in Re: Patrick Edward Kintz ( 2002 )

Opinion issued April 8, 2002

In The  

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00276-CV

____________

IN RE PATRICK EDWARD KINTZ, Relator

---

Original Proceeding on Petition for Writ of Mandamus

---

O P I N I O N

Relator, Patrick Edward Kintz, filed a petition for writ of mandamus complaining that Judge Wettman ⁽¹⁾ abused his discretion by signing an order on February 12, 2002 denying relator's motion to release his cash security deposited under Tex. R. Civ. P. 624.

On November 21, 2001, this Court issued an opinion holding that there was no final judgment in trial court cause 1998-40300 and dismissing the appeal for want of jurisdiction. Kintz v. Riley, no. 01-01-00198-CV (Tex. App.-Houston [1st Dist.], Nov. 21, 2001, no pet.) (unpublished). No motion for rehearing was filed; no petition for review was filed. This Court issued its mandate on March 14, 2002.

According to information and exhibits in the petition for writ of mandamus, appellant Kintz had filed a cash deposit of $101,000 in lieu of supersedeas bond on March 1, 2001. On December 7, 2001, after this Court had issued its opinion, but before mandate had issued, relator moved the trial court to release his supersedeas deposit. Appellee Riley responded by stating that the motion should be denied because the judgment in her favor was never paid and that the supersedeas deposit should be paid to her. She also moved for a severance relating to her cause of action for a money judgment.

On February 12, 2002, before this Court issued its mandate, Judge Wettman signed two separate orders: one denying the motion for severance and one denying the motion to release the supersedeas deposit. There is no claim in the petition for writ of mandamus that the supersedeas deposit has been paid to appellee Riley.  

"Mandate" is the official notice of action of the appellate court directed to the trial court, advising the trial court of the appellate court's action. See Universal Life Ins. Co. v. Giles, 982 S.W.2d 488, 491 (Tex. App.-Texarkana 1998, pet. denied); Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex. App.-Dallas 1992, orig. proceeding); Tex. R. App. P. 18.1. It appears to this Court that Judge Wettman may have denied the motion to release supersedeas because the Clerk of this Court had not yet issued mandate.

The trial court had the jurisdiction and authority to release supersedeas because our judgment was final and our jurisdiction had ended. See Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex. 1972). The trial court may not have known that because our mandate had not issued. We are not prepared to find that the trial court abused its discretion in this case because the reason for its denial of the motion to release supersedeas may have been based on the belief that our Court still had jurisdiction in the absence of issuance of mandate.

The petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.

1.

The Honorable Bruce Wettman, visiting judge of the 245th District Court of Harris County, Texas. The underlying lawsuit is In the Matter of the Marriage of Augustine Scoma Riley and Patrick Edward Kintz, trial court cause no. 1998-40300.