Agbolade O. Odutayo v. Jasper Emergency Medicine Associates, PA and The Schumacher Group of Texas Inc.--Appeal from 55th District Court of Harris County (memorandum opinion per curiam)
Annotate this Case
Download PDF
Motion Granted in Part; Dismissed and Memorandum Opinion filed August 23, 2012. In The Fourteenth Court of Appeals NO. 14-12-00121-CV AGBOLADE O. ODUTAYO, Appellant V. JASPER EMERGENCY MEDICINE ASSOCIATES, PA AND THE SCHUMACHER GROUP OF TEXAS INC., Appellees On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2011-01829 MEMORANDUM OPINION This is an appeal from a partial summary judgment signed August 1, 2011, and made final by a summary judgment signed January 5, 2012. Appellant filed a notice of appeal on February 3, 2012. The clerk s record was filed February 22, 2012, and a supplemental clerk s record was filed March 2, 2012. The reporter s record from the hearing on appellant s motion for new trial was filed March 27, 2012. On April 20, 2012, appellant filed motions to substitute counsel and for extension of time to file appellant s brief for thirty days. The motions were granted. On May 21, 2012, appellant filed a second motion for extension of time to file appellant s brief until June 25, 2012, which the court granted. To date, appellant has not filed a brief or a motion for a further extension of time. On July 25, 2012, appellees filed a motion to dismiss this appeal for want of prosecution. See Tex. R. App. P. 42.3(b). Alternatively, appellees filed a brief and requested that we affirm the trial court s judgment, applying the presumption that appellees brief correctly presents the case. See Tex. R. App. P. 38.8(a)(3). In both the motion and their brief, appellees requested that we award damages for a frivolous appeal under Texas Rule of Appellate Procedure 45. No response has been filed. See Tex. R. App. P. 10.3(a). When an appellant fails to timely file a brief, the appellate court may dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b). While appellees chose to file a brief in this appeal, they were not required to do so. See Tex. R. App. P. 38.6(b) (permitting, but not requiring, an appellee to file a brief when appellant has not filed a brief). Under the plain meaning of Rule 45, this court may award just damages if, after considering the record and any briefs, this court makes an objective determination that the appeal is frivolous. See Tex. R. App. P. 45; Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App. Houston [14th Dist.] 2011, pet. denied) (en banc). Whether to grant sanctions is a matter of discretion, which we exercise with prudence and caution, and only after careful deliberation. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App. Houston [14th Dist.] 2000, no pet.). Although imposing sanctions is within our discretion, we will do so only in circumstances that are truly egregious. City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 340 (Tex. App. Houston [14th Dist.] 2001, pet. denied). Appellees ask this court to find that appellant prosecuted this appeal without observing the minimal procedural requirements. Our record shows that appellant filed a 2 timely motion for new trial, the trial court conducted a hearing on the motion, appellant filed a timely notice of appeal and docketing statement, and appellant requested and paid for the clerk s record, which was filed before its due date. In addition, appellant requested and paid for the reporter s record from the hearing on appellant s motion for new trial. We do not find the circumstances in this case to be egregious. After considering appellees motion and brief, together with our record, we decline to award damages under Rule 45 and deny that portion of appellees motion. We grant appellees motion to dismiss the appeal for want of prosecution and order the appeal dismissed. See Tex. R. App. P. 42.3(b). PER CURIAM Panel consists of Chief Justice Hedges and Justices Brown and Busby. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
