Angelina Gailey Individually and as of Estate of Patrick L. Gailey, Dan Patrick Gailey, and Patrick L. Gailey v. Pasqual Gutierrez

Opinion

Opinion issued January 10, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00491-CV ——————————— ANGELINA GAILEY, INDIVIDUALLY AND AS EXECUTRIX OF ESTATE OF PATRICK L. GAILEY, DAN PATRICK GAILEY, AND PATRICK L. GAILEY, Appellants V. PASQUAL GUTIERREZ, Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 0904324A

MEMORANDUM OPINION

Appellants, Angelina Gailey, individually and as executrix of the estate of

Patrick L. Gailey, Dan Patrick Gailey, and Patrick L. Gailey, attempt to appeal from an order striking their supersedeas bond and from an order striking their

suggestion of bankruptcy. We dismiss the appeal for lack of jurisdiction.

First, appellants appeal from the trial court’s May 4, 2012 order striking

their supersedeas bond. A judgment debtor is entitled to supersede and defer

payment of a judgment while pursuing an appeal. Miga v. Jensen, 299 S.W.3d 98,

100 (Tex. 2009). Texas Civil Practice and Remedies Code Chapter 52 and Texas

Rule of Appellate Procedure 24 set out the requirements for suspending

enforcement of a civil judgment pending appeal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 52.001–.006 (West 2008); TEX. R. APP. P. 24.1(a), 24.2. Section

52.001 provides, “In this chapter, ‘security’ means a bond or deposit posted, as

provided by the Texas Rules of Appellate Procedure, by a judgment debtor to

suspend execution of the judgment during appeal of the judgment.” (emphasis

added). TEX. CIV. PRAC. & REM. CODE ANN. §.52.001. Rule 24.4 provides, in

pertinent part, that “[a] party may seek review of the trial court’s ruling [on a

supersedeas bond] by motion filed in the court of appeals with jurisdiction or

potential jurisdiction over the appeal from the judgment in the case.” TEX. R. APP.

P. 24.4(a) (emphasis added). Hence, the rules provide for review of the trial

court’s ruling on the bond as part of the appeal from the final judgment in the case.

The record shows that the trial court signed the final judgment in this case

on February 16, 2010. Appellants did not appeal the final judgment. Because

2 there is not a pending appeal from the final judgment in this case, we do not have

jurisdiction to review the trial court’s order striking appellants’ supersedeas bond.

Next, appellants appeal from the trial court’s May 4, 2012 order striking

their suggestion of bankruptcy. Appellants have not directed us to any authority,

and we have found none, providing for a review of the trial court’s order striking

appellants’ suggestion of bankruptcy.

We notified appellants of our intent to dismiss the appeal for want of

jurisdiction unless appellants filed a response demonstrating our jurisdiction. See

TEX. R. APP. P. 42.3(a). Appellants did not respond.

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.