                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00049-CV


MeMc I, LLC                                 §   From County Court at Law No. 2

                                            §   of Denton County (CV-2011-00580)
v.
                                            §   February 21, 2013

The Town of Double Oak, Charlie             §   Per Curiam
Wright, and Charlotte Allen

                                  JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed and that the case is remanded to the trial court for further

proceedings consistent with this opinion.

      It is further ordered that Appellees The Town of Double Oak, Charlie

Wright, and Charlotte Allen shall pay all of the costs of this appeal, for which let

execution issue.

                                     SECOND DISTRICT COURT OF APPEALS


                                     PER CURIAM
                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-12-00049-CV


MEMC I, LLC                                                              APPELLANT

                                          V.

THE TOWN OF DOUBLE OAK,                                                  APPELLEES
CHARLIE WRIGHT, AND
CHARLOTTE ALLEN


                                       ----------

            FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

                                       ----------

                           MEMORANDUM OPINION1

                                       ----------

       This is a summary judgment appeal.           Appellees the Town of Double Oak,

Charlie Wright, and Charlotte Allen moved for summary judgment on Appellant

MeMc I, LLC’s claims; the sole ground for summary judgment asserted in

Appellees’ motion for summary judgment was the affirmative defense of res

judicata.    Appellees premised their res judicata defense on a trial court judgment
       1
        See Tex. R. App. P. 47.4.


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that had been appealed to, and was pending in, this court.               This court

subsequently reversed the judgment forming the basis of Appellees’ res judicata

defense.2     Appellees concede that the summary judgment appealed here must

be reversed because the only ground on which they sought summary judgment—

the affirmative defense of res judicata—no longer applies in light of this court’s

reversal of the judgment on which the res judicata defense was based.      See J.J.

Gregory Gourmet Servs., Inc. v. Antone’s Import Co., 927 S.W.2d 31, 34 (Tex.

App.—Houston [1st Dist.] 1995, no writ) (recognizing judgment that was reversed

on appeal was not final judgment that could form basis of res judicata defense).

We sustain Appellant’s sole issue and reverse the trial court’s summary

judgment.

      Having reversed the trial court’s summary judgment, we would normally

remand the case to the trial court.     See Tex. R. App. P. 43.2(d).     Appellees,

however, filed in this court a motion to abate and to dismiss this appeal based on

the doctrine of dominant jurisdiction; Appellees did not file any motion to abate in

any trial court.   The doctrine of dominant jurisdiction has no application to this

appeal; whether the doctrine may be applicable to Appellant’s suit on remand—

or as Appellant contends was waived—is a matter for a trial court to resolve, not

this court.    See, e.g., Flores v. Peschel, 927 S.W.2d 209, 212 (Tex. App.—

Corpus Christi 1996, no writ) (explaining that the proper means of ensuring that a

      2
      See McDaniel v. Town of Double Oak, No. 02-10-00452-CV, 2012 WL
662367, at *10 (Tex. App.––Fort Worth 2012, pet. denied) (mem. op.).


                                         3
court with dominant jurisdiction tries and determines the lawsuit is by filing a plea

in abatement in the trial court without dominant jurisdiction).        Accordingly, we

deny Appellees’ motion to abate and to dismiss this appeal.

      Appellant     requests   reasonable   attorney’s   fees   as   sanctions    against

Appellees for forcing Appellant to brief and to argue this appeal.               Appellant

contends that once this court reversed the judgment upon which Appellees had

relied to obtain a res judicata-based summary judgment, and once the Texas

Supreme Court had denied review, Appellees had no basis in law or fact to

oppose the relief requested by Appellant in this appeal.        We agree.    Appellees

conceded in their motion to abate and to dismiss the appeal that the summary

judgment had to be reversed in this appeal. 3 And Appellees cite no authority for

the proposition that an appellate court can resolve in the first instance an issue of

dominant jurisdiction or for the proposition that after reversing a summary

judgment—that Appellees concede must be reversed—this court can dismiss the

appeal.



      3
          Appellees’ motion to abate and to dismiss states:

             The county court’s granting of summary judgment on res
      judicata grounds was proper when rendered; the district court’s order
      of dismissal was final, though on appeal. However, the doctrine of
      res judicata is premised on a final adjudication.       This Court’s
      Memorandum Opinion in the district court appeal reversed and
      remanded the matter back to the trial court, doing away with the final
      adjudication and the premise on which the county court’s order was
      based. [Footnote omitted.]


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       Under rule 45, after notice and a reasonable opportunity to be heard, we

may award just damages if we objectively determine, after considering “the

record, briefs, or other papers filed in the court of appeals,” that an appeal is

frivolous.   Tex. R. App. P. 45; Mid-Continent Cas. Co. v. Safe Tire Disposal

Corp., 2 S.W.3d 393, 396–97 (Tex. App.—San Antonio 1999, no pet.).                  A

frivolous appeal is defined as “an appeal having no legal basis.”        Black’s Law

Dictionary 113 (3d ed. 2009).

       Here, Appellant’s appeal is not frivolous.     To the contrary, Appellant is

unquestionably entitled to the relief sought in its appeal—reversal of the trial

court’s res judicata-based summary judgment.        It is Appellees’ opposition to the

granting of the relief sought by Appellant that has no legal basis.          Although

Appellees’ counsel may have violated the spirit if not the letter of the Standards

for Appellate Conduct, 4 because the appeal is not frivolous, rule 45 does not

authorize us to award just damages to Appellant.          See Tex. R. App. P. 45

(authorizing a court of appeals to award just damages when an appeal is




       4
        Under the section entitled “Lawyers’ Duties to Clients,” counsel is required
to advise clients that they will not take frivolous positions in an appellate court.
See Standards for Appellate Conduct, Lawyers’ Duties to Clients 13, Texas
Rules of Court (State) 431 (West 2012) (adopted by the Second District Court of
Appeals        on       Jan.        31,       2000,        and     available       at
http://www.supreme.courts.state.tx.us/rules/conduct.asp.).     Under the section
entitled “Lawyers’ Duties to the Court,” counsel is required to respect and
maintain the dignity of the court by not pursuing an appellate remedy unless
counsel believes in good faith that an error has been committed. See id.,
Lawyers’ Duties to the Court 1, Texas Rules of Court (State) 432.

                                         5
frivolous).   We therefore overrule Appellant’s request for reasonable attorney’s

fees as sanctions against Appellees.

       Having sustained Appellant’s sole issue, having denied Appellee’s motion

to abate and to dismiss the appeal, and having determined that an award of just

damages is not authorized under rule 45, we reverse the trial court’s judgment

and remand this case to the trial court.


                                                  PER CURIAM

PANEL: WALKER, GARDNER, and MCCOY, JJ.

DELIVERED: February 21, 2013




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