

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
BEVERLY BYRNES,
 
                                   
  Appellant,
 
v.
 
TIM AND KEERA KETTERMAN,
 
                                   
  Appellees. 
 


 
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                  No. 08-12-00224-CV
 
                         Appeal from
 
191st District
  Court
 
of Dallas County,
  Texas
 
(TC #
  DC-09-13243-J)



                                                                  O
P I N I O N
 
Pending before the Court is a motion filed by Tim and Keera Ketterman to
dismiss this appeal pursuant to Tex.R.App.P.
42.3(c) and Tex.R.Civ.P. 621a
because the Appellant, Beverly Byrnes, has refused to answer post-judgment
discovery, has failed to pay the associated sanctions, and has failed to either
pay the judgment or file a supersedeas bond. 
We grant the motion and dismiss the appeal.
PROCEDURAL BACKGROUND
            Tim and Keera Ketterman filed suit
against Beverly Byrnes alleging several causes of action, including a claim
under the Deceptive Trade Practices Act, because Tim Ketterman entered into a
contract to purchase a home from Byrnes and she represented that she was
unaware of any previous flooding into the structure or onto the property.[1]  Despite those representations to the contrary,
Byrnes knew that previous flooding had occurred.  On February 13, 2012, the trial court
entered a post-answer default judgment in favor of Tim Ketterman against Byrnes
in the amount of $205,411.50 in money damages, $8,160.19 in pre-judgment
interest, and $141,836.82 in attorney’s fees plus conditional attorney’s fees
in the amount of $25,000 if Byrnes unsuccessfully appealed to the Dallas Court
of Appeals.  The trial court determined
that Keera Ketterman should take nothing on her claims because she was not a
party to the contract. 
            On April 16, 2012, the Kettermans
filed a motion to compel Byrnes to respond to post-judgment discovery.  Byrnes filed notice of appeal on May 10,
2012, but she did not post a supersedeas bond. 
The trial court entered an order granting the Kettermans’ motion to
compel on May 21, 2012 requiring Byrnes to produce all documents requested in
the request for production, provide complete responses to the Kettermans’ first
set of interrogatories, and pay reasonable and necessary attorney’s fees in the
amount of $3,500 within twenty-one days. 
The Kettermans filed a second motion to compel on August 27, 2012
alleging that Byrnes had not complied with the trial court’s order on the first
motion to compel.  The Kettermans’ motion
also requested that the court impose sanctions against Byrnes.  Following a hearing, the trial court granted
the motion on October 18, 2012, finding that Byrnes had failed to produce all
documents, failed to provide complete responses to the first set of
interrogatories, and failed to pay the Kettermans’ reasonable and necessary
attorney’s fees in the amount of $3,500. 
The court ordered Byrnes to pay the previously ordered sanctions and provide
all documents and complete answers to discovery within thirty days of the date
of the order.  The court additionally
found that Byrnes had not posted a bond which would suspend post-judgment
discovery or collection efforts, she had failed to pay the entirety of the
outstanding judgment, and Byrnes had not provided the court with any valid
basis for her refusal to comply with the court’s orders.  Consequently the court imposed sanctions in
the amount of $10,000 and ordered Byrnes to pay within thirty days of the date
of the order.  Byrnes did not comply with
the trial court’s order.
MOTION TO DISMISS
The Kettermans have requested that the Court dismiss the appeal because
Byrnes has not answered post-judgment discovery and has not paid the sanctions
as ordered by the trial court.  The losing
party to a lawsuit for money damages has a choice to either submit to the
judgment or supersede the judgment by filing of a proper bond while the case is
pending appellate review.  Ark of Safety Christian Church, Inc. v.
Church Loans & Investments Trust, 279 S.W.3d 775, 777
(Tex.App.--Amarillo 2007, no pet.); Hayes
v. Hayes, 920 S.W.2d 344, 347 (Tex.App.--Texarkana 1996, writ denied).  Byrnes has done neither.  Byrnes has not superseded the judgment and
the trial court has determined that she did not comply with its orders to
respond to post-judgment discovery.  She
has also failed to pay the sanctions imposed by the trial court.
Rule 42.3 of the Texas Rules of Appellate Procedure authorizes this Court
to dismiss an appeal because the appellant has failed to comply with a court
order.  Tex.R.App.P.
42.3(b), (c).  In Ark of Safety, the Seventh Court of
Appeals dismissed an appeal in factual circumstances similar to what is
presented here on the ground that the appellant had failed to comply with a
trial court order requiring it to answer post-judgment discovery and pay the
associated sanctions.  Ark of Safety, 279 S.W.3d at 777.  Because Byrnes has failed to comply with the
trial court’s orders, we grant the motion and dismiss the appeal.  Tex.R.App.P.
42.3(c); Ark of Safety, 279 S.W.3d at
777.
January 16, 2013                                 _______________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating




[1]  The pleadings allege that Tim Ketterman was
engaged to Keera Rittenberry when he entered into the contract.  


