

limitation that the [entity] continues to have immunity from affirmative damage

claims against it for monetary relief exceeding amounts necessary to offset the

[the entity’s] claims.” Id .

Here, Willie seeks to recover

actual and exemplary damages from the Commission based upon his claims for

intentional infliction of emotional distress, conspiracy, and equal protection

and due process violations. The

Commission, however, has not sought the recovery of monetary damages from

Willie. Instead, the Commission’s

petition seeks only an order disciplining Willie for his alleged violations of

the Texas Disciplinary Rules of Professional Conduct. Although an order of restitution to the

complainant is included among the requested remedies, we conclude that such an

order, if one is ultimately made, does not transform the Commission’s suit to

one for the recovery of monetary damages because any restitution would be

payable to the complainant, not the State.

The Commission is not seeking the recovery of monetary damages from

Willie, so Willie may not seek, as an offset, monetary damages for his alleged

mental anguish or any of the other injuries he allegedly sustained as a result

of the Commission’s petition. Accordingly,

we hold that the trial court did not err in granting the Commission’s motion

and dismissing for lack of jurisdiction Willie’s counterclaims for intentional

infliction of emotional distress, conspiracy, and equal protection and due

process violations. See Willie , 2011 WL 3064158 , at *4

(concluding, on similar facts and involving same parties, that trial court did

not err in granting Commission’s plea to jurisdiction).

In his original briefing, Willie primarily argued that the

Commission waived its immunity from his counterclaims as a result of its

request for sanctions. Specifically,

Willie argued that the Commission waived its immunity because it filed “a

petition in the district court” and sought “appropriate sanctions or sanctions

to impose,” which he noted could include “monetary damages, such as

restitution, expenses, costs of court, and attorney’s fees.” In our original opinion, we held that Willie

could not seek, as an offset, monetary damages for his alleged mental anguish

or any other injuries sustained as a result of the Commission’s suit. Our holding in our original opinion was

generally consistent with the disposition reached by our sister court in

another similar appeal brought by Willie in which he, like here, challenged a

trial court order granting the Commission’s plea to the jurisdiction and

dismissing his tort claims brought in the context of a disciplinary

proceeding. See Willie v. Comm’n for Lawyer

Discipline , No.

14–10–00900–CV, 2011 WL 3064158 , at *4 (Tex. App.—Houston [14th Dist.] Jul. 26,

2011, pet. denied) (stating that Commission, by bringing disciplinary

action against Willie, had not brought affirmative claim seeking monetary

recovery).

On rehearing, Willie now focuses his immunity arguments on

the Commission’s general prayer for relief.

In its petition, the Commission seeks an order disciplining Willie “by

reprimand, suspension, or disbarment” and an order providing restitution. It

also seeks “all other relief, general or specific, at law or in equity, to

which [it] may show itself to be justly entitled, including, without

limitation, expenses, court costs, and

attorney’s fees.” Willie complains that

the Commission, in this general prayer, sought “monetary damages” against him

“in the form of expenses, costs of court, and attorney’s fees.”

Our sister court, in its opinion in

Willie , did not address whether the

Commission, in that case, had also included a prayer that generally requested

attorney’s fees. However, under the

specific facts presented here, we conclude that the Commission has not waived

its immunity from Willie’s tort claims.

Although the Commission initiated the disciplinary proceeding in

response to a grievance filed with the Commission by the complainant, and

although the Commission generally sought “fees and costs,” it “asserted no

claims for relief.” See Tex. Dep’t of Criminal Justice v. McBride , 317 S.W.3d 731, 732

(Tex. 2010). As noted above, the only

possible monetary relief, other than fees and costs, sought by the Commission

was an order of restitution that would be payable to the complainant, not the

State or the Commission. In sum, we hold

that the Commission’s request for attorney’s fees does not waive its immunity.

We overrule Willie’s four issues. [7]

Conclusion

We affirm

the order of the trial court.

Terry Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

[1] See

Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(8) (Vernon Supp. 2011).

[2] See

Tex. Discplinary Rules Prof’l Conduct R. 1.02(a)(1),

1.03(a), and 1.15(d).

[3] See

U.S. Const. amend. XIV.

[4]

See Tex. Civ. Prac. &

Rem. Code Ann. § 105.002 (Vernon 2011) (providing that party to civil

suit “brought by or against a state agency in which the agency asserts a cause

of action against the party, either originally or as a counterclaim or cross

claim, is entitled to recover, in addition to all other costs allowed by law or

rule, fees, expenses, and reasonable attorney’s fees incurred by the party in

defending the agency’s action if: (1) the court finds that the action is

frivolous, unreasonable, or without foundation; and (2) the action is dismissed

or judgment is awarded to the party); see

also 42 U.S.C. § 1988 (“Proceedings in vindication of civil rights”).

[5] Neither party addresses why the trial

court entered two separate orders.

[6]

Willie refers both to sovereign

immunity and governmental immunity. Governmental

immunity protects political subdivisions of the state, including cities, from

lawsuits for money damages, unless such immunity has been waived. Reata Constr. Corp. v. City of Dallas ,

197 S.W.3d 371, 374 (Tex. 2006).

[7]

In its motion to dismiss, the

Commission sought dismissal of Willie’s counterclaims for “monetary damages for

intentional infliction of emotional distress, civil conspiracy, and civil

rights violations.” The Commission did

not present, and the trial court did not rule upon, Willie’s request for

attorney’s fees if the trial court ultimately makes a finding that the

Commission’s suit “is frivolous, unreasonable, or without foundation.” See

Tex. Civ. Prac. & Rem. Code Ann. §

105.002. Neither party addresses this

specific provision on appeal.