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Alexander v. Wilmington Savs. Fund Soc'y, FSB

Court of Appeals Fifth District of Texas at Dallas
Jun 7, 2017
No. 05-17-00114-CV (Tex. App. Jun. 7, 2017)

Opinion

No. 05-17-00114-CV

06-07-2017

APPOLLEON ALEXANDER AND PAMELA ALEXANDER, Appellants v. WILMINGTON SAVINGS FUND SOCIETY, FSB D/B/A CHRISTIAN TRUST AS TRUSTEE, Appellee


On Appeal from the 95th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-05000

ORDER

Before Chief Justice Wright and Justices Lang-Miers and Stoddart

Before the Court is appellants' June 5, 2017 "motion for emergency stay, application for temporary restraining order, preliminary injunction, and declaratory relief." Appellants have appealed the December 29, 2016 final summary judgment that granted the appellee's motion for summary judgment, dismissed appellants' claims with prejudice, and rendered a take nothing judgment against appellants. The judgment also authorized appellee to proceed with foreclosure or, alternatively, to request an order of sale issue to any sheriff or constable in Texas to seize and sell the property at issue.

In the motion for emergency stay, appellants ask the Court to enjoin the foreclosure sale and issue a declaration that the appellee does not have a right to foreclose on the property. We are without jurisdiction to stay enforcement of the underlying judgment. The trial court has the authority and continuing jurisdiction to suspend enforcement of a judgment pending appeal. TEX. R. APP. P. 24.3; see also Thompson v. Coleman, 01-01-00114-CV, 2002 WL 1340314, at *7 (Tex. App.—Houston [1st Dist.] June 20, 2002, pet. ref d) (holding that attempts to suspend enforcement of judgment pending appeal are within the trial court's authority under Rule 24.3 of the Texas Rules of Appellate Procedure). Rule 24.4 permits this Court to review the sufficiency or excessiveness of the amount of security, review a trial court's determination of whether to permit suspension of enforcement of the judgment, and modify the trial court's order. TEX. R. APP. P 24.4. Before an appellate court may review the trial court's exercise of discretion concerning suspension of enforcement of a judgment, however, "the record must demonstrate that a request was presented to the trial court to decide the sufficiency of the bond and that the trial court made a ruling thereon." See Hamilton v. Hi-Plains Truck Brokers, Inc., 23 S.W.3d 442, 443 (Tex. App.—Amarillo 2000, no pet.). Here, appellants have not presented the Court with an order from the trial court to review under rule 24.4 and the clerk's record shows no filing of a motion to suspend enforcement of the judgment in the trial court. We are, therefore, without jurisdiction to enjoin the foreclosure sale or to otherwise stay enforcement of the December 29, 2016 judgment.

Accordingly, we DISMISS appellants' motion for emergency stay and application for temporary restraining order and preliminary injunction for want of jurisdiction. We DENY appellants' request for declaratory relief without prejudice to appellants raising their complaints in their brief on the merits.

/s/ ELIZABETH LANG-MIERS

JUSTICE


Summaries of

Alexander v. Wilmington Savs. Fund Soc'y, FSB

Court of Appeals Fifth District of Texas at Dallas
Jun 7, 2017
No. 05-17-00114-CV (Tex. App. Jun. 7, 2017)
Case details for

Alexander v. Wilmington Savs. Fund Soc'y, FSB

Case Details

Full title:APPOLLEON ALEXANDER AND PAMELA ALEXANDER, Appellants v. WILMINGTON SAVINGS…

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 7, 2017

Citations

No. 05-17-00114-CV (Tex. App. Jun. 7, 2017)