in Re: Michael A. Bloom ( 2015 )

DENY; and Opinion Filed December 9, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01364-CV
IN RE MICHAEL A. BLOOM, Relator
Original Proceeding from Probate Court No. 3, Dallas County, Texas
Trial Court Cause No. PR-14-03181
MEMORANDUM OPINION
Before Justices Francis, Myers, and Schenck
Opinion by Justice Schenck
This petition for writ of mandamus arises from the imposition of death-penalty sanctions
against relator Michael A. Bloom (“Bloom”) for failure to comply with the probate court’s prior
orders. Bloom filed this petition for writ of mandamus requesting that this Court set aside the
death-penalty sanctions order and order the probate court to grant his motion to dismiss this case.
For the reasons set forth herein, we deny the petition.
Background
Bloom and real party in interest, Sandra Swango (“Swango”), are brother and sister.
Their mother, Clarice Shirley Bloom (“Decedent”), died intestate. Swango filed an application
for letters of dependent administration and for declaration of heirship. Bloom filed a motion to
dismiss the application for letters of administration arguing that the probate court lacked subject-
matter jurisdiction because Swango failed to allege the Decedent owned or was entitled to
property in the state “at the time of death” and the deficiency could not be corrected because the
Decedent had, in fact, transferred all of her assets to Bloom before her death.
Based on Bloom’s opposition to Swango’s application, the probate court set the
application for letters of dependent administration for hearing on the court’s contested docket.
The probate court proceeded to hear Swango’s application to determine heirship. At the
conclusion of the hearing, the probate court entered a judgment declaring Bloom and Swango to
be the Decedent’s only heirs and ordering that Bloom and Swango are each entitled to a fifty
percent share of the estate. Bloom moved to set aside the judgment determining heirship and
moved to dismiss the case, or in the alternative, for a new trial, asserting, again, that the probate
court lacked jurisdiction. In support of his motion, Bloom provided the probate court with two
deeds executed approximately six months prior to the Decedent’s death conveying all of
Decedent’s real 1 and personal property, except her interest in a family trust, to Bloom upon her
death. The probate court denied the motion and Bloom appealed. 2
Shortly after the probate court determined heirship, Swango filed a lawsuit against Bloom
and Martin E. Auerbach (“Auerbach”), an accountant and the trustee of the family trust, ancillary
to the main probate case seeking to annul the inter vivos transfers of the Decedent’s property to
Bloom. Bloom answered and asserted the same jurisdictional challenges he had raised in the
main probate case. He filed a motion to dismiss pursuant to rule 91a of the Texas Rules of Civil
Procedure, arguing the probate court had not determined a need for administration existed and
without a properly existing main case, the probate court lacked jurisdiction over the ancillary
proceeding. In addition, Bloom claimed Swango lacked capacity to bring the ancillary
1
Bloom is now living in the house his mother owned at the time of her death. He claims it is his homestead and that he will be
dispossessed of it by the trial court’s order.
2
This Court affirmed the probate court’s determination of heirship. Bloom v. Swango, 05-14-01237-CV, 2015 WL 5786824, at *1 (Tex.
App.—Dallas Oct. 5, 2015, no. pet. h.). The Court concluded that Swango’s pleadings placed Bloom on fair notice that Swango was seeking a
declaration of heirship in order to distribute property owned by the decedent to her heirs, facts that affirmatively demonstrated the probate court’s
jurisdiction over the application for determination of heirship. Id. at 4. The Court further concluded, in view of the probate court’s determination
that a factual issue existed whether the decedent was competent to convey her property, that there was sufficient evidence to raise a disputed issue
of fact as to whether the decedent owned or was entitled to property at the time of her death. Id. at 5. The Court held that the probate court did
not err in finding it had jurisdiction over the application to determine heirship. Id.
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proceeding because she had not yet qualified or been appointed to represent the estate as the
dependent administrator. On February 13, 2015, the probate court denied Bloom’s motion,
finding that Swango’s “causes of action pleaded in this matter have bases in both law and fact.”
Pursuant to rule 91a.7, the probate court awarded Swango attorneys’ fees in the amount of
$2,840.
Bloom then filed a “Motion to Dismiss or to Abate Cause and/or for Protection from
Discovery.” He again argued that Swango lacked standing to pursue the ancillary proceeding
because she had not qualified as the administrator of the estate, and because the need for an
administration of the estate remained to be determined because the probate court had not yet
determined whether the Decedent possessed property on her death. Swango responded and
moved for sanctions under Section 10.001 of the Texas Civil Practice & Remedies Code arguing
that Bloom, who is a lawyer, continued to assert specious jurisdictional arguments in an effort to
harass and oppress her.
On April 7, 2015, the probate court denied Bloom’s motion and granted Swango’s
motion for sanctions. The probate court awarded Swango $4,275 in attorney’s fees and ordered
that the $4,275 in sanctions, together with the $2,840 awarded to Swango for defending the rule
91a motion, be paid within seven days. In doing so, the probate court noted:
Defendant Bloom had previously moved to have the Original Case and the
Ancillary Case dismissed for want of subject matter jurisdiction, and those
motions had already been denied by the time he filed the motions decided by this
order. The Court observes that as recently as February 13, 2015, this Court
denied Bloom's Rule 91a Motion to Dismiss because, among other reasons, this
Court has subject matter jurisdiction of this case. . . .
In his instant motions, Mr. Bloom again seeks dismissal on the previously rejected
argument that this Court lacks subject matter jurisdiction of this case. Because
that issue had already been briefed to and decided by this Court twice
previously—once in deciding Bloom's Motion for New Trial in the Original Case
and again in deciding Bloom's Rule 91a Motion filed in this Ancillary Case—the
Court finds and holds that Defendant Bloom, contrary to his § 10.001
certification, filed his instant motions to dismiss and for protection for an
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improper purpose. The Court finds and holds that Bloom sought by his instant
Motions to Dismiss and for Protection “to harass or to cause unnecessary delay or
needless increase in the cost of litigation” in violation of TEX. CIV. PRAC. & REM.
CODE § 10.001.
Following the entry of the April 7, 2015 sanctions order, Bloom engaged counsel.
Bloom’s attorneys moved for relief from the portion of probate court’s sanctions order that
required payment of the amounts ordered before final judgment. In his motion, Bloom stated
that he is 73-years old and does not have a “consistent source of income” other than Social
Security payments. 3 He argued that if he was required pay the amounts awarded by the probate
court in the time period required by the order, he would not be able to afford outside counsel and
would have to represent himself before the court. He requested that the probate court defer
payment of the sanctions until the rendition of final judgment in the two pending proceedings.
Prior to Bloom filing the motion for relief, Swango had agreed to a seven-day extension of time
to make the payments ordered by the probate court. When Swango learned that the apparent
undisclosed purpose of the extension request was to allow Bloom to file the motion for relief
from the sanctions order, she filed a motion seeking death-penalty sanctions.
The probate court granted the motion for death-penalty sanctions and denied Bloom’s
motion for relief from the sanctions order. The probate court concluded that Bloom’s argument
that he would have to forgo representation to pay the amounts ordered by the probate court
amounted to a judicial admission that Bloom had the means to pay the amounts awarded. It
concluded it had good cause to exercise its inherent authority to sanction Bloom based on:
• Bloom's unjustified failure without good cause to pay Swango the $2,840
of attorneys’ fees awarded against him under Rule 91, TEX. R. CIV. P, in
the Court's February 13, 2015 order;
3
The State Bar website shows that Bloom maintains an active legal practice as of the date he certified his profile earlier this year.
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• Bloom's unjustified failure without good cause to pay Swango such $2,840
by April 14, 2015 as ordered by the Court's April 7, 2015 order or by April
20, 2015 as agreed to by Plaintiff; and
• Bloom's unjustified failure without good cause to pay Swango the $4,275
ordered by the Court's April 7, 2015 order by April 14, 2015 as directed
by such order or by April 20, 2015 as agreed to by Plaintiff.
The court found “less stringent” sanctions would not promote Bloom’s compliance with the
court’s orders because its two prior orders had been ineffective. Accordingly, the probate court
struck all of Bloom’s pleadings in the case and rendered a judgment of default against Bloom in
favor of Swango. In addition, the probate court set aside the conveyances that were the subject
of ancillary proceeding and ordered that the property was vested in the Decedent at the time of
her death. The court further ordered that Swango recover from Bloom attorney’s fees in the
amount of $63,825 (inclusive of the prior awards of fees) and conditionally awarded Swango
attorney’s fees on appeal. Although the judgment was determinative of all claims against Bloom
in the case, the judgment remains interlocutory because claims remain pending against
Auerbach, who allegedly assisted Bloom in wrongfully causing the Decedent to execute the
conveyances.
Bloom is now before this Court seeking mandamus relief. Bloom argues the probate
court clearly abused its discretion by: (1) rendering death-penalty sanctions against him; (2)
ordering him to pay monetary sanctions and awards prior to a final judgment without making
express findings that payment would not substantially restrict his access to the courts; (3)
awarding sanctions in its April 7 order; and (4) failing to dismiss or abate the ancillary
proceeding because Swango lacked capacity. As detailed below, we conclude Bloom has not
established a lack of adequate remedy by appeal, and has not shown a clear abuse of discretion to
support the issuance of a writ of mandamus.
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Discussion
To be entitled to mandamus relief, a relator must ordinarily demonstrate the trial court
has clearly abused its discretion and that relator has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (emphasis added).
As to Bloom’s complaint concerning the probate court’s imposition of death-penalty sanctions,
we first consider whether Bloom has an adequate remedy by appeal. If he does, then the writ of
mandamus must be denied on this ground. State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984).
In determining whether Bloom has an adequate remedy by appeal, we consider whether the
sanctions imposed against him thwart effective appellate review. See Braden v. Downey, 811
S.W.2d 922, 929 (Tex. 1991). Generally, whenever a trial court imposes sanctions which have
the effect of adjudicating a dispute, whether by striking pleadings, dismissing an action or
rendering a default judgment, but which do not result in the rendition of an appealable judgment,
then the eventual remedy by appeal is inadequate. TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 919 (Tex. 1991). But not every case in which a court imposes death-penalty
sanctions by interlocutory order will warrant the issuance of the extraordinary writ. Id. at 920.
This is such a case. The probate court’s order striking Bloom’s pleadings and rendering a default
judgment against him disposed of all claims against Bloom. The only reason the order remains
interlocutory is the fact that Swango’s claims against Auerbach remain pending. Bloom will not
suffer adverse effects from the court’s order in further proceedings before the probate court as
contemplated in TransAmerican, because there will be no further proceedings as to him.
Therefore, the general rule concerning mandamus relief in death-penalty sanction cases does not
apply in this case.
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In an effort to establish there is no adequate remedy by appeal, Bloom argues absent
interlocutory relief, Bloom will lose possession of his homestead, and possibly much of its
contents. There is no reason to believe that the home Bloom is living in will be sold without
providing Bloom an opportunity to appeal the probate court’s appealable orders and supersede
any order that allows the sale of his property, particularly in view of the fact that the June 15,
2015 order—which determines that the house is an asset of the estate—will become appealable
upon rendition of judgment on the claims against the remaining party or by severance of the trial
court’s order rendering judgment against him, which he has not sought below. Therefore, Bloom
has an adequate remedy by appeal. If Bloom wishes to obtain immediate appellate review of the
trial court’s order, nothing prevents him from seeking severance of the trial court’s order
rendering judgment against him.
Next, Bloom argues that the probate court abused its discretion in ordering him to pay the
attorneys’ fee awards prior to rendition of final judgment without making express findings that
payment would not substantially restrict his access to the courts. Any complaint Bloom may
have had regarding the timing of payments due by orders of the probate court is now moot. The
death-penalty sanction order subsumed the fees previously awarded by orders dated February 13,
2015 and April 7, 2015. Accordingly, the April 7, 2015 order to pay the fees immediately cannot
now have a chilling effect on Bloom’s ability to continue the litigation because he is no longer
under the order to pay the fees immediately. In addition, the latest order of the probate court
effectively terminates the litigation as to Bloom. Consequently, this complaint does not support
the issuance of a writ of mandamus.
As to Bloom’s complaint concerning the April 7, 2015 order awarding monetary
sanctions, Bloom has failed to demonstrate that the probate court clearly abused its discretion
because the monetary sanction relates to the attorney’s fees incurred by Swango. See Braden,
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811 S.W.2d at 929. As to Bloom’s claim Swango lacks capacity to maintain the ancillary
proceeding, Bloom has not cited any authority to support a finding that the extraordinary writ of
mandamus applies to such a claim. Consequently, these are not possible independent grounds
for the issuance of a writ of mandamus.
We deny the petition for writ of mandamus.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
151364F.P05
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