Motion Granted in Part and Denied in Part; Appeal Dismissed and
Memorandum Opinion filed October 2, 2014.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-14-00673-CV

                            MARY L. JAMES, Appellant

                                             V.
                 HOUSTON HOUSING AUTHORITY, Appellee

              On Appeal from the County Civil Court at Law No. 2
                            Harris County, Texas
                       Trial Court Cause No. 1043672

                MEMORANDUM                             OPINION
       On August 19, 2014, appellant filed a notice of appeal from a judgment
signed March 10, 2014. Appellee filed a motion to dismiss the appeal. See Tex. R.
App. P. 42.3. One of appellee’s grounds for dismissal is that appellant’s notice of
appeal, filed more than five months after the judgment was signed, is untimely. 1
Appellee asserts that appellant did not file a post-judgment motion to extend the
       1
          Appellee has also alleged the appeal is moot, based in part on our disposition of a
related appeal. See James v. Houston Hous. Auth., 14-13-00312-CV, 2014 WL 3555755 (Tex.
App.—Houston [14th Dist.] July 17, 2014, no. pet.) (mem. op.). Because we agree the notice of
appeal is untimely, we need not address mootness.
appellate timetable, and therefore, her notice of appeal was due thirty days after the
trial court’s judgment was signed. See Tex. R. App. P. 26.1. Our limited record
does not reflect that a post-judgment motion was filed. Even if a post-judgment
motion was filed, however, appellant’s notice of appeal is untimely. See Tex. R.
App. P. 26.1(a) (stating the notice of appeal must be filed within ninety days after
the judgment is signed when no timely post-judgment motion or request for
findings of fact and conclusions of law has been filed).

      In addition, the six-month period to file a notice of a restricted appeal does
not apply in this case. See Tex. R. App. P. 26.1(c). To be entitled to bring a
restricted appeal, the appealing party must not have participated in the hearing
resulting in the judgment. See Tex. R. App. P. 30. The judgment in this case recites
that appellant appeared at trial. Therefore, we conclude that appellant’s notice of
appeal is untimely.

      In its motion to dismiss, appellee asks this court to award it appellate
attorney’s fees. Texas Rule of Appellate Procedure 45 addresses the award of
damages for filing a frivolous appeal. See Tex. R. App. P. 45. We may award just
damages under Rule 45 if, after considering everything in its file, this court makes
an objective determination that the appeal is frivolous. Glassman v. Goodfriend,
347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en
banc). To determine whether an appeal is objectively frivolous, this court reviews
the record from the viewpoint of the advocate and decides whether the advocate
had reasonable grounds to believe the case could be reversed. Id. Rule 45 does not
mandate that this court award damages in every case in which an appeal is
frivolous, however. Id. The decision to award such damages is a matter within this
court’s discretion, which this court exercises with prudence and caution after
careful deliberation. Id. We conclude that damages under Rule 45 are not
warranted in this case. Accordingly, we deny the portion of appellee’s motion
                                          2
requesting an award of appellate attorney’s fees.

      A timely filed notice of appeal is required to invoke an appellate court’s
jurisdiction. Tex. R. App. P. 25.1(b). Because appellant’s notice of appeal is
untimely, we lack jurisdiction over this appeal. We grant the part of appellee’s
motion seeking dismissal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Accordingly, the appeal is ordered dismissed.



                                  PER CURIAM


Panel consists of Justices McCally, Busby, and Donovan.




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