Danner v. State

¶1dissenting.

¶2I would affirm the judgment of disbarment. In my view, Danner’s answer did not properly traverse the “Original Formal Complaint” as required by Section 25, State Bar Rules, and was properly stricken by the trial court.

¶3Section 21 of the State Bar Rules states that the Texas Rules of Civil Procedure shall govern disciplinary proceedings except where in conflict with a specific provision of the bar rules. State Bar of Texas, Rules and Code of Professional Responsibility art. XII, § 21 (Vernon 1973); Greenspan v. State, 618 S.W.2d 939 (Tex.Civ.App.-Fort Worth 1981, writ ref’d n.r.e.). As noted in the opinion of the majority, Section 25 of the State Bar Rules provides that the answer of the defendant in a disciplinary proceeding “shall either admit or deny each allegation” of the formal complaint. (Emphasis added.) State Bar of Texas, Rules and Code of Professional Responsibility art. XII, § 25 (Vernon 1973). This rule is in obvious conflict with the general denial allowed by Tex.R.Civ.P. 92. If the answer of a defendant in a disciplinary proceeding need only be a general denial, the Supreme Court would not have set out the denial required by Section 25.

¶4Unless we choose to ignore Section 21 of the State Bar Rules, Rule 92 general denials should be deemed inadequate in disciplinary proceedings. While the trend of the law has been toward notice pleading, this move is intended to benefit lay litigants who lost their causes on pleadings alone. The State Bar Rules, on the other hand, provide guidance only to members of the bar. It is not unreasonable to expect more from our own, i.e., attorneys, especially when the legal action involves the fitness of the attorney and the protection of the professional interest of the members of the State Bar. State Bar of Texas, Rules and Code of Professional Responsibility art. Ill, § 1 (Vernon 1973). Retention of the status as an attorney is a privilege, not a right, and therefore may be subject to different and more rigorous procedural requirements. State Bar of Texas v. Heard, 603 S.W.2d 829, 834 (Tex.1980); Sherman v. State Board of Dental Examiners, 116 S.W.2d 843 (Tex.Civ.App.-San Antonio 1938, writ ref’d); Marrs v. Matthews, 270 S.W. 586 (Tex.Civ.App.-Texarkana 1925, writ ref’d).

¶5Danner’s answer is nothing more than a general denial. Even Danner admits in his brief that something more than a general denial is required by Section 25. The mere addition of the word “specifically” within the denial does not cure the defect in the pleading. All of Danner’s arguments and the reasoning of the majority rely on Rule 92 and therefore fail to uphold his pleading as a valid answer.

¶6The judgment rendered by the trial court was a nihil dicit judgment as distinguished from a default judgment. A nihil dicit judgment is appropriate where there has been an appearance but where no answer placing the merits of the case in issue is on file. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). Danner’s Original Answer constituted an appearance before the trial court such that when the court struck the answer after determining it was insuffi*682cient, Danner was left without an answer in the record and therefore subject to a judgment nihil dicit.

¶7The review of a nihil dicit judgment is not as strict as for a default judgment. The judgment here is more in the nature of an implied confession and a reviewing court must consider all errors, other than fundamental1 or jurisdictional, as waived. 33 Tex.Jur.2d Judgments §§ 130, 131 (1962); O’Quinn v. Tate, 187 S.W.2d 241 (Tex.Civ.App.-Texarkana 1945, writ ref’d). The trial court’s judgment nihil dicit meets this standard.

¶8I would affirm the judgment of the trial court.