Motion to Dismiss Granted; Request for Damages Under Rule 45 Denied;
Appeal Dismissed and Memorandum Opinion filed October 17, 2013




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-12-01032-CV

                      REGINALD PETTEWAY, Appellant
                                       V.

                          MORLOCK LLC, Appellee

                   On Appeal from the Co Civil Ct at Law No 4
                             Harris County, Texas
                        Trial Court Cause No. 1014875

                   MEMORANDUM                  OPINION


      This is an appeal from a judgment signed November 5, 2012. The clerk’s
record was filed April 29, 2013. The reporter’s record was filed May 9, 2013. No
brief was filed.

      On August 8, 2013, this court issued an order stating that unless appellant
submitted a brief, together with a motion reasonably explaining why the brief was
late, on or before September 9, 2013, the court would dismiss the appeal for want
of prosecution. See Tex. R. App. P. 42.3(b). On August 13, 2013, appellee filed a
motion to dismiss. On September 9, 2013, appellant filed another motion for
extension of time; no brief was filed. On October 4, 2013, appellee filed another
motion to dismiss.

      Appellee’s motions to dismiss the appeal for want of prosecution are
GRANTED. The appeal is ordered dismissed. Appellant’s motion for extension
of time is denied as moot.

      Appellee also seeks damages for a frivolous appeal, or alternatively, asks
this court to increase the supersedeas bond. Appellee seeks $57,500 for damages
based upon a rental value of at least $2,500 a month for twenty-three (23) months.
According to appellee, the value of the property is $104,000. Bond was set at
$1,000. This is appellee’s first request to raise the bond.

      Because we are dismissing the appeal, there is no need to increase the
supersdeas bond. Appellee’s motion to increased the supersedeas bond is denied.

      Recovery of damages under Rule 45 is authorized if, after considering
everything in its file, this court makes an objective determination that an appeal is
frivolous. Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied) (en banc). See Tex. R. App. P. 45. To determine
whether an appeal is objectively frivolous, we review the record from the
viewpoint of the advocate and decide whether the advocate had reasonable grounds
to believe the case could be reversed. Glassman, 347 S.W.3d at 782. But, Rule 45
does not mandate that this court award damages in every case in which an appeal is
frivolous. Id. The decision to award such damages is a matter within this court’s
discretion, which we exercise with prudence and caution after careful deliberation.
Id. Although appellee’s motion demonstrates the appeal has been delayed through
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appellant’s actions, those delays appear to be due to appellant’s lack of financial
resources. Appellee’s motion does not demonstrate that at the time the appeal was
filed there were no reasonable grounds to believe the judgment would be reversed.,
We conclude that damages under Rule 45 are not warranted in this case.
Accordingly, appellee’s request for damages under Rule 45 is also denied.

                                      PER CURIAM



Panel consists of Chief Justice Frost and Justices Boyce and Jamison.




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