Opinion
No. 10-05-00383-CV
February 7, 2007. DO NOT PUBLISH.
Appeal From the 281st District Court, Harris County, Texas, Trial Court No. 0337192.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. Chief Justice GRAY concurring and dissenting.
MEMORANDUM OPINION
The Court abated this appeal by order dated June 14, 2006 for a hearing in the trial court to address allegations in a motion filed by Michael Zingalis that George Lee's appellate counsel Joseph Onwuteaka had altered an exhibit in the reporter's record. The trial court conducted that hearing on June 30 and made several pertinent findings. Lee subsequently filed a pro se motion to dismiss this appeal, which we will grant. Before that however, we will address the parties' competing motions for sanctions.
Zingalis's motion to correct the reporter's record also asks for sanctions against Onwuteaka for the alleged misconduct. Onwuteaka filed a response the day after this Court issued its abatement order. In that response, Onwuteaka denies the allegations and requests counter-sanctions against Zingalis's counsel David McDougald.
A few weeks later, Lee filed a pro se motion informing this Court that he had terminated Onwuteaka's services on June 8, that he would pay the judgment debt owed to Zingalis, and that he wanted to dismiss the appeal. Lee's motion states in part, "Lee has conferred with counsel for Zingalis about this motion, and no party opposes the motion." McDougald mailed Lee's motion to this Court with the applicable filing fee paid by a check from the account of McDougald's firm.
Onwuteaka responded with a second motion for counter-sanctions against McDougald alleging that he had improperly contacted the justices of this Court by letter and that he had improperly consulted with Lee when Lee was still represented by Onwuteaka.
The trial court's order from the abatement hearing included five findings:
1. The Clerk's Record and the Reporter's Record were accurate and complete as to Plaintiff's Trial Exhibit 22 when the appellate record was transmitted to the appellate court.
2. Joseph O. Onwuteaka, Texas Bar No. 15291300 ("Onwuteaka") was the first to obtain possession of the appellate record after it was transmitted to the appellate court.
3. The appellate record is no longer accurate and complete as to Plaintiff's Trial Exhibit 22, in that Exhibit 22 is now missing the page serially numbered Lee 00137.
4. The Exhibit 22A from this hearing is now the true, accurate and complete copy of Plaintiff's Trial Exhibit 22.
5. Michael Zingalis, DDS, PA has incurred $36,360.00 in reasonable and necessary attorney fees as a proximate result of this inaccuracy in the Reporter's Record.
The trial court concluded its order by requiring the court reporter to file a supplemental reporter's record containing the corrected exhibit.
Although Onwuteaka paid a portion of the reporter's fee for preparation of the reporter's record of the abatement hearing, he has never paid the remainder of that fee despite requests from the court reporter and from the Clerk of this Court. No other party or attorney has paid the remainder of the fee owed, so no reporter's record of the abatement hearing has been filed.
Onwuteaka filed "Objections and Exceptions" to the trial court's order, complaining in particular that (1) the trial court exceeded the scope of the abatement order by finding that Zingalis had incurred attorney's fees because of the "inaccuracy" and (2) there is no evidentiary basis for the court's finding that Onwuteaka was first to obtain possession of the record.
McDougald later filed a response to Onwuteaka's second motion for counter-sanctions alleging among other things that: (1) McDougald's firm was informed on June 9 by an attorney who had previously represented Lee that Lee had terminated Onwuteaka's services; (2) McDougald's firm did not communicate directly with Lee until it had written confirmation that Lee had terminated Onwuteaka's services, which it received on June 14; and (3) Lee initiated communications with McDougald's firm by coming to the firm's offices without an appointment or invitation on June 15 to discuss his case.
McDougald's Motion for Sanctions
It could be inferred from the trial court's findings that Onwuteaka improperly tampered with Exhibit 22 when he checked the record out from the Clerk of this Court to prepare the appellant's brief. The court's finding that Zingalis incurred attorney's fees because of the "inaccuracy" in the reporter's record offers further credence to such an inference. However, because the court did not find that Onwuteaka acted improperly, it could also be inferred that some excuse or extenuating circumstance exists which justifies any role Onwuteaka played with regard to the "inaccuracy" in Exhibit 22.
Because we have not been provided with a reporter's record of the abatement hearing and because there is no express finding of fault or misconduct on Onwuteaka's part, McDougald's motion for sanctions is denied.
Onwuteaka's Motions for Counter-Sanctions
Onwuteaka contends that sanctions should be imposed against McDougald because: (1) McDougald's allegation that Onwuteaka tampered with Exhibit 22 has no evidentiary basis; (2) McDougald addressed a letter directly to the individual justices of this Court; (3) McDougald improperly communicated with Lee while he was still represented by Onwuteaka; (4) McDougald prepared Lee's pro se motion to dismiss, indicating therein that a copy was served on Onwuteaka, but intentionally failed to serve a copy on Onwuteaka; and (5) McDougald has falsely stated in an affidavit that he did not learn about the problem with Exhibit 22 until eleven days after the appellant's brief was filed and served on McDougald, even though the brief states twice that a page was missing from the exhibit.
As previously stated however, the trial court's findings support an inference that Onwuteaka improperly tampered with Exhibit 22 when he checked the record out from the Clerk of this Court to prepare the appellant's brief. Thus, we decline to grant sanctions on the first or fifth grounds specified in the paragraph above.
McDougald did, as Onwuteaka alleges, mail (and fax) a letter addressed to the justices of this Court individually. In this letter, McDougald: (1) asked the justices not to dismiss the appeal without first deciding his motion for sanctions; (2) set out two paragraphs containing legal and factual grounds to support his request for sanctions; (3) advised that the trial court had conducted the abatement hearing as ordered and that the trial court was still in the process of finalizing the order which would be entered; and (4) asked the justices to exercise patience pending the trial court's entry of its order so his motion for sanctions could be decided before the appeal is dismissed.
We agree with Onwuteaka that this letter should have been addressed to the Clerk of this Court rather than to the individual justices. See TEX. R. APP. P. 9.6; 10TH TEX. APP. (WACO) LOC. R. 3. However, because the letter could be construed as a supplemental motion for sanctions, which could contain the precise information contained in the letter and which the Clerk would, necessarily, refer to the justices for a ruling, we decline to impose sanctions on McDougald for addressing the letter to the justices of this Court rather than the Clerk.
Finally, with regard to McDougald's alleged role in the preparation of Lee's pro se motion to dismiss and the service of that document on Onwuteaka, the documents received by this Court would certainly support an inference that McDougald's firm prepared the motion for Lee. However, because this motion was filed about two months after Lee terminated Onwuteaka's services, Onwuteaka has no standing to complain in this appeal about any improprieties in this regard. Onwuteaka admittedly became aware of the motion to dismiss two days after it was filed in this Court. That was several months ago. Nevertheless, he has never disputed that Lee terminated his services as counsel nor has he filed any pleading in which he opposes the dismissal of the appeal. Therefore, Onwuteaka cannot demonstrate that he has been harmed by any failure on McDougald's or Lee's part to serve him with a copy of Lee's pro se motion.
We express no opinion about whether McDougald's alleged role in the preparation of Lee's pro se motion violates the Disciplinary Rules of Professional Conduct or other rules governing the conduct of lawyers.
Accordingly, Onwuteaka's motions for counter-sanctions are denied.
Conclusion
Lee's pro se motion for dismissal is granted, and this appeal is dismissed. See TEX. R. APP. P. 42.1(a)(1). All other pending motions are denied. Costs of court are taxed against the party incurring same.
Appeal dismissed
CONCURRING AND DISSENTING OPINION
When we abated this appeal, we asked only for a determination of whether the record was accurate. Lee v. Zingalis, No. 10-05-00383-CV (Tex.App.-Waco June 14, 2006, order) (not designated for publication) (attached as Appendix 1). Now the majority refuses to reach the merits of Zingalis's motion for sanctions because we can only "infer" from the findings of the trial court that the fault for the inaccuracy found by the trial court was Onwuteaka. If we wanted the trial court to determine fault and recommend appropriate sanctions, we should have included that in the scope of the abatement order. We did not. And because we did not order the trial court to determine the cause of the inaccuracy, we should not hide behind the trial court's not having made that determination to avoid deciding the issue. The majority, or a member of the majority, "might not agree in an in-district case," but the origin of the case is irrelevant to my determination and should be irrelevant to the majority. We should determine the merits of Zingalis's motion.
On the record before us, including the fact that this entire appeal is based upon a record that was accurate when it was delivered to Onwuteaka, but was altered, and the appeal then based solely upon that altered portion of the record, I have no problem assessing responsibility for alteration of the record, with Onwuteaka, and assessing serious sanctions, $40,000.00. Therefore, I dissent from the refusal of the majority to make the determinations necessary for a disposition of Zingalis's motion, or their refusal to abate this proceeding to the trial court to make whatever determinations they feel are necessary to decide the motion.
Additionally, I would overrule the motion for sanctions filed by Onwuteaka, dismiss the appeal as requested by Lee, and assess all costs of the appeal against Lee.
I find absolutely nothing in this record to suggest that the actions taken by Zingalis's attorney were for any reason other than the zealous representation of his client. Any inference to the contrary in the majority opinion is flatly rejected.
APPENDIX I ABATEMENT ORDER
Michael Zingalis has filed a motion to correct inaccuracies in the reporter's record and for sanctions. Zingalis contends that, when George Lee had possession of the appellate record for preparation of his brief, Lee removed an exhibit from the reporter's record, altered the exhibit, then returned the reporter's record to the Clerk of this Court with the altered exhibit. Lee has not filed a response to Zingalis's motion. Therefore, because Zingalis contends that the reporter's record is inaccurate, we will abate this appeal for a hearing in the trial court to evaluate the correctness of the record. We will defer a ruling on Zingalis's request for sanctions until the accuracy of the record has been determined.
Rule of Appellate Procedure 34.6(e)(3) authorizes an appellate court to submit a dispute about the accuracy of the reporter's record to the trial court for resolution. See TEX. R. APP. P. 34.6(e)(3); Lomax v. State, 153 S.W.3d 582, 584 (Tex.App.-Waco 2004, order) (per curiam). If the court finds that the reporter's record is inaccurate, then the court shall sign a written order reflecting this finding and ordering the court reporter to (1) prepare a corrected record which "conform[s] . . . to what occurred in the trial court" and (2) file it with the Clerk of this Court. See TEX. R. APP. P. 34.6(e)(2); Lomax, 153 S.W.3d at 586. If the court finds that the record is accurate, then the court shall sign a written order to that effect. See Lomax, 153 S.W.3d at 586.
Regardless of whether the court orders a supplementation or correction of the reporter's record, the district clerk is ordered to file a supplemental clerk's record containing a copy of the court's order(s) with the Clerk of this Court. See TEX. R. APP. P. 34.5(c); Lomax, 153 S.W.3d at 587. If necessary to any issue on appeal, unless the parties waive the making of a reporter's record in the abatement hearing, the court reporter is ordered to prepare and file a supplemental reporter's record of the abatement hearing with the Clerk of this Court. See TEX. R. APP. P. 13.1(a), 34.6(d); Lomax, 153 S.W.3d at 587.
The trial court shall conduct the hearing within 30 days after the date of this order. The trial court clerk and the court reporter shall file supplemental records within 45 days after the date of this order. See Lomax, 153 S.W.3d at 586-87.