In In the Estate of Gary, a trial court granted a motion to remove an administrator and later granted a turn over order regarding same. No. 07-16-00421-CV, 2017 Tex. App. LEXIS 1991 (Tex. App.—Amarillo March 8, 2017, no pet. history). The administrator filed two motions requesting that the trial court set a supersedeas amount on the turn over order. The trial court did not rule on the supersedeas motions, and the administrator file a motion with the court of appeals requesting a stay of execution pending an appeal of the supersedeas order. The court initially granted an emergency motion to stay enforcement but later denied the motion, holding that the administrator did not appropriately bring the motions to the trial court’s attention. Simply filing the motions was not sufficient: “we cannot conclude that the trial court has abused its discretion by failing to set the type and amount of security necessary to suspend enforcement of its order when the record does not reflect that the request has been brought to the attention of the trial court and when Gary specifically argued that it was premature for the trial court to set a supersedeas bond in this case.”
Interesting Note: Many probate/trust orders are immediately appealable and a party may want to supersede them so that the opposing party will not start execution. The amount required to supersede a damages award “must equal the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.” Tex. R. App. P. 24.2(a)(1). See also Tex. Civ. Prac. & Rem. Code § 52.006(a). When the judgment is for the recovery of an interest in real or personal property, the trial court should determine the type of security that the judgment debtor must post; however, the amount of the security must be at least the value of the real property’s rent or revenue or the value of the personal property interest on the date of judgment. Tex. R. App. P. 24.2(a)(2).
Under Texas Rule of Appellate Procedure 24.2(a)(3), “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.” Tex. R. App. P. 24.2(a)(3). This type of relief could be injunctive or declaratory relief and would also include orders removing a fiduciary, appointing a receiver, or requiring an audit or accounting. This “language is mandatory” and, thus, a judgment debtor must be given the opportunity to preserve the status quo during its appeal:
The purpose of Rule of Appellate Procedure 24 is to provide the means for a party to suspend enforcement of a judgment pending appeal in civil cases. By superseding a judgment against it, the judgment debtor may “preserve[ ] the status quo of the matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken.”
Alpert v. Riley, 274 S.W.3d 277, 297 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
However, under Rule 24, a judgment debtor’s right to supersede the enforcement of a judgment during the pendency of an appeal is not absolute. Rule 24.2(a)(3) recognizes that a trial court may refuse to allow a judgment debtor to supersede the judgment so long as the judgment is considered an “other” judgment and the judgment creditor posts security “in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted . . . .” Tex. R. App. P. 24.2(a)(3). In such cases, the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered 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 the appellate court reverses. Id. See also El Caballero Ranch, Inc. v. Grace River Ranch, LLC, No. 04-16-00298-CV, 2016 Tex. App. LEXIS 9180 (Tex. App.—San Antonio August 24, 2016, mot. denied) (court affirmed trial court’s order denying supersedeas to judgment debtor where creditor posted security). Therefore, an appellate court’s determination regarding whether a judgment is primarily one for money, the recovery of real property, or for something “other than money or an interest in real property” has serious ramifications for a judgment debtor. El Caballero Ranch, Inc., 2016 Tex. App. LEXIS 9180, *14. In the event that a court determines that the judgment awarded the recovery of money or an interest in real property, the trial court abuses its discretion by failing to allow the debtor to post bond and supersede the enforcement of the judgment during the pendency of the appeal. Id. However, in the event the court determines that the judgment awarded something “other than money or an interest in real property,” the trial court has discretion to decline a debtor’s request to supersede the judgment so long as the creditor posts security in an amount that would secure the debtor against any loss or damage. Id. The amount that the creditor must post would be in the discretion of the trial court after an evidentiary hearing on that issue. Id.
To complain of a trial court’s net worth determination in connection with setting a supersedeas bond amount, a party must file a motion in the court of appeals. Tex. R. App. P. 24.4. A court of appeals may also “issue any temporary orders necessary to preserve the parties’ rights” to seek appellate review of the trial court’s determination. Tex. R. App. P. 24.4(c). A stay may be necessary to preserve the status quo and prevent execution on the underlying judgment pending a court’s resolution of the issues raised with the trial court’s supersedeas determinations. Id.