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In re Botros

Court of Appeals of North Carolina

May 21, 2019

IN THE MATTER OF: TONY SAMI BOTROS, ATTORNEY.

          Heard in the Court of Appeals 28 February 2019.

          Appeal by Respondent from Order entered 8 June 2018 by Judge Paul C. Ridgeway in Wake County, No. 18 R 439 Superior Court.

          North Carolina State Bar, by A. Root Edmonson, Deputy Counsel, for plaintiff-appellee.

          Tony S. Botros, respondent-appellant, pro se.

          HAMPSON, JUDGE

         Factual and Procedural Background

         Tony Sami Botros (Respondent) appeals from an Order (Disability Order) transferring him to "disability inactive status."[1] The evidence presented at Respondent's hearing tends to show the following:

         At all relevant times, Respondent, who was admitted to the North Carolina Bar in 2013, was engaged in the practice of law and maintained an office in Wake County. In March of 2018, Respondent was representing the plaintiff in a tort case before Wake County Superior Court, and the defendant had filed a motion for summary judgment with the court, which was scheduled to be heard the week of 26 March 2018. On 26 March 2018, Superior Court Coordinator, Lisa Tucker, notified Respondent that the summary judgment motion would be heard at 12:00 p.m. on 29 March 2018 in courtroom 10-B of the Wake County Courthouse, with Superior Court Judge A. Graham Shirley (Judge Shirley) presiding.

         On the morning of 29 March 2018, Respondent also had an unrelated custody hearing before Wake County District Court Judge Ashleigh P. Dunston (Judge Dunston) in courtroom 2-A of the Wake County Courthouse. Respondent appeared in Judge Dunston's courtroom at approximately 9:40 a.m. When Respondent's opposing counsel sought to call a six-year-old girl to testify, Judge Dunston called both Respondent and opposing counsel into chambers and suggested the parties attempt to mediate a resolution. While in chambers, Judge Dunston began to suspect Respondent might be impaired based on his slurred speech, dilated eyes, and incoherent arguments.

         As noon approached, Respondent and opposing counsel had not reached an agreement regarding their clients' custody dispute. As a result, Respondent failed to appear in Judge Shirley's courtroom for the hearing on the summary judgment motion. Around this time, the clerk from Judge Dunston's courtroom called the clerk in Judge Shirley's courtroom to notify Judge Shirley of Respondent's whereabouts and that Respondent was unsure which court, superior or district court, had priority. Upon being notified of Respondent's dilemma, Judge Shirley went to Judge Dunston's courtroom to discuss the matter.

         When Judge Shirley arrived in Judge Dunston's courtroom, Judge Dunston informed Judge Shirley of her suspicions regarding Respondent's potential impairment. During their discussions, the two judges decided Judge Shirley had priority and ordered Respondent to report to Judge Shirley's courtroom to address the summary judgment motion. Thereafter, Judge Shirley left Judge Dunston's chambers and rode the elevator back to his courtroom with Respondent.

         Upon arriving in Judge Shirley's courtroom, Respondent appeared distressed and requested five minutes to "collect himself," which Judge Shirley allowed. While Respondent was away, Judge Shirley requested Lisa Tucker and Kellie Myers, who was the Trial Court Administrator in Wake County, accompany him in chambers, as Lisa Tucker had encountered Respondent on a previous occasion and could gauge whether Respondent's behavior was consistent with her previous interaction with him. When Respondent returned to the courtroom, Judge Shirley requested both Respondent and opposing counsel join him in chambers.

         Once in chambers, "[i]t became readily apparent to [Judge Shirley] that [Respondent] was impaired" because his pupils were dilated, his speech was slurred, and he did not have "a rational thought process." When asked by Judge Shirley if he was on any medication or other mind-altering substances, Respondent admitted he took antidepressants, as he suffered from an anxiety disorder and depression, but adamantly denied he was impaired. Based on Respondent's condition, Judge Shirley informed Respondent that he believed Respondent was impaired and unable to represent his client, and that he intended to continue the hearing to the following week. Respondent insisted Judge Shirley allow him to state on the record he was not impaired and was ready to proceed with the hearing. However, Judge Shirley refused Respondent's calls to go on the record in order to save Respondent from publicly damaging his reputation with his client. Thereafter, Respondent was allowed to leave, and the summary judgment hearing was continued until 6 April 2018.

         Upon leaving Judge Shirley's chambers, Respondent returned to Judge Dunston's courtroom. Judge Dunston informed Respondent that she would not allow him to proceed with the custody hearing and asked Respondent if he would submit to an examination by a drug recognition expert (DRE). Respondent initially agreed to the DRE examination. However, when the DRE arrived, Respondent stated he was embarrassed and wanted to leave, and refused to submit to the DRE examination. Thereafter, Respondent left.

         On 6 April 2018, Respondent returned to Judge Shirley's courtroom for the hearing on the summary judgment motion. Respondent arrived at the hearing late, and after approximately two-thirds of his argument, Respondent stopped and asked Judge Shirley if he could pause to have a drink of water, which Judge Shirley allowed. Thereafter, Respondent informed Judge Shirley that he was not on his "A-game" and requested the court continue the matter, which Judge Shirley denied. At the conclusion of the hearing, Judge Shirley took the matter under advisement and requested Respondent accompany him back to chambers.

         Once in chambers, Judge Shirley expressed his concerns regarding Respondent's behavior on 29 March 2018, which he believed amounted to contempt of court. Judge Shirley also informed Respondent that he believed Respondent was impaired on 6 April 2018 as well. Based on these concerns, Judge Shirley presented Respondent with a draft Motion to Show Cause for Contempt and told Respondent he would not file this Motion if Respondent would voluntarily seek evaluation and treatment through the Lawyer Assistance Program (LAP). As a further condition, Judge Shirley required Respondent sign a release allowing the LAP to report Respondent's compliance status to Judge Shirley. Thereafter, Respondent agreed to Judge Shirley's request and signed the release (LAP Agreement).

         At 4:37 a.m. on 2 May 2018, Respondent sent an email to Kellie Myers revoking the LAP Agreement and declaring it "null and void," contending he was initially coerced into signing the LAP Agreement. Respondent also sent an email to the Eastern Clinical Coordinator of the LAP revoking the LAP Agreement.

         After learning of Respondent's revocation of the LAP Agreement, Judge Shirley filed an Order to Show Cause (Show Cause Order), which was served on Respondent on 15 May 2018. The Show Cause Order stated, in pertinent part:

YOU ARE HEREBY GIVEN NOTICE THAT . . . a hearing will be held . . . to determine whether this Court shall impose professional discipline or transfer your law license to disability inactive status as a result of your recent conduct within the Tenth Judicial District.
The Court initiates this action on its own motion, pursuant to its inherent authority to regulate the conduct of officers of the court. The information before the Court (as more specifically set forth herein) raises the question of whether you have violated the North Carolina Rules of Professional Conduct, or in the alternative, whether you are presently suffering from a mental or physical condition (which may include but is not limited to mental illness and/or substance abuse) which significantly impairs your professional judgment, performance, or competency as an attorney.

         On 1 June 2018, a hearing on the Show Cause Order came on before Wake County Senior Resident Superior Court Judge Paul C. Ridgeway (Judge Ridgeway). Respondent attended this hearing and represented himself pro se. At the end of the day, Judge Ridgeway adjourned the hearing and notified Respondent that the hearing would resume on 6 June 2018. However, Respondent failed to appear on 6 June 2018 when the hearing resumed. At the conclusion of the 6 June 2018 hearing, Judge Ridgeway took the matter under advisement, and on 8 June 2018, Judge Ridgeway entered the Disability Order transferring Respondent to disability inactive status. On 9 July 2018, Respondent timely filed Notice of Appeal from the Disability Order.

         Issues

         Respondent raises several arguments on appeal, and these arguments distill into the following issues: (I) whether the trial court's Findings of Fact are supported by competent evidence; (II) whether the trial court had subject matter jurisdiction to place Respondent on disability inactive status; (III) whether Respondent was afforded the requisite due process, including proper notice of the proceedings; and (IV) whether the trial court's Findings and Conclusions supported placing Respondent on disability inactive status.

         Standard of Review

         Respondent challenges numerous Findings of Fact and Conclusions of Law in the trial court's Disability Order. When reviewing an order of a trial court entered pursuant to its inherent authority to regulate officers of the court, "[f]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if . . . there is evidence to the contrary." Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (alteration in original) (citations and quotation marks omitted). Because acts of the trial court under its inherent authority are discretionary in nature, when reviewing the trial court's conclusions of law, "we need determine only whether they are the result of a reasoned decision[.]" Id. at 180, 695 S.E.2d at 435 (citation omitted); see also In re Cranor, 247 N.C.App. 565, 573, 786 S.E.2d 379, 385 (2016) ("The proper standard of review for acts by the trial court in the exercise of its inherent authority is abuse of discretion." (citation omitted)). By way of example, "[w]hen discretionary rulings are made under a misapprehension of the law, this may constitute an abuse of discretion." Gailey v. Triangle Billiards & Blues Club, Inc., 179 N.C.App. 848, 851, 635 S.E.2d 482, 484 (2006) (citations omitted).

         Analysis

         I. Findings of Fact

         Respondent argues there is insufficient evidence to support 12 of the trial court's Findings. We disagree.

         Respondent first challenges Finding 4, which states:

[Respondent] failed to appear at the appointed time on March 29, 2018 in Courtroom 10-B presided over by Judge A. Graham Shirley ("Judge Shirley"). The Courtroom Clerk in Courtroom 10-B received a call from the Courtroom Clerk in Courtroom 2-A and indicated that [Respondent] was in that Courtroom and was attempting to determine which court had priority despite previously being told that he was expected in Courtroom 10-B at 12:00 p.m. Judge Shirley went to Courtroom 2-A to discuss this matter with the presiding District Court Judge Ashleigh P. Dunston ("Judge Dunston").

         In his brief, Respondent contends this Finding is unsupported because Judge Shirley testified he came down to Judge Dunston's courtroom before 12:00 p.m. However, competent evidence was presented at the hearing showing Respondent did not appear in Judge Shirley's courtroom at the appointed time, 12:00 p.m. At the 1 June 2018 hearing, Judge Shirley testified "[a]t 12 o'clock, [Respondent] had not shown up." Further, Judge Shirley's courtroom clerk testified Respondent was not in Judge Shirley's courtroom by 12:00 p.m. on 29 March 2018. Therefore, this Finding is supported by competent evidence.

         Respondent next challenges Findings 5 and 6, which state:

5. In the course of their conversation in Courtroom 2-A, Judge Dunston informed Judge Shirley that she was of the opinion that [Respondent] was impaired. She recounted that while [Respondent] was in or around Courtroom 2-A, Judge Dunston observed that [Respondent] spoke in a rambling and sometimes ranting fashion, had slurred speech and dilated eyes, and that she believed him to be under the influence of an impairing substance.
6. The Courtroom Clerk in Courtroom 2-A also formed the opinion that [Respondent] was impaired. She observed that [Respondent] initially appeared lethargic, and that he spoke with slurred speech, was sweaty, and that he frequently wiped his face and tugged at his collar. This same Clerk also encountered [Respondent] outside of the courthouse during the lunch hour, and [Respondent] was ...

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