Opinion
08-22-00131-CV
07-25-2023
THE NEVAREZ LAW FIRM, P.C., Appellant, v. ALBERT PEREZ, Appellee.
Appeal from the County Court at Law No. 5 of El Paso County, Texas (TC#2018DCV0278)
Before Rodriguez, C.J., Palafox, and Soto, J.J.
MEMORANDUM OPINION
GINA M. PALAFOX, JUSTICE
This appeal arises from an attorney-versus-client fee dispute in which Appellant, The Nevarez Law Firm, P.C., sued its former client, Albert Perez. After a bench trial, the trial court granted a directed verdict for Perez. Nevarez appeals in ten issues, which it refers to as "legal errors." We affirm.
Nevarez's original petition named both Albert and Ivonne Perez as defendants; however, Nevarez never obtained proper service on Ivonne Perez, and the trial court dismissed all claims against her for want of prosecution.
I. Factual and Procedural Background
On January 8, 2014, Nevarez entered into an Attorney Retainer Agreement (the Agreement), with its client, Perez. This Agreement indicated it covered Perez's legal representation pertaining to a lease dispute, which involved Rocky and Clyde's LLC, dba Taco Truck Café, and the premises located at 9308 Dyer, Suite A, El Paso, Texas. Attorney Michael Nevarez thereafter entered an appearance as Perez's attorney of record in the lawsuit styled, Jesse Ornelas v. Rocky and Clyde's LLC, Albert Perez, and Ivonne Perez, trial cause number 2015-DCV-0965, which was pending in the 327th District Court, El Paso County, Texas (the Underlying Suit).
Pertaining to the underlying case of this appeal, Nevarez filed its original petition in the trial court on January 24, 2018. Nevarez generally alleged in its suit that Perez had breached the Agreement, resulting in past due legal fees of $6,400.99. Initially, Nevarez's petition against its former client listed the following claims: "(a) Action for Breach of Contract; (b) Action for Promissory Estoppel As A Claim; (c) Action for Conversion; (d) Action for Appropriation by Theft; (e) Action for Fraud by Misrepresentation and/or Inducement; (f) Action for Fraud by Nondisclosure; (g) Action for Negligence and/or Gross Negligence; (h) Action for Breach of Fiduciary Duty; (i) Action for Breach of Duty of Good Faith and Fair Dealing; (j) Action for Quantum Meruit; (k) Action for Suit on Sworn Account; (1) Action on an Account Stated; and (m) Action for Unjust Enrichment."
Responding, Perez generally denied all claims and filed, as well, a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a for baseless causes of action. Nevarez responded to Perez's dismissal motion by amending its petition such that it only brought causes of action for (a) breach of contract; (b) promissory estoppel; (c) quantum meruit; (d) suit on sworn account; (e) action on an account stated; and (f) unjust enrichment. Attached to the amended petition, Nevarez included both a sworn verification by Michael R. Nevarez and an account statement. The statement showed a balance owed of $6,400.99 on the client account of Albert Perez.
The billing statement is for an account named "Ro&Cly" with Albert Perez listed in the "bill to" section. Rocky & Clyde's, LLC was a Texas Limited Liability Company owned by Perez and was the named defendant in the Underlying Lawsuit. Rocky & Clyde's has since been dissolved.
Perez answered the amended petition by generally denying Nevarez's allegations and by asserting several defenses. Although Perez did not initially include a sworn verification with his amended answer, he later filed that pleading before the start of trial. The sworn denial stated in pertinent part:
"I have reviewed the purported accounting of the Nevarez Law Firm, PC relating to alleged legal services sought. The accounting does not accurately state the services Nevarez Law Firm, PC was authorized or asked to perform on my behalf. In addition, the accounting does not identify amounts paid on the account by myself."
When the case proceeded to trial without a jury, Michael Nevarez himself represented his law firm. Also, he was the firm's sole witness. During his testimony, he offered as business records a set of monthly invoices (exhibit D). Perez objected, arguing the exhibit failed to comply with "the Lodestar agreement." After some discussion, the trial court took the matter under advisement. Ultimately, exhibit D was never formally admitted into evidence.
Nevarez also offered purported statements of Perez's account (exhibit E). He testified that each statement provided a summary reflecting "the amounts of the invoices and the payments." Perez objected on grounds that exhibit E was not a proper summary page and did not accurately reflect credits to his account. Like the other record, exhibit E was not admitted into evidence.
At the close of evidence, Perez moved for a directed verdict arguing that Nevarez produced no evidence proving the attorney fees sought by Nevarez were reasonable and necessary pursuant to the El Appel decision of the Supreme Court of Texas. Perez further argued there was no evidence of what actual work the firm performed in the Underlying Suit, indicating that although Nevarez attempted to offer limited invoices, it ultimately produced no evidence of how fees were incurred and whether such fees were reasonable under the facts and circumstances of the case. Nevarez responded by arguing the invoices "speak for themselves." The trial court granted directed verdict for Perez, and this appeal followed.
The invoices to which Nevarez referred to at the time were never admitted into evidence. On appeal, it asserts these invoices were improperly excluded.
II. Discussion
On appeal, Nevarez raises what it deems are ten "legal errors" and five "issues." To simplify, we roughly group the ten "legal errors" into the following categories:
1. Evidentiary Issues: This category includes Nevarez'ss legal errors one and two, which ask whether the trial court erred in excluding Nevarez'ss Exhibits D and E.
2. Sufficiency of the Evidence: This category includes Nevarez'ss legal errors four thorough ten, which ask whether Nevarez proffered sufficient evidence of each element of its claims for breach of contract, action for promissory estoppel as a claim, quantum meruit, suit on sworn account, action on an account stated, and unjust enrichment; and Nevarez'ss legal error three, which asks whether the trial court erred in applying the El Apple standard to Nevarez'ss request for attorney's fees.
III. Briefing Deficiencies
As a preliminary matter, Perez contends that many of Nevarez's issues have been waived because its arguments fail to include appropriate citation to legal authority or application of authority to relevant facts. The Supreme Court of Texas has generally recognized that a "[f]ailure to provide citations or argument and analysis as to an appellate issue may waive [such issue]." Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015); Tex.R.App.P. 38.1(i). Relatedly, however, the Supreme Court also has instructed reviewing courts to "construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule." Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997)). Accordingly, regarding procedural defects of an appeal, we remain wary of concluding that a waiver has occurred when a reasonable and liberal construction of the Rules of Appellate Procedure would allow us to reach the merits of the dispute. See Verburgt, 959 S.W.2d at 616 (citing Linwood v NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994); Martinez Jardon v. Pfister, 593 S.W.3d 810, 820 (Tex. App.-El Paso 2019, no pet.). Keeping these principles in mind, we turn to Rule 38.1, which governs the requirements of an appellant's brief. Tex.R.App.P. 38.1. At issue here are the issues presented and substantive arguments made in Nevarez's appellant's brief. Tex.R.App.P. 38.1(f), (i).
To comply with Rule 38.1(f), an appellant's brief "must state concisely all issues or points presented for review." Tex.R.App.P. 38.1(f). "The statement of an issue or point will be treated as covering every subsidiary question that is fairly included." Id. At its most basic level, Rule 38.1(f) requires that a reviewing court must be able to discern from an appellant's brief what question of law is at issue in the case. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.) (discussing the requirements of an appellant's brief). Once the issue or issues are identified, Rule 38.1(i) requires an appellant to present "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). If an appellate brief requires the reviewing court to "speculate or guess" about the legal issues or contentions, the brief fails this basic function. Amrhein v. Bollinger, 593 S.W.3d 398, 402 (Tex. App.-Dallas 2019, no pet.) (citing Bolling, 315 S.W.3d at 896)). General legal references, assertions, or conclusory statements without application are insufficient to meet the requirements of Rule 38.1(i). Bolling, 315 S.W.3d at 896; Tex.R.App.P. 38.1(i).
Importantly, an appellate court has "no duty to brief issues for an appellant." Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 783 (Tex. App.-Dallas 2013, no pet.). Likewise, it is "inappropriate" for an appellate court to speculate and rearticulate what it believes the party intended to present on appeal. Martinez v. Ward, 303 S.W.3d 326, 327 (Tex. App.-El Paso 2009, no pet.). We may use a reasonable, liberal construction of the briefing, but the rules nonetheless require that parties attempt to provide a specific argument and analysis to support the issues raised. Id. at 784. Anything more by the Court causes us to abandon our role as a neutral adjudicator. See Nevarez as Trustee of 1010 S. Oregon Family Trust v. City of El Paso, No. 08-22-000061-CV, 2023 WL 3325197, at *8 (Tex. App.-El Paso 2023, no pet.) (mem. op., not designated for publication) (citing Curnutt v. Conocophillips Co., 508 S.W.3d 641, 644 (Tex. App.-El Paso 2016, no pet.)).
In its statement of issues presented, Nevarez contends that it "proffered sufficient factual evidence to satisfy each and every element" of the causes of action asserted below. Listing the same causes of action, Nevarez states that legal errors four through nine are "Failure to Apply the Correct Legal Standard." Because the causes of action in these two sections mirror one another, we find that it is a fair and reasonable construction under Rule 38.1(f) to interpret legal errors four through nine as challenging the sufficiency of the evidence on each of the listed causes. Bolling, 315 S.W.3d at 896. Therefore, we conclude that Nevarez met the requirements of Rule 38.1(f) by stating issues presented for review. Tex.R.App.P. 38.1(f).
But we further find that Nevarez's compliance with Rule 38.1's requirement ends at that point. In support of legal errors four through nine, Nevarez offers the following argument as an attempt to comply with Rule 38.1(i)'s substantive requirement:
In view of the sworn and uncontroverted testimony of the undersigned, and the Exhibit A Retainer, and the Exhibit C Affidavit of Verification admitted during the bench trial, Appellant proffered sufficient factual evidence to satisfy each and every element of Appellant's causes of action for (a) Breach of Contract; . . . (d) Action for Suit on Sworn Account; (e) Action on an Account Stated; and (f) Action for Unjust Enrichment.
The Legal sufficiency of Appellant's case is even more evident, considering that the exhibit D Invoices and the Exhibit E Statements should have been admitted into evidence, as obvious business records.
Further, as the liquidated and unpaid attorney's fees and costs were contractually agreed to by the parties herein, Appellant met its burden of establishing that the directed verdict cannot be supported on the grounds that said fees and costs were not "reasonable and necessary", under the fee application standard of El Apple, considering all the evidence in a light most favorable to the Appellant, and resolving all reasonable inferences that arose from the evidence admitted at the trial in the Appellant's favor.
We note that the entire argument for legal errors four through nine consists of little more than a page of text. Nevarez does not offer citations to the record or to relevant legal authority. Instead, Nevarez makes general and conclusory statements without application to facts, and we decline to hold that such statements are sufficient to meet the requirements of Rule 38.1(i). Bolling, 315 S.W.3d at 896; Tex.R.App.P. 38.1(i). An issue that is unsupported by legal authority and lacks citation to the record presents nothing for review. Republic Underwriters Ins. Co., 150 S.W.3d at 427. Accordingly, we overrule Nevarez's legal errors four through nine.
iv. Evidentiary Issues
As an additional preliminary matter, Perez contends that some of Nevarez's remaining issues were not properly preserved for review. As we address the following evidentiary issues, we consider issue preservation where appropriate. The trial court's evidentiary rulings are reviewed for abuse of discretion. Loftin v. Loftin, 630 S.W.3d 369, 373 (Tex. App.-El Paso 2021, no pet.). A trial court abuses its discretion if it acts in a way that is arbitrary, unreasonable, or without regard for guiding principles of law. Id.; Puentes v. Fannie Mae, 350 S.W.3d 732, 736-37 (Tex. App.- El Paso 2011, pet. ref'd). We may only reverse for evidentiary error if "the error probably caused the rendition of an improper judgment." Tex.R.App.P. 44.1(a)(1); State v. Cent. Expressway Sign Associates, 302 S.W.3d 866, 870 (Tex. 2009).
A. Exhibit D
In its first legal error, Nevarez contends the trial court erred when it excluded exhibit D, the invoices of Perez's account. Perez initially responds that Nevarez failed to preserve the issue for review. To preserve a complaint for appellate review, the complaining party must show that the complaint was made to the trial court by a timely request, objection, or motion, and the record must show the trial court ruled or refused to rule on the request. Tex.R.App.P. 33.1(a). As we previously stated: "To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court." Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.-El Paso 2002, no pet.). If the trial court refuses to rule on the request, the party complaining on appeal must show it objected to the court's refusal at the trial level. Tex.R.App.P. 33.1(a)(2)(B); Hause v. LG Chem, Ltd., 658 S.W.3d 714, 720 (Tex. App.-El Paso 2022, pet. pending).
The Rules of Appellate Procedure require either an express or implicit ruling. Tex.R.App.P. 33.1(a)(2)(A). A ruling is implicit if the trial court does not make an express ruling, but the ruling is nonetheless "ascertainable from the record." See Hause, 658 S.W.3d at 720 (citing Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 99 (Tex. App.-El Paso 2005, no pet.)). The Supreme Court of Texas has noted that an implicit ruling may be sufficient to preserve error "when the implication is 'clear.'" Id. (quoting Seim v. Allstate Tx. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (summary judgment context)).
On the record presented, we cannot conclude that Nevarez preserved his complaint for review. At trial, when Nevarez offered exhibit D, Perez objected to its admission. The trial court decided to "take that admissibility under advisement." Thereafter, the exhibit was never admitted. Nevarez did not offer exhibit D into evidence a second time nor otherwise secure an adverse ruling on its admission. See Perez, 74 S.W.3d at 66. We can neither conclude from our review of the record that the trial court implicitly sustained Perez's objection, which would have preserved the issue for our review. An implicit ruling may preserve error only when it is "clear" and readily "ascertainable from the record." Hause, 658 S.W.3d at 720. Here, the trial court's statement that it would "take [the] admissibility under advisement," merely indicates the matter needed more consideration, not a clear indication of the court's substantive ruling. Because we conclude that Nevarez failed to secure an adverse ruling, it failed to preserve its complaint for review. Thus, we overrule legal error one.
B. Exhibit E
In its second legal error, Nevarez contends the trial court erred in excluding exhibit E, which was offered at trial as a summary business record. Exhibit E consists of an itemized list of invoice amounts and account credits for Perez's account. Perez objected to exhibit E as an improper summary page, arguing that it inaccurately reflected all invoices and payments made on the account. The trial court impliedly sustained Perez's objection and excluded exhibit E.
On appeal, Nevarez does not challenge the exclusion of exhibit E on the ground that it was an improper summary. Instead, Nevarez merely asserts the statements in exhibit E "were clearly business records." An appellant must challenge all grounds for the trial court's ruling, and failure to do so waives the issue. Loftin, 630 S.W.3d at 375. We overrule Nevarez'ss second legal error.
Nevarez plainly asserts that Perez "never offered any testimonial and/or documentary evidence or proof as to the accuracy or inaccuracy of the Exhibit E Statements." A general assertion without more is insufficient to present an issue for review. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.); Tex.R.App.P. 38.1(i).
V. Sufficiency Issues
Having already concluded that Nevarez's legal errors four through nine are inadequately briefed, we turn to its third and tenth legal errors. In these issues, it contends a directed verdict was improper because it had proffered sufficient evidence for its "Action for Suit on Sworn Account." Secondly, it argues the trial court erred in applying the El Apple standard for attorney's fees. Nevarez contends that the affidavit and sworn statement detailing the total amount of fees owed was sufficient because these filings satisfied the requirements of Texas Rule of Civil Procedure 185, which governs a suit on a sworn account. He further contends the El Apple standard imposes a higher burden of proof and such is not applicable to fees sought in this case. Perez responds that Nevarez's issue is unpreserved because it was never presented to the trial court. He contends the argument that a sworn account presumptively establishes a claim for fees was never made below, and the El Apple standard should apply because Perez's denial challenged the reasonableness of the fee claim. To a certain extent, we disagree with both parties.
A. Standard of review
"A directed verdict in favor of a defendant is appropriate when the plaintiff does not present evidence to raise a fact issue that is essential to the plaintiff's recovery." Brazoria County Children's Protective Services v. Frederick, 176 S.W.3d 277, 279 (Tex. App.-Houston [1st Dist.] 2004, no pet.). "We review a granted directed verdict under the legal sufficiency standard." Interest of A.N.G., 631 S.W.3d 471, 479 (Tex. App.-El Paso 2021, no pet.). "We review the evidence in the light most favorable to the party against whom the directed verdict was rendered and we must disregard all contrary evidence and inferences." Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). In our review, we must "credit all favorable evidence if reasonable jurors could and disregard any contrary evidence unless reasonable jurors could not." Id. We will affirm a directed verdict "if the record establishes any ground that entitles the movant to judgment as a matter of law." Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 191 (Tex. App.- Fort Worth 2004, no. pet.).
B. Applicable law
Texas Rule of Civil Procedure 185 is, as the name implies, a procedural rule. Tex.R.Civ.P. 185. It is not a rule of substantive law and cannot be the basis for any cause of action. See Tandan v. Affordable Power, L.P., 377 S.W.3d 889, 894 n. 5 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Instead, Rule 185 sets forth the evidentiary requirements to establish a plaintiff's prima facie right of recovery for certain contractual claims. Id.
Rule 185 states as follows:
When any action or defense is founded upon an open account or other claim for good, wares and merchandise, including any claim for liquidated money demanded based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial under oath.Tex. R. Civ. P. 185. A plaintiff who complies with Rule 185's requirements is presumptively entitled to recovery unless the defendant files a verified denial. Id. A defendant who fails to file a sworn denial complying with Rules 185 and 93(10) is barred from disputing the receipt of plaintiff's services or the stated charges. Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex. App.- Dallas 2006, no pet.); Cooper v. Scott Irr. Const., Inc, 838 S.W.2d 743, 745-46 (Tex. App.-El Paso 1992, no pet.). A denial complying with Rule 185 rebuts the presumption of the prima facie case and places the burden back on the plaintiff to prove its claim. Schum v. Munck Wilson Mandala, LLP, 497 S.W.3d 121, 125 (Tex. App.-2016, no pet.); Cooper, 838 S.W.2d at 746. A general denial is insufficient; instead, a defendant must specifically deny the sworn account. Cooper, 838 S.W.2d at 746.
Once a conforming denial is filed, the plaintiff must prove: (1) the contested services were performed; (2) the amount of the account is "just," meaning that the prices charged reflect those of the express agreement; and (3) the outstanding balance remains unpaid. Abrax Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 761 (Tex. App.-El Paso 2000, no pet.) (citing Andrews v. East Texas Med. Ctr.-Athens, 855 S.W.2d 264, 267 (Tex. App.-Tyler 1994, no writ.)).
C. Analysis
Nevarez's second amended petition sought damages in the amount of $6,400.99, which it alleged were due "on the open, commercial account." Additionally, Nevarez attached and incorporated by reference an affidavit of verification for a suit on sworn account by Michael Nevarez, which further included a statement on the account. Therefore, we disagree with Perez that Nevarez never presented its argument to the trial court and conclude that the issue was preserved for our review.
We do not opine on the sufficiency of the affidavit, or the account statement incorporated by reference into Nevarez's pleadings, because such determination is not necessary to our disposition.
Nevarez contends it complied with Rule 185, and it was therefore presumptively entitled to a recovery on the sworn account. However, Nevarez neglects to mention that Perez did in fact timely file a verified denial of the account which states:
I have reviewed the purported accounting of the Nevarez Law Firm, PC relating to alleged legal services sought. The accounting does not accurately state the services Nevarez Law Firm PC was authorized or asked to perform on my behalf. In addition, the accounting does not identify amounts paid on the account by myself.
Perez's sworn denial placed the burden back on Nevarez to put on proof of its claim without the aid of Rule 185's presumption. Tex.R.Civ.P. 185.
Nevarez's verification on the sworn account sought to recover $6,400.99 in damages "founded upon (a) a written contract between [Nevarez and Perez], for personal service rendered and labor done or labor or materials furnished, and (b) a claim for liquidated money demand resulting from business dealings between the parties, on which a systematic record has been kept, and demand for payment denied." This suit on sworn account is based upon the contract between the parties for representation in the Underlying Lawsuit. Perez's sworn denial thus required Nevarez to produce evidence that (1) the contested services were authorized and performed; (2) the amount of the account is "just," meaning that the prices charged reflect those of the retainer agreement; and (3) the outstanding balance remains unpaid. Abrax Petroleum Corp., 20 S.W.3d at 761.
It is apparent throughout the record that Nevarez charged Perez attorney's fees for work done to defend against an ethics board grievance that Perez filed against Nevarez for his performance and conduct connected to the Underlying Lawsuit. Part of Perez's argument at trial was related to the invoices in Exhibit D, which this Court has determined were excluded because Nevarez never received a ruling on their admission. The sworn statement and testimony of Michael Nevarez, taken together, indicate that the summary charges on the account included both the work performed in the Underlying Lawsuit and charges for work performed defending against Perez's grievance. The trial court explicitly ruled that the fees charged for defending against the grievance were improper and were not segregated.
Perez argued at trial and now contends on appeal that Nevarez did not proffer evidence that the fees charged were just, and the application of the El Apple standard "is instructive in determining whether an attorney fee sought is reasonable." See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). Nevarez responds that the trial court improperly applied El Apple, and affidavit evidence alone is sufficient to prove the amount owed because it seeks amounts owed on a contractual debt, rather than reasonable and necessary attorney's fees as a prevailing party. We agree with Nevarez that application of the El Apple standard is inappropriate in this instance due to the nature of the fees sought. In relation to Nevarez's sworn account-which sought to prove an amount owed on a contract-it need only prove that services were performed pursuant to the terms of the contract, and amounts owed remained unpaid. Abrax Petroleum Corp., 20 S.W.3d at 761.
Our review of the record, however, does not show that Nevarez produced evidence on any of these points. Further, Nevarez's briefing does not attempt to direct this Court to any evidence in the record showing the legal work was performed, that the rates charged were in accordance with the contract, or that the sworn account balance accurately reflected the amount owed. In fact, as our previous analysis shows, all the invoices and summary statements showing work allegedly performed on the account, and the associated billing summaries, were not received into evidence or were properly excluded. Viewing all the evidence in the light most favorable to Nevarez, the evidence presented was not sufficient to raise a fact issue essential to plaintiff's recovery, and the trial court did not err in granting directed verdict for Perez. We overrule Nevarez's legal errors three and ten.
VI. Motions under Rule 45
In Perez's brief, he asks this Court to award damages and sanction Nevarez under Texas Rule of Appellate Procedure 45. Nevarez responds with its own motions to strike Perez's brief, and to assess sanctions against Perez for filing a "frivolous brief." For its motions, Nevarez also relies on Rule 45.
Both parties use "damages" and "sanctions" interchangeably, although they rely on Rule 45. Mirroring the rule's language, we refer solely to damages when applying this provision. Tex.R.App.P. 45.
Rule 45 is entitled "Damages for Frivolous Appeals in Civil Cases," and it imbues an appellate court with the authority, on the motion of a party or of its own initiative, to award the prevailing party "just damages." We acknowledge our authority to award "just damages," but still, "we exercise that authority [using great caution and] only if the record shows [an] appellant did not act in good faith and had no reasonable expectation of reversal." Hernandez v. Hernandez, 596 S.W.3d 403, 409 (Tex. App.-El Paso 2020, no pet.). An appeal is frivolous when "the record, viewed from the perspective of the advocate, does not provide reasonable grounds for the advocate to believe that the case could be reversed." Ortiz v. St. Teresa Nursing & Rehab. Ctr., LLC, 579 S.W.3d 696, 708 (Tex. App.-El Paso 2019, pet. denied).
Rule 45 does not provide the courts of appeals with guidance for assessing "just damages." Id. We are aware, however, that a prior version of the rule capped the available damages at "an amount not to exceed ten times the total taxable costs." See Tate v. E.I. Du Pont de Nemours & Co., Inc., 954 S.W.2d 872, 875 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (interpreting Rule 84, the predecessor to current Rule 45). We have previously noted that Rule 45 appears to provide "virtually unbridled discretion in assessing just damages . . . [s]ome evidence documenting the cost of an appeal, however, is a great aide [sic] in the exercise of that discretion." Ortiz v. St. Teresa Nursing & Rehab. Ctr., LLC, 579 S.W.3d 696, n. 7 (Tex. App.-El Paso 2019, pet. denied). (citing John Hill Cayce, Jr., Anne Gardner, and Felicia Harris Kyle, Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 Baylor L. Rev. 867, 1013 (1997); Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001, pet. denied)) (internal quotations omitted). The record in this case contains no affidavits or other proof to support an award of damages based on the amount of attorney's fees expended in responding to the appeal. See Smith, 51 S.W.3d at 381 (providing an affidavit to establish attorney's fees expended in defending against the appeal); accord, McCullough v. Scarbrough, Medlin, & Associates Inc., No. 08-12-00205-CV, 2012 WL 3100845, at *1 (Tex. App.-El Paso July 31, 2012, no pet.) (mem. op.) (not designated for publication).
This Court considers the following factors when determining whether an appeal is frivolous: "(1) the unexplained absence of a statement of facts; (2) the unexplained failure to file a motion for new trial when it is required to successfully assert factual sufficiency on appeal; (3) a poorly written brief raising no arguable points of error; and (4) the appellant's unexplained failure to appear at argument." Hernandez v. Hernandez, 621 S.W.3d 767, 777 (Tex. App.-El Paso 2021, no pet.) (citing Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213 (Tex. App.-El Paso 2001, no pet.)). Moreover, some of the factors considered by our sister courts of appeal include: (1) the failure to present a complete record; (2) raising issues for the first time on appeal; (3) failure to respond to a request for damages under Rule 45; and (4) the filing of an inadequate brief. See e.g., Tate v. E.I. Du Pont de Nemours & Co., Inc., 954 S.W.2d 872, 875 (Tex. App.- Houston [14th Dist.] 1997, no pet.).
After considering the record before us and weighing the applicable factors, as we must, we cannot say Nevarez's appeal is objectively frivolous. Nor can we similarly find that Perez submitted a frivolous response. Accordingly, we deny all motions seeking damages under Rule 45.
Conclusion
We overrule Nevarez's legal errors and affirm the judgment of the trial court. All pending motions are denied.