Motion Granted in Part; Dismissed and Memorandum Opinion filed August 23,
2012.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-12-00121-CV

                       AGBOLADE O. ODUTAYO, Appellant

                                            V.

        JASPER EMERGENCY MEDICINE ASSOCIATES, PA AND THE
             SCHUMACHER GROUP OF TEXAS INC., Appellees


                        On Appeal from the 55th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2011-01829


                  MEMORANDUM                         OPINION


       This is an appeal from a partial summary judgment signed August 1, 2011, and
made final by a summary judgment signed January 5, 2012. Appellant filed a notice of
appeal on February 3, 2012. The clerk’s record was filed February 22, 2012, and a
supplemental clerk’s record was filed March 2, 2012. The reporter’s record from the
hearing on appellant’s motion for new trial was filed March 27, 2012. On April 20, 2012,
appellant filed motions to substitute counsel and for extension of time to file appellant’s
brief for thirty days. The motions were granted. On May 21, 2012, appellant filed a
second motion for extension of time to file appellant’s brief until June 25, 2012, which
the court granted. To date, appellant has not filed a brief or a motion for a further
extension of time.

       On July 25, 2012, appellees filed a motion to dismiss this appeal for want of
prosecution. See Tex. R. App. P. 42.3(b). Alternatively, appellees filed a brief and
requested that we affirm the trial court’s judgment, applying the presumption that
appellees’ brief correctly presents the case. See Tex. R. App. P. 38.8(a)(3). In both the
motion and their brief, appellees requested that we award damages for a frivolous appeal
under Texas Rule of Appellate Procedure 45. No response has been filed. See Tex. R.
App. P. 10.3(a).

       When an appellant fails to timely file a brief, the appellate court may dismiss the
appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b). While appellees
chose to file a brief in this appeal, they were not required to do so. See Tex. R. App. P.
38.6(b) (permitting, but not requiring, an appellee to file a brief when appellant has not
filed a brief).

       Under the plain meaning of Rule 45, this court may award just damages if, after
considering the record and any briefs, this court makes an objective determination that
the appeal is frivolous. See Tex. R. App. P. 45; Glassman v. Goodfriend, 347 S.W.3d
772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc). Whether to
grant sanctions is a matter of discretion, which we exercise with prudence and caution,
and only after careful deliberation. Angelou v. African Overseas Union, 33 S.W.3d 269,
282 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Although imposing sanctions is
within our discretion, we will do so only in circumstances that are truly egregious. City of
Houston v. Precast Structures, Inc., 60 S.W.3d 331, 340 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied).

       Appellees ask this court to find that appellant “prosecuted this appeal without
observing the minimal procedural requirements.” Our record shows that appellant filed a

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timely motion for new trial, the trial court conducted a hearing on the motion, appellant
filed a timely notice of appeal and docketing statement, and appellant requested and paid
for the clerk’s record, which was filed before its due date. In addition, appellant requested
and paid for the reporter’s record from the hearing on appellant’s motion for new trial.
We do not find the circumstances in this case to be egregious. After considering
appellees’ motion and brief, together with our record, we decline to award damages under
Rule 45 and deny that portion of appellees’ motion.

       We grant appellees’ motion to dismiss the appeal for want of prosecution and
order the appeal dismissed. See Tex. R. App. P. 42.3(b).



                                          PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.




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