Craig S. Pittman and Kelly Koncak Pittman v. Federal National Mortgage Assoc.

Opinion

Order entered November 18, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00379-CV

CRAIG S. PITTMAN AND KELLY KONCAK PITTMAN, Appellants

V.

FEDERAL NATIONAL MORTGAGE ASSOC., Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-19-07067-B ORDER Before Justices Myers, Pedersen, III, and Garcia

We dismissed this appeal on October 6, 2022, after appellants failed to

comply with our directive to file written verification they had paid or made

arrangements to pay for the clerk’s record or were entitled to proceed without

payment of costs. Asserting appellants deposited cash in lieu of a bond to

supersede the trial court’s judgment, see TEX. R. APP. P. 24.1, appellee has filed

two motions requesting that we amend our judgment to release the deposit to

appellee and that we deem the request to amend timely. Appellee argues that dismissing an appeal is equivalent to affirming the trial court’s judgment, citing

Fitch v. Int’l Harvester Co., 354 S.W.2d 372 (Tex. 1962) (per curiam), and notes

appellate rule 43.5 requires an appellate court, when the trial court’s judgment has

been superseded and is affirmed on appeal, to render judgment against the sureties

on the supersedeas bond for the performance of the judgment and for any costs

taxed against the appellant.

Appellate Rule 43.5, however, is inapplicable. When, as here, the appeal is

dismissed, the applicable rule is appellate rule 24.1(d)(1), which provides that a

deposit in lieu of a bond is subject to liability for all damages and costs that may be

awarded against the appellant only if the appellant does not perform the trial

court’s judgment.

We deem the motion to amend timely, but, in light of rule 24.1(d)(1), DENY

the motion.

/s/ BILL PEDERSEN, III JUSTICE