St. Mina Auto Sales, Inc. and Victor S. Elgohary v. Najwa Al-Muasher, D/B/A American Auto Sales, D/B/A American Auto Sales 1.1
481 S.W.3d 661
| Tex. App. | 2015Background
- St. Mina Auto Sales (Mina) bought a used Cadillac from Najwa Al‑Muasher d/b/a American Auto Sales (AAS) and sued AAS for breach and misrepresentation; AAS counterclaimed and also sued third‑party Cinco Car Care but never served Cinco. Victor Elgohary represented Mina.
- Mina and AAS reached a settlement and prepared an agreed joint motion to dismiss and a proposed order dismissing claims between them; those settlement documents did not address AAS’s claims against Cinco.
- AAS nonsuited its claims against Cinco without prejudice; the trial court signed that nonsuit order. Elgohary later filed an altered agreed motion and proposed order that erroneously showed AAS agreed to dismiss Cinco with prejudice, and the trial court signed it.
- AAS discovered the alteration, moved to set aside the dismissal and for sanctions; at a hearing Elgohary admitted he altered the documents. The trial court corrected the dismissal (deleted the reference to Cinco) and sanctioned Elgohary $450 in attorney’s fees; Mina’s new‑trial motion was denied.
- On appeal the court considered (1) correctness of modifying the dismissal order, (2) whether it had jurisdiction to hear Elgohary’s appeal of the sanction given his late amended notice, and (3) whether the sanction was within the trial court’s discretion.
Issues
| Issue | Plaintiff's Argument (Mina/AAS/Elgohary) | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court properly modified dismissal to delete Cinco | Mina: modification was error; original dismissal incorporated settlement | AAS: signed order included a term (Cinco with prejudice) that AAS never agreed to; trial court may correct judgment to reflect parties’ agreement | Court: modification proper — Elgohary admitted altering documents; court may reform judgment during plenary power |
| Whether appellate court has jurisdiction to hear Elgohary’s challenge to sanction | Elgohary: amended notice (filed after original notice) confers jurisdiction; rules favor reaching merits | Mina/AAS (dissent): attorney needed timely separate notice; amended filing was effectively untimely first notice | Court: appellate jurisdiction exists under Tex. R. App. P. 25.1(b)/(g); discretionary review allowed and appellee did not move to strike |
| Whether sanction under trial court’s inherent power was supported by evidence | Elgohary: no bad faith, no fees incurred, no findings of fact | AAS: Elgohary admitted altering documents and misrepresenting AAS’s approval; counsel incurred fees to correct error | Court: sanction affirmed — reviewing for abuse of discretion; record shows conscious wrongdoing and reasonable fee amount ($450); omission of findings was harmless |
| Whether appellate frivolous‑appeal sanctions should be awarded to AAS | AAS: Mina’s appeal is frivolous; seek $5,000 | Mina: appeal not frivolous | Court: decline to award appellate sanctions — no objective finding appeal frivolous |
Key Cases Cited
- Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (abuse‑of‑discretion standard for reviewing discretionary trial court orders)
- Transam. Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799 (Tex. 1978) (trial court may vacate, modify or reform judgment during plenary period)
- Low v. Henry, 221 S.W.3d 609 (Tex. 2007) (review of sanctions under abuse‑of‑discretion standard)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (standing/interest to appeal when judgment prejudices party’s interest)
- Warwick Towers Council of Co‑Owners v. St. Paul Fire & Marine Ins. Co., 244 S.W.3d 838 (Tex. 2008) (bona fide attempt to appeal can be shown by docketing statement and other filings when notice misnames appellant)
- Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envtl. Servs., L.P., 226 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2006) (upholding inherent‑power sanctions where counsel’s conduct forced opposing counsel to take unnecessary measures)