Opinion
No. 14-03-00978-CV
Opinion filed June 10, 2004.
On Appeal from the 246th District Court, Harris County, Texas, Trial Court Cause No. 02-04568.
Dismissed and Memorandum.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
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 Browns' 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. Accordingly, we have no jurisdiction to entertain the appeal.
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).
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.