535 U.S. 1018
OLMSTEADv.WALTER INDUSTRIES, INC., DBA MID STATE HOMES, INC.
No. 01-1221.
Supreme Court of the United States.
April 22, 2002.

1
C. A. 11th Cir. Certiorari denied. Reported below: 275 F. 3d 1087.


         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number:______________

Filing Date: June 16, 2014

Docket No. 34,453

STATE OF NEW MEXICO, ex rel.
KARI BRANDENBURG, Second Judicial
District Attorney,

       Petitioner,

v.

HON. ROSS SANCHEZ,

       Respondent,

and

ANTHONY SAMORA,

       Real Party in Interest.

ORIGINAL PROCEEDING

Office of the District Attorney
Clara Moran
Albuquerque, NM

for Petitioner

Gary K. King, Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM

for Respondent

Edward O. Bustamante
Albuquerque, NM

for Real Party in Interest

                                          1
                                          OPINION

BOSSON, Justice.

{1}     On December 18, 2013, the undersigned panel of this Court granted a peremptory writ
of superintending control directing the district court to determine whether to impose a mandatory
life sentence on Defendant, Anthony Samora, after his second conviction for criminal sexual
penetration (CSP) in the second degree. We write to explain our decision and to provide
guidance for future courts regarding the interplay between NMSA 1978, Section 31-18-25(F)
(1997) (defining “violent sexual offense”), and NMSA 1978, Section 30-9-11 (2007, amended
2009) (defining the crime of criminal sexual penetration), after the New Mexico Legislature
reorganized Section 30-9-11 in 2007. That reorganization is the source of the confusion in this
case.

BACKGROUND

{2}     In 2004, Defendant pled guilty to the charge of CSP in the second degree for raping a
fourteen year-old boy. He served a sentence of three years’ incarceration. Nearly ten years later,
a jury convicted Defendant of CSP in the second degree (in the commission of another felony)
for raping a fifteen year-old boy. Because this was Defendant’s second such conviction, the State
sought to impose a mandatory life sentence as set forth in Section 31-18-25 (requiring “a
sentence of life imprisonment” for a “second violent sexual offense”).

{3}     However, on December 11, 2013, the district court concluded that the mandatory life
sentence enhancement under Section 31-18-25 did not apply to this case, finding a confusion,
a “legislative infirmity,” in the statutes. Before sentencing and before the district court released
the jury from service, the State effectively appealed the district court’s refusal to impose a
mandatory life sentence pursuant to Rule 12-504 NMRA (governing appeals to the Supreme
Court for extraordinary writs). We granted the State’s emergency petition for writ of
superintending control. This opinion follows.

STANDARD OF REVIEW

{4}     “We review questions of statutory construction de novo.” State v. Smith, 2004-NMSC-
032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. When this Court construes statutes, our guiding principle
is that we should determine and effectuate the Legislature’s intent when it enacted the statute.
Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. While the plain meaning of the
statute is the starting point of our determination, that alone does not necessarily resolve the
question. See State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d
1352. We should not allow a literal plain reading of a statute to confound the legislative intent,
and therefore, our inquiry does not end with the plain meaning of the words. See id. “This Court
has rejected a formalistic and mechanical statutory construction when the results would be
absurd, unreasonable, or contrary to the spirit of the statute.” Smith, 2004-NMSC-032, ¶ 10.

                                                 2
DISCUSSION

{5}     In this appeal, Defendant does not argue that he was improperly convicted or that this
is not his second conviction for CSP in the second degree. He simply argues that as a matter of
law the State may not use Section 31-18-25(A) to sentence him to life imprisonment for a second
“violent sexual offense.” Section 31-18-25(A) provides that

       [w]hen a defendant is convicted of a second violent sexual offense, and each
       violent sexual offense conviction is part of a separate transaction or occurrence,
       and at least the second violent sexual offense conviction is in New Mexico, the
       defendant shall, in addition to the punishment imposed for the second violent
       sexual offense conviction, be punished by a sentence of life imprisonment
       (emphasis added).

Defendant’s argument focuses on how the Criminal Sentencing Act defines the term “violent
sexual offense.”

{6}    Since its enactment in 1996, Section 31-18-25 has provided that “violent sexual offense”
means CSP in the first or second degree, as defined by Section 30-9-11 (defining the crime of
CSP). Compare § 31-18-25(E) (1996) (identifying a violent sexual offense as first- or second-
degree CSP and referencing Section 30-9-11), with § 31-18-25(F) (1997) (same but not
specifying Subsections C and D of Section 30-9-11). Specifically, Section 31-18-25(F)(2)
defines a “violent sexual offense” to include CSP in the second degree “as provided in
Subsection D of Section 30-9-11.” Thus, in Section 31-18-25, for purposes of defining a violent
sexual offense and eligibility for a mandatory life sentence, the Legislature makes specific
reference to the definition set forth in Subsection D of Section 30-9-11. When Section 31-18-
25(F) was enacted in 1996, Subsection D of Section 30-9-11 did indeed define CSP in the
second degree.

{7}      The problem, however, is that although Subsection D of Section 30-9-11 previously
defined CSP in the second degree, a 2007 legislative reorganization of the statute moved the
definition of CSP in the second degree to Subsection E. Subsection D has since defined CSP in
the first degree, which is not applicable to Defendant’s convictions. Compare § 30-9-11 (2006)
(providing the definition of CSP in the second degree in Subsection D), with § 30-9-11 (2007)
(providing the definition of CSP in the second degree in Subsection E). The definitions of the
two crimes did not change in the reorganization; only the numbering changed. In what would
appear to be a legislative oversight, that same 2007 reorganization did not make a corresponding
change in Section 31-18-25(F)(2) to substitute Subsection E of Section 30-9-11 for Subsection
D.

{8}      Solely by its reference to Subsection D of Section 30-9-11, which as of 2007 defines CSP
in the first degree, the definition of a violent sexual offense in Section 31-18-25(F)(2) no longer
includes repeated convictions of CSP in the second degree. On that basis, Defendant argued and
the district court concluded that a mandatory life sentence was not authorized.

                                                3
{9}     To support his argument, Defendant cites State v. Chavarria, 2009-NMSC-020, ¶ 12, 146
N.M. 251, 208 P.3d 896, for the proposition that “[a] trial court’s power to sentence is derived
exclusively from statute” (internal quotation marks and citation omitted) and State v. Sparks,
1985-NMCA-004, ¶ 49, 102 N.M. 317, 694 P.2d 1382, for the proposition that “[t]he district
court’s authority to sentence is only that which has been provided by statute.” We agree with
those general propositions of law.

{10} However, the reorganization of Section 30-9-11 does not deprive the district court of the
authority to impose a life sentence upon a defendant who is convicted of a second violent sexual
offense—that authority is provided by Section 31-18-25(A), referring to a second violent sexual
offense. Although Section 31-18-25(F) references Section 30-9-11, Section 31-18-25(F)
provides in plain language that a violent sexual offense is either “(1) criminal sexual penetration
in the first degree” or “(2) criminal sexual penetration in the second degree.” It would be absurd
to read second-degree CSP out of the definition of “violent sexual offense” in Section 31-18-
25(F) where its plain language demands that second-degree CSP be included. To hold otherwise
would be to create an anomaly in the definition of a violent sexual offense that distinguishes
between conviction and sentencing. See State v. Herrera, 1974-NMSC-037, ¶ 6, 86 N.M. 224,
522 P.2d 76 (“We will not construe statutes to achieve an absurd result or to defeat the intended
object of the legislature.”).

{11} We are charged with the responsibility of construing statutes harmoniously when
possible. Smith, 2004-NMSC-032, ¶ 13. “In addition to looking at the statutory language, we
also consider the history and background of the statute.” Id. ¶ 10 (internal quotation marks and
citation omitted). “If statutes appear to conflict, they must be construed, if possible, to give
effect to each.” NMSA 1978, § 12-2A-10(A) (1997).

{12} If we were to read the statutes as Defendant suggests, then the 2007 reorganization of
Section 30-9-11 eliminated the possibility of a life sentence enhancement for persons convicted
of second-degree CSP—effectively reducing the number of years to which they could be
sentenced. It is unlikely that this was the Legislature’s intent when the title of Chapter 69 of
New Mexico Laws of 2007 stated its purpose in part being to “increas[e] penalties for sex
offenses against minors.”

{13} Chapter 69 of New Mexico Laws of 2007 is the result of two bills that were introduced
in the New Mexico Senate during the 2007 legislative session. See S.B. 528, 48th Leg., 1st Sess.
(N.M. 2007), available at http://www.nmlegis.gov/lcs/legislation.aspx?Chamber=S&LegType=
B&LegNo=528&year=07 (follow “Final Version” hyperlink). As introduced, the bill did not
purport to decrease the penalties for sexual offenses against minors.

{14} Among the differences between the two bills, Senate Bill 528 added a new crime of
aggravated criminal sexual penetration as a first-degree felony and numbered it in the CSP
statute as Section 30-9-11(C). See S.B. 528 (follow “SJC Committee Substitute” hyperlink)
(marking all changes constituting the amended bill). In so doing, it renumbered first-degree CSP,
previously at Subsection C, to Subsection D, and second-degree CSP, previously at Subsection

                                                4
D, to Subsection E. Id. Senate Bill 528 passed the legislature and was codified as Section 30-9-
11 (2007). Although Chapter 69 of New Mexico Laws of 2007 increased the penalties for the
commission of certain sex offenses against minors, two of which were first- and second-degree
CSP, it did not amend Section 31-18-25, despite the specific reference in that statute to
Subsections C and D of Section 30-9-11. In the face of this silence, it would be absurd for this
Court to hold that the Legislature effectively repealed the mandatory life sentence provision. We
decline to do so.

{15} This Court is “skeptical of reading too much into a passive and incidental legislative act.”
Smith, 2004-NMSC-032, ¶ 19. Smith involved three amendments to the DWI statute passed
during the same legislative session. Id. ¶¶ 2-3. The Court of Appeals in that case held that the
language of the three amendments was irreconcilable, the language of the final bill signed into
law (which included lighter penalties) was controlling, and thus the heavier penalty provisions
were effectively repealed when the final bill was signed into law. Id. ¶ 12. Disagreeing with the
Court of Appeals, this Court observed that it was “[a] better rule . . . to make legislative intent
paramount to the application of a mechanical rule.” Id. ¶ 21. The Court was unwilling to
“elevate[] form over function” by focusing on the sequence in which the bills were signed into
law, reading the three amendments as irreconcilable and thus producing “a result clearly not
intended by the legislature.” Id.

{16} To read the statutes as Defendant suggests would thwart the Legislature’s clear intent to
impose a mandatory life sentence—to increase, not decrease, the penalties—upon a second
conviction for a violent sexual offense involving minors. See § 31-18-25(A). Section 31-18-25
was originally enacted by Chapter 79, Section 1 of New Mexico Laws of 1996, and the title of
the enactment provided that part of the purpose was to “require[] life imprisonment for persons
having two violent sexual offense convictions.” Section 31-18-25 has only been amended once,
the following year, to provide for heavier penalties. Compare § 31-18-25 (1996) (providing that
life imprisonment shall be subject to parole), with § 31-18-25 (1997) (providing for the
possibility of life imprisonment without parole for certain offenders).

{17} Section 31-18-25 defines violent sexual offense as either criminal sexual penetration in
the first degree or criminal sexual penetration in the second degree. See § 31-18-25(F). While
Section 31-18-25(F) is not as clear as it could be because the reader has to reconcile the
discrepancy in the reference to Subsections C and D of Section 30-9-11, there is no indication
that the Legislature intended to repeal the mandatory life sentence for a second conviction of
second-degree CSP. “Repeals by implication are not favored.” Smith, 2004-NMSC-032, ¶ 22.
We conclude that the two statutes can be construed harmoniously.

CONCLUSION

{18} The 2009 amendment of Section 30-9-11 did not effectively repeal Section 31-18-
25(F)(2), and therefore it did not repeal a district court’s authority to impose the mandatory life
sentence for a second conviction of a violent sexual offense under Section 31-18-25(A). The
current Section 31-18-25(F) continues to define a violent sexual offense as either first- or

                                                5
second-degree CSP, despite referencing two subsections in Section 30-9-11 that define first-
degree CSP and aggravated CSP pursuant to the 2007 renumbering of the Section 30-9-11
subsections. We do, however, invite the Legislature to address this statutory anomaly to clarify
what is essentially a clerical error.

{19}   IT IS SO ORDERED.

                                              _______________________________________
                                              RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

                                               6


                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-13-00284-CV
                            ____________________

                        KELLY McCLANE, Appellant

                                       V.

             NEW CANEY OAKS APARTMENTS, Appellee
_________________________________________________ ______________

             On Appeal from the County Court at Law No. 2
                     Montgomery County, Texas
                     Trial Cause No. 13-27046-CV
___________________________________________________ _____________

                                   OPINION

      Kelly McClane appeals a judgment in favor of New Caney Oaks Apartments

in a forcible detainer suit. McClane is a tenant at New Caney Oaks, a federally-

subsidized apartment complex, where she lives with her two children. She signed a

one-year lease. McClane received a “7 Day Vacate Lease Termination Notice for

Non-Payment of Rent.”

      New Caney Oaks filed its petition for eviction in the Montgomery County

Justice Court, and requested $866 in rent and “all rents accruing through date of

                                       1
judgment.” The justice of the peace signed a default judgment against McClane for

past rent. The judgment stated that she had five days to vacate the apartment or

appeal the judgment. McClane filed her appeal the next day.

      When an appeal from a justice court to a county court is perfected in a

forcible detainer suit for nonpayment of rent, the county clerk dockets the cause,

“and the trial shall be de novo.” Tex. R. Civ. P. 751.1 The justice court files the

papers and the transcript of justice court proceedings, and any money in the justice

court registry, with the clerk of the county court. See id. The county clerk then

notifies the parties of the “date of receipt of the transcript and the docket number of

the cause[,]” and notifies the defendant of the “necessity for filing a written answer

in the county court when the defendant has pleaded orally in the justice court.” Id.

      The trial in county court at law was set for May 20, 2013, and then reset for

May 21. A visiting judge called the case. The property manager identified herself

as the person representing New Caney Oaks. McClane did not appear. Based on

McClane’s failure to appear, the court orally “dismiss[ed] the case for

nonappearance.”

      1
        The former rules governed this case. The Texas Supreme Court
subsequently adopted new Rules of Civil Procedure governing practice in justice
courts.
                                          2
        According to McClane, she had called the court and explained that she could

not be at court on May 21 because she had a medical appointment. McClane claims

the person she spoke to informed her that a new notice with a different trial date

would be mailed. McClane received a notice that trial would be held on June 14,

2013.

        On that date, the case was again called for trial. McClane did not appear. No

attorney appeared on behalf of New Caney Oaks. The property manager

announced her presence, and stated on the record the amount of unpaid rent. That

day the court signed a judgment granting possession of the property to New Caney

Oaks. McClane was ordered to vacate the property within ten days, and to pay the

rent the court calculated based on the property manager’s presentation.

        McClane asserts that on June 14 she searched for a parking space as she

drove around the courthouse. Her health made it difficult for her to get to the

courtroom, and she arrived after the trial had ended. With the assistance of counsel,

she filed a motion for new trial, and later an amended motion. She argued that her

failure to appear was not intentional but was an accident. She alleged that New

Caney Oaks failed to comply with the lease terms, with section 24.005 of the

Texas Property Code, and with federal housing regulations. Denying her motion,

the trial court noted on the order that McClane had missed two trial settings.

                                          3
      McClane filed a second motion for new trial, which the trial court denied by

written order. Included in the order are the following findings:

      1. This Court finds that at the time of the first trial in this matter the
         judge did not have an order of appointment to sit for [the] County
         Court at Law Number Two;
      2. This Court finds that the judge sitting at the time of the first trial
         dismissed the Defendant’s appeal in favor of the original JP
         Court’s judgment; and
      3. This Court finds that new trial was granted on its own motion in
         the interest of justice to correct the situations detailed above.

McClane’s motions for new trial were supported by exhibits and an affidavit.

                               MOOTNESS RESPONSE

      New Caney Oaks argues the appeal is moot because McClane’s lease term

has expired. See Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d

782, 787 (Tex. 2006) (issue of possession in forcible detainer action). The lease

has a hold-over provision, and McClane claims the notice to vacate was

inadequate. See Barnes v. Stone Way Ltd. P’ship, 330 S.W.3d 925, 927-28 (Tex.

App.—Beaumont 2011, no pet.). Unlike the tenant in Marshall, McClane has not

vacated the apartment, and she has superseded the judgment. See Tex. Prop. Code

Ann. § 24.007 (West Supp. 2012); Tex. R. App. P. 24.1; see also Marshall, 198

S.W.3d at 784. She claims a continuing right to possession. The issue of proper

termination of the lease is disputed. The trial court ordered McClane to pay money

damages, and McClane challenges the judgment. See Barnes, 330 S.W.3d at 926-
                                          4
29; see also Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 Tex.

App. LEXIS 5453, at **5-7 (Tex. App.—San Antonio July 14, 2010, no pet.)

(mem. op.) (Trial court ordered tenant to pay unpaid rent.). Because the parties’

controversy continues and the case is not moot, we will address appellant’s issues.

                               THE FINAL JUDGMENT

      McClane argues that the June 14 final judgment is a nullity, because a

judgment dismissing the case was orally rendered on May 21 and no order

reinstating the case was signed prior to June 14. The date an order or judgment is

signed determines the beginning of the court’s plenary power to grant a new trial

or to vacate an order of dismissal. See Tex. R. Civ. P. 306a(1). The county court at

law had jurisdiction over the matter until thirty days after a final written order

disposed of the case. See id.; Tex. R. Civ. P. 329b(d). No written order of dismissal

was signed after the first trial setting. No final order or judgment was signed until

June 14. The trial court had jurisdiction over the matter at that time. See Tex. R.

Civ. P. 306a, 329b. Issue one is overruled.

                        THE AUTHORIZED REPRESENTATIVE

      McClane maintains that the trial court erred in allowing New Caney Oaks, a

corporation, to be represented by a non-attorney at trial. She argues that “[w]hen a

non-attorney purports to represent a corporation in a legal proceeding, the non-

                                         5
attorney’s acts have no effect and are void.” We understand this issue as including

a challenge to the legal sufficiency of the proof at trial, because McClane argues

we should treat the non-attorney’s acts in this context as having no effect. See Tex.

R. App. P. 33.1(d).

      A forcible detainer action is governed by discrete provisions in the Texas

Property Code and Rules of Civil Procedure. See Tex. Prop. Code Ann. §§ 24.001-

.011 (West 2000 & Supp. 2012); Tex. R. Civ. P. 738-55. The action is intended to

be a summary, speedy, and inexpensive remedy for resolving a dispute over “who

is entitled to possession of the premises.” See McGlothlin v. Kliebert, 672 S.W.2d

231, 232 (Tex. 1984). The only issue to be determined is the right to actual

possession. Tex. R. Civ. P. 746. But a claim for rent may be brought with the

action. Tex. R. Civ. P. 738.

      Under the Rules and the Property Code, a party may be represented by an

“authorized agent” in justice court in a forcible detainer suit “for non-payment of

rent or holding over beyond the rental terms[.]” See Tex. R. Civ. P. 747a

(“authorized agents”); see also Tex. R. Civ. P. 739 (“authorized agent”); Tex.

Prop. Code Ann. § 24.011 (West 2000) (“authorized agents, who need not be

attorneys”). The written sworn complaint must be filed by “the party aggrieved or

his authorized agent[.]” See Tex. R. Civ. P. 739. The authorized agent must be an

                                         6
individual, not a business entity. See Tex. Att’y Gen. Op. No. JM-451 (1986). The

law anticipates that the business’s authorized agent, if not a licensed attorney, will

be a property manager or someone similarly involved with the property, so that the

individual has knowledge sufficient to sign an oath that the allegations in the

complaint are true. See id.; Tex. R. Civ. P. 739, 741. No written answer was filed

in the justice court before the judgment, and the authority of the property manager

to represent New Caney Oaks was not attacked by McClane in the justice court.

See generally Holloway v. Paul O. Simms Co., 32 S.W.2d 672, 673-74 (Tex. Civ.

App.—Austin 1930, no writ) (affidavit sufficient “where no attack is made upon

the authority of the agent” in justice court). We conclude the property manager was

an authorized agent for the purpose of signing the sworn complaint.

      In a forcible detainer action, Rule 753 provides that when no answer is filed

in the justice court and no answer is filed within eight days after the transcript is

filed in the county court at law, the allegations of the sworn complaint “may be

taken as admitted[,]” and a default judgment may be signed. See Tex. R. Civ. P.

753. No trial is necessary unless the allegations are insufficient to support a

judgment. See Cunningham v. Anglin, No. 05-10-01023-CV, 2011 Tex. App.

LEXIS 6385, at **5-6 (Tex. App.—Dallas Aug. 12, 2011, no pet.) (mem. op.).

                                          7
Essentially, Rule 753 treats the sworn complaint filed in the justice court as the

initial pleading in the county court at law.

      New Caney Oaks argues that McClane was in default because she failed to

file a written answer in the county court at law. The record does not include a

notice from the clerk to McClane of the necessity for filing a written answer in the

county court at law. See Tex. R. Civ. P. 751. McClane filed an affidavit of inability

to pay costs and a request to appeal in the justice court. The Supreme Court has

held that a “pauper’s affidavit” in a forcible detainer case suffices as a pro se

answer entitling a defendant to notice of a hearing. See Hughes v. Habitat

Apartments, 860 S.W.2d 872, 872-73 (Tex. 1993); see also Brown v. Apex Realty,

349 S.W.3d 162 (Tex. App.—Dallas 2011, pet. denied) (“Both an appeal bond

filed pursuant to rule 749 and a pauper’s affidavit filed pursuant to rule 749a

operate as an answer.”). McClane’s affidavit of inability to pay costs included a

hand-written note explaining her medical difficulties, and also stating: “However I

had the money that was owed. She told me to hold on to everything and not to

bother coming to court, that it would end up costing me an extra fee if I came to

court.” We conclude the affidavit suffices as a written answer. See Hughes, 860

S.W.2d at 872-73.

                                           8
      Despite notice of the trial setting, McClane failed to appear at trial. But a

post-answer “default” is not an abandonment of the answer, nor is it an admission

of any of the issues controverted by the answer. Stoner v. Thompson, 578 S.W.2d

679, 682 (Tex. 1979). New Caney Oaks was required to offer evidence to prove the

case as in a judgment upon a trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d

922, 930 (Tex. 2009); Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex.

1994).

      The property manager could not represent the corporation at the trial in the

county court at law. See L’Arte de la Mode, Inc. v. Nieman Marcus Grp., 395

S.W.3d 291, 295 (Tex. App.—Dallas 2013, no pet.) (“The representative could not

have . . . presented a case[.]”); Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d

655, 659 (Tex. App.—San Antonio 2002, no pet.). A corporation is not authorized

to practice law. Unauthorized Practice of Law Comm. v. Am. Home Assurance Co.,

261 S.W.3d 24, 33 (Tex. 2008). The Supreme Court explained:

      [T]he Court has exclusive authority to adopt rules governing
      admission to the practice of law in Texas. Those rules permit only
      individuals meeting specified qualifications to practice law. Entities . . .
      are excluded.

Id. (footnotes omitted). And although Texas Rule of Civil Procedure 7 provides

that “[a]ny party to a suit may appear and prosecute or defend his rights therein,

either in person or by an attorney of the court[,]” the Rule does not permit a
                                           9
corporation to appear through an agent who is not a licensed attorney. See Dell

Dev. Corp. v. Best Indus. Unif. Supply Co., 743 S.W.2d 302, 303 (Tex. App.—

Houston [14th Dist.] 1987, writ denied); see also Elec. Data Sys. Corp. v. Tyson,

862 S.W.2d 728, 737 (Tex. App.—Dallas 1993) (orig. proceeding) (“[O]nly a

licensed attorney can appear and represent a corporation.”).

      The Property Code includes a provision permitting, under certain

circumstances, a party to “be represented by their authorized agents, who need not

be attorneys[,]” in a county court hearing based on a sworn motion that a tenant

failed to pay rent ordered by the justice court to be paid during the appeal of the

eviction. See Tex. Prop. Code Ann. § 24.0054(a-4),(e) (West Supp. 2012); see also

Tex. Prop. Code Ann. § 24.0053 (West Supp. 2012). But the justice court’s

judgment in this case did not provide for a monthly amount of rent to be paid

during the pendency of the appeal, a requirement of section 24.0053(a). And even

had the justice court’s judgment contained the required payment information, New

Caney Oaks did not file a sworn motion in the county court at law “that the tenant

failed to pay rent as required.” See Tex. Prop. Code Ann. § 24.0054(a-4). New

Caney Oaks did not follow the procedures outlined in sections 24.0053 and

24.0054 of the Texas Property Code. See also Tex. R. Civ. P. 749b(3) (writ of

restitution). Instead, New Caney Oaks sought and obtained a judgment against

                                        10
McClane that was based on the sworn complaint filed in justice court by the

property manager and on the presentation of the case by the property manager at

trial in the county court at law.

      Although, as the Supreme Court has explained, “[g]enerally a corporation

may be represented only by a licensed attorney[,]” whether a non-lawyer’s act for

the corporation nevertheless may be given effect depends on whether the act is like

“the specific ministerial task of depositing cash with a clerk in lieu of a cost bond”

that the Supreme Court gave effect in Kunstoplast. See Kunstoplast of Am., Inc. v.

Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996); compare L’Arte de la

Mode, Inc., 395 S.W.3d at 295 (The non-attorney corporate representative could

not have objected to evidence, cross-examined witnesses, presented a case, or

presented argument to the trier of fact.); Kelly v. Hinson, 387 S.W.3d 906, 912

(Tex. App.—Fort Worth 2012, pet. denied); Computize, Inc. v. NHS Commc’ns

Grp., Inc., 992 S.W.2d 608, 612-13 (Tex. App.—Texarkana 1999, no pet.). The

presentation of a claim at trial is not, however, a mere ministerial act. See L’Arte

de la Mode, Inc., 395 S.W.3d at 295; Computize, Inc., 992 S.W.2d at 612 (“[A]

response to a motion for summary judgment is not a ministerial act.”). If a court

gives any effect to the property manager’s presentation, the unlicensed practice of

law would be permitted. And evidence is legally insufficient when the court is

                                         11
barred by rules of law from giving weight to the only evidence offered to prove a

vital fact. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex.

2004). We hold that the property manager’s presentation of the claim in the county

court of law had no legal effect. That is, her testimony under the circumstances is

legally insufficient evidence to support the judgment. On this record, therefore, the

county court at law’s judgment cannot be sustained.

      Normally, an appellate court renders judgment when the evidence is legally

insufficient to support the trial court’s judgment following a trial on the merits. See

Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). In this case though, the trial

court entered a judgment on the pleadings when neither party properly appeared.

See Custom-Crete, Inc., 82 S.W.3d at 659 (The non-attorney representative’s

presence does not amount to an appearance at trial by the corporation.). The case

has not been fully developed. See Dolgencorp, 288 S.W.3d at 930. In Dolgencorp,

the Supreme Court explained that the appropriate remedy is a new trial when there

is legally insufficient evidence to support a post-answer default judgment. Id. A

new trial is required here. Appellant’s issue two is sustained.

                                     CRADDOCK

      McClane argues she is entitled to a new trial under the standard in Craddock

v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); see also Ivy v.

                                          12
Carrell, 407 S.W.2d 212, 213-14 (Tex. 1966). She argues her failure to appear at

trial was not intentional or the result of conscious indifference, but was the result

of an accident or mistake. McClane provided an affidavit explaining her physical

condition and why she was eight minutes late for the trial setting. She was

impaired by the side-effects of chemotherapy. New Caney Oaks did not controvert

her proof. See Barnes, 330 S.W.3d at 928. McClane also argues that she did not

receive adequate notice of termination, and that New Caney Oaks failed to comply

with the lease requirements to terminate the tenancy. See Kennedy v. Andover

Place Apartments, 203 S.W.3d 495, 498 (Tex. App—Houston [14th Dist.] 2006,

no pet.) (Section 24.005 provides that if a lease contains a provision granting an

opportunity to respond, a notice to vacate may not be given until that period has

expired.). Finally, she notes that New Caney Oaks did not contest the assertion in

her motion for new trial that a new trial would not injure New Caney Oaks. See

Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Because her argument under

Craddock would not result in greater relief than the new trial afforded by our

resolution of issue two, however, we need not address appellant’s issue three.

      The trial court’s judgment is reversed. The cause is remanded for a new trial.

                                         13
      REVERSED AND REMANDED.

                                            ____________________________
                                                  DAVID GAULTNEY
                                                        Justice
Submitted on September 13, 2013
Delivered on October 31, 2013

Before Gaultney, Kreger, and Horton, JJ.

                                       14


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 04-1259

CLIFTON NICKLES,

                                              Plaintiff - Appellant,

          versus

CATHERINE O’MALLEY,

                                              Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(CA-04-105-CCB)

Submitted:   June 24, 2004                 Decided:   June 29, 2004

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Clifton Nickles, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Clifton   Nickles   appeals   the   district   court’s   order

denying relief on his 42 U.S.C. § 1983 (2000) complaint and motion

to reopen.    We have reviewed the record and find no reversible

error.   Accordingly, we affirm for the reasons stated by the

district court. See Nickles v. O’Malley, No. CA-04-105-CCB (D. Md.

(Jan. 21, 2004; Feb. 2, 2004).      We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                              AFFIRMED

                                - 2 -


J-S15009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER N. URBANO                      :
                                               :
                       Appellant               :   No. 569 WDA 2018

             Appeal from the Judgment of Sentence March 22, 2018
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-MD-0000318-2018

BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                  FILED MAY 8, 2019

        Appellant, Christopher N. Urbano, appeals from the judgment of

sentence of a fine of $200 after his conviction of criminal contempt of court. 1

We affirm.

        The criminal contempt conviction arises out of the failure of Appellant,

an attorney, to attend a March 8, 2018 pre-trial conference before the

Honorable Valarie Costanzo in a criminal matter in which Appellant

represented the defendant, Nicholas James Murphy. By way of background,

Appellant also previously missed a pre-trial conference on November 30, 2017

in the same matter but before a different judge, the Honorable Michael J.

Lucas. A contempt hearing was held on December 18, 2017. At the earlier

contempt hearing, the transcript of which was made part of the record in the

____________________________________________

1   42 Pa.C.S. § 4132.

*    Retired Senior Judge assigned to the Superior Court.
J-S15009-19

instant case, Appellant stated that his failure to attend the November 30, 2017

pre-trial conference was a result of a miscommunication among his staff

members who neglected to file a motion for a continuance when it was learned

that Allegheny County would not release Murphy for the conference. N.T.,

12/18/17, at 3-13. Judge Lucas explained that, though this was not the “first

time this had happened,” he would not find Appellant in contempt and advised

that he hoped Appellant would “be a little more respectful of Court dates…with

the other judges who are going to have the criminal docket come the first of

the year.” Id. at 15, 20-21. Appellant informed the court that “[t]his is a

learning lesson I will not forget.” Id. at 21.

       The matter involving Murphy was then assigned to Judge Costanzo, and

on January 30, 2018, following a pre-trial conference, Judge Costanzo issued

a case management order scheduling the final pre-trial conference for March

8, 2018, and setting forth other relevant dates related to the underlying case,

including the deadline for the submission of proposed voir dire questions and

the date for jury selection.        Relevant to the instant proceeding, the case

management order stated: “A final Pre-Trial Conference shall be conducted

before the undersigned on Thursday, March 8 at 9:30 in Courtroom 3” and

“Defendant shall be present at the final Pre-Trial Conference. Defendant’s

failure to appear shall result in the issuance of a Bench Warrant.”2       N.T.,
____________________________________________

2 While the January 30, 2018 case management order was not made part of
the record, Judge Costanzo read out the relevant portions of the order at the
contempt hearing, and neither party contests the accuracy of the quoted
portions of the order.

                                           -2-
J-S15009-19

3/22/18, at 11, 19. While Appellant failed to appear in court on March 8,

2018, his client, Murphy, was brought to the trial court from a correctional

facility for the pre-trial conference, and Mr. Murphy indicated to the court that

he had not spoken to Appellant for some time prior to the hearing. Id. at 3-

4, 15-16, 25-26.

       At the March 22, 2018 contempt hearing, Appellant stated that he did

not personally see the January 30, 2018 case management order when it

arrived at his office but that someone else on his staff received it and placed

it in the file. Id. at 17-18, 22-23. Appellant further stated that he “saw the

deadlines” in the order, but that he did not think anything else was required

in this case, such as the submission of additional voir dire questions, prior to

jury selection. Id. at 19. Appellant attributed his failure to attend the pre-

trial conference to his having to manage too large of a caseload and attend

too many court dates as a sole practitioner. Id. at 12-15, 18. Appellant also

explained that he had hired new staff and adopted new computer case

management systems after he missed the November 30, 2017 pre-trial

conference, but that it had taken a long time to integrate the staff and fully

implement the systems. Id. at 12-15. At the hearing, the prosecutor also

stated that the earlier incident referenced by Judge Lucas at the December

18, 2017 contempt hearing related to Appellant missing a court appearance

in Allegheny County in November 2016.3 Id. at 39.
____________________________________________

3Appellant has not disputed, either at the March 22, 2018 contempt hearing
or in this appeal, that this earlier Allegheny County incident occurred.

                                           -3-
J-S15009-19

      Judge Costanzo found Appellant guilty of criminal contempt and

sentenced him to pay a fine of $200. Id. at 42; Order, 3/22/17. Appellant

filed a timely notice of appeal, and then filed his statement of errors

complained of on appeal, as directed by the trial court, on May 17, 2018. The

trial court issued its Pa.R.A.P. 1925(a) opinion on June 12, 2018.

      On appeal, Appellant raises the following issues:

      I. Was the evidence insufficient as a matter of law to support the
      conviction for criminal contempt under 42 Pa.C.S. §4132(2),
      insofar as the Commonwealth did not prove beyond a reasonable
      doubt that Attorney Urbano’s failure to appear for the Pre-trial
      Conference on March 8, 2018, was volitional, willful and
      deliberate?

      II. Was the evidence insufficient as a matter of law to support the
      conviction for criminal contempt under 42 Pa.C.S. §4132(3),
      insofar as the Commonwealth did not prove beyond a reasonable
      doubt that Attorney Urbano’s failure to appear for the Pre-trial
      Conference on March 8, 2018, was committed with the intent to
      obstruct the proceedings?

Appellant’s Brief at 4 (suggested answers omitted).

      We review a trial court’s finding of contempt for an abuse of discretion.

Commonwealth v. Moody, 125 A.3d 1, 12 (Pa. 2015).             This standard is

necessarily narrow and “empowers a trial judge with the ability to maintain

command over his or her courtroom.” In the Interest of C.W., 960 A.2d

458, 466 (Pa. Super. 2008) (citation omitted). “Much weight should be given

to the trial court’s judgment in assessing the necessities of a particular

situation.” Moody, 125 A.3d at 12 (citation omitted).

                                     -4-
J-S15009-19

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Judge Costanzo, we

conclude Appellant’s issues merit no relief.           The trial court opinion

comprehensively discusses and properly disposes of those questions,

explaining that there was sufficient evidence for a finding of criminal contempt

beyond a reasonable doubt under subsections (2) and (3) of 42 Pa.C.S. §

4132.4 See Trial Court Opinion, 6/12/18, at 3-12. Accordingly, we affirm on

the basis of the trial court’s opinion. The parties are instructed to attach the

opinion of the trial court in any filings referencing this Court’s decision.

        Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/2019

____________________________________________

4   The relevant subsections of 42 Pa.C.S. § 4132 provide as follows:

     The power of the several courts of this Commonwealth to issue
     attachments and to impose summary punishments for contempts of
     court shall be restricted to the following cases:
        …
        (2) Disobedience or neglect by officers, parties, jurors or
        witnesses of or to the lawful process of the court.
        (3) The misbehavior of any person in the presence of the court,
        thereby obstructing the administration of justice.

42 Pa.C.S. § 4132(2)-(3).

                                           -5-
                                                                              Circulated 04/17/2019 04:14 PM

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                         CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA,                       )
                                                    )
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CHRISTOPHER N. URBANO,                              )
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             OPINION PURSUANT TO Pa.R.A.P. 1925(a)                               (
                                                                                '
                                                                                --·
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                                                                                (.)
                                                                                "" ,.
       This matter comes before the Superior Court of Pennsylvania upon the appeål

oft:Christopher N. Urbano ("Appellant") from an Order of this court dated March 22, 2018. The

Order found Appellant in criminal contempt for failing to appear for a pre-trial conference

scheduled for March 8, 2018. Appellant filed a Notice of Appeal on April 23, 2018. On April

25, 2018, this court ordered Appellant to file a concise statement of errors complained of on

appeal within twenty-one (21) days pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a

Statement of Errors Complained of On Appeal on May 17, 2018. For the reasons set forth

below, this court properly found Appellant in criminal contempt.

                                   PROCEDURAL HISTORY

       Appellant is an attorney who represented Defendant Nicholas James Murphy in two

criminal matters at docket numbers CP-63-CR-723-2017 and CP-63-CR-2906-2017 in

Washington County, Pennsylvania. Appellant requested a jury trial with regard to these matters

on January 30, 2018 and jury selection was subsequently scheduled for March 19, 2018.

Pursuant to a Case Management Order (hereinafter "CMC)") issued by this court on January 30,

2018, Appellant was directed to appear for a pre-trial conference on March 8, 2018. After

                                                1
Appellant failed to appear for the conference, a criminal contempt hearing was scheduled before
the court on March 22, 2018. Appellant appeared for said hearing and was represented by
Dennis

J. Popojas, Esquire, and the Commonwealth was represented by John P. Friedmann, Esquire.

Following the hearing, this court found Appellant in criminal contempt for failing to appear at

the aforementioned pre-trial conference and ordered Appellant to pay a fine of $200.

                                            OPINION

       At the outset of this discussion, the court notes: "When reviewing a contempt conviction

to determine the sufficiency of the evidence presented, the appellate court will place great

reliance on the discretion of the trial judge and is limited to a determination of whether the facts

support the trial court's finding." Himes Himes, 833 A.2d 1124, 1125 (Pa. Super. 2003) (citing

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002)). The Judicial Code permits

the courts of this Commonwealth to impose sanctions for contempt in three situations, two of

which are applicable here:

             (2) Disobedience or neglect by officers, parties, jurors or witnesses of or to
             the lawful process of the court.
             (3) The misbehavior of any person in the presence of the court, thereby
             obstructing the administration ofjustice.

42 Pa.C.S.A. §4132(2), (3). Sanctions for an attorney's failure to appear for scheduled court

hearings have long been considered matters of criminal contempt. Stewart v. Foxworth, 65 A.3d

468, 471 (Pa. super. 2013).

                                Grounds for Criminal Contempt
       1. 42 Pa.C.S.
        Under 42 Pa.C.S. §4132(2), the following four elements must be proven beyond a

reasonable doubt for a criminal contempt conviction to be sustained:

                                                  2
             (1) The [court's] order or decree must be definite, clear, specific and leave
             no doubt or uncertainty in the mind of the person to whom it was addressed
             of the conduct prohibited; (2) the contemnor must have had notice of the
             specific order or decree; (3) the act constituting the violation must have
             been volitional; and (4) the contemnor must have acted with wrongful
             intent. Kolansky, 800 A.2d at 939-940. Furthermore, the evidence must
             establish "an intentional disobedience or an intentional neglect of the
             lawful process of the court," [d. at 940. Wrongful intent will be found
             where the actor "knows or should reasonably be aware that his conduct is
             wrongful." Commonwealth v. Debose, 833 A.2d 147, 149 (Pa. Super.
2003) (citing McCusker v. McCusker, 631 A.2d 645, 648-649 (Pa. Super. 1993)).

However, "direct (as well as subjective) intent is not necessary where a reckless disregard

for the directions of the court can be proven." Id.

       This court finds the Commonwealth has proven all of the elements beyond a reasonable

doubt with regard to §4132(2). First, the court's order was definite, clear, and specific and left no

doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited.

This coun issued a CMO on January 30, 2018. (Contempt Hr' g Tr. 3, March 22, 2018.) The CMO

stated: "A final Pre-Trial Conference shall be conducted before the undersigned on Thursday,

March 8 at 9:30 in Courtroom 3." (Hr'g Tr. I l.) The CMO further provided: "Defendant shall be

present at the Final Pre-Trial Conference. Defendant's failure to appear shall result in the issuance

of a Bench Warrant." (Hr'g Tr. 19.) The court noted at the hearing that these two sentences were

"in bold" and that this portion of the CMO "jumps out" at the reader. (Hr'g Tr. 19.) -Upon review

of all the aforementioned facts, this coufi is satisfied the Commonwealth has met its burden with

regard to the first element of the offense.

       Second, this court finds that the contemnor had notice of the specific order. The notation

on the CMO indicates that copies of the CMO were sent to "DA, attorney and defendant" on

January 31, 2018. (Hr'g Tr. 3.) During cross-examination by Attorney Friedmann, Appellant

acknowledged that his office received the CMO. which was then "noted on the file." (Hr' g Tr.

                                                  3
22.) Based on these facts, the court is satisfied Appellant received adequate notice of the CMO.

       Third, the court finds Appellant's act constituting the violation was volitional. At the

outset of this discussion, the court notes that Appellant's testimony throughout the hearing was

unclear and digressive. Appellant initially stated that he "did not actually see" the CMO and that

he "did not read it." (Hr'g Tr. 17, 18.) However, Appellant was apparently aware of other dates

listed on the CMO, including the deadline to submit proposed voir dire questions and the

scheduled jury selection for Defendant Murphy's trial on March 19, 2018. Appellant later

testified thathe had in fact "noticed the deadline dates" on the CMO. (Hr'g Tr. 19.) He stated

that Defendant Murphy's case was "not one that there were any extra voir dire questions [he) felt

were necessary." (Hr'g Tr. 19.) Appellant further testified he was "driving" to the Washington

County Courthouse on the date ofjury selection. (Hr'g Tr. 24.)

       In addition, Appellant's statements indicate he was under the impression that he was not

required to appear for the pre-trial conference because there were no pre-trial matters to discuss

in relation to Defendant Murphy's case. Regarding his failure to appear, Appellant stated that he

"thought we were already aware of the dates" and that he did not feel any extra voir dire

questions were necessary. (Hr'g Tr. 18, 19.)

       Upon consideration of all the circumstances, the court finds that Appellant was aware of

the pre-trial conference and willfully failed to appear. The court gathers that Appellant knew of

the pre-trial conference since Appellant was apparently aware of other dates listed on the CMO.

including the deadline to submit voir dire questions and the date ofjury selection. Appellant also

expressed to the court that he did not realize he was required to attend the pre-trial conference

since there were no pre-trial issues to discuss. However, Appellant's confusion as to whether he

                                                 4
was obligated to attend is not a valid excuse because the language in the CMO clearly indicates

Appellant was required to attend. Further, there was no evidence presented that Appellant was

involved in an emergency situation on the date ofthe pre-trial conference or that he had other

incourt commitments. Accordingly; this court finds Appellant's failure to appear was wholly

volitional and the Commonwealth has met its burden with regard to the third element of the

offense.

       Finally, this court finds Appellant acted with wrongful intent. As has been established.

Appellant was aware of the pre-trial conference and willfully failed to appear. The CMO states:

"A final Pre-Trial Conference shall be conducted before the undersigned on Thursday, March 8

at 9:30 in Courtroom 3." (Hr'g Tr. l l.) The CMO further provides: "Defendant shall be present

at the Final Pre-Trial Conference. Defendant's failure to appear shall result in the issuance of a

Bench Warrant." (Hr'g Tr. 19.) At the hearing, the court stated that these two sentences were "in

bold" and that this portion of the CMO "jumps out" at the reader. (Hr' g Tr.. 19.) The court finds

this language is clear and unambiguous and should have alerted Appellant that he was required

to be in attendance. Thus, by the language of the CMO alone, Appellant should have reasonably

been aware that his failure to appear was wrongful.

       Furthermore, the court places great emphasis on the fact that Appellant has a history of

failing to appear at scheduled hearings and has been involved in several contempt proceedings.

At the instant hearing, Attorney Friedmann explained that Appellant had a similar incident in

the recent past in Allegheny County in 2016. (Hr'g Tr. 39.) In addition, on December 18, 2017, a

contempt proceeding involving Appellant was held before the Honorable Michael J. Lucas of

the Washington County Court of Common Pleas. This hearing was held because Appellant had

failed to appear for another pre-trial conference regarding Defendant        on November 30,

                                                 5
2017. (Contempt Hr'g Tr. 3, December 18, 2017.) At the time, Appellant apologized profusely to

the court and stated that he would "make every effort to.. .not let this happen again" and added

that he believed "it won't be an issue again." (Hr'g Tr. 3, 8.) Judge Lucas noted that "this isn't the

first time this has happened" and stated he "would have hoped... that [Appellant] would have

learned from that." (Hr'g Tr. 15.) However, Judge Lucas ultimately did not make a finding of

contempt against Appellant. (Hr' g Tr. 20.)

       This court is deeply troubled that, roughly three months before- the instant hearing

occurred, Appellant was involved in a contempt proceeding before Judge Lucas involving the

exact same criminal case under very similar circumstances. Furthermore, much of what

Appellant stated during the hearing before Judge Lucas mirrors what he stated during the instant

hearing. For example, Appellant repeatedly apologized to this court and stated: "I want to get

these cases done, and I really would like to demonstrate to this Court going forward I am not

going to be an attorney that you have to be concerned about." (Contempt Hr' g Tr. 19, March 22,

2018.) However, the court is not convinced that Appellant's statements were sincere since

Appellant made virtually the same statements to Judge Lucas a few months earlier.

        After finding Appellant was not in contempt, Judge Lucas told Appellant he was hopeful

that "this experience has taught you that you have to be a little more respectful of Court dates,"

to which Appellant replied: "This is a learning lesson I will not forget." (Contempt Hr' g Tr.

2021, December 18, 2017.) Ultimately, however, this court is not convinced Appellant has

derived any "learning lesson" from his previous contempt proceeding, nor does the court believe

Appellant is truly committed to improving his case management. The record reflects that

Appellant has exhibited a repeated failure to appear for court hearings. In the instant matter,

Appellant should have realized the seriousness of failing to appear for scheduled court hearings

and should have reasonably known that this type of conduct was wrongful, especially considering

                                                  6
he was almost found in contempt by Judge Lucas and was previously involved in another

contempt proceeding in Allegheny County under similar circumstances. Accordingly:

the court finds that the Commonwealth has met its burden with regard to the foufih element of

the offense.

       Assuming, arguendo, the Commonwealth did not establish the requisite intent for

criminal contempt under §4132(2), this court finds the Commonwealth has proven a reckless

disregard for the directions of the court on Appellant's part. Appellant acknowledged that his

case management has been problematic and that he understands he needs "to be much more

careful, pay more careful attention when orders come in." (Hr'g Tr. 13, 15.) Appellant requested

the court to grant him a chance to improve his case management so that this problem would not

occur again. (Hr'g Tr. 8, 15.) However, as has been established, Appellant knew the CMO

existed and was aware of the dates listed on the CMC). The language of the CMO is clear and

unambiguous and should have left no doubt in Appellant's mind regarding his obligation to

appear. Even if Appellant has been experiencing difficulties in maintaining his practice, the

court believes Appellant could have carefully read the CMO and noted the date of the pre-trial

conference without much difficulty. Furthermore, this court reiterates that Appellant has a

history of failing to appear for court hearings and has been involved in several contempt

proceedings in the past. Appellant's prior experiences should have motivated him to improve his

case management long ago, Accordingly, this court finds the Commonwealth has proven a

reckless disregard on Appellant's part for the court's directions.

       11. 42 Pa.C.S.
       In order for a defendant to be convicted of criminal contempt under 42 Pa.C.S. §4132(3)3

four elements must be proven beyond a reasonable doubt: "(l) misconduct; (2) in the presence of

the court; (3) committed with the intent to obstruct justice; and (4) that obstructs the

administration ofjustice." In re C. W., 960 A.2d 458, 469 (Pa. Super. 2008) (citing Behr v. Behr,

                                                  7
695 A.2d 776, 779 (Pa, Super. 1997)). Misconduct is defined as "behavior that is inappropriate to

the role of the actor," Himes v. Himes, 833 A.2d 1124, 1126 (Pa. Super. 2003). Misconduct is

deemed to have occurred in the presence of the court "if the court itself witnesses the conduct or

ifthe conduct occurs outside the courtroom but so near thereto that it obstructs the administration

ofjustice." Commonwealth v. Garrison, 386 A.2d 971, 979 (Pa. 1978). Wrongful intent will be

found "where the contemnor knows or reasonably should be aware that his conduct is wrongful."

Himes, 833 A.2d at 1126. In order for a defendant's conduct to obstruct the administration of

justice, the conduct must "significantly disrupt proceedings." Williams v. Williams, 721 A.2d

1072, 1074 (Pa. 1998) (citing Matter ofCamp010ngo, 435 A.2d 581, 584 (Pa. 1981)).

Furthermore, the conduct must cause "actual, imminent prejudice to a fair proceeding or

prejudice to the preservation of the courtts orderly procedure and authority." Id. (citing

Garrison, 386 A.2d at 979).

       This court finds the Commonwealth has proven all of the elements beyond a reasonable

doubt with regard to §4132(3). First, the court finds Appellant exhibited misconduct. Here,

Appellant disregarded the clear language of a court order and failed to appear for a scheduled

pre-trial conference. The CMO provided: "A final Pre-Trial Conference shall be conducted

before the undersigned on Thursday, March 8 at 9:30 in Courtroom 3." (Contempt Hr' g Tr. I l ,

March 22, 2018.) The CMO further stated: "Defendant shall be present at the Final Pre-Trial

Conference. Defendant's failure to appear shall result in the issuance of a Bench Warant."

(Hr'g Tr. 19.) This portion of the CMO was "in bold" and "jumps out" at the reader. (Hr: g Tr.

19.) As was previously stated, this court finds the language of the CMO was clear and

unambiguous and alerted Appellant of his obligation to attend the pre-trial conference.

       Additionally, Appellant's testimony demonstrates that he knew the CMO existed and

was aware of the deadlines listed on same. Although Appellant contents that he did not realize

                                                 8
he was required to attend the pre-trial conference, his testimony was not credible. Appellant

admitted that he had "noticed the deadline dates" on the CMC). (Hr'g Tr. 19.) Furthermore,

Appellant was apparently aware of the date ofjury selection for Defendant MulVhy' s case, and

testified he was "driving" to the Washington County Courthouse on the date ofjury selection.

(Hr'g Tr. 24.) Regarding his failure to appear, Appellant stated that he "thought we were already

aware of the dates" and that he did not feel any extra voir dire questions were necessary. (Hr' g

Tr. 18, 19.)

       Upon review of the record, the court finds Appellant knew of the pre-trial conference and

willfully failed to appear. No evidence was presented at the hearing indicating Appellant was

involved in an emergency situation or that he had other in-court commitments at the time of the

pre-trial conference. Appellant's excuse that he did not realize he was obligated to be in attendance

simply is not credible. The CMO's directive was clear and unambiguous, yet Appellant

completely disregarded it. As an attorney, Appellant has an obligation to carefully read and

comply with all court orders, to appear for all scheduled court hearings, and to zealously represent

his clients. Because Appellant's willful failure to appear is inappropriate to his role as an attorney,

the court finds the Commonwealth has met its burden with regard to the first element of the

offense.

       Second, the court finds Appellant's misconduct occurred in the presence of the cout

Here, Appellant was scheduled to appear for a final pre-trial conference before this court but

failed to do so. In Himes, the defendant, counsel of record in a custody matter, failed to appear

for a custody mediation proceeding. The Superior Court explained that "his action or inactions

occurred 'in the presence of the court"' and affirmed the trial court's finding of contempt.

Himes, 833 A.2d at 1127. Likewise, Appellant's inactions occurred in the presence of this court,

and the Commonwealth has met its burden with regard to this element.

                                                  9
       Third, the court finds Appellant's conduct was committed with the intent to obstruct

justice. In Himes, the defendant failed to appear for a scheduled hearing because he apparently

"felt he could not zealously represent Himes and wished to withdraw his representation." Id. The

defendant, however, did not properly withdraw from representation. Id. The Superior Court

found that the defendant's failure to appear was "inappropriate," and the defendant "reasonably

should have known such conduct was wrongful. Ids Similarly, this court finds that Appellant

should have reasonably known his conduct was wrongful for several reasons. First, as was

previously discussed, Appellant claimed at the instant hearing that he did not realize he was

required to attend the pre-trial conference because there were no pre-trial issues to discuss.

However, the CMO contains a clear and unambiguous directive for Appellant to attend the

pretrial conference; thus, Appellant's belief is unreasonable. Both jury selection and a jury trial

were scheduled for the following Monday; there were several important matters such as voir

dire questions and motions in limine which were to be addressed at the conference. Similar to

the facts in Himes, due to Appellant's failure to appear, both jury selection and the jury trial had

to be continued, which clearly obstructed the administration ofjustice. Accordingly, Appellant

should have reasonably known his failure to appear was wrongful.

        In addition, this court finds that Appellant should have known his behavior was

wrongful because of his prior experiences with contempt proceedings. As has been established,

Appellant has a history of failing to appear at scheduled hearings and has been involved in

several contempt proceedings, including a proceeding in November of 2016 in Allegheny

County and another on December 18, 2017 before Judge Lucas in Washington County. (Hr'g Tr.

4, 39.) The hearing before Judge Lucas was held under the same circumstances as the instant

hearing: Appellant had failed to appear for another pre-trial conference regarding Defendant

Murphy on November 30, 2017. (Contempt Hr'g Tr. 3, December 18, 2017.) At this hearing,

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Appellant repeatedly apologized to the court and stated that he would "make every effort to...

not let this happen again" and also told the court he believed "it won't be an issue again." (Hr'g

Tr. 3, 8.)

Judge Lucas ultimately did not make a finding of contempt against Appellant, to which

Appellant replied: "This is a learning lesson I will not forget." (Contempt Hr' g Tr. 20-21,

December 18, 2017.)

            Apparently, Appellant has forgotten this "learning lesson" roughly three months after

making this statement, and the court finds this to be deeply troubling. Appellant's experiences

with contempt proceedings should have made Appellant aware of the seriousness of failing to

appear for a court hearing. Furthermore, these experiences should have motivated Appellant to

improve his case management long before the instant hearing occurred. Unfofiunately, it is clear

to this court that Appellant has not learned anything from these experiences and that he has

made minimal efforts to improve his case management. At the hearing before this court,

Appellant apologized excessively and also stated: "I'm respectfully requesting of this Court

consider the fact that I will do whatever I need to do to make this right in terms of getting this

fixed .,,

(Contempt Hr'g Tr. 14, March 22, 2018.) However, the court is not convinced that such

statements were sincere since Appellant made very similar statements to Judge Lucas, and the

court fears this pattern is going to continue. Because Appellant should have been aware his

conduct was wrongful considering his prior experiences with contempt proceedings, the court

finds that the Commonwealth has met its burden with regard to the third element of the offense.

Finally, this court finds that Appellant's misconduct obstructed the administration of justice.

Because of Appellant's failure to appear for the pre-trial conference, Defendant

Murphy's jury trial was rescheduled from the March trial term to the May trial term. (Hr' g Tr.
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39.) Considering the lengthy number ofjury trial requests this court receives, this court has a
substantial interest in conducting jury trials efficiently. Furthermore, criminal defendants have an
important interest in having their cases resolved quickly. Appellant has caused a significant
delay to court proceedings and has also caused a hardship for Defendant MulPhy who is
incarcerated awaiting trial. Therefore, this court finds the Commonwealth has met its burden with
regard to the fourth element ofthe offense.
        111. 42 Pa.C.S.
        Appellant's Statement of Errors Complained ofon Appeal asserts that Appellant was

charged with criminal contempt under 42 Pa.C.S. §5947(f) according to the docket at number

CP-63-MD-0000318-2018. (Statement of Errors Complained of On Appeal 2, May 17, 2018.)

However, §5947(f) is inapplicable to the instant matter. This statute was included on the docket

due to a clerical error.

                                         CONCLUSION

        For the reasons set forth above, the order of this court dated March 22, 201 8 should be

affirmed and Appellant's appeal should be dismissed.

DATE:                                         BY THE COURT:

                                              VALARIE COSTANZO, JUDGE

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