Jack W. Thompson v. David Ricardo and Kara K. Peak--Appeal from 164th District Court of Harris County

Dismissed as Moot and Majority and Dissenting Opinions filed August 26, 2008

Dismissed as Moot and Majority and Dissenting Opinions filed August 26, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00333-CV

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JACK W. THOMPSON, Appellant

V.

DAVID RICARDO & KARA K. PEAK, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2005-56772

D I S S E N T I N G O P I N I O N

Appellant Jack W. Thompson, the attorney who represented plaintiff Niki Koestens in her suit in the trial court against appellees/defendants David Ricardo and Kara K. Peak, challenges the trial court=s sanction ordering him to Atake all actions necessary to release any and all liens on the Property on or before January 31, 2007.@[1] Rather than address the merits, the majority concludes that this appeal is moot because Thompson has completed all the actions specified in the trial court=s order. However, the evidence upon which the majority relies shows otherwise. In addition, this court=s action on the merits of this appeal could affect the rights of the parties, and therefore, this case is not moot. Instead of dismissing this appeal based on mootness, this court instead should reach the merits and rule on the propriety of the sanction against Thompson.

The appeal is not moot.

When Picardo and Peak moved for sanctions under Texas Rule of Civil Procedure 13, Koestens nonsuited her claims. After a hearing, the trial court signed an order sanctioning Koestens and Thompson. The only Rule 13 sanction imposed on Thompson was the trial court=s order that Thompson Atake all actions necessary to release any and all liens on the Property on or before January 31, 2007.@ The majority concludes that Thompson has completed all the actions specified in the trial court=s order and, for this reason, his appeal is now moot.

To complete the actions specified in the sanctions order, Thompson had to take all actions necessary to release all liens on the real property in question on or before January 31, 2007. The evidence shows the following relevant facts regarding the trial court=s sanctions order and Thompson=s compliance with it:

! The trial court signed its sanctions order on December 14, 2006.

! On or before December 26, 2006, Thompson drafted two two-page documents to release the First Lien and the Second Lien, and he also prepared a letter to his client Koestens, dated December 26, 2006, asking her to take these releases to the lienholder to have them executed.

! Koestens picked up the letter and the lien releases on December 26, 2006.

! On January 23, 2007, the lienholder on the First Lien signed a release of that lien.

! On February 1, 2007, Thompson mailed the release of the First Lien to the Harris County Clerk for recording in the Real Property Records.

! On June 15, 2007, the lienholder on the Second Lien signed a release of that lien, and this release was recorded in the Harris County Real Property Records on June 18, 2007.

If the trial court=s sanctions order required Thompson to take all actions necessary to have releases of the liens both executed and recorded on or before January 31, 2007, then Thompson did not complete all the actions specified therein because that task was not accomplished until many months after the trial court=s deadline. Neither release of lien was recorded on or before the deadline, and no evidence suggests Thompson did all he could do or that was necessary to get the liens released within the time frame ordered by the trial court. For example, the trial court might conclude that Thompson could have drafted the releases in fewer than 12 days, that he could have presented the releases to the lienholder rather than delegating that task to Koestens, and that he could have followed up with the lienholder and endeavored to meet the deadline. In any event, even if the order only required that the releases be executed (and not recorded) by the lienholder by January 31, 2007, the release for the Second Lien was not signed until June 15, 2007, four-and-a-half months after the deadline.

Presuming that this appeal would be moot if Thompson had completed all the actions specified in the trial court=s order, there is no evidence that Thompson completed the required actions. The trial court still has the power to hold Thompson in contempt for violating this order by not completing the tasks within the time ordered by the court. See Cool World And Can, Inc. v. State, No. 01-01-00966-CV, 2002 WL 31319965, at *2 (Tex. App.CHouston [1st Dist.] Oct. 17, 2002, no pet.) (not designated for publication) (holding that appeal from injunction was not moot because, if the injunction was valid, then the appellants were subject to being held in contempt). For this reason alone, this appeal is not moot.

Furthermore, an appeal is generally not moot unless the appellate court=s action on the merits cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993). In response to Ricardo and Peak=s argument that this appeal is moot, Thompson has asserted that Ricardo and Peak have sued him in a separate action that is pending at the district court level and that the Rule 13 sanctions order that Thompson challenges in this appeal is serving as the underlying basis for Ricardo and Peak=s claims against him in that case. Though Thompson has not provided this court with pleadings for the other suit, he has provided this court with the cause number, and Ricardo and Peak have not denied or taken issue with Thompson=s description of that litigation. If this court were to conclude that the trial court abused its discretion by sanctioning Thompson and vacate the sanctions order on the merits, Ricardo and Peak would not be able to rely on this order in their suit against Thompson. Therefore, this court=s action on the merits of this appeal can affect the rights of the parties, and for this additional reason, this case is not moot. See VE Corp., 860 S.W.2d at 84; San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 332 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

The majority states that, because Ricardo and Peak assert in this court that Thompson has complied with the sanctions order, they will be estopped from seeking contempt in the trial court below or from relying on the order in other proceedings. However, this court cannot make a binding ruling on this estoppel issue in the instant appeal. In addition, the trial court is charged with seeing that its orders and judgments are obeyed, enforced, and executed. See Tex. R. Civ. P. 308. Even if Ricardo and Peak were estopped from arguing that Thompson should be held in contempt, the trial court has the authority to issue a show cause order on its own motion and determine whether Thompson should be held in contempt, even without any action by Ricardo and Peak. See Dallas County v. Mays, 747 S.W.2d 842, 844B45 (Tex. App.CDallas 1988), rev=d in part on other grounds by, Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex. 1988). Thus, the application of estoppel principles does not render Thompson=s appeal of the sanctions order moot.

For these reasons, this court should not dismiss this appeal. Instead, the court should address the merits of the Rule 13 sanctions issues. Because it does not, I respectfully dissent.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Dissenting Opinions filed August 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore. (Fowler, J., majority).

[1] There was a lien on this property in the original principal amount of $15,000 (hereinafter AFirst Lien@) as well as a lien on the property in the original principal amount of $10,000 (hereinafter ASecond Lien@).