                                                                             ACCEPTED
                                                                        03-14-00608-CV
                                                                                4466980
                                                               THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   3/12/2015 1:25:53 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                     No. 03-14-00608-CV

                                                         FILED IN
                                                  3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                         IN THE                   3/12/2015 1:25:53 AM
                THIRD COURT OF APPEALS              JEFFREY D. KYLE
                       at AUSTIN                          Clerk




                 ________________________

                    LINDA S. NOWLIN,
                         Appellant,
                            v.
                      LORI KEATON,
                         Appellee.
                 ________________________


         Appealed from County Court at Law, Number 1
                     Travis County, Texas

________________________________________________________

       APPELLEE'S RULE 45 MOTION FOR DAMAGES
_________________________________________________________


                                      Respectfully submitted,
                                      Robby P. Abarca
                                      Texas Bar No. 24043515
                                      P.O. Box 152547
                                      Austin, Texas 78715
                                      Tel. (512) 318-4722
                                      Fax (512) 697-2832
                                      rpabarca@abarcalawfirm.com

                                      ATTORNEY FOR APPELLEE,
                                      LORI KEATON
                 APPELLEE'S RULE 45 MOTION FOR DAMAGES

       The Appellee respectfully moves that this Court award damages to Appellee

pursuant to Rule 45 of the Texas Rules of Appellate Procedure because Appellant's

appeal is frivolous.



                           PROCEDURAL BACKGROUND

       This proceeding is Appellant's appeal of the judgment of Travis County

Court at Law Number 2 in Cause No. C-1-CV-14-006938. The Appellant filed her

Brief on January 9, 2015. The Appellee filed her Brief on February 20, 2015. The

Appellant filed her Reply Brief on March 2, 2015. This is the Appellant's second

appeal of a forcible detainer action that originated in Travis County Justice Court,

Precinct 2 as Cause No. J2-CV-14-074340.



                                           RULE 45

       Rule 45 of the Texas Rules of Appellate Procedure states: “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



Appellee's Rule 45 Motion for Damages                                     page 2 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
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.”



                                         THE LAW

Rule 45

       The Appellant's appeal is frivolous if the Appellee can show that the

Appellant's expectation of reversal is unreasonable and that Appellant pursued this

appeal in bad faith. Easter v. Providence Lloyds Ins. Co., 17 S.W.3d 788, 792

(Tex.App.- Austin 2000); Bahar, M.D. v. Lyon Financial Services, Inc., 330 S.W.3d

379, 391 (Tex.App.-Austin 2010)(“sanctions unwarranted when party had

reasonable expectation of reversal”); Ziefman v. Michels, 082213 TXCA3, 03-12-

00114-CV (“sanctions unwarranted against ultimately unsuccessful party when she

had reasonable expectation of reversal and there had been no showing that she

pursued appeal in bad faith”).



Forcible Detainer

       The Supreme Court wrote: “An action for forcible detainer is intended to be

a speedy, simple, and inexpensive means to obtain immediate possession of



Appellee's Rule 45 Motion for Damages                                    page 3 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
property.    Judgment of possession in a forcible detainer action is . . . a

determination of the right to immediate possession.”            Marshall v. Housing

Authority of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006); Scott v. Hewitt,

90 S.W.2d 816, 818 (Tex. 1936)(“The Legislature has expressly provided by

forcible entry and detainer proceedings a summary, speedy, and inexpensive

remedy for the determination of who is entitled to the possession of premises

without resorting to an action upon the title.”); Hong Kong Development, Inc. v.

Nguyen, 229 S.W.3d 415, 434 (Tex.App.-Houston[1st Dist.] 2007)(“the sole issue

to be determined in a forcible-detainer or forcible-entry suit is the entitlement to

actual and immediate possession”).



                                       ARGUMENT

       Appellant's appeal is frivolous.          She appeals for the second time the

judgment of a forcible detainer action. Although the Appellee surrendered her

claim to right of possession on September 5, 2014, the Appellant filed this appeal

on September 23, 2014.

       The Appellant first filed the forcible detainer action against the Appellee in

Travis County Justice Court, Precinct 2 where Appellee won a judgment against



Appellee's Rule 45 Motion for Damages                                      page 4 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
Appellant. [CR 11]. The Appellant appealed that judgment to Travis County Court

at Law Number 2 where again Appellee won a judgment against Appellant. [CR

176].

         At the September 17, 2014 hearing at which the judgment was signed by

the Honorable David Phillips, Presiding Judge, the Appellee, with the Appellant

present, informed Travis County Court at Law Number 2 that the Appellee, having

moved on September 5, 2014, no longer claimed a right to possession of the

premises at 3907 Eck Lane, Austin, Travis County, Texas. [Supp RR: 9,13; CR

176]. Yet, on September 23, 2014, the Appellant filed this appeal.

        It is settled Texas law that superior right of possession is the sole issue for

determination in a forcible detainer action. The Appellant has now prosecuted her

forcible detainer action against the Appellee not once, not twice, but three times.

        The Appellant can not have a reasonable expectation of reversal in this

proceeding given the overwhelming case law that states that she already has what

she is appealing, possession of the premises.

        Prior to September 5, 2014, the Appellee successfully defeated the

Appellant's forcible detainer actions. It was necessary for the Appellee to defend

against and defeat the Appellant in judicial proceedings prior to September 5, 2014



Appellee's Rule 45 Motion for Damages                                        page 5 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
because the Appellee maintained a claim of right to possession in the premises at

the time of those hearings.

       This appeal is a vehicle by the Appellant to drive up her attorney's fees and

that of Appellee. Yet, it is on the very issue of attorney's fees that they claim to

deserve a new trial in Travis County Court at Law!

       Rule 510.11 of the Texas Rules of Civil Procedure states: “On the trial of

the case in the county court the appellant or appellee will be permitted to plead,

prove and recover his damages, if any, suffered for withholding or defending

possession of the premises during the pendency of the appeal. Damages may

include but are not limited to loss of rentals during the pendency of the appeal and

attorney fees in the justice and county courts provided, as to attorney fees, that the

requirements of Section 24.006 of the Texas Property Code have been met. Only

the party prevailing in the county court will be entitled to recover damages against

the adverse party.” The Appellant did not prevail in county court!

       The Appellant can not be said to have a reasonable expectation of reversal

by this Court and yet, the Appellant filed a 48-page Brief and a 13-page Reply

Brief to attempt to persuade this Court to reverse the lower court judgment from

which it appeals! It is clear that Appellant has brought this appeal in bad faith.



Appellee's Rule 45 Motion for Damages                                       page 6 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
        Rule 45 provides that the Court may only look to the record when

determining whether to award damages; however, it does not provide a similar

reservation on the amount of damages to award. For that reason, Appellee notes

for the Court's that on December 15, 2014 in accordance with the lease agreement

[CR 38] between the parties that stipulates that the prevailing party may recover

attorney's fees from the adverse party, Appellee submitted her request to Appellant

for reimbursement of $20,670 in attorney's fees. 1                         This amount did not include

Appellee's attorney's fees defending against this appeal. The Appellant, through

her counsel, responded: “Dear Mr. Abarca: We are in receipt of your demand

letter and our response is that we have no intention of complying therewith. Thank

you. David Nowlin.”

             THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK




1Texas Rule of Appellate Procedure 10.2 states: “A motion need not be verified unless it depends on the following
types of facts, in which case the motion must be supported by affidavit or other satisfactory evidence. The types of
facts requiring proof are those that are: (a) not in the record; (b) not within the court's knowledge in its official
capacity; and (c) not within the personal knowledge of the attorney signing the motion.

Appellee's Rule 45 Motion for Damages                                                                  page 7 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
                                          PRAYER

       For the foregoing reasons, the Appellee respectfully requests that this Court

find that Appellant's appeal is frivolous and award damages to the Appellee in an

amount of not less than $20,670 and at least as commiserate with the economic and

emotional cost to Appellee having to defend herself again and again, against

Appellant's irrational prosecution of this forcible detainer action.



                                                      Respectfully submitted,
                                                      /s/ Robby Abarca
                                                      Robby P. Abarca
                                                      Texas Bar No. 24043515
                                                      P.O. Box 152547
                                                      Austin, Texas 78715
                                                      Tel. (512) 318-4722
                                                      Fax (512) 697-2832
                                                      rpabarca@abarcalawfirm.com

                                                      ATTORNEY FOR APPELLEE,
                                                      LORI KEATON




Appellee's Rule 45 Motion for Damages                                     page 8 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
                              CERTIFICATE OF SERVICE

       I certify that a copy of Appellee’s Rule 45 Motion for Damages was served

on Appellant, Linda S. Nowlin, through her counsel of record, Mr. David Nowlin,

7301 RR 620 North, Ste. 155, 319, Austin, Texas 78726-4537; tel. (512) 468-4882;

email: davidnowlin @me.com, by electronic service on March 12, 2015 before

5:00 p.m. (local time of the recipient).



                                                        /s/Robby Abarca
                                                        Robby P. Abarca


                       CERTIFICATE OF NON-CONFERENCE

       I certify that I made no attempt to confer with the Appellant, Linda S.

Nowlin, through her counsel of record, Mr. David Nowlin, about the merits of this

motion or whether Appellant opposed this motion. I believe that to have made

such an attempt would have been disrespectful to the Appellant.



                                                        /s/Robby Abarca
                                                        Robby P. Abarca




Appellee's Rule 45 Motion for Damages                                     page 9 of 9
Linda S. Nowlin, Appellant v. Lori Keaton, Appellee
Cause No. 03-14-00608-CV
