Opinion
No. 14-03-01210-CV.
Opinion filed January 15, 2004.
On Appeal from the 286th District Court, Fort Bend County, Texas, Trial Court Cause No. 98,386.
Dismissed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
This dispute between neighboring land owners has a long history. In 1997, appellee sought a declaratory judgment that a gravel road adjacent to appellant's property was a public easement necessary for ingress and egress to appellee's property. Following a bench trial, the court entered a judgment on June 23, 2000, declaring the road a public easement and awarding attorney's fees to appellee. On appeal to this Court, we affirmed the judgment by opinion issued January 17, 2002. Hatton v. Grigar, 66 S.W.3d 545 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Appellee then sought and obtained a permanent injunction signed December 20, 2002, prohibiting appellant's interference with access to the public easement.
Appellant subsequently filed a petition for Chapter 13 bankruptcy protection. By order signed May 21, 2003, the bankruptcy court lifted the stay to permit appellee to enforce his judgment against appellant over access to the subject easement. Appellant then appealed the order lifting the stay, and that appeal was dismissed on July 28, 2003 for failure to designate a record or file a brief according to the requirements of the bankruptcy rules.
In re John Hatton, No. 02-45415-H3-13, in the United States Bankruptcy Court for the Southern District of Texas, Houston Division.
In re John Hatton, No. H-03-02111, in the United States District Court for the Southern District of Texas, Houston Division.
On August 23, 2003, appellee moved to hold appellant in contempt for failure to comply with the December 20, 2002 injunction. Although personally served, appellant did not appear for the show cause hearing, and the trial court issued a writ of attachment. On September 10, 2003, appellant filed a special appearance in this action, asserting the trial court could not proceed because of his bankruptcy filing. Appellant also unsuccessfully attempted to have the bankruptcy court stay the state court proceedings. The trial court entered an order of contempt on October 10, 2003, suspending commitment, but fining appellant $1,000 per day until all obstructions across the easement are removed. Appellant filed a notice of appeal from that order. On October 24, 2003, the trial court modified its contempt order to reduce the fine to $500 per day.
Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable. Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex. App.-Houston [1st Dist.] 1994, writ denied). Accordingly, on November 6, 2003, 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).
Appellant filed a response to the Court's notice, but his response fails to demonstrate we have jurisdiction to entertain the appeal. Appellant argues that he is attempting to appeal an order denying his special appearance, which may be appealed by accelerated interlocutory appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2003). There is no order denying appellant's special appearance in the record before this Court. Appeals may be taken only from signed orders. See TEX. R. APP. P. 26.1. Moreover, a special appearance must be made by a sworn motion filed prior to any other plea, pleading, or motion that seeks affirmative relief. TEX. R. CIV. P. 120a(1), (2); Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998). Thus, a special appearance is inappropriate in a post-judgment proceeding.
On December 4, 2003, appellee filed a response arguing appellant's special appearance was frivolous and pointing out that appellant failed to request a hearing on the motion or present an order for the trial court's signature. Appellee asserts that this appeal is frivolous and requests that this Court impose sanctions against appellant pursuant to Texas Rule of Appellate Procedure 45. Rule 45 provides:
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 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.
Tex.R.App.P. 45. Appellant has not responded to appellee's motion for sanctions.
The decision to award sanctions is a matter within our discretion, which we exercise with prudence and caution after careful deliberation. Bridges v. Robinson, 20 S.W.3d 104, 115 (Tex. App.-Houston [14th Dist.] 2000, no pet.). In applying the test for objectively determining whether an appeal is frivolous, we review the record from the viewpoint of the advocate and decide whether he had reasonable grounds to believe the case could be reversed. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).
The right to appeal is a most sacred and valuable one. Bradt v. West, 892 S.W.2d 56, 78 (Tex. App.-Houston [1st Dist.] 1994, writ denied). However, as our sister court has acknowledged,
[w]e will not permit spurious appeals, which unnecessarily burden parties and our already crowded docket, to go unpunished. Such appeals take the court's attention from appeals filed in good faith, wasting court time that could and should be devoted to those appeals. No litigant has the right to put a party to needless burden and expense or to waste a court's time that would otherwise be spent on the sacred task of adjudicating the valid disputes of Texas citizens.
Id. at 79.
After considering the record and papers on file with this Court, we agree that this appeal is frivolous. We find appellant had no reasonable grounds to believe the case could be reversed. See Smith, 51 S.W.3d at 381. Under rule 45, we award sanctions to appellee against appellant and his appellate attorney, jointly and severally, in the amount of $1,000.00.
Accordingly, the appeal is ordered dismissed.