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.




                                                                       –2–
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
                                               –3–
           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.



                                                                       –4–
           •   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.




                                              –5–
                                          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.




                                              –6–
       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,

                                               –7–
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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