Elbar Investments, Inc. v. Johnston (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Massengale)
(dispute over attorney's fees awarded regarding filing and withdrawing of lis pendens, complaint not
preserved for appellate review)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale
Before Justices Keyes, Sharp and Massengale
01-09-00757-CV Elbar Investments, Inc. v. Cheryle R. Johnston
Appeal from 309th District Court of Harris County
Trial Court Judge: Hon. Frank B. Rynd
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
Panel consists of Justices Keyes, Sharp, and Massengale.