Craig S. Pittman and Kelly Koncak Pittman v. Federal National Mortgage Assoc. ( 2022 )

Order entered November 18, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00379-CV
CRAIG S. PITTMAN AND KELLY KONCAK PITTMAN, Appellants
V.
FEDERAL NATIONAL MORTGAGE ASSOC., Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-19-07067-B
ORDER
Before Justices Myers, Pedersen, III, and Garcia
We dismissed this appeal on October 6, 2022, after appellants failed to
comply with our directive to file written verification they had paid or made
arrangements to pay for the clerk’s record or were entitled to proceed without
payment of costs. Asserting appellants deposited cash in lieu of a bond to
supersede the trial court’s judgment, see TEX. R. APP. P. 24.1, appellee has filed
two motions requesting that we amend our judgment to release the deposit to
appellee and that we deem the request to amend timely. Appellee argues that
dismissing an appeal is equivalent to affirming the trial court’s judgment, citing
Fitch v. Int’l Harvester Co., 354 S.W.2d 372 (Tex. 1962) (per curiam), and notes
appellate rule 43.5 requires an appellate court, when the trial court’s judgment has
been superseded and is affirmed on appeal, to render judgment against the sureties
on the supersedeas bond for the performance of the judgment and for any costs
taxed against the appellant.
Appellate Rule 43.5, however, is inapplicable. When, as here, the appeal is
dismissed, the applicable rule is appellate rule 24.1(d)(1), which provides that a
deposit in lieu of a bond is subject to liability for all damages and costs that may be
awarded against the appellant only if the appellant does not perform the trial
court’s judgment.
We deem the motion to amend timely, but, in light of rule 24.1(d)(1), DENY
the motion.
/s/ BILL PEDERSEN, III
JUSTICE