Opinion
08-21-00228-CV
07-21-2022
IN RE: MICHAEL C. SMART, Relator.
AN ORIGINAL PROCEEDING
Before Rodriguez, C.J., Palafox, and Alley, JJ.
MEMORANDUM OPINION
GINA M. PALAFOX, Justice
Relator Michael C. Smart, appearing pro se, filed a petition for injunctive relief, requesting we issue a writ of injunction pending resolution of the direct appeal he filed challenging the underlying judgment of the trial court. Smart complains of a writ of execution which was served upon him by the El Paso County Sheriff's Department. Although Relator's petition is difficult to understand, he seems to be arguing that the writ of execution pertains to the trial court's award of attorney's fees, which were awarded to prevailing parties following the court's grant of a Rule 91a motion to dismiss. See Tex. R. Civ. P. 91a.7. Relator requests this Court issue a writ of injunction to "freeze" the writ of execution to prevent it from being used against him in the event this Court reverses the trial court's dismissal of his claim.
Relator is appellant in a companion case docketed as No. 08-21-00138-CV, Michael C. Smart v. Prime Mortgage & Escrow, LLC, et al., Michael J. Zimprich, PLLC, Ramsey M. Esper, Natalia Rubio, and Beverly Mitrisin. By separate opinion issued the same date as this case, we affirm the trial court's dismissal of claims.
"We may issue an injunction only if it is necessary to enforce our jurisdiction, to preserve the subject matter of an appeal, or to prevent an appeal from becoming moot." Duncan v. State, No. 08-10-00309-CV, 2011 WL 1533422, at *2 (Tex. App.-El Paso Apr. 20, 2011, no pet.) (mem. op.); see also Tex. Gov't Code Ann. § 22.221(a). "We cannot issue an injunction to preserve the status quo or for equitable reasons." In re Serrano, No. 08-11-00145-CV, 2011 WL 2112753, at *1 (Tex. App.-El Paso May 27, 2011, no pet.). And, with an injunction being equitable in nature, its availability is contingent upon the absence of an adequate legal remedy. In re Osborne, No. 14-12-00113-CV, 2012 Tex.App. LEXIS 2164, at *3 (Tex. App.-Houston [14th Dist.] Feb. 10, 2012, orig. proceeding) (per curiam) (mem. op.).
Here, Relator has an adequate remedy by appeal because he can post a supersedeas bond to stay the writ of execution, or take other actions to suspend enforcement of the judgment during the pendency of his appeal. See Tex. R. App. P. 24.1. Absent Relator's posting of a supersedeas bond, the judgment creditors are entitled to seek enforcement of the underlying judgment while Relator's appeal is pending. See Tex. R. App. P. 25.1(h) (filing notice of appeal does not suspend enforcement of judgment unless valid supersedeas bond is posted or appellant is entitled to supersede judgment without security); Tex.R.Civ.P. 627 ("If no supersedeas bond or notice of appeal, as required of agencies exempt from filing bonds, has been filed and approved, the clerk of the court or justice of the peace shall issue the execution upon such judgment upon application of the successful party or his attorney after the expiration of thirty days from the time a final judgment is signed."); Texas Emp. Ins. Ass'n v. Engelke, 790 S.W.2d 93, 95 (Tex. App.-Houston [1st Dist.] 1990, no writ) ("A judgment creditor has a statutory right to have execution issued to enforce a judgment pending appeal, unless and until a valid supersedeas bond has been filed."). We conclude that Relator has not established entitlement to the extraordinary relief of a writ of injunction.
Accordingly, the petition for a writ of injunction is denied.