Floyd J. Eaton and Dorothy Akin Eaton, Individually and as Trustees of the Joseph Washington Stott Trust v. Jeanie M. Six, Independent Executor of the Estate of Joseph Washington Stott, Deceased--Appeal from County Court of McLennan County

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Eaton et al v. Six /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-284-CV

 

FLOYD J. EATON AND DOROTHY AKIN EATON,

INDIVIDUALLY AND AS TRUSTEES OF THE

JOSEPH WASHINGTON STOTT TRUST,

Appellants

v.

 

JEANIE M. SIX, INDEPENDENT EXECUTOR

OF THE ESTATE OF JOSEPH WASHINGTON STOTT,

DECEASED,

Appellee

 

From the County Court at Law #2

McLennan County, Texas

Trial Court # 94-0029PRI

 

MEMORANDUM OPINION

 

Jeanie Six requests that we dismiss this appeal because (1) Floyd and Dorothy Eaton have failed to comply with the trial court's orders regarding the assets of the Joseph Washington Stott Trust and (2) they have failed to follow its order increasing the amount of the cost bond supporting this appeal. Tex. R. App. P. 46(c), 60(a)(1). Because the Eatons have failed to comply with the order increasing the cost bond, we dismiss their appeal. Id.

Six sued the Eatons for fraud, conversion, and fraudulent transfers of assets belonging to the Stott Trust. On July 11, 1995, after a jury trial, the court rendered an interlocutory judgment for approximately $980,000 against the Eatons. On the same day, Six obtained a temporary restraining order prohibiting the Eatons from transferring any assets under their control derived from the Trust. On July 20, the court established a receivership to take control of these assets. The Eatons were specifically instructed by the order to deliver all Trust assets to the receiver by August 1. Additionally, the order enjoined the Eatons from making any transfers of the assets to any person other than the receiver or Six. When the Eatons failed to transfer the assets to the receiver, and in fact moved substantial amounts from one "off-shore" banking account to another in direct violation of the court's orders, the court held them in contempt and issued a capias for Floyd Eaton's arrest. Apparently, neither Eaton can now be located.

However, Six argues that the Eatons are following these proceedings by proxy. Because the July 11 judgment did not dispose of all issue in the suit, it was interlocutory. On August 16, the court granted Six's motion for severance, making the judgment final and appealable. On September 15, despite the fact that Six had been unsuccessful in locating either Eaton or serving any documents on them by certified mail since the verdict was returned, the Eatons filed a $1,000 deposit in lieu of bond with the trial court, along with a notice of appeal to this court. Thus, the Eatons timely perfected their appeal even though they had not been officially served with any instrument indicating that the appellate timetable was running.

After the Eatons filed their deposit in lieu of bond, the court issued an order in which it found that the $1,000 deposit is insufficient security for the costs of this appeal and ordered them to deposit an additional $6,500 by October 9. Id. 46(c). The Eatons have not complied with this order either.

Rule 46(c) specifically authorizes the trial court to increase the amount of the cost bond. Id. "If the appellant fails to comply with such order, the appeal shall be subject to dismissal or affirmance under Rule 60." Id. Thus, we grant Six's motion to dismiss this appeal. Id. 46(c); 60(a)(1).

This cause is dismissed. All costs are assessed against the appellants.

PER CURIAM

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed on appellee's motion

Opinion issued and filed October 25, 1995

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