Wesley Eugene Perkins v. Chase Manhattan Mortgage Corporation ( 2005 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00741-CV
Wesley Eugene Perkins, Appellant
v.
Chase Manhattan Mortgage Corporation, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN401164, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING
MEMORANDUM OPINION
On December 3, 2004, we issued an order enjoining appellee Chase Manhattan
Mortgage Corporation from proceeding with a substitute trustee’s sale of a home owned by Wesley
Perkins, appellant and defendant below. See Tex. Gov’t Code Ann. § 22.221 (West 2004) (court of
appeals may issue writs necessary to enforce its jurisdiction). Chase Manhattan filed a response,
asking that the injunction be dissolved or, in the alternative, that Perkins be required to post security
in order to maintain the injunction.
Having reviewed the record and argument presented by the parties, we believe Chase
Manhattan’s arguments against the injunction have merit. However, although it appears that Perkins
did not attempt to file a bond before the trial court to stay enforcement of the judgment, we believe
it would be overly harsh to simply dissolve the injunction without giving Perkins an opportunity to
preserve the status quo pending resolution of his appeal. Therefore, we will require Perkins to post
security to maintain the injunction. See Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 602 S.W.2d 90, 93
(Tex. Civ. App.—Amarillo 1980), aff’d, 633 S.W.2d 811 (Tex. 1982); Pendleton Green Assocs. v.
Anchor Sav. Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.—Corpus Christi 1975, orig. proceeding);
Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2, 4 (Tex. Civ. App.—San Antonio
1974, writ ref’d n.r.e.); see also Tex. R. App. P. 43.6 (“court of appeals may make any other
appropriate order that the law and the nature of the case require”); Tex. Gov’t Code Ann. § 21.001
(West 2004) (court has all powers necessary to exercise its jurisdiction and enforce its lawful orders).
Because of the fact questions involved and the sparse record before us,1 we abate the
cause and remand it to the trial court with instructions to conduct an evidentiary hearing and make
findings and recommendations regarding the appropriate amount and form of the security to be
imposed. We ask that the trial court’s findings and recommendations be filed with this Court by
March 28, 2005.
David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Filed: February 10, 2005
1
Chase Manhattan seeks security of $26,364, amounting to twenty-four months of “rent,”
using the monthly payment due on Perkins’s note, plus $5,000 in taxes and insurance that Chase
Manhattan has paid since Perkins allegedly defaulted on the note in about September 2003. Chase
Manhattan states that the monthly mortgage payments are $890.17, but the note signed by Perkins
in October 1997 and provided as evidence to this Court by Chase Manhattan, indicates that the
monthly payment was to be $480.94.
2