George Lee, D.D.S. v. Michael Zingalis (D.D.S.), P.A., Individually ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00383-CV

George Lee, D.D.S.,

                                                                      Appellant

 v.

Michael Zingalis (D.D.S.), P.A.,

Individually,

                                                                      Appellee

From the 281st District Court

Harris County, Texas

Trial Court No. 0337192

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,[1] dismiss the appeal as requested by Lee, and assess all costs of the appeal against Lee.

                                                          TOM GRAY

                                                          Chief Justice

Concurring and dissenting opinion delivered and filed February 7, 2007

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.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Order issued and filed June 14, 2006

Do not publish

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[1] 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.