In In re Ng, after a jury found that a deceased trustee did not breach fiduciary duties, a trial court nonetheless ordered the deceased trustee’s spouse to prepare an accounting of the trust. No. 09-17-00386-CV, 2017 Tex. App. LEXIS 10129 (Tex. App.—Beaumont October 27, 2017, original proceeding). The spouse filed a notice of appeal and also filed a petition for writ of mandamus. The spouse argued that she did not have time to appeal by the deadline the trial court set for the accounting. The court of appeals denied the petition for writ of mandamus because the spouse could have potentially superseded the order requiring an accounting:
Mandamus is an extraordinary remedy that is available when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. Mandamus is not available to compel what may be accomplished by supersedeas. After reviewing the petition and the response, we conclude that Ng has not shown that she has no adequate remedy by appeal. Accordingly, we deny the petition for a writ of mandamus and the motion for temporary relief.
Interested Note: Because the trial court ordered relief that was not monetary relief or an interest in real property, the trial court had the obligation to set an amount for supersedeas under Rule 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 Rule 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 But the trial court may decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused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.
Id. 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).