Opinion
NO. 09-18-00385-CV
03-27-2019
GEORGE EARL DANNER, Appellant v. KATHRYN M. DANNER, Appellee
On Appeal from the 418th District Court Montgomery County, Texas
Trial Cause No. 17-03-04143-CV
ORDER
In November 2018, George Earl Danner filed a motion to reduce the amount of the $1,933,915.60 supersedeas bond set by the trial court in his case. After the trial court set the bond, George asked the trial court to reduce it and filed a net worth affidavit. In December 2018, George filed a supersedeas bond of $443,000, the amount he claimed was appropriate in the circumstances of his case. In January 2019, the trial court conducted an evidentiary hearing on George's request seeking to decrease the bond. See Tex. R. App. P. 24.2(c)(3). At the conclusion of the hearing, the trial court denied George's motion and advised the parties that the court found George's net worth affidavit "wholly incredible with [George] purposefully not including numerous assets and picking amounts that are inconsistent with the values that were determined at the time of trial."
In late January 2019, George asked this Court to review the trial court's January 2019 order. We remanded the case to allow the trial court to make written findings of fact based on our conclusion that the Rules of Appellate Procedure require trial courts to "set the amount and type of security that the judgment debtor must post." See Tex. R. App. P. 24.2(c)(3); see also Tex. R. App. P. 44.4. Subsequently, the trial court issued findings of fact. These findings state, in pertinent part, that George's testimony from the January 2019 hearing "was not credible[,]" and that, given George's "failure to present credible evidence of actual values of all assets and actual debts, this court is unable to state [George's] net worth[.]" The trial court also found by agreeing to post a supersedeas bond of $1,933,915.60, George had waived "any limitation that may be created by [the Texas Civil Practice and Remedies Code or the Rules of Appellate Procedure]" as related to the trial court's obligation to set bond. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(b) (West 2015); see also Tex. R. App. P. 24.2(a)(1)(A). The trial court also found that George, in calculating his net worth, erred by reducing the value of his business by $261,000 because his business is worth $290,000, not $29,000 as George claimed.
The current dispute regarding the amount of the supersedeas bond arises in the context of the parties' divorce. Both parties to the case filed inventories, and the final decree divides the parties' marital estate. Therefore, in addition to George's affidavit regarding his net worth, the trial court had a substantial amount of relatively current information available to it to establish the proper amount of the supersedeas bond for the case.
In the January 2019 hearing, George challenged the trial court's valuation of his business. He also sought to exclude two assets from his net worth claiming they were exempt: (1) his homestead, which Kathryn's attorney stated in the hearing was worth $400,033; and (2) a retirement account, which George indicated was worth $148,535.
The trial court relied on a purported agreement George made to post bond in setting the bond at $1,933,915.60. But, the agreement the trial court referenced refers to the amount of the judgment: it does not mention George's net worth. That said, nothing in the appellate record supports a conclusion that $1,933,915.60 equals one-half of George's net worth. Tex. R. App. P. 24.2(a)(1)(A), (B) (providing that the amount of a supersedeas bond must not exceed the lesser of 50% of the judgment debtor's current net worth or 25 million dollars). Moreover, Rule 24 of the Appellate Rules of Procedure gave the trial court continuing jurisdiction to modify the amount and type of security that a judgment debtor like George was required to post to suspend the execution of the final judgment. See Tex. R. App. P. 24.3.
We conclude that George's agreement on the amount of the judgment did not waive his right to request that the trial court determine his net worth. Given the information before us about George's net worth, we conclude George's net worth is $1,693,629. One-half of that amount is $846,814.50, which is less than the supersedeas bond the trial court required in George's case. See Tex. R. App. P. 24.2.
We hold the trial court erred by requiring George to post a supersedeas bond of $1,933,915.60. We reverse the trial court's order on the supersedeas bond and set the bond at $846,000. Tex. R. App. P. 24.4(d) (authorizing an appellate court to increase or decrease the amount of a bond or to require other changes in the trial court's order). Since George has already posted a bond of $443,000, we order that he post $403,000 as additional security. Id.
Finally, we suspend Kathryn's right to enforce the trial court's judgment for twenty days from the date of this Court's order so that George has time to post the additional security we have ordered. See Tex. R. App. P. 24.4(e).
ORDER ENTERED March 27, 2019.
PER CURIAM Before McKeithen, C.J., Horton and Johnson, JJ.