Opinion
01-24-00183-CV
10-01-2024
Dennis Fisher and Sheryl Fisher v. Pine Village North Association
333rd District Court of Harris County, No. 2016-56465
ORDER
Amparo Monique Guerra, Judge
Appellants, Dennis and Sheryl Fisher, proceeding pro se, filed a notice of appeal from the trial court's December 22, 2023 final judgment in favor of appellee Pine Village North Association. On September 24, 2024, appellants filed an "Emergency Motion to Stay Writ of Execution and Order of Sale Pursuant to Texas [Rule] of Appellate Procedure 52.10." In their motion, appellants requested that the Court grant a "stay of all enforcement action of the judgment in the trial court until a final decision is rendered in this appellate proceeding."
Appellants stated that they were served with an "Execution and Order of Sale" on August 20, 2024, ordering the foreclosure sale "of their homesteaded property" to satisfy the trial court's judgment. Appellants further stated that they filed a "Motion in Objection [t]o Writ of Execution [and] Order of Sale" in the trial court, but that the trial court has "refus[ed] to stay the enforcement" of the writ, requiring emergency relief from this Court.
Judgment debtors, such as appellants, are entitled to suspend enforcement of a trial court's judgment pending appeal by posting security as set by the trial court. See Tex. R. App. P. 24.1(a) (allowing judgment debtors to suspend enforcement by written agreement with the judgment creditor, by filing a bond, or by making a deposit with the trial court in lieu of a bond). When the judgment is for recovery of property, as is the case here, the trial court determines the type of security the judgment debtor must post. See Tex. R. App. P. 24.2(a)(2); see also Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668 S.W.3d 771, 775-76 (Tex. App.-El Paso 2022, no pet.) (concluding that foreclosure judgment is a judgment for recovery for interest in property).
Here, there is no indication in the appellate record that appellants have paid a supersedeas bond set by the trial court or made a deposit in lieu of a bond. We note however that the trial court's final judgment does not set any bond for suspending enforcement of the judgment pending appeal. Appellants state that the trial court's failure to set a bond is the reason for filing their emergency motion. However, suspension of a judgment pending appeal requires the judgment debtor to comply with the supersedeas requirements set out in Texas Rule of Appellate Procedure 24.
While the trial court's final judgment fails to set a supersedeas bond, the appellate record does not indicate that appellants timely requested that the trial court set a supersedeas bond. See In re Navidea Biopharmaceuticals, Inc., No. 14-18-00036-CV, 2018 WL 1189152, at *3 (Tex. App.-Houston [14th Dist] Mar. 8, 2018, orig. proceeding) (mem. op.) (trial court abused its discretion by "refusing] to fix the amount of a supersedeas bond" after requested by judgment debtor); see also Molinar-Owens v. Fifth Third Bank, No. 04-23-00542-CV, 2023 WL 5418328, at *2 (Tex. App.-San Antonio Aug. 23, 2023, no pet.) (mem. op.) (concluding that trial courts only have duty to "set a supersedeas bond amount" where "party has requested a bond"). Absent the judgment debtor timely requesting that the trial court set a supersedeas bond amount, then filing the bond or a deposit in lieu of the bond, the judgment creditor may seek enforcement of the judgment, regardless of whether an appeal has been perfected. See In re Carter, No. 01-14-00046-CV, 2014 WL 348540, at *1 (Tex. App.-Houston [1st Dist.] Jan. 30, 2014, orig. proceeding) (mem. op.) (concluding trial court did not err by issuing writ of execution pending appeal of judgment where relators failed to post supersedeas bond).
Accordingly, appellants' "Emergency Motion to Stay Writ of Execution and Order of Sale" is denied.
It is so ORDERED.