Opinion
No. 05-07-01663-CV.
Opinion Filed April 15, 2009.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-591-06.
Before Justices RICHTER, LANG and MURPHY.
MEMORANDUM OPINION
This case involves the validity of a temporary injunction obtained by Glenbrook Owners Association, Inc. ("HOA") against two homeowners, Robert and Kathy Webb. During oral argument, the Webbs conceded their appeal was made moot by the trial court's dissolution of the temporary injunction in the period between the day when they filed their notice of appeal and the day of submission. Both sides agree the only outstanding issue relates to the award of the costs of this appeal. After reviewing the record, we conclude costs should be taxed against the HOA.
Texas Rule of Appellate Procedure 43.4 allows us to tax costs "as required by law or for good cause." Tex. R. App. P. 43.4. The Webbs filed their notice of appeal on December 5, 2007 and then prepared their appellants' brief which they filed on July 24, 2008. Waiting until after the Webbs filed their brief, the HOA did not file its motion to dismiss the appeal as moot until August 19, 2008, over eight months after the HOA received notice of the Webbs' appeal. We conclude the HOA's dilatory tactics constitute good cause under Texas Rule of Appellate Procedure 43.4. Recognition Commc'ns, Inc. v. Am. Auto. Ass'n, Inc., 154 S.W.3d 878, 894(Tex.App. 2005, pet. denied) (Courts of appeals have considerable discretion in taxing costs on appeal for good cause.). Accordingly, on this date, the Court has issued an order of dismissal granting Glenbrook Owners Association, Inc.'s motion to dismiss and taxing the costs of the appeal against appellee Glenbrook Owners Association, Inc.
The primary reason the HOA gave for dissolution of the temporary injunction was the Webb's bankruptcy proceeding which stayed this appeal from February 26, 2008 to May 21, 2008. Over four months went by before the HOA filed its motion to dismiss the appeal or its motion to dissolve the underlying temporary injunction on August 19 and 20, 2008.