Opinion
14-22-00679-CV 14-22-00691-CV
03-27-2023
HELEN CRAWFORD, BRITNEY CRAWFORD, AND LOUIS CRAWFORD, Appellants v. AZH LANDS, LLC, Appellee
On Appeal from County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1188879
Panel Consists of Chief Justice Christopher and Justices Jewell and Spain.
MEMORANDUM OPINION ON MOTION FOR REVIEW OF SUPERSEDEAS ORDER
Kevin Jewell Justice
These cases involve a judgment awarding possession of real property to appellee. The judgment sets the supersedeas bond amount at $8,000 to suspend the judgment for ten months. After the expiration of ten months, the judgment orders defendants to pay $1,000 per month into the court's registry to maintain the bond.
Helen Crawford, Britney Crawford, and Louis Crawford, filed in this court a "Verified Plea for Emergency Temporary Relief and to Stay Underlying Action, and Show Cause Order." Among other relief requested in the motion, the movants asked this court to review the part of the judgment setting the supersedeas bond amount. Tex.R.App.P. 24.4. We stayed enforcement of the trial court's supersedeas order and final judgment pending our review of the bond amount. We denied the remainder of relief requested in the motion. Appellee has filed a substantive response concerning the bond amount.
In their motion, movants contend that the trial court's bond determination lacks legally sufficient evidentiary support and is arbitrary. Citing Texas Rule of Appellate Procedure 24.2(a)(2)(A), movants urge that when a judgment is for the recovery of an interest in real property, as here, the amount of security must be at least the value of the property interest's rent or revenue. Tex.R.App.P. 24.2(a)(2)(A). Movants contend that no evidence was presented to the trial court concerning the property's rental value.
A. Preservation of Error
Generally, a party's complaint on appeal must be preceded by the same complaint being timely presented, and ruled on, in the trial court. See Tex. R. App. P. 33.1. Preservation requirements apply in the context of a motion to review a supersedeas bond. See Wickliffe v. Tooley, No. 05-15-00696-CV, 2015 WL 5013691, at *2 (Tex. App.-Dallas Aug. 25, 2015, no pet.) (mem. op. order on motion to review bond) (party waived no evidence complaint regarding supersedeas bond by not raising point in trial court).
Although all three movants participated in the statutory county court proceedings, none appear to have asserted any evidentiary or other objections to the bond amount before the court signed the September 28, 2022 judgment. A "no evidence" argument, however, may be preserved in a timely motion for new trial. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992); Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 748-49 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). Helen filed a motion for new trial, but it appears from our record that her motion was untimely. An untimely motion for new trial is ineffective, see Tex. R. Civ. P. 329(b), and thus Helen's motion for new trial failed to preserve a challenge to the bond amount. We see no other document in the record in which Helen preserved her arguments in the trial court. Additionally, Louis did not file a motion for new trial or any other document preserving any complaints to the bond amount.
Because the judgment was signed on September 28, 2022, any motion for new trial was due on or before October 28, 2022, a Friday. Tex.R.Civ.P. 329b. Helen's motion for new trial is file-stamped October 31, 2022. The file stamp is prima facie evidence of the date the motion was filed. Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex. 1990) (per curiam). The presumption is rebuttable, however, and nothing about this opinion precludes Helen from attempting to rebut the presumption with evidence that she transmitted the motion to her electronic service provider or tendered it to the clerk for filing on October 28, 2022. See Tex. R. Civ. P. 21(f)(5) (absent any other superseding deadline, a document is considered timely filed if it is electronically filed at any time before midnight in the court's time zone on the day of the filing deadline); Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004) ("an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing.") (internal citations omitted); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (motion for new trial was conditionally filed when party tendered it to the clerk, that date controlled for appellate purposes, and the filing was completed when the party paid the filing fee).
Britney, however, filed a timely motion for new trial on October 28, 2022, in which she argued that the supersedeas bond amount was supported by no evidence of the property's rental values and was otherwise arbitrary. The trial court did not determine Britney's motion for new trial by written order within seventy-five days of the judgment, so her motion was overruled by operation of law. Tex.R.Civ.P. 329b(c). Therefore, Britney's challenge to the bond amount is preserved for our review. See Tex. R. App. P. 33.1(b) (overruling of motion for new trial by operation of law preserves for appellate review complaints properly asserted in the motion).
B. Discussion
On the motion of a party, an appellate court may review the sufficiency or excessiveness of the amount of security a trial court determines is necessary to suspend enforcement of a civil judgment pending appeal. Tex.R.App.P. 24.4(a). We review the trial court's supersedeas ruling for an abuse of discretion. Drake Interiors, Inc. v. Thomas, 531 S.W.3d 325, 328 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (mem. op. on motion to review supersedeas bond). Generally, the test for an abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. Id.; see McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). A failure by the trial court to analyze or apply the law correctly is an abuse of discretion. Drake Interiors, Inc., 531 S.W.3d at 328. To the extent the ruling turns on a question of law, our review is de novo. Id.
In setting the supersedeas bond in an eviction suit, the trial court must take into consideration the value of rents likely to accrue during appeal, damages that may occur as the result of the stay during appeal, and other damages or amounts as the court may deem appropriate. Tex. Prop. Code § 24.007(a). Additionally, the appellate rules on security provide that when the judgment is for the recovery of an interest in real property, the trial court will determine the type of security that the judgment debtor must post; and the amount of the security must be at least the value of the real property's rent or revenue on the date of judgment. See Tex. R. App. P. 24.2(a)(2); see Johnson v. Villatoro, No. 14-18-00150-CV, 2018 WL 3848070, at *1 (Tex. App.-Houston [14th Dist.] Aug. 14, 2018, no pet.) (mem. op.); Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811, at *4 (Tex. App.-Houston [1st Dist.] May 26, 2016, no pet.) (order). The proper measure of damages for rental property is the reasonable value of rents likely to accrue during the appeal. See Tierone Converged Networks, Inc. v. Lavon Water Supply Corp., No. 05-13-00370-CV, 2013 WL 6727876,a t *1 (Tex. App.-Dallas Dec. 19, 2013, no pet.) (mem. op.).
The part of the reporter's record pertaining to the supersedeas bond amount consists of only two pages. Just before plaintiff AZH Lands, LLC rested its case, the court asked plaintiff's counsel for the value of the property. Counsel responded that it was "somewhere around" $80,000. The court then set the bond amount at $8,000. According to the judgment, the bond amount changes to $1,000 per month after the expiration of ten months. Although the reporter's record does not indicate the trial court's reasoning, appellee AZH Lands, LLC states in its response that the court set the bond at ten percent of the property's value.
The record contains no evidence of the property's rental value. The property's current appraisal or market value is no evidence of rental value. See Fuentes, 2016 WL 3023811, at *3. Without any evidence of the real property's rent or revenue value, the trial court could not have determined the value of rents likely to accrue during appeal or damages that may occur as the result of the stay during appeal. See Tex. Prop. Code § 24.007(a); Tex.R.App.P. 24.2(a)(2)(A); Fuentes, 2016 WL 3023811, at *3.
Accordingly, we grant the part of the October 4, 2022 motion challenging the bond amount, and we reverse the portion of the judgment setting the supersedeas bond amount. Because the evidence contained within the record does not allow this court to determine the appropriate type and amount of security to supersede enforcement of the judgment, we direct the trial court to conduct further proceedings limited to taking evidence to determine the amount of security and signing an appropriate order pertaining to the security that must be posted to continue suspension of the judgment. Tex.R.App.P. 24.4(d) (allowing remand for taking of evidence); see Devine v. Devine, No. 07-15-00126-CV, 2015 WL 5228254, at *4 (Tex. App.-Amarillo Sept. 2, 2015, order) (per curiam). We note that the trial court has continuing jurisdiction to handle these matters during the pendency of this appeal. See Tex. R. App. P. 24.3(a). This court otherwise retains jurisdiction over the appeal. Our stay order of October 6, 2022 remains in place until the trial court signs a new order setting a supersedeas bond amount, at which point Property Code section 24.007 applies.