Sam Brown v. Gloria J. Brown

Affirmed and Opinion filed March 16, 2004

Dismissed and Memorandum Opinion filed June 10, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00978-CV

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SAM BROWN, Appellant

V.

GLORIA J. BROWN, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 02–04568

M E M O R A N D U M O

P I N I O N

Appellant, Sam Brown, attempts to appeal from the trial

court’s order granting Gloria J. Brown’s motion for new trial. In six points of error, appellant complains

the trial court erred in granting appellee’s motion for new trial. We dismiss the appeal and grant appellee’s

request for sanctions under Rule 45 of the Rules of Appellate Procedure for

filing a frivolous appeal.

The record reflects a trial was held in the Brown’s

divorce suit on December 9, 2002. Judge

Don Ritter presided over the trial. A

final judgment was signed on December 27, 2002.

Gloria Brown filed a motion for new trial on January 15, 2003,

complaining of the court’s division of community assets. A hearing on the motion, conducted by Judge

Jim York, was held February 4, 2003.

After considering the appellee’s motion, Judge York granted her request

for a new trial on February 4, 2003. A

second trial was held on June 16, 2003, and a final judgment was signed on July

25, 2003.

In six points of error, appellant contends the trial

court erred in granting appellee’s motion for new trial. However, it is well-established that “[a]n

order granting a new trial is an unappealable, interlocutory order.” Fruehaf

Corp. v. Carrillo , 848 S.W.2d 83, 84 (Tex. 1993) (per curiam). Moreover, the trial court acted within the

time of its plenary power when it granted the motion. [1] Accordingly, we have no jurisdiction to

entertain the appeal.

Appellee has requested sanctions for the filing of a

frivolous appeal. The Rules of Appellate

Procedure provide: “If the court of appeals determines that an appeal is

frivolous, it may—on motion of any party or on its own initiative, after notice

and a reasonable opportunity for response—award each prevailing party just

damages.” Tex. R. App. P. 45.

Generally, a court should only impose sanctions in the most egregious

circumstances. Conseco Fin. Servicing v. Klein Indep. Sch. Dist. , 78 S.W.3d 666,

667 (Tex.

App.―Houston [14th Dist.] 2002, no pet.).

Sanctions are not appropriate in circumstances where the appellant is

acting in good-faith and has a reasonable basis in law to challenge the trial

court’s judgment. Id .;

see also Nguyen v. Intertex, Inc. , 93

S.W.3d 288, 300 (Tex. App.―Houston [14th Dist.] 2002, no pet.) (declining

to find the appeal was brought in bad faith where it involved the confusing

distinction between void and voidable judgments); Smith v. Brown , 51 S.W.3d 376, 382 (Tex. App.―Houston [1st

Dist.] 2001, pet. denied) (imposing sanctions on “vexatious litigant” who did

not provide a proper legal basis to establish why claims were not barred by res

judicata); Guajardo v. Conwell , 30

S.W.3d 15, 18 (Tex. App.―Houston [14th Dist.] 2000), aff’d , 46 S.W.3d 862 (Tex. 2001) (declining to award sanctions in

light of conflicting law on the subject).

When considering the

imposition of sanctions we must consider the record from the appellant’s point

of view. Nguyen , 93 S.W.3d at 300 .

However, we previously found an appeal objectively unreasonable when a

party filed an interlocutory appeal from the denial of a motion for summary

judgment where there was no statutory authority to do so. Bridges

v. Robinson , 20 S.W.3d 104, 117 (Tex.

App.―Houston [14th Dist.] 2000, no pet.).

Here, appellant not only had no authority to pursue an appeal from the

granting of a motion for new trial, it is readily evident from the record that

appellant’s counsel was aware of this potential difficulty even before he filed

his notice of appeal. When the trial

court granted appellee’s motion for new trial, appellant’s counsel asked:

MR.

BATCHAN: Is this decision appealable?

THE

COURT: I don’t practice law

anymore. I just rule.

MR

BATCHAN: Well, if it is appealable, I

want to give notice right now.

THE

COURT: Yes, sir. Notice is given that Mr. Batchan is––I’m not

sure you can appeal an overruling of a––or a granting of a motion for new

trial, but good luck.

In

support of the motion for sanctions, appellee’s counsel has filed an affidavit

in which he alleges that his fee for preparing appellee’s brief in this case

was $2,500 plus $80 in out-of-pocket expenses for copying, binding, delivery,

and certified mail costs. The motion for

sanctions has been on file for more than 30 days and appellant has filed no

response.

Appellee’s

motion for sanctions is granted. We find

just and reasonable damages to be $2,580.

Moreover, we order appellant not only to pay appellee such damages, but

to also pay interest at the rate of ten percent (10%) per annum from the date

of this court’s mandate until the damages are paid in full.

Appellant’s

appeal is dismissed for want of jurisdiction.

/s/ J. Harvey Hudson

Justice

Appeal Dismissed and Memorandum Opinion filed

June 10, 2004.

Panel consists of Justices Yates, Anderson,

and Hudson.

[1] A motion for new trial is timely if filed

thirty days from the date the judgment is signed. Tex.

R. Civ. P. 329b(a). A trial court

has plenary power to grant a motion for new trial within thirty days of the

filing of such motion. Tex. R. Civ. P. 329b(e).