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Fields v. GEICO Advantage Insurance Co.

Court of Appeals of Texas, Fourteenth District

January 10, 2017

KERRY FIELDS, AN INDIVIDUAL, TONYA FIELDS AND KERRY FIELDS AS PARENTS, AND NEXT FRIEND OF KRIS FIELDS AND TYLER FIELDS, Appellants
v.
GEICO ADVANTAGE INSURANCE COMPANY, Appellee

         On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1064742

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          PER CURIAM

         This is an attempted appeal from the denial of a motion for summary judgment. On November 8, 2016, appellee filed a motion to dismiss the appeal for lack of jurisdiction because the order being appealed is a nonappealable interlocutory order. Alternatively, appellee asks the court to affirm the trial court's judgment and to grant appellee damages for a frivolous appeal, under Texas Rule of Appellate Procedure 45, and judgment for costs. Appellants did not file a response.

         Absent certain exceptions that do not apply here, an appellate court does not have jurisdiction to hear denied motions for summary judgment on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); William Marsh Rice Univ. v. Coleman, 291 S.W.3d 43, 45 (Tex. App.-Houston [14th Dist.] 2009, pet. dism'd); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014. Accordingly, appellee's motion to dismiss for lack of jurisdiction is granted.

         This court may award just damages under Rule 45 if, after considering everything in our file, we make an objective determination that the appeal is frivolous. Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (en banc). To determine whether an appeal is objectively frivolous, we review the record from the viewpoint of the appellant and determine whether appellant had reasonable grounds to believe the case could be reversed. Id. Rule 45 does not mandate that this court award just damages in every case in which an appeal is frivolous; the decision to award such damages is a matter within this ...


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