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concluding declarations that appellee owned interests in partnership and limited liability company showed his recovery included interest in personal property and rule 24.2 applied
Summary of this case from Wheeler v. MTGLQ Inv’rs, L.P.Opinion
NO. 14-16-00116-CV
06-08-2017
Osama ABDULLATIF and Ali Mokaram, Appellants v. Ali CHOUDHRI, Appellee
Michelle Meriam, Rodney Lee Drinnon, D. Scott Funk, Eileen F. O'Neill, Houston, for Appellants. Jeff Joyce, Allan D. Goldstein, David Medina, Lloyd Kelley, Houston, for Appellee.
Michelle Meriam, Rodney Lee Drinnon, D. Scott Funk, Eileen F. O'Neill, Houston, for Appellants.
Jeff Joyce, Allan D. Goldstein, David Medina, Lloyd Kelley, Houston, for Appellee.
Panel consists of Chief Justice Frost and Justices Busby and Wise.
OPINION ON MOTIONS FOR REVIEW OF SUPERSEDE AS ORDER
J. Brett Busby, Justice
The judgment on appeal awards appellee Ali Choudhri damages and attorneys' fees and declares the parties' respective ownership interests in two business entities. The trial court permitted appellants Osama Abdullatif and Ali Mokaram to supersede the judgment with a cash deposit equal to the amount of damages plus applicable interest; the court also prohibited certain activities by the business entities as further security for Choudhri pending appeal ("the Supersedeas Order").
Choudhri has filed a motion and supplemental motion for review of the Supersedeas Order, asserting it does not provide sufficient security for the declaratory portion of the judgment or adequately protect him from loss or damage on appeal. For the reasons discussed below, we grant Choudhri's motions and remand the Supersedeas Order for the trial court to take evidence and make findings of fact regarding the amount and type of security appellants must post to supersede the declaratory portion of the judgment, including the value of the ownership interests recovered by Choudhri on the date of judgment. See Tex. R. App. P. 24.2(a)(2)(B), 24.4(d).
BACKGROUND
This appeal arises from litigation concerning ownership interests in a partnership, Mokaram Latif West Loop, Ltd. ("ML Partnership"), and a limited liability company that is ML Partnership's general partner, Mokaram Latif General, LLC ("ML General") (collectively "the Entities"). The case below is proceeding in two phases. The judgment on appeal is the Phase 1 judgment, which, among other things, awards Choudhri $50,000 in damages plus interest and attorneys' fees and declares the parties' respective ownership interests in the Entities. In particular, the non-monetary portion of the judgment declares the dates on which Choudhri obtained certain percentages of ownership in the Entities, and it declares that an assignment of ownership interests to him is "valid and enforceable."
On appellants' motion to set security, the trial court signed the Supersedeas Order. Citing Texas Rule of Appellate Procedure 24.2(a)(1) and (a)(3), which we discuss below, the order allows appellants to suspend enforcement of the Phase 1 judgment by filing a bond or making a cash deposit of $62,700.25. The Supersedeas Order also states:
As further security to protect Choudhri against any loss or damage that the appeal may cause with respect to the Court's declaration of rights in the Final Judgment, until final disposition of the appeal of the Final Judgment or further Order of this Court, Part II of the Court's order of December 5, 2012 [prohibiting the Entities from taking certain actions and requiring other actions] shall remain in force and effect.
Choudhri filed a motion and supplemental motion in this court for review of the Supersedeas Order. See Tex. R. App. P. 24.4(a). He asserts the trial court abused its discretion in not requiring any security to suspend the enforcement of the portion of the judgment declaring his ownership interest in the Entities ("the Declarations"). See Tex. R. App. P. 24.2(a)(2) (governing supersedeas of judgments for recovery of an interest in real or personal property). He also asserts the trial court abused its discretion in denying him post-judgment discovery in connection with his supersedeas challenge. See Tex. R. Civ. P. 621a (authorizing post-judgment discovery to obtain information relevant to a motion under Texas Rule of Appellate Procedure 24). He does not complain about the type or amount of security the trial court set for the monetary portion of the judgment. See Tex. R. App. P. 24.2(a)(1).
In response, appellants first assert they are not required to supersede the Declarations because declaratory judgments are suspended automatically when an appeal is perfected. Alternatively, appellants contend supersedeas of the Declarations is governed by Rule 24.2(a)(3), not Rule 24.2(a)(2), because the Declarations are "for something other than money or an interest in property." Tex. R. App. P. 24.2(a)(3). They assert the restrictions in the December 5, 2012 order referenced in the Supersedeas Order sufficiently protect Choudhri from loss or damage on appeal.
ANALYSIS
I. Legal standards
We review the trial court's supersedeas ruling for an abuse of discretion. Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C. , 171 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.] 2005, order), disp. on merits , 207 S.W.3d 801 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). To the extent the ruling turns on a question of law, our review is de novo. Mansik & Young Plaza LLC v. K-Town Mgmt., LLC , 470 S.W.3d 840, 841 (Tex. App.—Dallas 2015, op. on motion), disp. on merits , No. 05-15-00353-CV, 2016 WL 4306900 (Tex. App.—Dallas Aug. 15, 2016, no pet.) (mem. op.).
Texas Rule of Appellate Procedure 24 addresses suspension of enforcement of a judgment pending appeal in civil cases. Under Rule 24.1, "[u]nless the law or these rules provide otherwise, a judgment debtor may supersede the judgment by" filing an agreement with the judgment creditor for suspending enforcement of the judgment, posting a bond, making a deposit in lieu of a bond, or providing alternate security as ordered by the court. Tex. R. App. P. 24.1(a). The amount of security required depends on the type of judgment. See Tex. R. App. P. 24.2(a).
A money judgment may be superseded by a bond, deposit, or security equal to the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment, subject to certain limitations. See Tex. R. App. P. 24.2(a)(1). To supersede a judgment "for the recovery of an interest in ... personal property," the amount of security must be at least the value of the property interest on the date the trial court rendered judgment. Tex. R. App. P. 24.2(a)(2). When the judgment is "for something other than money or an interest in property," the trial court must set the amount and type of security the judgment debtor must post. Tex. R. App. P. 24.2(a)(3). The trial court may decline to permit the judgment debtor to supersede the judgment, however, if the judgment creditor posts "security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted" should an appellate court determine that the relief was improper. Id.
II. The trial court abused its discretion by not setting the security appellants must post to supersede the Declarations.
A. The notice of appeal did not automatically suspend enforcement of the Declarations.
We first address appellants' contention that it was unnecessary for them to supersede the Declarations under Rule 24 because perfecting an appeal automatically suspends enforcement of a declaratory judgment while the appeal is pending. Appellants cite two cases for that proposition: Cooper v. Decker , 21 S.W.2d 70, 71 (Tex. Civ. App.—Dallas 1929, no writ), and Marriage of Richards , 991 S.W.2d 30, 31 (Tex. App.—Amarillo 1998, op. on motion) (per curiam), disp. on merits , 991 S.W.2d 32 (Tex. App.—Amarillo 1999, pet. dism'd). We conclude neither Cooper nor Marriage of Richards supports appellants' position.
In Cooper , the trial court signed a default judgment against a corporate officer and ordered the officer to appear in court and disclose how many shares of the corporation he held. 21 S.W.2d at 71. The officer did not appear, so Cooper began contempt proceedings against him. Id. The officer filed suit in the trial court to enjoin Cooper from taking any further action in the contempt proceedings. Id. The trial court granted the injunction, and Cooper appealed. Id.
The court of appeals observed that at common law, filing an appeal automatically suspended enforcement of a judgment. Id. At the time Cooper appealed, however, suspension was governed by former article 2270 of the Texas Revised Civil Statutes. Under that statute, an appellant wishing to suspend execution of the judgment had to post a supersedeas bond for at least double the amount of the judgment, interest, and costs. See id. By its terms, article 2270 applied only to money judgments subject to execution and did not have a counterpart to present Rules 24.2(a)(2) and (3), which govern supersedeas of non-monetary judgments. The court of appeals held that because article 2270 did not address superseding the type of disclosure order at issue, "no supersedeas bond could be given," which meant that the appeal suspended enforcement of the order under the common-law rule. Id. at 71–72.
Cooper provides little guidance for contemporary supersedeas practice for two reasons. First, the Supreme Court of Texas reached a different conclusion the following year in Houtchens v. Mercer , 119 Tex. 431, 29 S.W.2d 1031 (1930). Houtchens recognized that article 2270 expressly addressed supersedeas of only monetary judgments subject to execution. Id. at 1036–37. But the court concluded that in a long line of cases, Texas courts had interpreted the statute to provide a "right to supersede all final judgments in civil cases," including judgments providing various non-monetary remedies, and that this right did not depend on whether the judgments "require some character of process to enforce them." Id. ; see also Ex parte Kimbrough , 135 Tex. 624, 146 S.W.2d 371, 372 (1941).
Second, the governing rules have changed. The common-law rule that an appeal by any party automatically suspends enforcement of a judgment has been displaced by Texas Rule of Appellate Procedure 25.1(h), which provides that "[t]he filing of a notice of appeal does not suspend enforcement of a judgment," which may proceed (with one exception not relevant here) unless "the judgment is superseded in accordance with Rule 24." Rule 24 expressly authorizes judgment debtors to supersede both monetary and non-monetary judgments and prescribes the terms on which they may do so. See also Tex. Civ. Prac. & Rem. Code Ann. § 52.006 (West 2015) (prescribing amount of security necessary to supersede money judgment).
Rule 25.1(h)(2) recognizes that enforcement may not proceed if "the appellant is entitled to supersede the judgment without security by filing a notice of appeal." Appellants are not entitled to supersede without security by filing a notice of appeal. See In re State Bd. for Educ. Certification , 452 S.W.3d 802, 804 (Tex. 2014).
Appellants also cite Marriage of Richards , in which the judgment dissolved a marriage and divided the community estate but did not provide for payment of cash or transfer of tangible property. 991 S.W.2d at 30. The former wife appealed. Id. The former husband asked the trial court to set a bond the wife must pay under Rule 24.2(a)(3) ; he alleged the appeal was not made in good faith and would "leave him in marital limbo, neither married nor divorced." Id. at 30–31. The trial court set the bond for the wife at $2,000, and the wife challenged the order by filing a motion in the court of appeals. Id. at 31.
Relying on Cooper , the court of appeals reversed the bond order. The court did not decide which portion of Rule 24.2(a) governed supersedeas of the judgment. Rather, it held Rule 24 did not apply at all because the rule speaks of "judgment debtor" and "judgment creditor," and the spouses did not occupy those positions under the judgment. Id. at 31. There was nothing on which the husband could obtain a writ of execution, the court reasoned, so the trial court improperly required the wife to pay a bond to supersede execution of the judgment. Id. at 31–32.
The older Texas cases discussed in Houtchens undermine the Richards court's reading of the rule. Former article 2270 similarly spoke of the amount of a judgment and suspending execution, yet the supreme court interpreted that statute as also providing a right to "suspend[ ] the enforcement or carrying into effect" of a non-monetary judgment without regard to the "character of process [required] to enforce [it]." Houtchens , 29 S.W.2d at 1037. Trial courts have broad authority to grant further relief to enforce declarations like those in this case. See Tex. Civ. Prac. & Rem. Code Ann. § 37.011 (West 2015) ; Tanglewood Homes Ass'n v. Feldman , 436 S.W.3d 48, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under the Rules of Appellate Procedure, courts have set the amount of security necessary to supersede enforcement of a declaratory judgment without addressing whether a writ of execution would be proper process for enforcing that judgment. E.g., Hydroscience Techs., Inc. v. Hydroscience, Inc. , 358 S.W.3d 759, 760–61 (Tex. App.—Dallas 2011, op. on motion) (allowing appellant to supersede judgment declaring appellee's shareholder status); Delhi Gas Pipeline Corp. v. Hassell , 730 S.W.2d 159, 161–62 (Tex. App.—Tyler 1987, orig. proceeding) (holding portion of judgment declaring future price for gas purchases was "other judgment" that could be superseded under predecessor to Rule 24.2(a)(3) ).
We note that execution may issue on a judgment requiring delivery of possession of personal property. See Tex. R. Civ. P. 632. Appellants do not address whether such an execution is "further relief" that could issue "based on" the Declarations. Tex. Civ. Prac. & Rem. Code § 37.011. Because a judgment's enforceability by execution does not determine whether it may be superseded under Rule 24, however, we need not decide that issue.
Richards also can be read more narrowly as holding that the wife could not supersede the judgment at issue because it required nothing of her. 991 S.W.2d at 32. Even under that reading, the Declarations are different because they provide for transfer of property interests between parties. Indeed, the Declarations specifically provide that appellants' assignment and consent to transfer of ownership interests to Choudhri are "valid and enforceable." Rules 24 and 25 prescribe how enforcement of a judgment may be suspended, and they require more than a notice of appeal. See Tex. R. App. P. 24.1 – 24.2 ; 25.1(h). We therefore hold that appellants' notice of appeal did not suspend enforcement of the Declarations.
This case therefore differs from Kaldis v. Aurora Loan Services , 424 S.W.3d 729, 737–38 (Tex. App.—Houston [14th Dist.] 2014, no pet.), in which we held that the trial court did not err in declining to allow the appellants to supersede a take-nothing judgment that did not award any party any property interest, or any amount of money or court costs.
As we discuss below, we also conclude the Declarations are a judgment "for the recovery of an interest in ... personal property" under Rule 24.2(a)(2). If appellants were correct that a judgment for recovery of personal property does not fall within Rule 24 at all because it is not susceptible of execution and creates no judgment debtor, then the language in Rule 24.2(a)(2) authorizing a court to set the amount of security necessary to supersede such a judgment would be a nullity. We decline to adopt such an interpretation of the rule.
B. Rule 24.2(a)(2) applies because Choudhri's recovery includes declarations that he owns an interest in personal property.
We next consider which part of Rule 24 governs superseding the Declarations: Rule 24.2(a)(2) or Rule 24.2(a)(3). To answer that question, we must determine the nature of the Declarations. If they are for "recovery of an interest in personal property," then Rule 24.2(a)(2) applies. If they are for "something other than money or an interest in property," then Rule 24.2(a)(3) applies.
The Declarations determine the extent of Choudhri's ownership interests in the Entities:
It is further ORDERED, ADJUDGED, DECLARED AND DECREED that since June 18, 2008, Choudhri has owned 15% of [ML Partnership], a Texas limited partnership, and 15% of [ML General], and that as of October 29, 2010, Choudhri owned a total (not additional) 49.5% of [ML Partnership] and a total (not additional) 50% of [ML General], with all beneficial rights and interest in the Beal Bank entities that flow from such ownership, including Choudhri's status as a manager of [ML General] from and after October 10, 2010. The only other owner of interest in [ML Partnership] and [ML General] from and after October 29, 2010 is Osama Abdullatif, whose ownership interest in these entities is equal to that of Choudhri from and after October 29, 2010. The October 29, 2010 assignment of interest in these entities from Mokaram to Choudhri and Abdullatif's consent to any transfer of interest in these entities from Mokaram to Choudhri are valid and enforceable.
The judgment's declarations that Choudhri owns interests in a partnership and a limited liability company show that Choudhri's "recovery" includes "interest [s] in personal property." Tex. R. App. P. 24.2(a)(2). An interest in a partnership is personal property. Tex. Bus. Orgs. Code Ann. § 154.001(a) (West 2012) ("A partner's partnership interest is personal property for all purposes."); In re Allcat Claims Serv., L.P. , 356 S.W.3d 455, 464 (Tex. 2011). A membership interest in a limited liability company is also personal property. Id. § 101.106(a) ("A membership interest in a limited liability company is personal property."); Abdullatif v. Erpile, LLC , 460 S.W.3d 685, 692 & n.7 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Rule 24.2(a)(2) therefore governs how appellants may supersede this portion of the judgment.
Appellants cite El Caballero Ranch, Inc. v. Grace River Ranch, L.L.C. for the proposition that declaratory judgments are for something other than money or property and therefore are governed by Rule 24.2(a)(3), regardless of the subject matter of the declarations. No. 04-16-00298-CV, ––– S.W.3d ––––, 2016 WL 4444400 (Tex. App.—San Antonio Aug. 24, 2016, op. on motion). In that case, the trial court signed a judgment declaring Grace River held a valid easement on El Caballero's property and enjoining El Caballero from interfering with Grace River's use and enjoyment of the easement. See id. at –––– – ––––, 2016 WL 4444400, at *1–2. Grace River and El Caballero each filed motions to post a supersedeas bond—Grace River to enforce judgment and El Caballero to suspend it. Id. at ––––, 2016 WL 4444400, at *2. Grace River asserted that, as judgment creditor, it should be allowed to post a bond to protect the judgment debtors and then enforce the judgment under Rule 24.2(a)(3). El Caballero countered that Rule 24.2(a)(2) applied because the judgment declared an interest in real property. See id.
The court of appeals held that supersedeas was governed by Rule 24.2(a)(3), observing that "the specific portion of the judgment that El Caballero [sought] to suspend [was] the injunctive portion," not the declaratory portion. Id. at ––––, 2016 WL 4444400, at *5. The supreme court similarly held that the predecessor to Rule 24.2(a)(3) governed superseding the injunctive portion of a judgment. Klein I.S.D. v. Fourteenth Court of Appeals , 720 S.W.2d 87, 88 (Tex. 1986) (orig. proceeding).
El Caballero 's holding makes sense given the language of the rule: an injunction against interference with an interest in real property is not a judgment for "recovery of an interest in real ... property." Tex. R. App. P. 24.2(a)(2). But the judgment in this case does not contain an injunction; it awards money damages and validates a transfer of interests in personal property.
We note that in deciding El Caballero , the San Antonio Court of Appeals also suggested that the subject matter of the declarations in the judgment—which validated an easement burdening real property—was immaterial to the supersedeas analysis. Instead, the mere fact that the judgment awarded declaratory relief rendered it a judgment for something other than money or property. ––– S.W.3d at ––––, 2016 WL 4444400 at *5.
Nothing in the language of Rule 24, however, indicates that courts should take such a form-over-substance approach. Specifically, Rule 24.2(a)(2) does not say that a judgment for recovery of an interest in property must take a particular form or result from a suit asserting a certain cause of action. Nor do we see any reason that the amount necessary to supersede a judgment for recovery of an interest in property should be measured by the property's value if the judgment concludes a suit to quiet title, for example, but not if it concludes a suit for declaratory judgment.
The court in El Caballero relied on its opinion in Orix Capital Markets, LLC v. La Villita Motor Inns, J.V. , No. 04-09-00573-CV, 2010 WL 307885 (Tex. App.—San Antonio Jan. 27, 2010, mem. op. on motion), disp. on merits , 329 S.W.3d 30 (Tex. App.—San Antonio 2010, pet. denied). The judgment in that case (1) declared Orix was not the rightful holder of a note secured by a deed of trust to a hotel, (2) permanently enjoined Orix and temporarily enjoined other defendants from foreclosing on the hotel; (3) declared the principal balance on the note to be $6,000,000; (4) allowed La Villita time to pay or refinance; and (5) ordered Orix to pay La Villita's attorney's fees. The court of appeals concluded the judgment was "primarily declaratory in nature," so Rule 24.2(a)(3) governed how Orix could supersede it. Id. at *1.
Orix does not support the application of Rule 24.2(a)(3) in this case. La Villita did not recover an interest in property in the Orix judgment. In contrast, the Declarations here validate a transfer of interests in personal property to Choudhri. Accordingly, Rule 24.2(a)(2) governs how appellants may supersede that portion of the judgment.
C. The December 5, 2012 order is not a substitute for a bond set under Rule 25.2(b)(2).
Finally, we consider appellants' assertion that the trial court's December 5, 2012 order sufficiently protects Choudhri from loss or damage the appeal may causehim. By agreement of the parties, the trial court signed an order in which, among other things, it appointed a Master in Chancery and prohibited ML Partnership and its agents, managers, partners, and purported partners from taking certain actions. The prohibited acts include making partnership distributions to any partner or purported partner, paying or incurring any expenditure outside the normal course of business without advance approval by the Master in Chancery, and paying or incurring any capital expenditure of more than $25,000 without the advance approval by the Master in Chancery.
Rule 24.2(a)(3) permits a trial court to set the amount and type of security that must be posted to adequately protect a judgment creditor against loss or damage that the appeal might cause. The trial court cited this portion of the rule in its Supersedeas Order, stating that its December 5, 2012 order would remain in force and effect as further security to protect Choudhri against such loss or damage.
Rule 24.2(a)(2), however, restricts the trial court's discretion to determine the security necessary to supersede a judgment for recovery of property. For personal property, the amount of security must be at least "the value of the property interest on the date when the court rendered judgment...." Tex. R. App. P. 24.2(a)(2)(B). Because the amount of security required to supersede the Declarations is set by this rule, the December 5, 2012 order is not relevant to the supersedeas analysis. Under Rule 24.2(a)(2)(B), the trial court abused its discretion by not determining the value of the property interests it declared had been assigned to Choudhri and using that value to set the security appellants must post to supersede the Declarations.
CONCLUSION
We grant Choudhri's motions and hold that appellants must post additional security at least equal to "the value of the property interest[s] on the date when the court rendered judgment" to supersede the Declarations. Tex. R. App. P. 24.2(a)(2)(B) ; see Tex. R. App. P. 24.4(d) (authorizing court of appeals to require that the amount of security be increased or decreased and that another bond, deposit, or other security be posted). We remand the Supersedeas Order for the trial court to take evidence and make findings of fact regarding the amount and type of security appellants must post to supersede the declaratory portion of the judgment. See Tex. R. App. P. 24.4(d). Texas Rule of Civil Procedure 621a authorizes the parties to conduct discovery as necessary to obtain information relevant to the value of the property interests.
ORDER
On June 8, 2017, we issued an opinion granting appellee's motions for review of the trial court's supersedeas ruling under Texas Rule of Appellate Procedure 24.4. Appellants filed an "Emergency Motion for Temporary Relief or for Rehearing to Clarify Opinion" on July 7, 2017. The motion asks the court either to (1) clarify that we did not "order additional or other security to supersede the judgment," so the 20-day judgment-suspension period in Texas Rule of Appellate Procedure 24.4(e), which begins after the court of appeals makes such an order, does not apply; or (2) if Rule 24.4(e) does apply, issue a temporary order under Rule 24.4(c) again suspending the judgment. Appellants filed a supplemental emergency motion on July 25, 2017, repeating their request.
Subsections (d) and (e) of Rule 24.4 state:
(d) Action by Appellate Court . The motion must be heard at the earliest practical time. The appellate court may require that the amount of a bond, deposit, or other security be increased or decreased, and that another bond, deposit, or security be provided and approved by the trial court clerk. The appellate court may require other changes in the trial court order. The appellate court may remand to the trial court for entry of findings of fact or for the taking of evidence.
(e) Effect of Ruling. If the appellate court orders additional or other security to supersede the judgment, enforcement will be suspended for 20 days after the appellate court's order. If the judgment debtor does not comply with the order within that period, the judgment may be enforced. When any additional bond, deposit, or security has been filed, the trial court clerk must notify the appellate court. The posting of additional security will not release the previously posted security or affect any alternative security arrangements that the judgment debtor previously made unless specifically ordered by the appellate court.
Tex. R. App. P. 24.4(d), (e).
We ordered as follows in our supersedeas opinion:
We grant [appellee's] motions and hold that appellants must post additional security at least equal to "the value of the property interest[s] on the date when the court rendered judgment" to supersede the Declarations. Tex. R. App. P. 24.2(a)(2)(B) ; see Tex. R. App. P. 24.4(d) (authorizing court of appeals to require that the amount of security be increased or decreased and that another bond, deposit, or other security be posted). We remand the Supersedeas Order for the trial court to take evidence and make findings of fact regarding the amount and type of security appellants must post to supersede the declaratory portion of the judgment. See Tex. R. App. P. 24.4(d). Texas Rule of Civil Procedure 621a authorizes the parties to conduct discovery as necessary to obtain information relevant to the value of the property interests.
Abdullatif v. Mokaram , No. 14–16–00116–CV, 536 S.W.3d 48, 2017 WL 2484374, *7 (Tex. App.–Houston [14th Dist.] June 8, 2017, op. on motions for review of supersedeas order).
Despite the express statement that "appellants must post additional security," appellants contend we did not "order additional or other security" because we did not set a dollar amount, but rather remanded the motion for the trial court to take evidence, make findings, and set that amount. They cite no authority for that proposition, and we have found none. To the contrary, in ordering additional security, three of our sister courts remanded for findings regarding the amount required, and there was no suggestion Rule 24.4(e) did not apply. See LMC Complete Automotive, Inc. v. Burke , 229 S.W.3d 469, 481 (Tex. App.–Houston [1st Dist.] 2007, pet. denied) (recounting earlier remand); Orix Capital Mkts., LLC v. La Villita Motor Inns, J.V. , No. 04–09–00573–CV, 2010 WL 307885, *4 (Tex. App.–San Antonio Jan. 27, 2010, mem. op. on motion), disp. on merits , 329 S.W.3d 30 (Tex. App.–San Antonio 2010, pet. denied) ; Kanan v. Plantation Homeowner's [sic] Ass'n, Inc. , No. 13–11–00282–CV, 2012 WL 593067, *5 (Tex. App.–Corpus Christi Feb. 21, 2012, mem. op. on order), disp. on merits , 407 S.W.3d 320 (Tex. App.–Corpus Christi 2013, no pet.).
We hold Rule 24.4(e) applies to this case. The judgment was suspended for twenty days after our opinion was issued. Appellants did not comply with our order within that period. Accordingly, the judgment may be enforced. See Tex. R. App. P. 24.2(e).
Because we hold Rule 24.4(e) applies, we turn to appellant's request that we re-suspend the judgment under Rule 24.4(c). Rule 24.4(c) permits the court of appeals to "issue any temporary orders necessary to preserve the parties' rights." Tex. R. App. P. 24.4(c). Appellants contend they will be irreparably harmed if the judgment is not suspended because appellee is taking actions with respect to the business entities at issue in this case that will destroy appellants' appellate rights.
It appears appellants did not, within the 20-day suspension period of Rule 24.4(e), request a hearing to have the trial court set the new supersedeas amount. It is incumbent upon judgment debtors to take all action necessary to enable the judgment debtors to post additional security within that period.
Further, appellants waited 29 days after our opinion was issued to file the motion for clarification. They have not explained why they did not seek clarification early enough that, if we held Rule 24.4(e) applied, they would have time to post the additional security.
Appellants have not established that they acted with due diligence in attempting to comply with our order. Accordingly, we decline to suspend the judgment under Rule 24.4(c).
Appellants' motion and supplemental motion are DENIED .