in Estate of Doris J. Simon, Incapacitated

Motion to Dismiss Granted; Motion for Sanctions Denied; Appeal Dismissed
and Memorandum Opinion filed April 28, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00212-CV

IN ESTATE OF DORIS J. SIMON, INCAPACITATED

On Appeal from Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 419,625-401

MEMORANDUM OPINION

This is an attempted appeal from an interlocutory order signed January 28,
2015. The record reflects that appellant Morna Simon-McGuffey sued Michael
Boltz, Angela Johnson, Joellen Snow, Jerry Simoneaux and Lauren Byrd alleging,
among other things, negligence in the handling of the guardianship of McGuffey’s
mother, Doris Jean Simon. Johnson and Snow filed petitions to dismiss under
Texas Rule of Civil Procedure 91a alleging McGuffey brought a baseless cause of
action against them. On November 24, 2014, the trial court signed an order
granting Snow’s motion to dismiss and awarding attorney’s fees. On January 10,
2015, the ward passed away. On January 28, 2015, the trial court signed an
amended order granting Johnson’s motion to dismiss and awarding attorneys’ fees.
On February 25, 2015, McGuffey filed a notice of appeal seeking to appeal the
trial court’s November 24, 2014 order granting Snow’s motion to dismiss and the
January 28, 2015 order granting Johnson’s motion to dismiss.

On April 9, 2015, Snow filed a motion to dismiss the appeal in which she
alleges this court does not have jurisdiction because (1) the dismissal orders are
interlocutory because they did not dispose of Boltz, Simoneaux and Byrd; and (2)
the issues are moot because the ward passed away. Snow also asks for $6,470 in
attorneys’ fees as sanctions for defending a frivolous appeal.

Generally, appeals may be taken only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of
all pending parties and claims, the orders remain interlocutory and not appealable
until final judgment is entered unless a statutory exception applies. Bally Total
Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).

On April 17, 2015, McGuffey filed a response in which she informs the
court that a hearing has been set in the trial court on April 23, 2015, to request
permission to appeal the interlocutory order under section 51.014(f) of the Civil
Practice and Remedies Code.1 The Rules of Appellate Procedure require a petition
filed in the court of appeals when a party requests permission to file an appeal
under section 51.014(f). Tex. R. App. P. 28.3(a). If the trial court grants permission
to appeal, McGuffey may file a petition requesting permission to appeal the
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In her response, McGuffey also mentions that she a motion to sever on December 1,
2014 on which no hearing was held. McGuffey, however, does not argue that Snow and
Johnson’s appeals should be severed, but argues the court should consider the interlocutory
appeal if the trial court grants permission to appeal.

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interlocutory orders. That procedure has not been followed in this case. Because
McGuffey’s response fails to demonstrate that this court has jurisdiction over the
appeal, we grant appellee’s motion to dismiss.2

Snow also seeks sanctions under Texas Rule of Appellate Procedure 45
alleging McGuffey brought this interlocutory appeal solely for delay without
observing the minimal procedural requirements for an appeal. Whether to grant
sanctions is a matter of discretion, which we exercise with prudence and caution,
and only after careful deliberation. Casteel–Diebolt v. Diebolt, 912 S.W.2d 302,
306 (Tex. App.—Houston [14th Dist.] 1995, no writ). Although imposing
sanctions is within our discretion, we will do so only in circumstances that are truly
egregious. City of Houston v. Crabb, 905 S.W.2d 669, 676 (Tex. App.—Houston
[14th Dist.] 1995, no writ).

In determining whether sanctions are appropriate, we carefully consider the
record from the appellant’s point of view at the time the appeal was filed. See City
of Alamo v. Holton, 934 S.W.2d 833, 837 (Tex. App.—Corpus Christi 1996, no
writ). Among the factors we consider are whether the appellant had a reasonable
expectation of reversal and whether she pursued the appeal in bad faith. Tate v. E.I.
DuPont de Nemours & Co., 954 S.W.2d 872, 875 (Tex. App.—Houston [14th
Dist.] 1997, no pet.); Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex. App.—
Houston [14th Dist.] 1999, no pet.).

McGuffey’s appeal does not have the earmarks of a bad faith filing. While
her response demonstrates she understands this is an interlocutory appeal, the
record does not evidence such egregious circumstances that sanctions are
warranted.

2
We decline to address the issue of mootness because we have determined that this court
lacks appellate jurisdiction over the attempted appeal from the interlocutory orders at issue.

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 Accordingly, we deny the motion for sanctions and grant the motion to
dismiss the appeal.

PER CURIAM

Panel consists of Justices Boyce, McCally, and Donovan.

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