----------- Elbar Investments, Inc., Appellant v. Cheryle R. Johnston, Appellee

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Court of Appeals of Texas, Houston (1st Dist.).

----------- Elbar Investments, Inc., Appellant v. Cheryle R. Johnston, Appellee

NO. 01-09-00757-CV

Decided: February 18, 2010

Panel consists of Justices Keyes, Sharp, and Massengale.

MEMORANDUM OPINION

The sole issue brought this appeal is whether the trial court can order a party to pay $500 in attorney's fees because the party filed a lis pendens.   See generally Tex. Prop.Code Ann. § 12.007(a)-(c) (Vernon 2009).   We affirm.

The underlying proceeding is a divorce in which the parties, Timothy O'Bier and Eileen O'Bier, requested the trial court to appoint a receiver for their real property.   During the receivership, the bank foreclosed on the O'Biers' home and adjacent property, and appellee Elbar Investments, Inc. purchased the property.   The receiver, Cheryle R. Johnston, filed a motion for partial summary judgment to set aside the foreclosure sale.   The trial court granted the motion and on March 7, 2008 rendered partial summary judgment setting aside the foreclosure sale.   The partial summary judgment provided that Elbar “shall not hinder the Receiver's attempt to sell the [property].”   On March 12, 2008, Elbar filed a lis pendens, indicating it claimed an interest in the property.   On March 27, 2008, Elbar filed a notice of appeal.   The appeal was later dismissed before briefs were filed.   See Elbar Invs., Inc. v. O'Bier, No. 01-08-00232-CV (Tex.App.-Houston [1st Dist.] June 26, 2008, no pet.) (mem.op.).

On March 18, 2008, Johnston filed a motion to compel release of the lis pendens and for sanctions against Elbar for filing the lis pendens.   The motion claimed that Elbar had refused to comply with the trial court's partial summary judgment.   The clerk's record does not contain any response from Elbar to the motion for sanctions.   On March 25, 2008, the trial court partially granted the relief requested in Johnston's motion:

IT IS THEREFORE ORDERED that ElBar Investments, Inc. shall immediately sign the Release for the 12 acre real property which is the subject of the Receivership.

IT IS FURTHER ORDERED that ElBar Investments, Inc.'s Notice of Lis Pendens, filed on March 12, 2008, is VOID and of no effect, and that ElBar Investments, Inc. shall not interfere with the efforts of the Receiver to sell the real property.

IT IS FURTHER ORDERED that Receiver's attorney's fees in the amount of $500 shall be assessed against ElBar Investments, Inc. as costs of Court.

The trial court changed the caption of Johnston's proposed order from “ORDER COMPELLING RELEASE AND FOR SANCTIONS” to “ORDER COMPELLING RELEASE AND FOR ATTY FEES.” The trial court also deleted the words “and sanctions in the amount of” in the sentence “IT IS FURTHER ORDERED that Receiver's attorney's fees in the amount of $_ and sanctions in the amount of $_ shall be assessed against ElBar Investments, Inc. as costs of Court.”

There is no reporter's record from the hearing.   A final divorce decree was eventually signed on May 29, 2009.

In its sole issue on appeal, Elbar contends the trial court abused its discretion in granting sanctions because Elbar had a privilege to file its lis pendens.   See Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex.App.-Houston [1st Dist.] 1994, no writ) (“lis pendens is a part of the judicial process and the resulting absolute privilege bars a suit for damages arising from the filing of the lis pendens”) (citing Prappas v. Meyerland Community Improvement Ass'n, 795 S.W.2d 794, 796-97 (Tex.App.-Houston [14th Dist.] 1990, writ denied)).

Johnston argues on appeal that the trial court did not sanction Elbar for filing the lis pendens, but instead merely awarded attorney's fees as costs of court.   Johnston also points out that Elbar has failed to show that it preserved error in the trial court.   Elbar has not responded to the argument that it failed to preserve error.

We hold that Elbar has not presented an appellate record that demonstrates that it objected to the trial court's March 25, 2008 order awarding attorney's fees.   Elbar therefore has not preserved its sole issue on appeal as required by Texas Rule of Appellate Procedure 33.1(a).   Without reaching the issues of whether the $500 award of attorney's fees was a sanction and whether that was error, we overrule Elbar's sole issue.

We affirm the trial court's order.

Michael Massengale Justice

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