Opinion
14-23-00520-CV
03-21-2024
WILEY R. HARRIS, III AND TORI S. HARRIS, Appellants v. JORRIT VAN DER TOGT AND ANDREA VAN DER TOGT, Appellees
On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1199010
Panel Consists of Justices Jewell, Bourliot, and Poissant.
MEMORANDUM OPINION ON MOTION
PER CURIAM
Pursuant to Texas Rule of Appellate Procedure 24.4(a), appellants request we (1) vacate the county court's order granting appellees' motion to increase the appeal bond; (2) restore the appeal bond to its original amount; and (3) order any amounts deposited with the county court's registry since January 1, 2024 released to appellants. Tex.R.App.P. 24.4(a). Because the county court abused its discretion in ordering the increased bond, we grant appellants' motion.
Background
This is an appeal from a judgment of eviction in favor of the landlord/appellees. In June 2022, appellees filed a sworn petition for forcible entry and detainer in the justice court. On February 6, 2023, the justice court signed a judgment awarding $19,000 in unpaid rent and $1,000 in attorney's fees. The justice court set the appeal bond at $22,800. Appellants immediately deposited cash in that amount with the clerk. The same day, February 6, 2023, the justice court signed a judgment nunc pro tunc resetting the bond amount at $40,408. Appellants immediately deposited the increased bond with the clerk.
Appellants appealed the justice court judgment to the county civil court at law. After a bench trial, the county civil court at law signed a judgment on June 12, 2023 awarding to appellees past due rent in the amount of $38,000. The judgment also awarded appellees $24,000 in attorney's fees through the date of judgment and $24,000 in contingent attorney's fees for an appeal. The judgment set the appeal bond in the amount of $38,000. Appellants deposited cash in the bond amount with the clerk. Two days after signing the judgment, the court signed an order releasing funds from the registry of the court. That order directed the $40,408 appellants deposited to effect an appeal of the justice court judgment released to appellees.[ Appellants filed their notice of appeal with this court on July 12, 2023.
Appellants do not challenge this order.
On November 10, 2023, appellees filed a motion in the county court to increase the appeal bond amount. In their motion, they alleged that appellants had not paid any rent since the July 2023 judgment and that the current appeal bond amount was deficient. Appellees provided the following calculations:
| $38,000 | Judgment Rent Awarded |
| $24,000 | Judgment Attorney Fees Awarded |
| $24,000 | Contingent Appellate Attorney Fees Awarded |
| $86,000 | Total |
| ($40,400) | JP Bond paid to appellees |
| $46,600 | |
| $22,800 | Accrued Rent (July through December 2023) |
| $68,400 | Subtotal |
| ($38,000) | Current Appeal Bond |
| $30,400 | Bond Deficiency |
This calculation appears to be an error or a typo, the "net total" should be $45,600.
Appellants filed a motion in this court to review the county court's December 15 order increasing the bond. Tex.R.App.P. 24.4. Appellants argue: (1) the county court lacked plenary power to increase the appeal bond in the absence of appellee alleging changed circumstances; and (2) the county court abused its discretion by requiring additional cash payments into the court's registry each month beginning January 1, 2024 when appellants already deposited an amount that covers rent at least through April 2024.
Standard of Review and Applicable Law
On the motion of a party, an appellate court may review the sufficiency and excessiveness of the amount of security, and the trial court's exercise of discretion under Rule 24.3(a). Tex.R.App.P. 24.4(a)(1), (5). We review the trial court's determination under an abuse of discretion standard. Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 909 (Tex. App.-Houston [14th Dist.] 2005, order). Rule 24.3(a) provides:
(a) Continuing Jurisdiction. Even after the trial court's plenary power expires, the trial court has continuing jurisdiction to do the following:
(1) order the amount and type of security and decide the sufficiency of sureties; and
(2) if circumstances change, modify the amount or type of security required to continue the suspension of a judgment's execution.Tex. R. App. P. 24.3(a).
Texas Property Code section 24.007 and Texas Rule of Appellate Procedure 24.2(a)(2) govern the security required to suspend the enforcement of an eviction judgment. Johnson v. Villatoro, No. 14-18-00150-CV, 2018 WL 3848070, at *2 (Tex. App.-Houston [14th Dist.] Aug. 14, 2018, order) (mem. op.). Section 24.007 of the Property Code provides:
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. In setting the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of the rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate.Tex. Prop. Code § 24.007. The appellate rules on security provide that when the court renders a judgment for the recovery of real property, the amount of security must be at least "the value of the property interest's rent or revenue." Tex.R.App.P. 24.2(a)(2)(A).
No Change in Circumstances
Rule 24.3(a)(2) allows the county court to modify the amount of supersedeas bond after its plenary power expires when there is a change in circumstances. Tex.R.App.P. 24.3(a)(2). A change in circumstance occurs when the supersedeas amount becomes inadequate. Combs v. Crepeau, No. 05-23-00088-CV, 2023 WL 8251573 at *2 (Tex. App.-Dallas Nov. 29, 2023, mem. op. on motion) (change in circumstances occurred when assets proposed as security proved to be in danger of loss or damage after supersedeas bond set) (citing Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668 S.W.3d 771, 779 (Tex. App.-El Paso 2022, op. on motion) (change in circumstances occurred when revenues generated by bond asset fell short of expectation)). Additionally, the appellate process taking longer than anticipated can constitute a change in circumstances under Rule 24.3. See Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CV, 2007 WL 2894167 at *7 (Tex. App.-Houston [1st Dist.] Oct. 4, 2007, pet. dism'd) (holding that county court had authority to modify the amount of the supersedeas bond where judgment creditor alleged the appellate process was taking longer than anticipated).
Appellees' motion to increase the bond, filed November 10, 2023, did not allege a change circumstances. Appellees argued the bond of $38,000 was insufficient to secure the entire judgment, including attorney's fees. The amount of the judgment did not change between June 2023, when the judgment was entered, and November 2023, when the motion was filed.
Moreover, the $38,000 bond amount in the judgment was sufficient to cover the rental value of the property for ten months. Ten months from the June 2023 judgment is April 2024. Neither the Property Code nor the Rules of Appellant Procedure require a bond for a judgment for the recovery of property to secure attorney's fees awarded in the judgment. See Tex. R. App. P. 24.2(a)(2)(A); Tex. Prop. Code § 24.007. And the Texas Supreme Court has held that appealing parties are not required to supersede the part of a judgment awarding attorney's fees when the judgment includes a provision for recovery of money. In re Nalle Plastics Family, L.P., 406 S.W.3d 168, 171-76 (Tex. 2013).
Accordingly, the county civil court of law abused its discretion by increasing the appeal bond amount in its December 15 order.
Conclusion
We order: (1) the trial court's December 15, 2023 Order Granting Plaintiff's Motion to Increase Appeal Bond vacated; and (2) order any amounts deposited with the county court's registry since January 1, 2024 released to appellants.
Additionally, we order appellants to pay $3,800 each month into the registry of the county court at law beginning May 1, 2024 until the final disposition of all appeals. Any payment not received by the registry of the court by the 5th of each month will be considered late and, upon that occurrence, appellees shall be entitled to the issuance of a writ of possession. The clerk shall accept the additional monthly payments into the registry without the necessity of each payment being considered a separate and new bond. Appellants need only deposit the $3,800 monthly payment without being required to complete an additional appeal bond form each month. See Tex. R. App. P. 24.4 (d).