Opinion
No. 927.
March 27, 1974. Rehearing Denied April 17, 1974.
Appeal from the District Court, Harris County, Wm. N. Blanton, Jr., J.
William E. Mallia, Davies, Mallia Petty, Houston, for appellant.
George D. Gordon, Baggett, Kirk, Gordon Vitulli, Andrew D. DiFiore, Houston, for appellee.
On May 25, 1973, after a non-jury trial, the trial court rendered judgment for the plaintiff, R. L. Saucier, Jr., against the defendant, Lloyd R. Blume, d/b/a Blume Mortgage Company, for $7,500, with interest and costs. On June 4, 1973, the defendant filed his original motion for new trial. On July 19, 1973, no amended motion for new trial having been filed, the original motion was overruled by operation of law. On July 30, a Monday, notice of appeal was filed. On August 17, 1973, the defendant filed a supersedeas and cost bond. On September 14, 1973, the defendant invoked the jurisdiction of this Court by filing a transcript with the clerk. On the same date the appellant, Blume, filed in this Court a motion to extend time for the filing of a statement of facts. On September 26, 1973, that motion was granted — extending the time to October 29, 1973. On October 29, 1973, no statement of facts had been filed, and appellant filed a second motion for extension of time for such filing. The second motion was granted, and time for filing was extended to November 27, 1973. No statement of facts was ever filed, nor was any other motion for extension of time filed.
On January 30, 1974, the Clerk of this Court notified the attorneys for the parties, by letter, that this case was set for submission and oral argument on March 20, 1974. The attorney for appellant neither filed a brief nor offered any explanation of his failure to do so.
On March 5, 1974, the appellee filed a motion to dismiss appeal and a motion to assess a penalty of ten percent of the amount of the judgment appealed from. In its letter motion appellee sets out facts showing the appeal to be frivolous and for delay only. Appellee's lawyer certifies that copies of such motion were mailed to the attorney for appellant on March 5, 1974. The Clerk of this Court also notified the attorney for appellant of the filing of such motions by letter dated March 5, 1974. To this date appellant has filed no reply to such motions.
The facts in the record before this Court reveal no error on the part of the trial court. The judge of the trial court filed findings of fact, including findings as to the controlling facts of the case, from the undisputed evidence.
The trial court's judgment awarded the plaintiff a recovery of interest at the rate of six percent per annum from the date of the judgment. It is a matter of which we take judicial notice that the rate of interest provided for in the judgment is lower than the prime interest rate charged by conventional lending institutions.
We find from the record that this appeal was groundless, frivolous, and for delay only. We also find that it was for the purpose of, and did result in, injury to the appellee.
Appellee's motion to dismiss the appeal is overruled. The appellee's motion to assess a penalty of ten percent of the principal amount of the judgment appealed from, as authorized by Texas Rules of Civil Procedure 438, is granted.
The judgment of the trial court is affirmed with penalty against appellant.