In Re Chance Perry v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 28, 2023
• Docket: 09-23-00279-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00279-CV __________________

IN RE CHANCE PERRY

__________________________________________________________________

Original Proceeding County Court at Law No. 2 of Orange County, Texas Trial Cause No. E-200480-D __________________________________________________________________

MEMORANDUM OPINION

In this original proceeding, Relator Chance Perry filed a petition seeking

mandamus relief to compel the trial court to set aside its order expunging a notice of

lis pendens, to prohibit the trial court from ordering a future sale of property awarded

to Real Party in Interest Courtney Perry in a divorce decree, and to enjoin Courtney

and her attorneys and agents from any activity that would result in the sale of

property awarded to her in the divorce decree and to compel any title company that

receives sale proceeds to deposit the sale proceeds in the registry of the trial court.

1 Chance also filed a motion for temporary relief in the mandamus proceeding. See

Tex. R. App. P. 52.10. We deny the petition.

Chance has perfected an appeal from the decree of divorce.1 Orders contained

in the mandamus record state that the trial court held a hearing on Courtney’s First

Amended Motion to Set Judgment Creditor Security Under Section 24.2 of the Rules

of Appellate Procedure or, Alternatively, to Set Judgment Debtor’s Bond and Order

Necessary Orders Under Section 24.2 of the Rules of Appellate Procedure. After the

hearing, the trial court signed several orders.

The trial court enjoined Chance from foreclosing on the property awarded to

Courtney while the case is on appeal. The trial court’s Order Granting Temporary

Injunction Under Rule 24.1(e) or 24.2(d) of the Texas Rules of Appellate Procedure

included findings that during the pendency of the appeal Chance intends to foreclose

on houses awarded to Courtney in the divorce, Courtney and her children may

become homeless or lose the equity in the houses if Chance forecloses on the

properties, that Courtney’s injury will outweigh any injury to Chance that may occur

on issuance of the injunction, that the injunction will not disserve the public interest,

that Chance’s “intended conduct [] will not change the status quo, which should be

1 The appeal is docketed as Appeal Number 09-23-00227-CV, Chance M. Perry v. Courtney L. Perry. 2 maintained in the public interest[,]” and that a bond in the amount of $20,000 as to

each property will fully protect Chance’s rights during the pendency of this action.

The mandamus record contains copies of three $20,000 bonds posted by

Courtney. On two of the bonds Courtney and her sureties acknowledged they are

bound to pay Chance, conditioned that an appellate court determines on final

disposition that the sale of the property was improper. On the third bond Courtney

and her sureties acknowledged they are bound to pay Chance, conditioned upon the

dissolution of the temporary injunction in whole or in part.

The mandamus record contains two orders expunging the notices of lis

pendens on three parcels of real property. The second order expunges all notices of

lis pendens filed on the described property prior to or on August 25, 2023.

In his petition, Chance argues “[Courtney] tried to frame [Chance’s] claims

and lis pendens as a collateral interest and merely for the purpose of assuring

payment for a judgment, which would be improper. However, [Chance’s] lis

pendens is for a legitimate claim for unjust enrichment[.]” Elsewhere in his petition,

however, Chance states Courtney made a claim for unjust enrichment in the divorce

proceeding.

Chance argues the trial court’s orders interfere with the appellate court’s

jurisdiction “as it allows the sale of the property which is the subject matter of this

entire litigation.” According to Chance, “[i]f the property is sold, it will make this

3 Court’s jurisdiction less effective and possibly moot.” He argues, “[o]nce the

property is sold, it will be difficult, if not impossible, to do [a] valuation of the

improvements made by [Chance] on the subject property.”

Mandamus may issue to correct a clear abuse of discretion for which there is

no adequate remedy by way of appeal. See Walker v. Packer, 827 S.W.2d 833, 839-

40 (Tex. 1992) (orig. proceeding). An appellate court can protect the subject matter

of an appeal by issuing a writ of prohibition that limits or prevents action by a trial

court. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682-83 (Tex. 1989)

(orig. proceeding). An appellate court may issue a writ of injunction to protect its

jurisdiction over the subject matter of a pending appeal. See In re L&S Pro-Line,

LLC, No. 09-21-00174-CV, 2021 WL 4312981, at *3 (Tex. App.—Beaumont Sept.

23, 2021, orig. proceeding) (mem. op.); Tex. Gov’t Code Ann. § 22.221(a). In this

case, however, after carefully reviewing the petition and the record submitted with

the petition, we conclude that Relator has failed to establish that the trial court abused

its discretion or that the trial court has interfered with the jurisdiction of the appellate

court. Accordingly, we deny the petition. See Tex. R. App. P. 52.8(a). We also deny

Relator’s emergency motion for temporary relief as moot.

PETITION DENIED. PER CURIAM Submitted on September 6, 2023 Opinion Delivered September 28, 2023

Before Golemon, C.J., Horton and Johnson, JJ. 4