Motion Granted in Part and Denied in Part, Appeal Dismissed, and
Memorandum Opinion filed August 23, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00017-CV

         IN THE INTEREST OF J.V.S.J. AND D.E.K.J., CHILDREN

                   On Appeal from the 309th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-44247

                 MEMORANDUM                     OPINION
      This is an appeal from an order modifying the parent-child relationship
signed September 18, 2015. Appellee filed a motion to dismiss the appeal for lack
of jurisdiction and for damages under Texas Rule of Appellate Procedure 45. The
motion has been on file for more than 10 days, and no response has been filed.

      Appellant Barbara Ulmer timely filed a motion for new trial on October 16,
2015. The notice of appeal must be filed within 90 days after the judgment is
signed when appellant has filed a timely post-judgment motion. See Tex. R. App.
P. 26.1(a). Therefore, the notice of appeal was due December 17, 2015. Appellant
did not file her notice of appeal until January 6, 2016.

      A motion for extension of time a notice of appeal is necessarily implied
when an appellant, acting in good faith, files the notice of appeal beyond the time
allowed by Rule 26.1, but within the 15-day grace period provided by Rule 26.3
for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615,
617–18 (Tex. 1997). Appellant’s notice of appeal was not filed within the 15-day
period provided by Rule 26.3. Accordingly, the appeal must be dismissed.

      Under Texas Rule of Appellate Procedure 45, a court of appeals may—on
motion of any party or on its own initiative, after notice and a reasonable
opportunity for response—award “just damages” as a sanction if it determines that
an appeal is frivolous. Tex. R. App. P. 45; Lane-Valente Indus. (Nat’l), Inc. v. J.P.
Morgan Chase, N.A., 468 S.W.3d 200, 206 (Tex. App.—Houston [14th Dist.]
2015, no pet.). We may award just damages under Rule 45 if, after considering
everything in our file, we make an objective determination that the appeal is
frivolous. Riggins v. Hill, 461 S.W.3d 577, 583 (Tex. App.—Houston [14th Dist.]
2014, pet. denied). Rule 45 does not require that a court award sanctions after
every frivolous appeal; rather, the imposition of sanctions is a discretionary
decision exercised with prudence and caution and only after careful deliberation.
Lane-Valente, 468 S.W.3d at 206.

      We conclude that damages under Rule 45 are not warranted in this case, and
we deny appellee’s motion. Accordingly, the motion to dismiss is GRANTED, the
motion for damages is DENIED, and the appeal is DISMISSED.

                                   PER CURIAM

Panel consists of Justices Jamison, McCally, and Wise.


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