Opinion
No. 04-16-00786-CV
05-16-2017
Anthony MOORE and Joann Moore, Appellant v. David SUBIA, Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2016CV04165
Honorable David J. Rodriguez, Judge Presiding
ORDER
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Appellants Anthony Moore and Jo Moore were sued in Justice Court Precinct No. 4, Bexar County, Texas, by Appellee David Subia for forcible entry and detainer. After a jury trial, Subia was found to be entitled to possession of the property and was awarded $410 in rent and $191 in court costs. The Moores appealed to County Court at Law No. 3. After another jury trial, the Moores were found to have committed a forcible detainer, and Subia was awarded $5,591 in attorney's fees. On December 1, 2016, the trial court signed a Judgment for Forcible Eviction and Detainer, which ordered the trial court clerk to issue a writ of possession after the expiration of ten days from the signing of the judgment and which also awarded Subia $5591 in attorney's fees. The trial court also set supersedeas bond in the amount of $15,000.
On December 5, 2016, the Moores filed a notice of appeal, stating their intent to appeal from the Judgment for Forcible Eviction and Detainer. They also filed an Emergency Motion and Plea for Temporary Relief and Review of Excessive Supersedeas Bond, requesting that we review the trial court's setting of supersedeas bond in the amount of $15,000, arguing that it was excessive when their rent was $200 per month. On December 8, 2016, we granted the Moores' motion to the extent that we ordered the judgment of the trial court stayed pending appeal of the amount of supersedeas bond. See TEX. PROP. CODE ANN. § 24.007 (West 2014); TEX. R. APP. P. 24.4. On January 17, 2017, we issued an order finding that no evidence supported the amount of the supersedeas bond. Thus, we remanded the cause and ordered the trial court to hold an evidentiary hearing and set the amount of supersedeas bond in conformity with the evidence.
The trial court then held an evidentiary hearing and again set the supersedeas bond in the amount of $15,000. The Moores again filed an Emergency Motion and Plea for Temporary Relief and Review of Excessive Supersedeas Bond Established After Evidentiary Hearing. On March 3, 2017, we again granted the Moores' motion to the extent that we ordered the judgment of the trial court stayed pending appeal of the amount of supersedeas bond. And, we ordered supplemental clerk's and reporter's records related to the setting of the supersedeas bond to be filed. We also requested that Appellee David Subia file a response. Those supplemental records and Subia's response have now been filed.
Pursuant to section 24.007 of the Texas Property Code,
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. In setting the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate.TEX. PROP. CODE ANN. § 24.007 (West 2014).
Because a trial judge is given broad discretion in determining the amount and type of security required to supersede a judgment, we review the trial court's ruling under an abuse of discretion standard. See Stevenson v. Franklin Gardens Apartments, 511 S.W.3d 829, 831 (Tex. App.—El Paso July 27, 2016, order); Miller v. Kennedy & Minshew, P.C., 80 S.W.3d 161, 164 (Tex. App.—Fort Worth 2002, order). A trial court abuses its discretion when it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Stevenson, 511 S.W.3d at 831.
"In setting the amount required to supersede the judgment, the trial court was required to take into account and balance two opposing interests." Id. at 831-32. "The trial court was required to provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages [that] may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate." Id. at 832(citing TEX. PROP. CODE ANN. § 24.007). "At the same time, the trial court must lower the amount of security required under [Texas Rule of Appellate Procedure] 24.2(a) to an amount that will not cause the judgment debtor substantial economic harm." Id. (citing TEX. R. APP. P. 24.2(b)).
In their Second Emergency Motion and Plea for Temporary Relief and Review of Excessive Supersedeas Bond, the Moores argue that any potential sale of the property cannot be the basis for setting the amount of the supersedeas bond and that setting the amount of supersedeas bond at $15,000 is excessive and inflicts "great financial hardship" on them.
In his response to appellants' motion, Appellee Subia addresses the Moores' first argument, but fails to address their second. With regard to their first argument, Subia cites McCartney v. Calfornia Mortgage Service, 951 S.W.2d 549, 550 (Tex. App.—El Paso 1997, order), for the proposition that a potential loss of a sale while an appeal is pending is a factor that may be considered by the trial court in setting the amount of supersedeas bond pursuant to section 24.007 of the Texas Property Code. Subia points to evidence presented at the evidentiary hearing supporting his claim that the property was appraised by Bexar County at over $18,000 and that based upon the market, he could sell the property for $35,000.
Subia, however, failed to address the Moores' second argument regarding the amount of supersedeas bond being a financial hardship. As noted, when setting the amount of supersedeas bond in a forcible detainer case, a trial court must lower the amount of security required "to an amount that will not cause the judgment debtor substantial economic harm." Stevenson, 511 S.W.3d at 832 (citing TEX. R. APP. P. 24.2(b)). In the trial court, the Moores filed an affidavit of indigence, stating monthly income in the amount of $350 to $550 and personal property consisting of a 2001 Pontiac Sunfire and a 1992 Dodge B-250 Van. At the evidentiary hearing, no evidence was presented claiming their financial status had changed since the filing of their affidavit. Therefore, we agree with the Moores that the trial court abused its discretion in setting the supersedeas bond in the amount of $15,000 because such an excessive amount will cause them substantial economic harm. The Moores have filed a request that we set supersedeas in the amount of $200, the amount of monthly rent. We agree that the amount of monthly rent is appropriate in this case; however, to prevent any damage to Subia pending appeal, we find that $200 should be paid to the trial court clerk on a monthly basis.
Therefore, we GRANT the Moores' motion and ORDER that the supersedeas amount be decreased to $200 per month to be deposited with the trial court clerk on the first of each month. See Stevenson, 511 S.W.3d at 832. For the month of May 2017, we ORDER the Moores to deposit $200 with the trial court clerk within ten days from the date of this Order.
We note that Subia has also filed a motion to dismiss the Moores' appeal for failure to file an appellants' brief. However, no briefing deadline had been set pending our review of the trial court's setting of supersedeas bond. Therefore, we DENY Subia's motion to dismiss. Now that our review of the amount of supersedeas has been concluded, we ORDER the Moores to file their appellants' brief on or before June 15 , 2017.
/s/_________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 16th day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court