Joshua Butler v. Kaur Holdings LLC ( 2015 )


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  •                                    COURT OF APPEALS
    EIGHTH DISTRICT OF TEXAS
    EL PASO, TEXAS
    JOSHUA BUTLER,                                   §
    No. 08-15-00232-CV
    Appellant,        §
    Appeal from the
    v.                                               §
    County Court at Law No. 4
    KAUR HOLDINGS, LLC,                              §
    of Dallas County, Texas
    §
    Appellee.                           (TC# CC-15-02221-D)
    §
    MEMORANDUM OPINION ON MOTION
    Joshua Butler, pro se, has filed a motion pursuant to TEX.R.APP.P. 24.4 seeking review of
    the trial court’s order setting the amount of security required to supersede the judgment pending
    appeal. Finding no abuse of discretion, we deny Butler’s motion.
    FACTUAL SUMMARY
    Butler is appealing from a judgment awarding Kaur Holdings, LLC possession of real
    property located in Dallas County, Texas, and unpaid rent in the amount of $2,687.10. Butler
    filed a motion to set the amount of the supersedeas bond. The trial court determined that the
    amount of the security necessary to supersede the judgment is $650 per month which represents
    the monthly rental value of the property. This amount is almost $200 less than the amount of
    rent Butler is required to pay under the Texas residential lease agreement.
    SUPERSEDEAS BOND
    In his Rule 24.4 motion, Butler asks the Court to review the court’s supersedeas order
    and find that it is excessive because the supersedeas amount should not exceed fifty percent of
    his net worth. Butler reasons that since his net worth is zero, the supersedeas should have been
    set at zero.
    Standard of Review and Applicable Law
    As a general rule, a judgment debtor is entitled to supersede the judgment while pursuing
    an appeal. Miga v. Jensen, 
    299 S.W.3d 98
    , 100 (Tex. 2009). When the judgment is for the
    recovery of money, the amount of the bond, deposit, or security 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). The amount must not
    exceed the lesser of fifty percent of the judgment debtor’s current net worth, or 25 million
    dollars. TEX.R.APP.P. 24.2(a)(1). When the judgment is for the recovery of an interest in real
    property, the trial court determines the type of security that the judgment debtor must post, and
    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).     An appellate court is authorized to review the sufficiency or
    excessiveness of the amount of security. TEX.R.APP.P. 24.4(a)(1). We may require that the
    amount of a bond be increased or decreased and that another bond be provided and approved by
    the trial court clerk. TEX.R.APP.P. 24.4(d).
    A trial judge is given broad discretion in determining the amount and type of security
    required. Miller v. Kennedy & Minshew, P.C., 
    80 S.W.3d 161
    , 164 (Tex.App.--Fort Worth 2002,
    no pet.). Consequently, our review of the trial court’s ruling is under the abuse of discretion
    standard. EnviroPower, L.L.C. v. Bear, Stearns & Co., 
    265 S.W.3d 1
    , 2 (Tex.App.--Houston [1st
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    Dist.] 2008, pet. denied); TransAmerican Natural Gas Corporation v. Finkelstein, 
    905 S.W.2d 412
    , 414 (Tex.App.--San Antonio 1995, pet. dism’d). A trial court abuses its discretion when it
    renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of
    the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding
    rules or principles. Samlowski v. Wooten, 
    332 S.W.3d 404
    , 410 (Tex. 2011)
    No Abuse of Discretion
    Citing Section 52.006 of the Texas Civil Practice and Remedies Code, Butler argues that
    the amount of security should not exceed fifty percent of his net worth, and since his net worth is
    zero, he reasons that the supersedeas should have been set at zero. Section 52.006 addresses the
    amount of security required for a money judgment pending appeal. See TEX.CIV.PRAC. &
    REM.CODE ANN. §52.006(a)(West 2015). In this case, the judgment is for money -- unpaid rent
    in the amount of $2,687.10 -- but it also awards Kaur Holdings possession of the property.
    Section 52.006(a) and Rule 24.2(a)(1) apply to the portion of the judgment awarding to Kaur
    Holdings unpaid rent in the amount of $2,687.10, but these provisions do not apply to the portion
    of the judgment awarding Kaur Holdings possession of the property. The trial court’s order does
    not set any security for the portion of the judgment awarding Kaur Holdings unpaid rent. Thus,
    the order effectively set the amount of security for this portion of the judgment at zero.
    The judgment also awarded Kaur Holdings possession of the real property.
    Consequently, 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). The trial court determined that the rental value is $650
    monthly, which is almost $200 less than the rent provided for in the lease. In the absence of any
    evidence that the monthly rental value of the property is less than $650, we are unable to find
    that the trial court abused its discretion. Butler’s motion to review the supersedeas order is
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    denied.
    STEVEN L. HUGHES, Justice
    November 20, 2015
    Before McClure, C.J., Rodriguez, and Hughes, JJ.
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