Richard Swaim Individually and as Administrator of the Estate of Karen Swwaim v. Nannette Real Estate Holdings, L.L.C. and Charles Rayford Glover

Opinion

Opinion issued June 18, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00065-CV ——————————— RICHARD SWAIM INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF KAREN SWAIM, Appellant V. NANNETTE REAL ESTATE HOLDINGS, L.L.C. AND CHARLES RAYFORD GLOVER, Appellees

On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1113301

MEMORANDUM OPINION

Appellant appealed the trial court’s January 7, 2019 order granting a

temporary injunction. On February 21, 2019, this Court issued an order advising the

parties that the trial court’s temporary injunction order did not contain a trial setting and requested responses from the parties whether the order was void. See TEX. R.

CIV. P. 683. On March 4, 2019, appellant responded to this Court’s order and

attached a copy of the trial court’s February 26, 2019 modified temporary injunction

order that included a trial setting.

Now, appellant has filed a motion to dismiss the appeal. Appellees are

unopposed to dismissal, but continue to seek sanctions against appellant for a

frivolous appeal. Appellees contend that they are entitled to sanctions because

appellant continued to appeal the original order when it was vacated and modified.

Rule 45 permits an appellate court to impose sanctions if it determines that

the appeal is frivolous. See TEX. R. APP. P. 45. “An appeal is frivolous when the

record, viewed from the perspective of the advocate, does not provide reasonable

grounds for the advocate to believe that the case could be reversed.” Woods v.

Kenner, 501 S.W.3d 185, 198 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The

decision whether to award sanctions is a matter of discretion, which we exercise

cautiously. See id. Given that appellant has filed a motion to dismiss the appeal, the

Court declines to impose sanctions.

We grant appellant’s motion and dismiss the appeal. Any pending motions are

dismissed as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Hightower.