Christine M. Sampson, Guardian of the Estate of Sidney Everett Landrum, an Incapacitated Person v. Stone Street Services, Inc.

Court of Appeals of Texas

Christine M. Sampson, Guardian of the Estate of Sidney Everett Landrum, an Incapacitated Person v. Stone Street Services, Inc.

DecidedJune 22, 2006

Docket14-05-00627-CV

StatusPublished

This text of Christine M. Sampson, Guardian of the Estate of Sidney Everett Landrum, an Incapacitated Person v. Stone Street Services, Inc. (Christine M. Sampson, Guardian of the Estate of Sidney Everett Landrum, an Incapacitated Person v. Stone Street Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Christine M. Sampson, Guardian of the Estate of Sidney Everett Landrum, an Incapacitated Person v. Stone Street Services, Inc., (Tex. Ct. App. 2006).

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Opinion

Dismissed and Memorandum Opinion filed June 22, 2006

Dismissed and Memorandum Opinion filed June 22, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00627-CV

CHRISTINE M. SAMPSON, GUARDIAN OF THE ESTATE OF SIDNEY EVERETT LANDRUM, AN INCAPACITATED PERSON, Appellant

V.

STONE STREET SERVICES, INC., Appellee

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 326571-401

M E M O R A N D U M O P I N I O N

This is an attempted appeal from an agreed judgment signed April 4, 2005. The parties compromised and settled their dispute, but were unable to agree on attorney=s fees. The trial court, without hearing conflicting evidence, decided the amount of attorney=s fees to be paid to the guardian and her counsel. No post-judgment motion, other than a request for findings of fact and conclusions of law, was filed. Appellant=s notice of appeal was filed June 8, 2005.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, or other post-judgment motion that extends appellate deadlines. Tex. R. App. P. 26.1. Although appellant filed a request for findings of fact and conclusions of law, a request for findings and conclusions does not extend appellate deadlines where findings and conclusions have no purpose and should not be requested, made, or considered on appeal. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).

On April 13, 2006, notification was transmitted to all parties of the court=s intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). On April 17, 2006, appellant filed a response to the notification. Appellant contends that because the trial court ruled on the issue of attorney=s fees, findings and conclusions are appropriate and the court erred in not filing them. Findings of fact and conclusions of law are appropriate following an evidentiary hearing if the trial court is called upon to determine questions of fact based on conflicting evidence. Int=l Union v. General Motors Corp., 104 S.W.3d 126, 128B29 (Tex. App.CFort Worth 2003, no pet.) In this case, the trial court decided the amount of attorney=s fees based on the fee statement of appellant=s attorney. The trial court did not hear conflicting evidence; therefore, findings and conclusions would have no purpose and should not be made or considered on appeal.

Because the request for findings and conclusions did not extend the appellate timetable, appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time permitted by rule 26.1, but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617B18 (Tex. 1997). Appellant=s notice of appeal was not filed within the fifteen-day grace period. Accordingly, the appeal is ordered dismissed.

Motion for Sanctions

Appellee filed a motion for sanctions in which it seeks sanctions against appellant under Rule 45 of the Texas Rules of Appellate Procedure for the filing of a frivolous appeal. Appellee seeks sanctions on the grounds that appellant (1) appealed from an agreed judgment, which settled all matters of controversy, (2) raised new issues in a reply brief, and (3) poorly briefed the issues before this court.

Although the decision to grant sanctions is a matter of discretion, we exercise that discretion with prudence, caution, and only after careful deliberation. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 206 (Tex. App.CHouston [14th Dist.] 1995, no writ). Where an appellant=s argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed challenge to the trial court=s judgment, sanctions are not appropriate. Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex. App.CHouston [14th Dist.] 1999, no pet.). In determining whether sanctions are appropriate, we consider the record from the appellant=s point of view at the time the appeal was filed and consider whether the appellant had a reasonable expectation of reversal. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.CHouston [1st Dist.] 2001, pet. denied). We may only impose sanctions in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.C

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Dismissed and Memorandum Opinion filed June 22, 2006

Dismissed and Memorandum Opinion filed June 22, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00627-CV

CHRISTINE M. SAMPSON, GUARDIAN OF THE ESTATE OF SIDNEY EVERETT LANDRUM, AN INCAPACITATED PERSON, Appellant

V.

STONE STREET SERVICES, INC., Appellee

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 326571-401

M E M O R A N D U M O P I N I O N

This is an attempted appeal from an agreed judgment signed April 4, 2005. The parties compromised and settled their dispute, but were unable to agree on attorney=s fees. The trial court, without hearing conflicting evidence, decided the amount of attorney=s fees to be paid to the guardian and her counsel. No post-judgment motion, other than a request for findings of fact and conclusions of law, was filed. Appellant=s notice of appeal was filed June 8, 2005.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, or other post-judgment motion that extends appellate deadlines. Tex. R. App. P. 26.1. Although appellant filed a request for findings of fact and conclusions of law, a request for findings and conclusions does not extend appellate deadlines where findings and conclusions have no purpose and should not be requested, made, or considered on appeal. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).

On April 13, 2006, notification was transmitted to all parties of the court=s intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). On April 17, 2006, appellant filed a response to the notification. Appellant contends that because the trial court ruled on the issue of attorney=s fees, findings and conclusions are appropriate and the court erred in not filing them. Findings of fact and conclusions of law are appropriate following an evidentiary hearing if the trial court is called upon to determine questions of fact based on conflicting evidence. Int=l Union v. General Motors Corp., 104 S.W.3d 126, 128B29 (Tex. App.CFort Worth 2003, no pet.) In this case, the trial court decided the amount of attorney=s fees based on the fee statement of appellant=s attorney. The trial court did not hear conflicting evidence; therefore, findings and conclusions would have no purpose and should not be made or considered on appeal.

Because the request for findings and conclusions did not extend the appellate timetable, appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time permitted by rule 26.1, but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617B18 (Tex. 1997). Appellant=s notice of appeal was not filed within the fifteen-day grace period. Accordingly, the appeal is ordered dismissed.

Motion for Sanctions

Appellee filed a motion for sanctions in which it seeks sanctions against appellant under Rule 45 of the Texas Rules of Appellate Procedure for the filing of a frivolous appeal. Appellee seeks sanctions on the grounds that appellant (1) appealed from an agreed judgment, which settled all matters of controversy, (2) raised new issues in a reply brief, and (3) poorly briefed the issues before this court.

Although the decision to grant sanctions is a matter of discretion, we exercise that discretion with prudence, caution, and only after careful deliberation. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 206 (Tex. App.CHouston [14th Dist.] 1995, no writ). Where an appellant=s argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed challenge to the trial court=s judgment, sanctions are not appropriate. Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex. App.CHouston [14th Dist.] 1999, no pet.). In determining whether sanctions are appropriate, we consider the record from the appellant=s point of view at the time the appeal was filed and consider whether the appellant had a reasonable expectation of reversal. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.CHouston [1st Dist.] 2001, pet. denied). We may only impose sanctions in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Although appellant attempted to appeal an agreed judgment, filed new issues in a reply brief, and poorly briefed the issues, after considering the record and the briefs, we do not believe the circumstances in this case warrant sanctions. Appellee=s motion for sanctions is denied.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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