De Mino, Wolfgang Hirczy v. Alvarez, Veronica--Appeal from 312th District Court of Harris County

Reversed and Remanded and Opinion filed November 14, 2002

Reversed and Remanded and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00173-CV

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WOLFGANG HIRCZY DE MI O, Appellant

V.

VERONICA ALVAREZ, Appellee

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On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 01-64436

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O P I N I O N

Wolfgang Hirczy De Mi o appeals the trial court s order dismissing his claims against Veronica Alvarez and awarding her sanctions against him on various grounds. We reverse and remand.

Background

De Mi o brought this suit against Alvarez alleging, among other things, tortious interference with his employment and seeking to enjoin Alvarez from interfering with De Mi o s employment and business relationships. De Mi o s petition alleged that he lost his job with the University of Houston after Alvarez lodged a harassment complaint against him in retaliation for De Mi o s appearance as an interested party at a contempt proceeding between Alvarez and the father of her child. Alvarez filed a motion to dismiss and for Rule 13[1] sanctions, among other things, on the ground that De Mi o s pleadings were frivolous and failed to state a claim upon which relief could be granted. The trial court entered a combined Findings, Conclusions, Orders and Judgment [2] concluding that De Mi o s pleadings did not state a claim upon which relief may be granted, dismissing those pleadings without prejudice, awarding Alvarez $2,800 in attorney s fees as sanctions, and denying De Mi o s motion for sanctions against Alvarez s attorney.[3]

Dismissal for Failure to State a Claim

De Mi o s fifth issue[4] contends that the trial court erred in dismissing his case for failure to state a claim without allowing him an opportunity to amend his pleading. We agree.

A trial court may not render judgment against a party for a failure of its pleadings to state a claim upon which relief can be granted without first identifying the pleading deficiency and allowing the party to amend its pleadings, unless the pleadings affirmatively

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negate the existence of a claim or the record otherwise reflects that the deficiency cannot be cured by amendment.[5] In this case, the portion of Alvarez s motion to dismiss asserting a failure to state a claim did not identify any deficiency in De Mi o s pleadings or contend that the deficiency could not be cured by amendment or that the pleadings affirmatively negated relief.[6] Similarly, the trial court s findings of fact and conclusions of law state that De Mi o s pleadings did not state a cause of action but do not specify any basis for this conclusion.[7] Accordingly, we sustain De Mi o s fifth point of error. Without a basis to affirm the dismissal, we similarly lack a basis to conclude that an award of attorney s fees against De Mi o was appropriate.[8] Therefore, we reverse the judgment of the trial court and remand the case for further proceedings.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] See Tex. R. Civ. P. 13.

[2] Contra Tex. R. Civ. P. 299a (stating that findings of fact shall not be recited in a judgment).

[3] The trial court s judgment recited no other grounds for its dismissal than failure to state a claim upon which relief could be granted.

[4] Because this issue is dispositive of the appeal, we address it first.

[5] See, e.g., County of Cameron v. Brown, 80 S.W.3d 549, 555, 559 (Tex. 2002) (reversing dismissal on plea to jurisdiction for failure to allow opportunity to replead); Friesenhahn v. Ryan, 960 S.W.2d 656, 659 (Tex. 1998) (reversing summary judgment based on failure to state a claim without allowing opportunity to replead); Tex. Dep t of Corrs. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974) (same).

[6] Instead, this portion of Alvarez s motion sought to refute De Mi o s claims on the merits by alleging that her actions had been justified to protect herself from De Mi o s sexual harassment.

[7] Nor is it apparent why an allegation that the filing of a false harassment claim caused a loss of employment could not state a claim for tortious interference.

[8] De Mi o s brief fails to demonstrate that sanctions should have been awarded in his favor, and his other challenges need not be addressed in light of our reversal of the judgment.