Opinion
No. 04-04-00422-CV
Delivered and Filed: September 15, 2004.
Appeal from the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-05332, Honorable Patrick J. Boone, Judge Presiding.
On Review Of Order Denying Reduction Of Bond.
Order Denying Reduction of Bond Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice and Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
The underlying judgment declares that Nathaniel and Margaret Mack are the sole fee simple title holders to real property of which Knowles claims ownership. To supersede the judgment, the trial court ordered Knowles to post a bond in the amount of $18,000. Subsequently, the trial court denied Knowles' motion to reduce the amount of security. Knowles seeks review of this order. Because the record does not establish that the trial court abused its discretion, we affirm.
We review the trial court's orders on the amount and type of security for abuse of discretion. Tex.R.App.P. 24.4; see, e.g., Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 606 (Tex.), cert. denied, 519 U.S. 1042 (1996); TransAmerican Natural Gas Corp. v. Finkelstein, 905 S.W.2d 412, 414 (Tex. App.-San Antonio 1995, pet. dism'd). "With respect to resolution of factual issues or matters committed to the trial court's discretion," an abuse of discretion is shown if the movant "establish[es] that the trial court could reasonably have reached only one decision." Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). However, "a trial court has no `discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Id. at 840.
When a judgment is for the recovery of an interest in real property, the trial court determines the type of security that must be posted to supersede the judgment and must set security at an amount at least equal to the value of the property's rent or revenue. Tex.R.App.P. 24.2(a)(2)(A). Rule 24.2(b) provides the trial court must lower the amount of security required by Rule 24.2(a) if, after notice to all parties and a hearing, the court finds "that posting a bond, deposit, or security in the amount required by [Rule 24.2](a) is likely to cause the judgment debtor substantial economic harm." Tex.R.App.P. 24.2(b). The party seeking to reduce the amount of security bears the burden of proof. In re Kajima Int'l, Inc., 139 S.W.3d 107 (Tex. App.-Corpus Christi 2004, orig. proceeding); McDill Columbus Corp. v. Univ. Woods Apts., Inc., 7 S.W.3d 923, 925 (Tex. App.-Texarkana 2000, no pet.).
We have a reporter's record of a June 28, 2004 hearing at which the trial court set the $18,000 bond. During that hearing, Knowles orally moved for a reduction in the bond. However, the Macks received no prior notice of Knowles' oral motion, as required by Rule 24.2(b), and the trial court did not expressly rule on Knowles' oral motion. Knowles's written motion to reduce the amount of security was set for and heard on July 9, 2004. However, Knowles and the Macks waived the making of a record of the July 9, 2004 hearing. Without a record of the evidence the trial court considered in deciding whether the amount of the bond would likely cause Knowles substantial economic harm, we cannot conclude the trial court abused its discretion in denying Knowles' written motion to reduce the amount of security. Accordingly, we affirm the trial court's order.