TRAP 45 Sanctions for frivolous appeal not warranted, court of appeals says

While affirming sanctions order imposed on pro se litigant by the trial court, the 14th Court of Appeals, in an opinion by Justice Charles Seymore, declines to also impose sanctions for frivolous appeal. The opinion acknowledges a split among the courts of appeals as to the proper test for sanctions on appeal, and the factors to consider in evaluating wether a motion requesting sanctions under Tex. R. App. P. 45 should be granted.

Motions On Appeal

The following motions were taken with the case: (1) Appellees' Motion for Frivolous and Groundless Appeal; (2) Appellant's Motion to Expedite Mandate; and (3) Appellees' Motion To Dismiss and Motion for Sanctions. Appellant's Motion to Expedite Mandate is denied as moot.

For reasons outlined below, we overrule Appellees' Motion for Frivolous and Groundless Appeal and Motion To Dismiss, Motion for Sanctions and Repeated Notice. If we determine that an appeal is frivolous, we may award damages to the prevailing party. See Tex. R. App. P. 45.

Although imposition of sanctions is within our discretion, we may do so only in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.-Houston [14th Dist.] 2000, no pet.). The objective factors to be weighed include the following: (1) failure to present a complete record; (2) raising issues for the first time on appeal, even though preservation of error was required in the trial court; (3) failure to file a response to a request for appellate sanctions; and (4) filing an inadequate brief. Tate v. E.I. Dupont de Nemours & Co., 954 S.W.2d 872, 875 (Tex. App.-Houston [14th Dist.] 1997, no pet.).

There is a split of authority within the appellate courts regarding factors to be considered in determining the merits of a motion under Rule 45. Currently, this court requires the appeal to be both objectively frivolous and subjectively brought in bad faith or for the purpose of delay. See Azubuike v. Fiesta Mart, Inc., 970 S.W. 2d 60, 66 (Tex. App.-Houston [14th Dist.] 1998, no pet.). In determining the propriety of sanctions, this court views the record from the appellant's point of view at the time the appeal was filed, and we may not consider any matter that is not in the record, briefs, or other papers filed in this court. Id.

It is clear from this record that the parties are engaged in an emotionally charged dispute. The written communications, motions, and arguments presented by Cantu and Maher are vitriolic and pugilistic. However, after reviewing all relevant evidence in the appellate record, and considering Cantu's subjective point of view when this pro se appeal was filed, we conclude Cantu did not initiate these proceedings in bad faith or for the purpose of delay. Accordingly, Maher's Motion for Frivolous and Groundless Appeal and Motion To Dismiss and Motion for Sanctions are overruled.

Cantu v. Maher (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)(Seymore) (finding of discovery abuse, case groundless and brought in bad faith and for the purpose of harassment) (motion for Frivolous and Groundless Appeal and Motion To Dismiss and Motion for Sanctions are overruled) AFFIRMED: Opinion by Justice Charles Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00584-CV Tony Cantu v. John E. Maher, Thomas Tollett, and Tommy's Seafood Steakhouse Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle