Dallas National Insurance Company v. Calitex Corp., Elshir Enterprises, L.P. and Thomas, L.P.

• Court: Court of Appeals of Texas
• Decided: January 21, 2015
• Docket: 05-13-01505-CV
• Status: Published

Opinion

Order entered January 20, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01505-CV

DALLAS NATIONAL INSURANCE COMPANY, Appellant

V.

CALITEX CORP., ELSHIR ENTERPRISES, L.P. AND THOMAS, L.P., Appellees

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-14157

ORDER Before the Court are two January 8, 2015 motions of appellees Calitex Corporation,

Elshir Enterprises, L.P., and Thomas, L.P.: (1) “Motion for Leave to File Motion to Show Cause

in Trial Court” and (2) “Motion to Dismiss Appeal.” Specifically, appellees seek leave from this

Court to file a “Motion for Contempt of Court or, in the Alternative, Motion to Show Cause” in

the trial court “so a hearing may be conducted on the whereabouts of an $812,861.34 certificate

of deposit deposited into the registry of the Dallas County Clerk in lieu of a supersedeas bond” in

this case. Additionally, appellees seek “the extraordinary relief of dismissal of the instant appeal

in an effort to mitigate further irreparable harm to the [a]ppellees.”

Appellant has filed responses opposing both motions of appellees. Appellant contends in

part that rule 24.3 of the Texas Rules of Appellate Procedure “provides an appropriate remedy for [a]ppellees” and “does not require leave of the court of appeals.” See TEX. R. APP. P. 24.3.

Further, appellant asserts “[a]ppellees cite no authority for the proposition that this Court can, or

should, dismiss an appeal because a Receiver has, in accordance with the order of the court

appointing him, withdrawn security posted in lieu of a supersedeas bond.”

“Any litigant may appeal without superseding the trial court’s judgment, but the mere

pendency of an appeal does not stay enforcement of the judgment.” Tex. Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 449 (Tex. 1993). Unless the law or the rules of appellate

procedure provide otherwise, a judgment debtor may supersede the judgment by, among other

methods, “making a deposit with the trial court clerk in lieu of a bond.” TEX. R. APP. P. 24.1.

We note Texas Rule of Appellate Procedure 24.3(a) provides,

(a) Continuing Jurisdiction. Even after the trial court’s plenary power expires, the trial court has continuing jurisdiction to do the following: (1) order the amount and type of security and decide the sufficiency of sureties; and

(2) if circumstances change, modify the amount or type of security required to continue the suspension of a judgment’s execution.

TEX. R. APP. P. 24.3(a) (emphasis original).

Appellees do not address rule 24.3(a) or explain why, in light of that rule, they require

leave of this Court to pursue appropriate relief in the trial court. See id. Further, appellees cite

no authority, and we have found none, supporting their position that dismissal of this appeal is

appropriate on the facts alleged by them.

We DENY appellees’ January 8, 2015 “Motion for Leave to File Motion to Show Cause

in Trial Court” and “Motion to Dismiss Appeal.”

/s/ DOUGLAS S. LANG JUSTICE