in the Estate of Hutchins, Frances J.

• Court: Court of Appeals of Texas
• Decided: November 13, 2012
• Docket: 05-12-01163-CV
• Status: Published

Opinion

DISMISS; Opinion Filed November 13, 2012.

In i’he Q!uatrt ti1 Appimls FiftI! itrirt rif ixai at 1at1a No. 05-12-01163-CV

IN TI-IF ESTATE OF FRANCES J. HUTCHINS, DECEASED

On Appeal from the Probate Court Dallas County, Texas Trial Court Cause No. PR-I 1-01594-1

MEMORANDUM OPINION Before Justices Bridges, Richter, and Lang Opinion By Justice Lang

This is an appeal from two probate court orders. The first order denied a motion, brought

by Susan E. Jones, executrix of the estate of Frances J. Hutchins, for turnover of certain property of

the estate. The second order imposed sanctions against Jones and her trial counsel, Douglas T.

Floyd. No final judgment, generally required to invoke our jurisdiction, has been rendered. See

Lehmanii i’. Ffur-C’on, 39 S.W.3d 191. 195 (Tex. 2001)(subject to “a few mostly statutory exceptions

• . • an appeal may he taken only from a final judgment.”). However, a probate order on a discrete

issue is appealable before the entire proceeding is concluded if an express statute declares that phase

of the proceeding from which the order arises to be final and appealable or if the order disposes of

all the parties or issues for which the particular part of the proceeding was brought. See Dc Avala

v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting crowson v. Wakehan’i, 897 S.W.2d 779, 783 (lex. 1995)). At our direction, the parties filed letter briefs addressing whether the complained—of

orders are appealable. The parties agree that the order denying the turnover motion is not appealable

at this time. They disagree, however, over whether the sanctions order is appealable. We conclude

it is not and dismiss the appeal for want of jurisdiction. See Ta*x. R. App. P. 42.3(a).

1. BACKGROUND

The proceeding that led to the complained—of orders is ancillary to a larger probate case and

involves Jones’s attempt, pursuant to Texas Probate Code section 37, to recover possession of certain

property of the estate in the possession of Karen Coyle, a beneficiary. Jones asserted in her turnover

motion that Coyle refused to surrender possession of the property when requested to do so and

(oyle’s refusal placed “the estate’s interest in the property” in jeopardy.” Coyle responded to the

motion and asserted Jones was not entitled to relief because she was not a judgment creditor as

required under section 3 1.002 of the Texas Civil Practice and Remedies Code. Relying on Texas

Rule of Civil Procedure 13 and chapter 10 of the Texas Civil Practice and Remedies Code. Coyle

also filed a motion for sanctions. Coyle alleged in her motion that Jones and Floyd should be

sanctioned because the turnover motion, and two earlier pleadings Jones had filed in which she

requested the same relief as the turnover motion, were groundless. 2 The trial court denied the

turnover motion, granted Coyle’s sanctions motion, and, without stating a basis, imposed a $2000

sanction against Jones and Floyd jointly and severally to be paid within two weeks of the date of the

order.

Jones separately challenges this order by petition for writ of mandamus. The mandamus proceeding styles the same as this case, but is docketed as appellate cause number 05-12-01 09S-CV. By separate opinion issued this date, the Court conditionally grants the petition for writ of mandamus.

2 Coyle also sought Sanctions against Jones and Floyd for their failure to attend a court-ordered mediation in its entirety. The reporter’s record of the tearing on the motion for sanctions is not a part of the record before its. However. Jones and Floyd state tn their letter brief that Coyle did not urge that ground at the hearing Coyle does not dispute this statement in her letter brief and specifically states that the sanctions order “was based on and entered with an order denying the motion for tumover order.” In their letter briet Jones and Floyd contend the sanctions order is final and appealable

because it “is not tied to anything but” the turnover motion, it did not contemplate any further

determinations, and it required payment prior to the conclusion of the case. in response, Coyle

asserts the order is not appealable at this time because it did not dispose of all parties or issues.

II. APPLICABLE LAW

A motion for sanctions is not a pleading that determines the issues that must be resolved in

a case. See Jobe v. Lapidus, 874 S.W.2d 764,765 (Tex. App.—Dallas 1994, writ denied). Rather,

it is an application for an order. Id. It must be fled to the portion in which the sanctionable conduct

occurred, but it does not dispose of all parties and claims and is therefore not a final judgment.

Kenseth v. Dallas Count;’. 126 S.W.3d 584,600 (Tex. App.—Dallas 2004, pet. denied); Jobe, 874

S.W.2d at 766. Unless the imposition of monetary sanctions threatens a party’s continuation ofthe

litigation, a sanctions.order is reviewable on appeal from a finaljudgment See Electronic Data Sys.

Corp v. Tyson, 862 S.W.2d 728,736 (Tex. App.—.Dallas 1993, orig. proceeding). Ifthe continuation

of litigation is threatened, the sanctions order may be subject to mandamus review. Id.

III. APPLICATION OF LAW TO FACTS

Although the order is not dependent on any further action by the court, it did not dispose of

all the parties and claims. As Jones and Floyd recognize, it is fled to the turnover motion which was

denied by order which no party contends is appealable at this time. While the order requires payment

prior to entry ofa finaljudgment, that requirement does not convert the sanctions order, which does

not dispose of all parties and claims and is tied to an unappealable order, into an order that is

appealable. Given the record before us, we conclude the sanctions order is not final and appealable,

and we lack jurisdiction over it.

-3- IV. CONCLUSIoN

Given that the parties do not dispute the order denying the turnover motion is not appealable

and our conclusion that the sanctions order is not appealable either, we dismiss the appeal for want

of jurisdiction. See TEX. R. App. P. 42.3(a).

/ 17 1)OUGLAS/. LANG . / ILiSF1CE,

121 163F.P05

-4- ((nurt nf A141IZtb3 ift1! Jiitrict uf xas ut 1ullui JUDGMENT IN TI-I.E ESTATE OF FRANCES J. Appeal 0-om the Probate Court of Dallas HUTCHINS, DECEASED County. Texas. (Tr.Ct.No. PR-I 1-0! 594- 1). Opinion delivered by Justice Lang. Justices No. 05-12-01 163-CV Bridges and Richter participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER that appellee Karen Coyle recover her costs of this appeal from appellants Susan E. Jones and Douglas T. Floyd.

J udgment entered November 1 3. 201 2.

/7 //7• <5 OOUGLA S LANG // JUSTB2