Kennard Law, PC. v. Linda Patton

Opinion issued May 17, 2022

In The

Court of Appeals

For The

First District of Texas

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NO. 01-20-00560-CV

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KENNARD LAW, P.C., Appellant

V.

LINDA PATTON, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 15-DCV-226125

SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING

On February 17, 2022, this Court dismissed Kennard Law, P.C.’s appeal for

lack of jurisdiction. Linda Patton has moved for rehearing. We deny Patton’s motion

but issue this supplemental memorandum opinion to address the sole issue she raises.

Both our memorandum opinion and judgment dated February 17, 2022, remain in

full force and effect.

In her motion for rehearing, Patton contends that we did not address her

request for damages under Texas Rule of Appellate Procedure 45, which she

incorporated into her appellate brief. She requests that this Court grant rehearing and

award her damages in the form of appellate litigation expenses, interest on lawsuit

proceeds, and exemplary damages because this appeal is frivolous.

Rule 45 of the Texas Rules of Appellate Procedure permits an appellate court

to award a prevailing party “just damages” for “frivolous” appeals. TEX. R. APP. P.

45; Smith v. Brown, 51 S.W.3d 376, 380 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied). In determining whether an appeal is frivolous, we apply an objective test.

Smith, 51 S.W.3d at 381. We review the record from the advocate’s viewpoint and

ask whether the advocate had reasonable grounds to believe the judgment could be

reversed. Id. We exercise prudence and caution and deliberate most carefully before

awarding appellate sanctions. Id. Rule 45 does not mandate that this Court award

damages in every case in which an appeal is frivolous. R. Hassell Builders, Inc. v.

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Texan Floor Serv., Ltd., 546 S.W.3d 816, 833 (Tex. App.—Houston [1st Dist.] 2018,

pet. dism’d). Instead, the decision to award damages falls within our discretion, and

we will impose such damages only under egregious circumstances. Id. (citing

Durham v. Zarcades, 270 S.W.3d 708, 720 (Tex. App.—Fort Worth 2008, no pet.)).

Although we ultimately determined we lacked jurisdiction to hear Kennard

Law’s arguments in this appeal, we cannot conclude that Kennard Law had no

reasonable grounds to believe that the trial court’s ruling on the motions to strike

and sever could be reversed. See R. Hassell Builders, 546 S.W.3d at 833 (noting that

court was unable to find there were no reasonable grounds for appeal and, thus,

declining to award Rule 45 sanctions); Mailhot v. Mailhot, 124 S.W.3d 775, 778

(Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating that there was no merit to

appeal but declining to award damages under Rule 45). We therefore deny Patton’s

request to award her damages pursuant to Rule 45 of the Texas Rules of Appellate

Procedure.

We overrule Patton’s motion for rehearing.

Amparo Guerra

Justice

Panel consists of Justices Hightower, Countiss, and Guerra.

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