      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00363-CV



                                  Leslie Durio Pool, Appellant

                                                 v.

                                  Danae Durio Diana, Appellee


                 FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
               NO. 85,839, HONORABLE GUY S. HERMAN, JUDGE PRESIDING



             CONCURRING AND DISSENTING OPINION


               I concur in the majority’s judgment affirming the summary judgment rulings in favor

of appellee Danae Durio Diana and the trial court’s sanctions against appellant Leslie Durio Pool and

her attorneys, Joe Pool and Peter Ferraro. I respectfully dissent to the portion of the judgment

awarding $30,000 as penalties on appeal. See Tex. R. App. P. 45.

               Without citing authority or reasons independent of those cited by the trial court and

apparently relying upon the trial court’s conclusions below, the majority imposes $30,000 as

“penalties” against Pool for bringing this appeal. It does not follow that imposition of sanctions on

appeal automatically flows from sanctions below. See Delgado v. Methodist Hosp., 936 S.W.2d 479,

488 (Tex. App.—Houston [14th Dist.] 1996, no writ) (although “some merit to the arguments

for appellant’s sanctions,” court “refuse[d] to grant further sanctions in the firm belief that

those already assessed have accomplished their dual purpose: present punishment for, and
future prevention of, such conduct”); Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 347

(Tex. App.—San Antonio 1994, writ denied) (attorney “well within his rights” to appeal sanctions

against him pursuant to rule 13).

               Under rule 45 of the rules of appellate procedure, this Court has discretion to

award “just damages” if we determine that an appeal is frivolous. See Tex. R. App. P. 45.

Rule 45 provides:


       If the court of appeals determines that an appeal is frivolous, it may—on motion of
       any party or on its own initiative, after notice and a reasonable opportunity for
       response—award each prevailing party just damages. In determining whether to
       award damages, the court must not consider any matter that does not appear in the
       record, briefs, or other papers filed in the court of appeals.


Id. This Court, however, should award damages “only in circumstances that are truly egregious.”

See Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App.—Houston

[14th Dist.] 2002, no pet.) (“Although imposing sanctions [damages under rule 45] is within our

discretion, we will do so only in circumstances that are truly egregious.”); Smith v. Brown,

51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“In applying Rule 45, we

continue to exercise prudence and caution and use careful deliberation.”). Given that the right to

appeal is a “most sacred and valuable one,” I would not exercise this Court’s discretion to grant

appellee’s motion for penalties on appeal. See Smith, 51 S.W.3d at 381 (citation omitted).

               Because I would conclude that on this record this appeal does not warrant damages

under rule 45, I concur in the judgment to affirm the trial court’s summary judgment rulings and the




                                                 2
sanctions against Leslie Pool and her attorneys, but I respectfully dissent to the remainder of the

judgment awarding “penalties” for this appeal.




                                             __________________________________________
                                             Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: March 24, 2010




                                                 3
