IQBAL AKHTAR v. LEAWOOD HOA INC NAFISA YAQOOB AND WERNER WEISS (2017)

CONCURRING OPINION

Iqbal Akhtar appeals the trial court's order signed April 1, 2016, granting “Defendant's Motion to Strike All Plaintiff's Pleadings and Dismissal of Case.” In a single issue, Akhtar claims the trial court abused its discretion because, among other things, there was no legal or factual basis for the trial court to impose sanctions and the sanctions imposed were excessive. I disagree with the majority that Akhtar waived these sufficiency challenges. See Tex. R. App. P. 33.1(d). (“In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence—including a complaint that the damages found by the court are excessive ․ may be made for the first time on appeal.”). However, I agree with the majority's disposition because Akhtar did not provide a court reporter's record and thus this court is unable to review the evidence for legal and factual sufficiency. Thus, I respectfully concur.

Akhtar challenges the imposition of sanctions under Texas Rule of Civil Procedure 13 and chapter 10 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 10.004; Tex. R. Civ. P. 13. The majority concludes that the trial court assessed sanctions also under Rule 215 and, as appellant failed to challenge the sanctions award under that rule, errors in the order, if any, are rendered harmless.¹ See Tex. R. Civ. P. 215.1-.6. Because the April 1 order includes two separate sanctions awards, I do not agree that Akhtar's failure to challenge the order on the basis of Rule 215 waived his challenges to the sanctions imposed under Rule 13 and chapter 10.

An examination of the relevant timetable reveals that the trial court made two sanctions awards. On March 24, 2015, appellee Leawood HOA, Inc. filed a “Motion for Sanctions and Costs” under Rule 13 and chapter 10. The trial court first granted, then vacated, then reconsidered the motion. On February 10, 2016, the trial court signed an order granting Leawood's motion to reconsider and ordering Akhtar to pay Leawood $9,300 in sanctions.² These filings thus reflect motions and orders relating to sanctions awarded under Rule 13 and chapter 10.

On March 4, 2016, Leawood filed a “Motion to Strike All Plaintiff's Pleadings and Dismissal of Case” under Rule 215. The trial court then signed the April 1 order (1) granting the motion to strike, (2) striking Akhtar's pleadings, (3) stating that the case “be dismissed,” and (4) compelling Akhtar to pay Leawood $9,300 “as previously Ordered by this Court.” I interpret the April 1 order as encompassing two sanctions awards, the first award of $9,300 to Leawood that was “previously Ordered” under Rule 13 and chapter 10 and the second award striking Akhtar's pleadings and dismissing the case.

The majority cites several cases to support its holding that Akhtar was required to challenge the April 1 order under Rule 215 as well as Rule 13 and chapter 10. All of these cases are distinguishable because they deal with one sanctions award based on more than one independent ground. See Estate of Purgason v. Good, No. 14-14-00334-CV, 2016 WL 552149, at *1-2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2016, pet. filed) (mem. op.) (involving one sanctions motion and one sanctions award on the grounds of Rules 13 and 215 and chapter 10 and holding appellants were required to challenge every independent basis for the award); Riley v. Cohen, No. 03-08-00285-CV, 2009 WL 416637, at *1 (Tex. App.—Austin Feb. 19, 2009, pet. denied) (mem. op.) (same as to sanctions awarded under Rule 13 and chapter 9); In re Hansen, No. 05-06-00585-CV, 2007 WL 824587, at *1 (Tex. App.—Dallas Mar. 20, 2007, no pet.) (mem. op.) (same as to sanctions awarded under Rules 13 and 215 and chapter 10). Because the April 1 order deals with two separate sanctions awards, I would conclude that each award could be challenged separately.

Accordingly, I would address Akhtar's legal and factual sufficiency challenges. As the majority notes, however, the court reporter has informed this court that no records were taken in this case. In the absence of a reporter's record of the hearings, we are unable to review the evidence to determine whether it was legally sufficient to support the award. See Burley v. Bexar Cnty., No. 04-16-00596-CV, 2017 WL 2124486, at *1 (Tex. App.—San Antonio May 17, 2017, no pet. h.) (mem. op.) (“We must presume the trial court's judgment is valid and correct unless the record demonstrates otherwise.”) (citing Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999, pet denied)). I would, therefore, overrule Akhtar's issue on this basis.

For these reasons, I respectfully concur.

FOOTNOTES

1.   Although it does not affect the disposition of the case, I disagree that the sanctions assessed on April 1, 2016 were assessed also under Rule 215, although that rule was invoked by the motion to strike. Rule 215 provides specific remedies for discovery abuse, which did not occur here. See Tex. R. Civ. P. 215.1-.6. However, the court has inherent authority to impose sanctions for bad faith abuse of the judicial process even when the specific conduct is not covered by a rule or statute. Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

2.   The motion to reconsider is not in the record.

Martha Hill Jamison Justice