MCI Sales and Service, Inc. v. James Hinton, Individually and as Representative of the Estate of Dolores Hinton

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00353-CV

MCI Sales and Service, Inc.,

                                                                                    Appellant

 v.

James Hinton, Individually and as

Representative of the Estate

of Dolores Hinton, Deceased, et al.,

                                                                                    Appellees

From the 170th District Court

McLennan County, Texas

Trial Court No. 2003-2308-4

MEMORANDUM  Opinion

Appellant MCI Sales and Service, Inc. has filed a bankruptcy proceeding.  Tex. R. App. P. 8.1.  Further action in this appeal is automatically stayed.  See 11 U.S.C. § 362.

For administrative purposes, this appeal is suspended and will be treated as closed unless reinstated on a proper motion.  Tex. R. App. P. 8.2.  It may be reinstated on motion of any party showing that the stay has been lifted or modified and specifying what action, if any, is required from this Court upon reinstatement of the appeal.  Tex. R. App. P. 8.3.

            The reporting requirement of Local Rule 17 is suspended.  10th Tex. App. (Waco) Loc.  R. 17.

            The Clerk of this Court is directed to transmit a copy of this opinion to the attorneys of record, the trial court judge, and the trial court clerk.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents with a note)*

Appeal suspended; appeal administratively closed

Opinion delivered and filed October 29, 2008

[CVPM]

*(In the past we have given the parties some substantial amount of time before we act on our own to administratively close or suspend a proceeding due to bankruptcy.  For consistency, and the practical aspect of giving the parties time to evaluate what to do in response to the bankruptcy, I would adhere to our former procedure.  Thus I do not join this opinion at this time.)

y;text-indent: -.5in'>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.[1]  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.

          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.

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring and dissenting)

Appeal dismissed

Opinion delivered and filed February 7, 2007

[CV06]

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[1]           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.