Mary Fowler v. Gus Montis, Argiro Investments, LLC ( 2014 )

NUMBER 13-13-00581-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARY FOWLER, Appellants,
v.
GUS MONTIS, ARGIRO INVESTMENTS, L.L.C., Appellee.
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
ORDER OF ABATEMENT
Before Justices Rodriguez, Garza, and Perkes
Order Per Curiam
Appellant Mary Fowler appeals the trial court’s judgment of eviction signed by the
trial court on October 18, 2013. The judgment states that appellees Gus Montis and
Argiro Investments, L.L.C. were entitled to a writ of possession. On October 28, 2013,
appellant filed a notice of appeal in the county court. On the same date, appellant filed a
“Personal Surety Bond,” in which appellant bound to pay the sum of $5000 and on which
appellant’s attorney serves as a surety.
On January 13, 2014, appellees Gus Montis and Argiro Investments, L.L.C. filed a
“Motion to Enforce Judgment and Issuance of a Writ of Possession for Failure to File
Proper Supersedeas Bond”. Appellees argue the writ of possession was never served
and appellant failed to file the appropriate supersedeas bond to stay the writ as required
by Texas Property Code 24.007. See TEX. PROP. CODE ANN. § 24.007 (West Supp.
2012) (“A judgment of the county court may not under any circumstances be stayed
pending appeal unless, within 10 days of the signing of the judgment, the appellant files a
supersedeas bond in an amount set by the county court.”).
Appellant and appellees both state the trial court entered an order modifying its
judgment of eviction on December 11, 2013. Our record on appeal does not include this
order. Appellee contends the order was entered after the trial court’s plenary power had
expired.
Having reviewed this record, we conclude findings of fact and conclusions of law
are necessary to proper presentation of this appeal. As such, we ABATE the appeal and
REMAND the cause to the county court for a hearing to determine whether its writ of
possession was stayed, whether appellant timely and sufficiently filed a supersedeas
bond, and its jurisdiction to modify the supersedeas bond. The county court shall
prepare findings of fact and conclusions of law addressing these issues and any other
findings and conclusions that it deems relevant and appropriate pursuant to Texas Rule
of Appellate Procedure 24. See TEX. R. APP. P. 24. The county court’s findings and
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conclusions shall be included in a supplemental clerk’s record. The supplemental clerk’s
record and the reporter’s record from the abatement hearing shall be filed with this Court
no later than March 6, 2014. If the county court requires additional time to comply, the
county court should so notify the Clerk of this Court. This appeal will be reinstated after
the supplemental clerk’s record and the reporter’s record is filed.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
10th day of February, 2014.
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