Opinion
No. 04-16-00283-CV
05-06-2016
Lee Nick MCFADIN III, Appellant v. BROADWAY COFFEEHOUSE, LLC and Marcus Rogers, as Trustee for the Saks Children Trusts a/k/a ATFL&L, A Texas Trust, Appellees
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-17001
Honorable Antonia Arteaga, Judge Presiding
ORDER
On April 27, 2016, the trial court signed an order entitled "Order Requiring Payment of Supersedeas Bond." In that order, the trial court ordered appellant Lee Nick McFadin III and SureTec Insurance Company to pay certain amounts to appellees representing the supersedeas bond posted on January 15, 2015. The bond was posted to supersede an October 14, 2014 judgment in favor of appellees. The trial court ordered the payments to be made by May 6, 2016. On May 5, 2016, appellant filed a "Motion for Emergency Order to Temporarily Supersede the Order for Release of Supersedeas Bond." In the motion, appellant, who has filed a notice of appeal from the April 27, 2016 order, asserts — among other things — that this court should stay enforcement of the April 27, 2016 order until after a hearing that is scheduled in the trial court on May 18, 2016.
The bond was never made part of the clerk's record in appellate number 04-14-00734-CV. Accordingly, this court was unaware a supersedeas bond had been posted. We therefore did not address the release of the bond in our judgment. --------
After review, we GRANT appellant's motion with regard to the request for a temporary stay of the April 27, 2016 order and ORDER the trial court's April 27, 2016 order stayed until further order of this court. We further ORDER appellees to file in this court on or before May 26, 2016 a response to appellant's motion.
In addition, this court questions whether we have jurisdiction in this matter. As noted above, the underlying judgment in this case was signed October 14, 2014. This court rendered a judgment on October 28, 2015, in favor of appellees. Our mandate issued April 8, 2016. The current appeal — number 04-16-00283-CV — is based on the October 14, 2014 judgment, and with respect to that judgment, our mandate had issued. Thus, it is unclear how either we or the trial court would have jurisdiction over a supersedeas bond in an appeal in which mandate has issued. Moreover, it does not appear that the trial court's "Order Requiring Payment of Supersedeas Bond" is an order from which appellant may appeal. We have found no authority authorizing such an appeal. Accordingly, we ORDER appellant to file a written response in this court on or before May 26, 2016 showing why this appeal — appeal number 04-16-00283-CV — should not be dismissed for want of jurisdiction.
We order the clerk of this court to serve a copy of this order on the trial court and all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 6th day of May, 2016.
/s/_________
Keith E. Hottle
Clerk of Court