Jason Gibson and All Other Occupants v. Goel Ventures Three LLC

Affirm and Opinion Filed July 12, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00570-CV

JASON GIBSON AND ALL OTHER OCCUPANTS, Appellant
V.
GOEL VENTURES THREE LLC, Appellee

On Appeal from the County Court at Law No. 7
Collin County, Texas
Trial Court Cause No. 007-00748-2023

MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Goldstein
Opinion by Justice Molberg
Appellant Jason Gibson appeals from a judgment for appellee Goal Ventures

Three, LLC in a forcible detainer action. Appellant’s brief was due October 11,

2023, but was not filed. Appellee filed a brief on October 13, 2023, arguing the

trial court properly granted summary judgment and seeking damages under 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. As we have stated previously:

“An appeal is frivolous if, at the time asserted, the advocate had no
reasonable grounds to believe judgment would be reversed or when an
appeal is pursued in bad faith.” See D Design Holdings, L.P. v. MMP
Corp., 339 S.W.3d 195, 205 (Tex. App.—Dallas 2011, no pet.). “The
decision to grant appellate sanctions is a matter of discretion that an
appellate court exercises with prudence and caution and only after
careful deliberation.” Owen v. Jim Allee Imports, Inc., 380 S.W.3d
276, 290 (Tex. App.—Dallas 2012, no pet.). “Although imposing
sanctions is within our discretion, we will do so only in circumstances
that are truly egregious.” Id. “[A]n issue’s lack of merit does not
necessarily equate to bad faith.” Byrd v. Hutton, No. 05-19-01191-
CV, 2020 WL 4013150, at *6 (Tex. App.—Dallas July 16, 2020, pet.
denied) (mem. op.).

Estate of Webb, No. 05-22-00673-CV, 2023 WL 7144639, at *6 (Tex. App.—

Dallas Oct. 31, 2023, no pet.) (mem. op. on reh’g).

We decline to award sanctions under rule 45. See Sun Holdings, Inc. v.

Hudson Energy Servs., LLC, No. 05-23-00751-CV, 2024 WL 358113, at *1 (Tex.

App.—Dallas Jan. 31, 2024, no pet.) (mem. op.) (declining to award appellee rule

45 damages when appellant failed to file brief).

Finally, as stated above, while appellee filed a brief in this cause, appellant

failed to do so. If an appellant fails to timely file a brief in a civil case, “if an

appellee’s brief is filed, the court may regard that brief as correctly presenting the

case and may affirm the trial court’s judgment upon that brief without examining

the record.” TEX. R. APP. P. 38.8(a)(3). Accordingly, we regard appellee’s brief as

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correctly presenting the case and affirm the trial court’s judgment. See id.; HSBC

Bank USA, N.A. v. Watson, 377 S.W.3d 766, 769 (Tex. App.—Dallas 2012, pet.

dism’d) (affirming judgment under rule 38.8(a)(3) as to appellant that failed to file

brief); In re L.N.E., No. 05-07-01712-CV, 2009 WL 280472, at *3 (Tex. App.—

Dallas Feb. 6, 2009, no pet.) (mem. op.) (same).

/Ken Molberg/
KEN MOLBERG
230570F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JASON GIBSON AND ALL OTHER On Appeal from the County Court at
OCCUPANTS, Appellant Law No. 7, Collin County, Texas
Trial Court Cause No. 007-00748-
No. 05-23-00570-CV V. 2023.
Opinion delivered by Justice Molberg.
GOEL VENTURES THREE LLC, Justices Pedersen, III and Goldstein
Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee GOEL VENTURES THREE LLC recover its
costs of this appeal from appellant JASON GIBSON AND ALL OTHER
OCCUPANTS.

Judgment entered July 12, 2024

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