Opinion
Appellate case number: 01-16-00526-CV
10-11-2016
Felix Auto Auto Tech; Gerald Felix Auto v. Kennasa Maeberry
MEMORANDUM ORDER ON MOTION Trial court case number: 15-CCV-055154 Trial court: County Court at Law No. 2 of Fort Bend County
Appellants, Felix Auto Tech and Gerald Felix ("Felix Auto"), filed a notice of appeal on June 28, 2016, from the trial court's final judgment, signed on April 22, 2016, after Felix Auto timely filed a request for findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a)(4). On July 12, 2016, although Felix Auto filed a docketing statement in this Court noting that the judgment on appeal was for damages, it did not state that it had filed or intended to file a supersedeas bond, as required by Rule 32.1. See id. 32.1(l). On September 22, 2016, this Court granted Felix Auto's motion for extension of time to file a writ of supersedeas bond in the trial court or to pay the appellate record fees until October 17, 2016, because Felix Auto's counsel had set a hearing on a motion for supersedeas bond for October 4, 2016, in the trial court.
On September 28, 2016, Felix Auto's counsel filed a "Motion for Appellate Court to Order Clerk to Issue Writ of Supersedeas" in this Court attaching a "Defendants' Supersedeas Bond on Appeal" that was filed in the trial court on September 13, 2016. Felix Auto's attached supersedeas bond on appeal states that it will pay the appellee, Kennasa Maeberry, $1,188.98 in damages plus 5% interest and costs if, among other things, its appeal is not perfected or is dismissed.
On September 30, 2016, Felix Auto filed this "Amended Motion for Appellate Court to Order Clerk to Issue Writ of Supersedeas." Felix Auto's counsel contends that the appellee has filed and received a writ of execution from the trial court clerk for execution of judgment and that, after Felix Auto filed the above supersedeas bond with the trial clerk to stop the execution, he was informed by the trial clerk that such will not stop said execution. Felix Auto's counsel attached a copy of the efiletexas.gov receipt to his motion, which indicates that the trial court clerk's office had returned his amended supersedeas bond document on September 28, 2016, because the "judgment does not allow for a supersedeas bond to be filed within this case." Thus, Felix Auto requests that this Court determine whether the trial court "clerk needs to be instructed to issue a writ of supersedeas in this matter in accordance with Rule 24.1(f) of the Texas Rules of Appellate Procedure." However, Felix Auto provided no evidence in either motion that it had already posted a bond or cash deposit with the trial court clerk.
Under Texas Rule of Appellate Procedure 24.1, a judgment debtor may supersede the execution of a judgment by, among other things, filing with the trial court clerk a good and sufficient bond, or making a cash deposit with the trial court clerk in lieu of a bond, in the amount set by Rule 24.2. See TEX. R. APP. P. 24.1(a)(2), (3), (b)(1)(A); see also LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 482 (Tex. App.—Houston [1st Dist.] 2007, no pet.). "The amount of bond that the trial court can set to supersede a judgment is governed by Section 52.006 of the Texas Civil Practices and Remedies Code and Rule 24.2 of the Texas Rules of Appellate Procedure." Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811, at *2 (Tex. App.—Houston [1st Dist.] May 26, 2016, Mem. Order).
"[W]hen a judgment is for money, the amount of the bond, deposit, or security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment." TEX. CIV. PRAC. & REM. CODE ANN. § 52.006 (West Supp. 2016); see also TEX. R. APP. P. 24.2(a)(1). The amount of the security may not, however, exceed the lesser of: (1) fifty percent of the judgment debtor's net worth; or (2) twenty-five million dollars. See TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(b); see also TEX. R. APP. P. 24.2(a)(1)(A), (B). "The trial court has continuing jurisdiction to review the sufficiency of a bond on any party's motion." Law Eng'g and Envtl. Servs., Inc. v. Slosburg Co., 100 S.W.3d 389, 390 (Tex. App.—Houston [1st Dist.] Dec. 19, 2002, Order) (citing TEX. R. APP. P. 24.3(a) and TEX. R. APP. P. 24.1(b)(2)). Rule 24.4 authorizes an appellate court to review the trial court's determination of the security required to supersede a judgment while it is on appeal. See TEX. R. APP. P. 24.4; Fuentes, 2016 WL 3023811, at *1.
"A trial court has an affirmative duty to enforce its judgment." In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003) (orig. proceeding) (citing TEX. R. CIV. P. 308). "And, the prevailing party has a statutory right to obtain execution of the judgment pending appeal unless and until the judgment debtor properly supersedes the judgment." In re Romero, Gonzalez & Benavides, L.L.P., 293 S.W.3d 662, 664 (Tex. App. San Antonio 2009, orig. proceeding) (citation omitted). "The Rules of Appellate Procedure allow a judgment debtor to supersede a judgment, thereby suspending enforcement, by posting security set by the trial court, not by merely filing an appeal." Id. (citing TEX. R. APP. P. 24.1, 24.2(a)(3) and In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d at 179).
Here, Felix Auto could only supersede the judgment "by posting security set by the trial court, not by merely filing an appeal." In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d at 179 (emphasis added). Although Felix Auto stated in its initial motion that the judgment was for $1,188.98 in damages, it did not state whether it included a supersedeas bond amount, which, according to the efiletexas.gov receipt, apparently it did not. But even absent a specific bond amount set by the trial court in the judgment, Felix Auto could have, but did not, post a supersedeas bond or cash deposit in the amount required by Rule 24.2 with the trial court clerk that would have suspended the enforcement of the final judgment. See TEX. R. APP. P. 24.1(a)(2), (3), (b)(1)(A), (c)(2); see also In re Romero, Gonzalez & Benavides, L.L.P., 293 S.W.3d at 664. "To be effective a bond must be approved by the trial court clerk," and "[o]n motion of any party, the trial court will review the bond." TEX. R. APP. P. 24.1(b)(2). "Unless the judgment debtor files a supersedeas bond to delay the enforcement of the final judgment, the trial court has no discretion to suspend the enforcement of the final judgment pending appeal." See In re Romero, Gonzalez & Benavides, L.L.P., 293 S.W.3d at 664 (citations omitted); see also TEX. R. CIV. P. 627 (stating that the trial court clerk shall issue the writ of execution after thirty days has expired after signing of final judgment, if no supersedeas bond is filed and approved, or thirty days after denial of timely post-judgment motion).
Instead, Felix Auto has failed to provide this Court with any certified documents confirming that it has filed a good and sufficient bond with the trial court clerk, or a cash deposit in lieu of bond, in the amount required by Rule 24.2 into the registry of the trial court. See TEX. R. APP. P. 24.1, 24.2. Moreover, although this Court may review the trial court's determination of the amount of the security required to supersede a judgment while it is on appeal, Felix Auto has provided no order from the trial court setting a bond or security amount or denying any motion to review a bond. See id. 24.1(b)(2), 24.4; see also Slosburg Co., 100 S.W.3d at 390 (denying appellees' motion to increase amount of supersedeas bond because record shows appellees failed to present motion to trial court to increase amount of bond). Similarly, we cannot review Felix Auto's efiletexas.gov receipt, which indicates that the trial court clerk's office had returned Felix Auto's amended supersedeas bond document.
Accordingly, Felix Auto's "Amended Motion for Appellate Court to Order Clerk to Issue Writ of Supersedeas" is DENIED.
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually Date: October 11, 2016