St. Mina Auto Sales, Inc. v. Al-Muasher

• Decision Date: 06 October 2015
• Docket Number: NO. 01–14–00599–CV,01–14–00599–CV
• Citation: 481 S.W.3d 661
• Parties: St. Mina Auto Sales, Inc. and Victor S. Elgohary, Appellants v. Najwa Al–Muasher d/b/a American Auto Sales and d/b/a America Auto Sales 1.1, Appellee
• Court: Texas Court of Appeals

481 S.W.3d 661

St. Mina Auto Sales, Inc. and Victor S. Elgohary, Appellants

v.Najwa Al–Muasher d/b/a American Auto Sales and d/b/a America Auto Sales 1.1, Appellee

NO. 01–14–00599–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 6, 2015

Rehearing Overruled January 29, 2016

Victor S. Elgohary, Houston, TX, for Appellant.

Omar Misleh, Houston, TX, for Appellee.

Panel consists of Justices Jennings, Bland, and Brown.

OPINION

Jane Bland

, Justice

In a dispute between two used car dealers, we determine whether (1) the trial court properly modified its dismissal order to reflect the parties' settlement agreement, (2) our court has appellate jurisdiction over an attorney's challenge to the trial court's monetary sanction assessed against him, individually, and should permit the attorney's amended notice of appeal, and (3) the trial court acted within its discretion in assessing the sanction. We conclude that the trial court properly modified its dismissal order. We further conclude that we have appellate jurisdiction over the attorney's challenge to the trial court's sanctions order, but we reject his challenge on the merits. We therefore affirm.

Background

St. Mina Auto Sales, Inc. ("Mina") purchased a 1996 Cadillac Deville from Najwa Al–Muasher d/b/a American Auto Sales and d/b/a American Auto Sales 1.1 ("AAS"). Mina later sued AAS for breach of contract and misrepresentation, alleging that the Cadillac was not roadworthy and that AAS improperly had refused to tender the car's title to Mina. Mina claimed about $4,000 in repair expenses as damages and sought a declaration of title. AAS counterclaimed against Mina for breach of contract and conspiracy, alleging that Mina had paid only $2,150 of the agreed $4,200 purchase price for the car and had conspired with Cinco Car Care, Inc. to assert a fraudulent mechanic's lien against the car's title. AAS also sued Cinco in a third-party petition, but it never served Cinco with the lawsuit. Victor S. Elgohary represented Mina in the case.

Mina and AAS then settled their dispute. In connection with their agreement to settle, Mina and AAS prepared and signed an "Agreed Joint Motion to Dismiss" and a proposed "Order Granting Agreed Motion to Dismiss," to be filed with the trial court. The agreed motion recited that Mina and AAS had resolved all matters in controversy between them and that all of the claims and causes of action against each other should be dismissed with prejudice. The agreed proposed order granted the motion and dismissed all claims by and between Mina and AAS with prejudice. Neither the agreed motion nor the proposed order addressed AAS's claims against Cinco.

After executing the settlement agreement, AAS nonsuited its claims against Cinco without prejudice. See TEX. R. CIV. P. 162

. The trial court signed an order nonsuiting AAS's claims against Cinco without prejudice.

Mina's counsel, Elgohary, then filed an "Agreed Joint Motion to Dismiss," and a proposed order with the trial court. But Elgohary's motion and order were different from the motion and proposed order that AAS had approved in connection with the settlement. Notably, Elgohary had added language that AAS also had agreed to dismiss its claims against Cinco "with prejudice." Under the impression that the parties had approved the proposed dismissal order, the trial court signed it.

AAS then discovered the discrepancy between the terms of the signed order and those of the agreed-to proposed order. After efforts to resolve the issue failed, it moved to set aside the trial court's dismissal order, asserting that Elgohary had intentionally altered the terms of the agreed joint motion to dismiss and order after AAS had approved them. AAS pointed out that none of the settlement-related documents and filings to which AAS had agreed mentioned Cinco or AAS's claims against Cinco. AAS moved for sanctions against Elgohary for filing the altered documents with the court.

In a hearing on AAS's motion, Elgohary admitted that he had altered the agreed joint motion and proposed order to include Cinco's dismissal with prejudice. After the hearing, the trial court modified its dismissal order to delete the reference to Cinco. The court further ordered Elgohary to pay $450 to AAS within 30 days as a sanction. Mina moved for a new trial, which the trial court denied.

Discussion

I. Modification of the Judgment

On appeal, Mina contends that the trial court erred in denying its motion for new trial, contending that the trial court erred in modifying its dismissal order to remove Cinco. We review the trial court's denial of a motion for new trial for an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983)

; Xenos Yuen v. Fisher, 227 S.W.3d 193, 204 (Tex.App.—Houston [1st Dist.] 2007, no pet.). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles, that is, when its action is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004) (upholding trial court's sanctions order).¹

During its plenary power, a trial court can vacate, modify, correct or reform its judgment. TEX. R. CIV. P. 329b(d)

; Transam. Leas. Co. v. Three Bears, Inc., 567 S.W.2d 799, 800 (Tex.1978) ; Bryan v. Resolution Trust Corp., 823 S.W.2d 433, 434 (Tex.App.—Houston [1st Dist.] 1992, writ dism'd w.o.j.). Mina contends that the original dismissal fully incorporated the terms of the parties' settlement with each other, and thus AAS lacks a basis for challenging it. Mina fails to acknowledge, however, that the original dismissal included—without AAS's knowledge or approval—an additional term to which AAS had not agreed: the dismissal with prejudice of AAS's claims against Cinco.

Based on the evidence adduced in the hearing on AAA's motion to set aside the dismissal order, and Elgohary's admission that he altered the parties' approved motion and proposed order before he filed them with the court, the trial court correctly modified its dismissal order to accurately reflect the parties' agreement. See Bryan, 823 S.W.2d at 434–35

(court authorized to enter modified judgment to correctly reflect approved final judgment of parties); see also Lawrence v. Kohl, 853 S.W.2d 697, 701 (Tex.App.—Houston [1st Dist.] 1993, no writ) (unpublished part of opinion available on Westlaw) ("[T]he court has no power to supply terms, provisions, or essential details not previously agreed to by the parties." (citing Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex.App.—San Antonio 1983, no writ) ). Further, AAS had nonsuited its claims against Cinco without effecting service. Cinco had never appeared and, after the nonsuit, Cinco was not even nominally a party to the suit. See TEX. R. CIV. P. 124 ; CHCA Woman's Hosp., L.P. v. Lidji, 369 S.W.3d 488, 492 (Tex.App.—Houston [1st Dist.] 2012) ("A voluntary nonsuit ‘extinguishes a case or controversy from the moment the motion for nonsuit is filed ....’ "), aff'd, 403 S.W.3d 228 (Tex.2013) ; In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d 452, 456 (Tex.App.—Dallas 2009, orig. proceeding) (holding that trial court had no jurisdiction to render judgment against party who "was not served with process, was not represented by counsel and did not otherwise appear"). Accordingly, we hold that the trial court acted within its discretion in denying Mina's motion for new trial.

II. Appellate Jurisdiction and the Sanction Award

Elgohary challenges the $450 monetary sanction that the trial court assessed against him, individually. He contends that (1) the evidence does not support a finding of bad faith or conscious wrongdoing; (2) AAS did not incur any attorney's fees due to his misconduct; and (3) the trial court's failure to issue findings of fact to support the imposition of sanctions requires reversal of the award. We initially determine whether we have jurisdiction to decide Elgohary's individual appeal; concluding that we do, we in turn address the merit of his challenges to the sanction that the trial court imposed against him.

A. Elgohary's Notice of Appeal

Mina timely filed a notice of its appeal, naming Mina as the only appellant, on July 18, 2014. Elgohary amended Mina's notice of appeal and filed a docketing statement on October 6, 2014, before the appellant's brief was due. See TEX. R. APP. P. 25.1(g)("[a]n amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court"). The amended notice of appeal named Elgohary individually as an additional appellant. The initial notice of appeal conferred appellate jurisdiction over all of the parties to the trial court's order, including Elgohary, who was named in it. See TEX. R. APP. P. 25.1(b)

("The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from.").

Accordingly, we have jurisdiction over his appeal, and may, within our discretion, hear it. See id. ("Any party's failure to take any other step required by these rules, including the failure of another party to perfect an appeal ... does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal."). Rule 25.1

vests the appellate court with the discretion to consider an amended notice of appeal in a case in which any notice of appeal has already been filed. An amended notice, however, "is subject to being struck for cause on the motion of any party affected by the amended notice." See TEX. R. APP. P. 25.1(g). While not a matter of right, the rule eliminates any jurisdictional bar to the consideration of a late-filed notice in a case in which one party has appealed the trial court's order.

In this case, Elgohary's later-filed amended notice of appeal—filed within six weeks of filing the original notice and two months before the original deadline for filing the appellant's brief—apprised our court and the...