Linda S. Nowlin v. Lori Keaton ( 2015 )

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