Opinion
06-23-00017-CV
03-17-2023
IN THE ESTATE OF BILLY WAYNE PHILLIPS, DECEASED
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court No. 18697
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Billie Kimberly Hudson filed a notice of appeal purporting to appeal the trial court's "Order on Executrix Shelia Smith's Application for Declaration of Executrix's Powers and Order to Sell signed on February 0, 2023." Following a hearing, and in connection with Hudson's appeal, the trial court set a supersedeas bond on February 15, 2023, in the amount of $150,000.00 pursuant to Rule 24.2(a)(3) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 24.2(a)(3). In her motion, Hudson states that sale of the real property at issue is currently scheduled to close on March 23, 2023. Hudson's motion asks this Court to reverse the bond order, lower the bond to $500.00, or remand to the trial court for a new hearing. Hudson also asks this Court to stay the sale of the real property pending resolution of her motion and any remand proceedings in the trial court.
Because the clerk's record in this case has not been filed, we do not have the order from which Hudson seeks to bring her appeal. The background of this case is set out in our opinion In re Estate of Phillips, No. 06-22-00015-CV, 2022 WL 2919505 (Tex. App.-Texarkana July 26, 2022, no pet.) (mem. op.).
As a general rule, a judgment debtor may supersede the judgment while pursuing an appeal. Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009); see TEX. R. APP. P. 24.1(a)(2). Rule 24.2 provides several methods for determining the amount of the bond. In this case, the trial court issued the bond under Rule 24.2(3) as an "Other Judgment." This was proper because the order in this case was one purportedly declaring that the executor had the right to sell estate property.
Rule 24.2(a)(3) provides:
(3) Other Judgment. 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 that the judgment debtor must post. The security must adequately protect the judgment creditor against loss or damage that the appeal might cause. But the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused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 the judgment creditor if an appellate court determines, on final disposition, that that relief was improper. When the judgment debtor is the state, a department of this state, or the head of a department of this state, the trial court must permit a judgment to be superseded except in a matter arising from a contested case in an administrative enforcement action.TEX. R. APP. P. 24.2(a)(3).
We review trial court rulings under Rule 24 for an abuse of discretion. See McDill Columbus Corp. v. Univ. Woods Apartments, Inc., 7 S.W.3d 923, 925 (Tex. App.-Texarkana 2000, no pet.). "A trial court is accorded broad discretion in determining the potential amount of damages an appeal might cause, and in setting an appropriate bond to protect a party from any such potential damage." EIS Dev. II, LLC v. Buena Vista Area Ass'n, No. 08-22-00006-CV, 2022 WL 575178, at *3 (Tex. App.-El Paso Feb. 25, 2022, no pet.) (citing EMF Swiss Ave., LLC v. Peak's Addition Home Owner's Ass'n, No. 05-17-01112-CV, 2018 WL 914900, at *1 (Tex. App.-Dallas Feb. 16, 2018, no pet.) (mem. op.) ("recognizing that a trial court has broad discretion in determining the amount of security necessary to protect an appellees' interests during the pendency of an appeal from a non-monetary judgment").
Under Rule 24.4(a), we "may review . . . the sufficiency or excessiveness of the amount of security." TEX. R. APP. P. 24.4(a)(1). Our review of the bond amount seeks to determine whether the trial court had "sufficient information upon which to exercise its discretion" and whether "the trial court err[ed] in its application of [its] discretion." Ellis v. Renaissance on Turtle Creek Condo. Ass'n, Inc., No. 05-12-01435-CV, 2013 WL 1738679, at *1 (Tex. App.- Dallas Apr. 23, 2013, no pet.) (mem. op.) (citing Rowe v. Watkins, 324 S.W.3d 111, 113 (Tex. App.-El Paso 2010, no pet.)). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the act was arbitrary or unreasonable." O'Quinn v. Wood, No. 12-08-00011-CV, 2009 WL 2367133, at *2 (Tex. App.- Tyler June 10, 2009, order).
In her motion for a supersedeas bond, Hudson recited the fact that the trial court entered an order granting the executrix's application for a declaration of power and order to sell the property. She further recited that she had appealed that order and was seeking a supersedeas bond "to suspend the effect and enforcement of the Order pending resolution of" her appeal.
At the hearing, Hudson asked for a supersedeas bond to delay the effectiveness of the order authorizing sale so the order could be appealed. Both parties agreed that the sale price of the property in question is $302,000.00 and that the closing was set for the week of March 20. The executrix claimed loss or damage would be occasioned by the failure to close the sale and argued for a bond amount that would cover any loss in the event the sale did not close. The loss, the executrix claimed, would accrue to Hudson's co-heir to the property-the executrix-in losing her share of the sale. In setting the bond at $150,000.00, the trial court explained that this amount "is appropriate" because it is "half of the sales price."
In her Rule 24.4 motion, Hudson claims that no evidence was presented at the hearing of any loss or damage that would be occasioned by a delay in the sale. Yet, counsel for Hudson conceded that the potential buyer has "waited throughout all these delays" and stated that "[w]e don't know . . . that this buyer is going to walk away and refuse the sale." It is undisputed that neither party knew if the potential buyer, who, after having "waited throughout all these delays," would agree to post-pone the March closing date to some unknown future date.
Rule 24.2(a)(3) states that "[t]he security must adequately protect the judgment creditor against loss or damage that the appeal might cause." TEX. R. APP. P. 24.2 (a)(3) (emphasis added). The record clearly demonstrates how the trial court arrived at the bond amount-one that protects the executrix against loss that the appeal might cause. In light of the trial court's broad discretion to set the bond amount and the evidence in the record, we conclude that Hudson has not demonstrated that the trial court abused its discretion in setting the bond in the amount of $150,000.00. Accordingly, we deny Hudson's request to vacate or reduce the bond amount or to otherwise remand for any further proceedings in the trial court.
In light of this decision, we deny Hudson's request for emergency relief.
IT IS SO ORDERED.