Joseph Ashmore, Jr., Allan Clark and Financial Risk Specialists, Inc. v. JMS Construction, Inc. and David Perley ( 2016 )

Order AFFIRMED; and Opinion Filed June 15, 2016.
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00537-CV
JOSEPH ASHMORE, JR., ALLAN CLARK, AND
FINANCIAL RISK SPECIALISTS, INC., Appellants
V.
JMS CONSTRUCTION, INC. AND DAVID PERLEY, Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-13260
MEMORANDUM OPINION ON MOTION
TO REVIEW SUPERSEDEAS BOND
Before Chief Justice Wright and Justices Lang-Miers and Stoddart
Opinion by Justice Lang-Miers
Before the Court is appellant Joseph E. Ashmore, Jr.’s motion for appellate review of the
trial court’s May 18, 2016 order setting the supersedeas bond. In an order dated May 24, 2016,
this Court granted a stay of any collection efforts by appellees on the final judgment pending this
Court’s review of the trial court’s order.
The trial court signed a judgment for $1,500,000.00 together with prejudgment and post-
judgment interest in the amount of five percent per year and taxable court costs. On April 28,
2016, the trial court signed an order setting the supersedeas bond at $247,100.50. Appellant filed
a motion asking the trial court to reconsider the bond and to lower it to zero dollars contending
that the trial court erred in not factoring two judgments against him in the total amount of
$4,500,000.00 as non-contingent liabilities in determining his net worth. The trial court held a
hearing on appellant’s motion to reconsider. After the hearing, the trial court signed an order on
May 18, 2016 increasing the amount of the supersedeas bond to $997,100.50. In doing so, the
trial court found that appellant was in possession of the $1,500,000.00 that the jury in the
underlying case found appellant had stolen, defrauded, and misappropriated from appellee JMS
Construction, Inc. and, therefore, those funds should be considered an asset of appellant.
Appellant asks this Court to review this order.
We may review the sufficiency or excessiveness of the amount of security and the type of
security. See Tex. R. App. P. 24.4(a)(1), (3). We review a trial court’s ruling for an abuse of
discretion. See Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC, 356 S.W.3d
716, 718 (Tex. App.—Dallas 2011, no pet.); G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840
(Tex. App.—Dallas 2006, no pet.).
A judgment debtor may supersede a judgment by posting “a good and sufficient bond.”
See TEX. R. APP. P. 24.1(a)(2). When the judgment is for money, the amount of the bond 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. See TEX. R. APP. P. 24.2(a)(1). The
amount, however, must not exceed the lesser of fifty percent of the judgment debtor’s current net
worth or $25,000,000. See TEX. R. APP. P. 24.2(a)(1).
It is the appellant’s burden to see that a sufficient record is presented to show error
requiring reversal. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Issues
depending on the state of the evidence cannot be reviewed without a complete record, including
the reporter’s record. See Favaloro v. Comm’n for Lawyer Discipline, 994 S.W.2d 815, 820
(Tex. App.—Dallas 1999, pet. stricken). When no reporter’s record is filed, we must assume the
missing evidence supports the trial court’s ruling. See Bryant v. United Shortline Inc. Assurance
Servs., 972 S.W.2d 26, 31 (Tex. 1998).
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Appellant contends the trial court abused its discretion in increasing the bond because
appellees did not request an increase and there was no evidence to support the increase. The trial
court held a hearing on appellant’s motion to reconsider. In its order, the trial court recited that it
considered the motion, the pleadings, the evidence, and arguments of counsel. Appellant has not
brought forward a reporter’s record from the hearing. In this circumstance, we must assume the
evidence presented at the hearing supports the trial court’s order. See Bryant, 972 S.W.2d at 31.
Accordingly, we affirm the trial court’s May 18, 2016 order.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
150537NF.P05
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