In the Estate of Irene G. Dominguez, Deceased--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-04-00441-CV

Olivia SPITALERI and Earle Cobb Jr.,

Appellants

v.

ESTATE OF Irene G. DOMINGUEZ, Donald Dominguez,

Karen Whitenton and Kenneth Grubbs,

Appellees

From the Probate Court No. 1, Bexar County, Texas

Trial Court Nos. 2003-PC-0645 & 2003-PC-0645-A

Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 9, 2005

DISMISSED IN PART FOR WANT OF JURISDICTION, AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART

Olivia Spitaleri and her attorney, Earle Cobb Jr., appeal the trial court s judgments in favor of Karen Whitenton and Kenneth Grubbs, including the awards of sanctions included in the judgments. // In addition, Spitaleri appeals the order denying her motion to disqualify Grubbs from representing two parties in the probate proceedings. Because the order denying the motion to disqualify is interlocutory and not subject to appeal, we dismiss that part of the appeal for want of jurisdiction. We reverse the awards of sanctions because the judgments fail to specify the facts justifying the awards and remand the issue of sanctions to the trial court. In all other respects, we affirm the trial court s judgments.

2. Spitaleri contends the trial court erred in denying her motion to disqualify Kenneth Grubbs from representing both Irma Gonzalez, the independent executrix named in the second of two wills submitted for probate in the Estate of Irene G. Dominguez, and Donald Dominguez, a potential heir. Grubbs has moved to dismiss this part of Spitaleri s appeal for want of jurisdiction. We grant the motion. The test for determining whether a probate court order is appealable is as follows:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceeding to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of the proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). No statute authorizes appeal of an otherwise interlocutory order denying a motion to disqualify counsel. The order does not conclude a discrete phase of the probate proceedings and cannot logically be considered a part of the proceedings that have been concluded and are on appeal Spitaleri s tort claims against Whitenton and Grubbs, which were finally adjudicated and severed from related claims. Rather, the order is logically related to Spitaleri s claims against Gonzalez and Dominguez, as well as Spitaleri s and Dominguez s competing applications to be named estate representative, which remained pending and unresolved in the probate court at the time the record in this appeal was filed. Accordingly, we dismiss for want of jurisdiction Spitaleri s appeal of the order denying her motion to disqualify Grubbs.

2. Spitaleri contends the trial court erred in granting Whitenton s motion for a no-evidence summary judgment on Spitaleri s claim, brought as a potential beneficiary of Irene Dominguez s estate, that Whitenton entered into a combination [with others] to interfere with the family relationship between the deceased, Irene G. Dominguez, and her children, and that Whitenton s actions in preparing and directing the execution of Irene Dominguez s will were unethical, negligent and otherwise unlawful. The sole argument made in Spitaleri s brief is that a videotape of the will execution creates a fact issue as to each element of her causes of action. However, the trial court sustained Whitenton s objections to the videotape Spitaleri offered as summary judgment evidence. And, although Spitaleri states in her brief that the trial court erred in excluding the videotape, she has provided no argument in support of the statement. Accordingly, we affirm the summary judgment on Spitaleri s claims against Whitenton.

3. Spitaleri next argues the trial court erred in dismissing her claim that Grubbs filed a false or incomplete lis pendins [sic] notice on behalf of his client Donald Dominguez and, in so doing, slandered Spitaleri s title to property and combined with others to interfere with the decedent s relationships with her children. The only argument Spitaleri makes for reversal of the judgment is that a statement in the lis pendens was false [and] constitutes negligence at the very least.

Under Texas law, attorneys are generally not liable to an opposing party for their conduct in representing their clients, even if that conduct is wrongful in the context of the underlying lawsuit. Toles v. Toles, 113 S.W.3d 899, 910 (Tex. App. Dallas 2003, no pet.). A party s claim against an opposing attorney that is based on the attorney s conduct in discharging his duties to his client, even if frivolous or without merit, is not actionable. // Id. at 910-11; see Renfroe v. Jones & Assocs., 947 S.W.2d 285, 288 (Tex. App. Fort Worth 1997, writ denied); see also Griffin v. Rowden, 702 S.W.2d 692 (Tex. App. Dallas 1985, writ ref d n.r.e.)(holding that filing a notice of lis pendens is absolutely privileged and cannot form basis for tortious interference claim). Grubbs filed the notice of lis pendens after the probate proceeding was instituted to give notice that Spitaleri claims title to property that Grubbs s client alleges belongs to the estate. Because Grubbs was at all relevant times acting as an attorney on behalf of his client, Spitaleri s contention that Grubbs negligently made a false statement in the notice does not warrant reversal of the judgment. Accordingly, we affirm the trial court s judgment dismissing Spitaleri s claim against Grubbs.

4. Finally, Spitaleri and her attorney argue the trial court erred in imposing Rule 13 sanctions against them without making the findings required by the Rule. We agree. To impose sanctions under Rule 13, the trial court must find that a party s pleadings are groundless and either brought in bad faith or for the purpose of harassment. GTE Commc ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993); Tex. R. Civ. P. 13. The court must presume that pleadings are filed in good faith, and the party seeking Rule 13 sanctions has the burden to overcome the presumption. GTE, 856 S.W.2d at 731. And the order imposing sanctions must specify the acts or omissions on which the sanctions are based. Alexander v. Alexander, 956 S.W.2d 712, 714 (Tex. App. Houston [14th Dist.] 1997, pet. denied); GTE Commc ns Sys. Corp. v. Curry, 819 S.W.2d 652, 654 (Tex. App. San Antonio 1991, orig. proceeding); see Tex. R. Civ. P. 13 ( No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. )

The trial court s order awarding sanctions to Grubbs states:

The court finds that the suit filed against Mr. Grubbs is not permitted as a matter of law ....

The court further finds that the suit was filed for improper purpose, for the purpose of harassment and was filed in bad faith. The court finds that the attorney and his client have specifically violated Rule 13 of the Texas Rules of Civil Procedure and orders that they be sanctioned $1,000.00.

The judgment awarding sanctions to Whitenton states:

The Court further finds that there is no actionable cause of action brought by Olivia Spitaleri against Karen Hardy Whitenton and that there is no evidence of one or more essential elements of the claims brought against Karen Hardy Whitenton.

....

The Court further finds that there was no reasonable basis for naming Karen Hardy Whitenton as a Defendant herein and that the lawsuit against her was from its inception, and still is, groundless as defined in [R]ule 13, Texas Rules of Civil Procedure. Accordingly, the Court finds that good cause exits for an award of monetary sanctions against Olivia Spitaleri and her attorney, Earl Cobb, Jr. pursuant to the said Rule 13, Texas Rules of Civil Procedure, because of their institution and maintenance of a groundless lawsuit against Karen Hardy Whitenton.

Accordingly, it is ORDERED that Defendant, Karen Hardy Whitenton, is hereby awarded monetary sanctions to be recovered from Olivia Spitaleri and/or her attorney, Earle Cobb, Jr. .....

The judgments recite only the trial court s ultimate conclusions without stating any facts to support the conclusions. Moreover, the trial court did not even make a conclusory finding that the claims against Whitenton were brought in bad faith or for the purpose of harassment. Therefore, the judgments awarding sanctions do not comply with Rule 13 s mandatory requirement that the particulars justifying the award of sanctions be stated in the order. // See Overman v. Baker, 26 S.W.3d 506, 511-12 (Tex. App. Tyler 2000, no pet.) (holding that order reciting the plaintiff s application was groundless, brought in bad faith and for the purpose of harassment, brought for an improper purpose and caused needless increase in the costs of litigation, that the allegations had no evidentiary support and were not likely to have support after reasonable discovery, and that good cause exists for the imposition of sanctions, failed to state the specific acts or omissions on which the sanctions were based and failed to satisfy the particularity requirement of Rule 13); Mattly v. Spiegel, Inc., 19 S.W.3d 890, 895-96 (Tex. App. Houston [14th Dist.] 2000, no pet.) (holding that judgment [which] recites only the ultimate conclusions the court is required to make in assessing sanctions, and does not state any facts to support it ... is an abuse of discretion), overruling on other grounds recognized by In re J.R., 123 S.W.3d 669, 672 n.6 (Tex. App. Houston [14th Dist.] 2003, no pet.); Schexnider v. Scott & White Mem l Hosp., 953 S.W.2d 439, 441 (Tex. App. Austin 1997, no writ) (holding that order omitting to state the particulars upon which the trial judge reached his conclusions of law expressed as good cause, groundless petition, bad faith, and brought for the purpose of harassment is erroneous on its face ). The trial court s failure to state the particulars justifying the sanction awards is an abuse of discretion requiring us to reverse the awards and remand the issue of sanctions to the trial court. See Mattly, 19 S.W.3d at 896 n. 2.

We therefore dismiss Spitaleri s appeal of the trial court s order denying her motion to disqualify Grubbs for want of jurisdiction. We reverse the sanction awards against Spitaleri and Cobb and remand the issue of sanctions to the trial court. In all other respects, the trial court s judgments in Spitaleri s suits against Whitenton and Grubbs are affirmed.

Sarah B. Duncan, Justice