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the garnishment lawsuit admitting that she held $162,800.00 deposited in connection with the case styled Scarbrough, Medlin & Associates, Inc., et al. v. Robert L. McCullough, et al., Cause No. 416-02008-2009. On March 5, 2012, the McCulloughs filed a Motion to Dissolve or Modify the Writs of Garnishment and a Request for Ex Parte Temporary Restraining Order and Writ of Injunction and a Motion for Substitution of Property in the garnishment lawsuit. The McCulloughs requested that the trial court enjoin an execution sale of a condominium owned by the McCulloughs that was scheduled for March 6, 2012, and to permit them to substitute a meager cash deposit they claimed represented the equity in the condominium. On March 5, 2012, the trial court granted a Temporary Restraining Order restraining the sale of a condominium owned by the McCulloughs and scheduled a temporary injunction hearing on March 19, 2012. The trial court held a hearing on March 19, 2012, and on May 7, 2012, the trial court entered an Order (the “Garnishment Order”) 3 denying the McCulloughs’ motions and granting SMA’s Motion to Release Funds Held in Registry of the Court. The trial court found that the Collin County District Clerk held $162,800.00 belonging to the McCulloughs and ordered the Clerk to distribute the funds to SMA to be applied to the underlying judgment. On May 4, 2012, the McCulloughs’ lawyer, Cary Jay Cross, filed a petition in intervention asserting that he loaned $72,800.00 of the $162,800.00 supersedeas cash deposit and he wanted his money back. SMA moved to strike Cross’ intervention and on May 14, 2012, the trial court struck Cross’ intervention. 3 See Exhibit 3 to the attached Affidavit of Brian P. Shaw. 3
III. ARGUMENT & AUTHORITIES The McCulloughs request from this Court last-minute emergency relief to stay the Garnishment Order (ordering the Collin County District Clerk to deliver $162,800.00 to SMA), stay the sale of their condominium (which was scheduled for June 5, 2012), and stay any further enforcement proceedings on the judgment “until such time as this Court has the ability to fully consider and rule upon Realtor’s (sic) Petition for Writ of Mandamus.” Amended Motion, 3. The Texas Rules of Appellate Procedure provide two bases for discretionary temporary relief: Tex. R. App. P. 24.4(c) authorizes the Court to issue temporary orders “necessary to preserve the parties’ rights.” Tex. R. App. P. 52.10(b) authorizes the Court to grant “just relief” pending the court’s action on the petition. The McCulloughs are not entitled to temporary relief because a stay is not necessary to preserve the parties’ rights and a stay is not just under the circumstances of this case. A. A stay is not necessary to preserve a right held by the McCulloughs. TEX. R. APP. P. 24 does not provide an automatic stay of enforcement once a supersedeas bond Order is appealed. Rather, Rule 24 gives the appellate court discretion to issue “any temporary orders necessary to preserve the parties’ rights.” In the context of a money judgment, Rule 24 gives a judgment debtor the right to supersede collection of the judgment by posting security in the amount required by the trial court. If the judgment debtor does not post the required security, he does not have 4
Page 1 and 2: NO. 12-0454 IN THE SUPREME COURT OF
Page 3: SMA contested the McCullough’s cl
Page 7 and 8: and, as a result, the judgment is n
Page 9 and 10: On June 6, 2012, the McCulloughs fi
Page 11 and 12: including the testimony of Robert M
Page 13 and 14: effectively supersede the judgment
Page 15 and 16: NO. 12-0454 IN THE SUPREME COURT OF
Page 17 and 18: SWORN TO AND SUBSCRIBED before me o
Page 19 and 20: Order issued Febrwu'y 7 , 2012 lJii
Page 21 and 22: Thompson, Dishict Clerk of Collin C
Page 23 and 24: 2. On August 25, 2011, Plaintiffs f
Page 25 and 26: the circumstances existing at the t
Page 27 and 28: "'all" McCulIoughs have additional
Page 29 and 30: $90,000.00 of their assets to third
Page 31 and 32: No. 05-11-01303-CV IN THE COURT OF
Page 33 and 34: amounts for future income taxes, $3
Page 35 and 36: S.W.2d 629, 635 (Tex. 1986) (citing
Page 37 and 38: (i) Anderton compels exclusion of t
Page 39 and 40: has not done so. 19 And, the McCull
Page 41 and 42: have been counted as a liability fo
Page 43 and 44: liability is “reasonably possible
Page 45 and 46: While Melton’s testimony provides
Page 47 and 48: unknown. 61 Shilling did not tell S
Page 49 and 50: Other than some additional depositi
Page 51 and 52: McCulloughs are appealing the entir
Page 53 and 54: the misappropriated funds. 80 Stewa
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Once the contest is resolved and th
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overwhelming weight of the evidence
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testimony. 97 The trial court also
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Second, the McCulloughs argue that
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judgment debtor. It is only substan
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asset to pay litigation costs, they
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personal effects and jewelry, more
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McCulloughs to post an additional $
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CAUSE NO. 416-02008-2009 SCARBROUGH
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However, Stewart and Robert McCullo
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6/10/11 -7/8/11 7/9/11-8/10/11 8/11
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IT IS THEREFORE ORDERED that Defend
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326 S.W.3d 725, *; 2010 Tex. App. L
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MR. AND MRS. ROBERT MCCULLOUGH FINA
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ACCOUNTANTS' COMPILATION REPORT Mr.
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NOTE A - BASIS OF ACCOUNTING MR.AND
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Docket Sheet for: 05-11-01303-CV of
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Docket Sheet for: 05-11-01303-CV of
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Search http://apps.collincountytx.g
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