Conditionally Grant and Opinion Filed August 31, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00314-CV
IN RE SCOTT PELLEY, P.C., SCOTT PELLEY, AND THE PELLEY
FAMILY LIMITED PARTNERSHIP, Relators
Original Proceeding from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-11-1026
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Myers
Scott Pelley, P.C., Scott Pelley, and the Pelley Family Limited Partnership
seek a writ of mandamus ordering the trial court to rule on a motion concerning a
$400,000 supersedeas deposit filed by the real parties in interest Michael Wynne,
John Smith, and the M & S Wynne Family Limited Partnership. The trial court
informed the parties it did not have jurisdiction to rule on the motion. We conclude
the court had jurisdiction and therefore abused its discretion by failing to rule on the
motion. We conditionally grant the petition for writ of mandamus.
BACKGROUND
The underlying case concerned the breakup of a law firm including relator
Scott Pelley and real parties in interest Michael Wynne and John Smith. The lawsuit
included a claim for partition and sale of an office building owned by the Pelley
Family Limited Partnership and the M & S Wynne Family Limited Partnership as
well as contract and tort claims associated with the winding up of the law firm. On
August 31, 2015, the trial court ordered the partition and sale of the building. On
September 14, 2015, Real Parties filed a notice of appeal of that order and asked the
trial court to set a supersedeas amount pursuant to Texas Rule of Appellate
Procedure 24.2(a)(2)(A) (supersedeas amount of at least “the value of the property
interest’s rent or revenue, if the property is real”). The trial court set the supersedeas
amount at $400,000, and Real Parties made a cash deposit in that amount.
On October 7, 2015, the trial court signed a final judgment on the contract and
tort claims that was mostly in favor of Real Parties, and which included an order for
the parties to sell the building. Relators filed a notice of appeal from that judgment.
The trial court set a separate supersedeas amount for Relators’ appeal of the contract
and tort claims, and Relators made a cash deposit for the supersedeas. We
consolidated the two appeals.
Although Real Parties had filed a notice of appeal from the order of partition
and sale of the building, they did not bring any arguments on appeal concerning the
partition and sale of the building. Instead, Relators argued the trial court did not
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have jurisdiction to render the orders concerning partition and sale of the building.
We concluded the trial court had jurisdiction, and we “express[ed] no opinion as to
the merits of the partition judgment.” Scott Pelley P.C. v. Wynne, No. 05-15-01560-
CV, 2017 WL 3699823, at *27 (Tex. App.—Dallas Aug. 28, 2017, pet. denied)
(mem. op.). We affirmed the trial court’s judgment regarding the parties’ contract
and tort claims. Id. at *33. We also sustained Real Parties’ cross-issue regarding
appellate attorney’s fees, and we remanded the case to the trial court for
determination of Real Parties’ attorney’s fees. Id. Our judgment ordered that Real
Parties recover their costs and the full amount of the trial court’s judgment from
Relators and the supersedeas cash deposit filed by Relators. After the supreme court
denied Relators’ petition for review, we issued our mandate on February 27, 2018.
A month later, on March 26, 2018, Relators filed in this Court a motion for
supplemental mandate requesting that we order the release of the $400,000
supersedeas deposit to them. On April 9, 2018, before we ruled on the motion for
supplemental mandate, Relators filed in the trial court a motion for the trial court to
release the $400,000 supersedeas deposit to them.1
Also on April 9, 2018, the trial court held a hearing on the issues remanded to
the court. The trial court awarded Real Parties their appellate attorney’s fees and
their overhead expenses. Also during the hearing, the parties discussed the $400,000
1
The text of this motion is not in the record, but it is listed on a docket sheet in the record, and the
parties discussed the motion during the April 9, 2018 hearing in the trial court on the remanded issues.
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supersedeas deposit. Relators told the court, “Now, just so the Court knows, we
have filed a motion with the Court of Appeals to issue a supplemental mandate, so
we’re not asking Your Honor to rule today that we’re right.” The parties and the
court then discussed the fact that the clerk had released the $400,000 supersedeas
deposit to Real Parties at Wynne’s request and without the trial court’s
authorization.2 Relators told the court, “[W]e believe . . . the 400,000 should be
redeposited with the clerk until we receive some response from the Court of Appeals
with respect to a supplemental mandate.” The trial court stated, “On the issue of the
supersedeas bond, the Court is making no ruling at this time. I’ll see what the Court
of Appeals educates me on that, what they want to do.” The trial court signed an
order on the remanded issues and ordered the building be sold within thirty days, but
the court made no ruling concerning Real Parties’ $400,000 supersedeas deposit.
On April 19, 2018, ten days after the trial court hearing, we issued an order
denying the motion for supplemental mandate. Our order also stated the denial was
“without prejudice to any party seeking relief from the trial court respecting the
Wynne parties’ cash deposit.”
After our order denying the supplemental mandate, Relators took no action on
the $400,000 supersedeas for a year and a half. Instead, Relators appealed the trial
2
Real Parties’ attorney explained to the trial court that Wynne had borrowed the $400,000 “and wanted
to get it back so he could stop paying interest on it.” The trial court responded, “I guess that explains why
I got a copy of an order, which I did not sign, from the clerk’s office trying to cover themselves . . . .”
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court’s April 9, 2018 order on remand. See Scott Pelley P.C. v. Wynne, 578 S.W.3d
694 (Tex. App.—Dallas 2019, no pet.). We affirmed the award of appellate
attorney’s fees, but we rendered judgment deleting the award of overhead expenses
as unauthorized by our mandate. Id. at 705, 706.
On October 25, 2019, Relators filed the motion at issue, their “Request for
Order to Return $400,000 Deposit in Lieu of Bond Wrongfully Distributed by the
District Clerk and Motion for Entry of Amended Judgment for Damages.” The
motion asked that the trial court order Real Parties to return the $400,000 to the
court’s registry and that the trial court distribute $155,919.35 of the funds to Relators
as their damages during the appeal of the partition-and-sale order before releasing
the balance of the $400,000 to Real Parties. A year later, on November 2, 2020,
Real Parties filed a response to the motion asserting that the trial court’s plenary
power to rule on the motion had expired, so the trial court lacked jurisdiction. On
December 10, 2020, the trial court, through the clerk, sent the parties an e-mail
stating, “I find I have no jurisdiction on Pelley’s request . . . .” Relators then filed
the petition for writ of mandamus before this Court asking that we order the trial
court to rule on the motion and order the trial court to enter an amended judgment
for Relators for $119,255.32 for losses and damages resulting from Real Parties’
appeal of the order for partition and sale of the office building. 3
3
Although Relators sought $155,919.35 in the October 25, 2019 motion, they seek $119,255.32 in their
petition for writ of mandamus. Relators explain that the higher number included the overhead expenses
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STANDARD OF REVIEW
To obtain mandamus relief, Relators must show the trial court clearly abused
its discretion and they have no adequate appellate remedy. In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) orig. proceeding); In re Molina, 575
S.W.3d 76, 79 (Tex. App.—Dallas 2019, orig. proceeding). A trial court clearly
abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law or if it clearly fails to analyze the law
correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P., 492
S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam); In re Cerberus
Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per
curiam). We review the trial court’s legal conclusions with limited deference. See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). To be
entitled to mandamus relief, the relator must establish that the trial court could
reasonably have reached only one decision. Id. A trial court has no discretion in
determining what the law is or applying the law to the facts, even when the law is
unsettled. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig.
proceeding).
“When a motion is properly filed and pending before a trial court, the act of
giving consideration to and ruling upon that motion is a ministerial act, and
awarded by the trial court to Real Parties. After our judgment struck the damages for overhead expenses,
Relators removed that amount from the damages they seek, leaving $119,255.32.
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mandamus may issue to compel the trial judge to act.” Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding)
(internal quotation marks omitted).
ANALYSIS
In this case, the trial court determined it lacked jurisdiction to rule on Relators’
motion.4 We must determine whether that determination was an abuse of discretion.
Relators’ motion asked the trial court (1) to order Real Parties to redeposit the
$400,000 into the court’s registry as supersedeas funds and (2) to award Relators
their damages of $119,255.32 resulting from Real Parties’ appeal of the partition-
and-sale order to be paid out of the $400,000 supersedeas deposit. Relators’ petition
for mandamus seeks an order for the trial court to rule on the motion and to order
Real Parties to redeposit the $400,000 into the registry of the court and for the trial
court to sign an amended judgment awarding Relators $119,255.32 to be paid from
the $400,000 deposit. Therefore, we must determine whether the trial court abused
its discretion by determining it had no jurisdiction in December 2020 to rule on
Relators’ October 25, 2019 motion and whether it is appropriate for this Court to tell
the trial court how it should rule on the motion. We conclude the trial court abused
4
The trial court’s decision was communicated to the parties in an e-mail and not a formal order. An e-
mail is sufficient to support a mandamus proceeding when it is sufficiently clear and direct. See In re
Yamaha Golf-Car Co., No. 05-19-00292-CV, 2019 WL 1512578, at *2 (Tex. App.—Dallas Apr. 8, 2019,
orig. proceeding) (mem. op.). In this case, the trial court, in an e-mail, instructed the clerk: “Please notify
counsel that I find I have no jurisdiction on Pelley’s Request . . . .” This statement was sufficiently clear
and direct to support a mandamus proceeding that the trial court refused to rule on the request because of a
legal conclusion that the court lacked jurisdiction.
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its discretion by determining it lacked jurisdiction to rule on the motion, but we
decline to tell the trial court how it should rule on the motion.
Real Parties argue the trial court had no subject-matter jurisdiction to rule on
the motion because the court’s plenary power over the case had expired. A trial
court’s period of plenary power limits the time in which it can respond to most
motions concerning a case. A trial court’s plenary power extends for 30 days after
the court signs the final judgment but can continue for up to 105 days after the final
judgment if a party files certain postjudgment motions that are overruled by
operation of law. See TEX. R. CIV. P. 329b.
Real Parties assert that the final judgment did not provide for damages to be
awarded to Relators for postjudgment damages incurred during the appeal. A
judgment is final if it disposes of all pending parties and claims in the record. See
Beckham Group, P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.—Dallas 2010, no
pet.). If the judgment had provided for unspecified damages to be determined at a
later date, then the judgment would not have disposed of all claims and would not
have been final. Moreover, the right to damages during an appeal is not something
that would ordinarily be in a final judgment because that right arises only on the
filing of the supersedeas bond, which is usually filed after the final judgment is
signed. See TEX. R. APP. P. 24.1(d)(3), 24.2(a)(2)(A). The determination of the
amount of damages during the appeal is made after the appeals are completed. See
Haedge v. Cent. Tex. Cattlemen’s Ass’n, 603 S.W.3d 824, 826 (Tex. 2020) (per
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curiam) (determination of damages during appeal made in post-appeal hearing on
parties’ competing motions to release supersedeas bond). In this case, the trial court
had made no ruling on the supersedeas deposit. The trial court expressly did not
decide the issue of the supersedeas deposit at the April 9, 2018 hearing, and the order
signed following the hearing did not address the supersedeas deposit or contain
language indicating the supersedeas deposit was disposed of. Thus, there was no
“final judgment” concerning the supersedeas deposit before the court’s December
10, 2020 e-mail stating the court lacked jurisdiction.
Real Parties also argue the trial court did not err by not ruling on the motion
because Relators did not prove during the trial the damages they would suffer during
the appeal. This argument goes to the merits of an award on the supersedeas deposit,
not whether the trial court had jurisdiction to rule on a motion concerning the
supersedeas deposit. Moreover, as discussed above, the determination of a party’s
damages suffered during an appeal is made after the appeals are completed. See
Haedge, 603 S.W.3d at 826.
Real Parties also argue Relators are not entitled to recovery on the supersedeas
deposit and the clerk was correct to release the supersedeas deposit to Real Parties
because the case did not involve any of the scenarios for a supersedeas deposit in
Texas Rule of Appellate Procedure 24.1(c), (d). That rule states a supersedeas
deposit is subject to liability for all damages awarded up to the amount of the deposit
if:
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(1) the debtor does not perfect an appeal or the debtor’s appeal is
dismissed, and the debtor does not perform the trial court’s judgment;
(2) the debtor does not perform an adverse judgment final on appeal; or
(3) the judgment is for the recovery of an interest in real or personal
property, and the debtor does not pay the creditor the value of the property
interest’s rent or revenue during the pendency of the appeal.
TEX. R. APP. P. 24.1(d). “The clerk must hold the deposit until the conditions of
liability in (d) are extinguished. The clerk must then release any remaining funds in
the deposit to the judgment debtor.” TEX. R. APP. P. 24.1(c)(3).
Real Parties assert that after our mandate in the first appeal, there was no
judgment requiring payment of any amounts to Relators, so Rule 24.1 did not permit
payment of any amounts from the supersedeas but instead required the clerk to
release the deposit to Real Parties. However, Real Parties’ supersedeas deposit
concerned the trial court’s judgment ordering the partition and sale of real property,
the office building, which is considered a judgment “for the recovery of an interest
in real . . . property.” See McFaddin v. Broadway Coffeehouse, LLC, 539 S.W.3d
278, 281 (Tex. 2018) (superseding judgment of partition by sale of real property
required setting supersedeas amount under TEX. R. APP. P. 24.2(a)(2)(A)).
Therefore, the clerk was required to maintain the deposit until Real Parties paid
Relators “the value of the property’s rent or revenue during the pendency of the
appeal.”
In McFaddin, the appellant challenged the trial court’s jurisdiction to address
the supersedeas bond after the appeals. The supreme court stated, “The trial court’s
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addressing of issues necessary to effect the mandate of the court of appeals,
including issuing an order concerning the supersedeas bond, was part and parcel to
the trial court’s effectuating the original judgment and carrying out the appellate
court’s decision. It had jurisdiction to do so.” McFaddin, 539 S.W.3d at 283.
Real Parties also argue that the trial court lacked jurisdiction to address their
$400,000 supersedeas deposit because our mandate made no mention of it.
However, after the supreme court denied the petition for review, Relators filed a
motion for supplemental mandate with this Court asking that we amend the mandate
to address the supersedeas bond. Although we denied the motion, we said the denial
was “without prejudice to any party seeking relief from the trial court respecting the
Wynne parties’ cash deposit.” By doing so, we instructed the trial court to address
any motions concerning the supersedeas deposit as a post-appeal proceeding. If the
trial court had addressed the motion, it would have done so pursuant to our
instruction and would have been related to carrying out our judgment affirming the
partition and sale of the building. See id.
Finally, although not addressed by the parties, we must discuss the fact that
the money is no longer in the registry of the court because Real Parties asked the
clerk to return the deposit to them, and the clerk, without the trial court’s
authorization, returned the deposit to Real Parties. And, since there is no longer a
judgment on appeal to be superseded, we must determine whether the trial court has
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the authority to order Real Parties to return the money to the registry of the court.
We conclude the trial court can make such an order.
“[F]unds deposited in the trial court’s registry are subject to the trial court’s
control, and the court has the equitable power to make such orders as it deems
necessary to protect those funds.” Sommers v. Concepcion, 20 S.W.3d 27, 36 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied). When Real Parties withdrew the
deposit without the court’s authorization, they assumed the risk that their withdrawal
might be improper and that the court might require them to redeposit the funds.
Moreover, Real Parties received the full benefit of having the partition-and-sale
order superseded during the years that the order was on appeal. The trial court may
determine whether equity requires ordering Real Parties to return the supersedeas to
the court’s registry for the court to determine the amount of Relators’ damages
during the appeal. Because the trial court did not authorize the withdrawal of the
funds, the funds are still under the control of the court, and the court has authority to
enter judgment that Relators recover some or all of the funds “from the party who
was at the time wrongfully withholding them.” Id. “[T]he decision whether to order
the return of the funds is discretionary and does not affect the court’s power to enter
a judgment awarding funds to the proper party.” Id.
We conclude the trial court had authority to determine whether to order Real
Parties to return the funds to the registry and to order that Relators recover their
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damages from the appeal from those funds and to award Relators their damages from
the funds Real Parties may have wrongly withdrawn from the registry of the court.
Relators also ask that we order the trial court to enter judgment for them for
$119,255.32, the amount of damages Relators assert they conclusively proved
through Scott Pelley’s affidavit. We decline to do so. When a trial court refuses to
rule on a motion because the court believes, incorrectly, that the court lacks
jurisdiction, “[w]e cannot . . . direct the trial court on what ruling it should enter.”
In re Ramirez, No. 04-04-00746-CV, 2004 WL 2884168, at *2 (Tex. App.—San
Antonio Dec. 15, 2004, orig. proceeding) (mem. op.). We may order the trial court
to rule, but we “may not tell the district court what judgment to enter.” Crofts v.
Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962) (orig. proceeding).
We conclude the trial court had jurisdiction to rule on Relators’ motion, and
the trial court’s failure to rule based on the incorrect conclusion that the court lacked
jurisdiction was an abuse of discretion. Relators lack an adequate appellate remedy
from the trial court’s failure to rule on their motion. See In re Williams, No. 05-20-
00369-CV, 2020 WL 6074116, at *2 (Tex. App.—Dallas Oct. 15, 2020, orig.
proceeding) (mem. op.).
CONCLUSION
We conditionally grant Relators’ petition for writ of mandamus, and we order
the trial court to rule on Relators’ Request for Order to Return $400,000 Deposit in
Lieu of Bond Wrongfully Distributed by the District Clerk and Motion for Entry of
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Amended Judgment for Damages within thirty days of the date of this opinion and
to file with this Court within forty days of this opinion a certified copy of its written
ruling. A writ will issue only if the trial court fails to comply with this opinion and
our order of this date.
/Lana Myers//
210314f.p05 LANA MYERS
JUSTICE
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in Re: Scott Pelley, P.C., Scott Pelley, and the Pelley Family Limited Partnership
Combined Opinion