CAUSE NO. 01

- 1500398

- CV

JENNIE LARRY JOHNSON § Appellant , § § § IN THE FIRST § § §

vs. § COURT OF APPEALS § § § § § FREO TEXAS LLC § Appellee § HOUSTON , TEXAS

APPELLEE’S RESPONSE IN OPPOSITION TO APPELLANT ’ S EMERGENCY MOTION TO STAY WRIT OF POSSESSION

Appellee asks the Court to either dismiss this appeal as moot as there is no

actual controversy between Appellant and Appellee

.
A. INTRODUCTION

1. Appellant is JENNIE LARRY JOHNSON (‘ JOHNSON ’) ; A ppellee is

FREO TEXAS LLC (‘ FREO ’)

.
2. This matter before the Court is an appeal of a trial cour t’s judgment

rendered in a forcible detainer action brought by Appellee, the foreclosure sale

purchaser of the Subject Property located at 1907 Doliver, Missouri City, TX

77489 (the ‘Subject Property’). ACCEPTED 01-15-00398-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 5/14/2015 3:21:54 PM CHRISTOPHER PRINE

CLERK3. This judgment was rendered by the County Co urt at Law No. 3 of

Fort Bend County, Texas on January 28 , 2015 in cause number 1040674

.
4. On that same day and via the trial court ’ s final jud gmetn the trial

court also set the supersedeas bond in the amount of $10 ,200.00.

5. Appellant filed its Notice of Appeal on February 02, 2015

6

. Appellant did not supersede enforcement of the trial court’s

judgment . Rather, on February 02, 2015 Appellant filed with the trial court

Tenant ’ s Affidavit of Inability to Pay Costs of Appeal Bond & Answer.

7. Because Appellant failed to supersede enforcement fo the trial court ’ s
judgment Appellee has requested that a writ of possession issue.

8. In response Appellant has filed an Emergency Motion with this Court

se eking a stay of the execution of the writ of possession. Appellant appears to

argue that the writ should be stayed because it submitted to the trial court a

pauper ’ s affidavit in lieu of supplying the requisite bond.

B. ARGUMENT & AUTHORITI ES

9

. Texas forcible detainer actions are governed by Section 24 of the

Texas Property Code and Rule(s ) 510 of the Texas Rules of Civil Procedure.

10. TRCP 510.13 provide s the basis for staying execution of a writ of

possession upon appeal from a de novo judgment in a forcible detainer to the

Court of Appeals. Specifically, TRCP 510.13 provides :“ The writ of possession, or execution, or both, will be issued by the

clerk of the county court acco rding to the judgment rendered, and the

same will be executed by the sheriff or constable, as in other cases.

The judgment of the county court may not be stayed unless within 10

days from the judgment the appellant files a supersedeas bond in an

amount s et by the cou nty court pursuant to Section 24.007 of the

Texas Property Code. ” TRCP 510.13

11

. This rule must be read in conjunction with Texas Property Code

section 24.007 which provides that

[i]n setting a supersedeas bond the county court shall provide

protection for the appellee to the same extent as i n any other appeal,

taking into consider ation the value of rents likely t o accrue during

appeal, damages whi ch may occur as a result of the stay during

appeal, and other da mages or amounts the court may deem

appropriate.

See McCartney v. Califo rnia Mortgage Serv. , 951 S.W.2d 549, 550 (Tex.App.

- El

Paso 19 97, no pet.) (quoting Tex.Prop. Code Ann. § 24.007 (West Supp.1999)).

12. A judgment creditor has a st atutory right to have execution issued to

enforce a judgment p ending appeal, unless and until a valid supersedeas bond h as

been filed. Texas Employers' Ins. Assoc. v. Engelke
, 790 S.W.2d 93, 95 (Tex.App.

-Houston [1st Dist.] 1990, ori g. proceeding) (citing Anderson v. Lykes , 761 S.W.2d

831, 833 (Tex.App.

- Dallas 1988, orig. proceeding) & El liot v. Lester , 126 S.W.2d

756, 758 (Tex.Civ.App.

- Dallas 1 939, no writ)). The fact that a judgment debtor is

financiall y unable to fi le such bond does not destroy this statutory right. Engelk e,

790 S.W.2d at 95.

13. Additionally, Texas Rule of Appellate Procedure 24 addresses

suspension of e nforcement of judgments pending appeal in civil cases.

Te x.R.App.P. 24. Rule 24 provides different methods a party may use to suspend

the enforcement of judgments pending appeal i ncluding filing with the trial court
clerk a written agreement with the judgment creditor for suspension of

enforcem ent of the judgment, a good and sufficient bond, a cash deposi t in lieu of

bond, or providing alternate security ordered by the court. See Tex.R.App.P. 24.1.

14. This rule does not include a pauper's affidavit a s a method to

supersede a judgm ent and thus Appellant failed to supersede the trial court ’ s
judgment

. As such its Emergency Motion to S t ay Execution of Writ of Possession

should denied.

D. PRAYER

For these reasons, A ppellee asks the Court to deny Appellant ’ s emergency

motion to st ay writ of possession and grant Appellee such other and further relief

to which it may be entitled or is in th e interest of justice.Respectfully Submitted:

JACK O’BOYLE & ASSOCIATES

/s/ Travis H. Gray Travis H. Gray SBN 24044965 P.O. Box 815 369 Dallas, Texas 75381 Phone: 972.247.0653 Fax: 972.247.0642 travis@jackoboyle.com Attorneys for Appellee FREO TEXAS LLCCERTIFICATE OF SERVI CE

I certify that a true and correct copy of the foregoing has been served on the

following coun sel and/or pro se parties of record, in accordance with Texas Rule

of Appellate Procedure 9.5, on the date shown.

Dated: May 14, 2015

L. Mickele ’ Daniels 7322 Southwest Freeway Houston, TX 77074 P: 713.995.4681 F: 713.995.4685 S eminole8 5@peoplepc.com Counsel for Appellant

/s/ Travis H. Gr ay Travis H. Gray