BBX Operating, LLC v. American Fluorite, Inc., GeoSouthern Energy Partners, LP, and GeoSouthern Energy Corp.

• Court: Court of Appeals of Texas
• Decided: December 12, 2019
• Docket: 09-19-00278-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-19-00278-CV _________________

BBX OPERATING, LLC, Appellant

V.

AMERICAN FLUORITE, INC., GEOSOUTHERN ENERGY PARTNERS, LP, AND GEOSOUTHERN ENERGY CORP., Appellees ________________________________________________________________________

On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 35155 ________________________________________________________________________

ORDER

The appellant, BBX Operating, LLC, filed a motion to review the amount

ordered by the trial court to supersede the judgment on appeal. See Tex. Civ. Prac.

& Rem. Code Ann. § 52.006(d); Tex. R. App. P. 24.4(a)(1). The trial court ordered

the appellant to provide security in the amount of $3,053,995.18, including

$2,429,547.65 in garnished funds and $624,447.53 in additional security. BBX

1 contends the trial court abused its discretion by ordering BBX to post appellate

security that included $261,548.32 in prejudgment interest.

A judgment debtor may supersede a judgment for money by posting security

in an amount equal to 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. Civ. Prac. & Rem. Code Ann. § 52.006(a); Tex. R. App. P. 24.2(a)(1). “Not

every amount, even if compensatory, can be considered damages.” In re Nalle

Plastics Family Ltd. P’ship, 406 S.W.3d 168, 173 (Tex. 2013). Because it is not

compensatory damages, prejudgment interest should not be included in the amount

of security required to supersede the judgment. See Kennedy Con., Inc., v. Forman,

493 S.W.3d 103, 105 (Tex. App.—Houston [14th Dist.] 2014, mand. denied)

(holding that trial court did not abuse discretion in omitting prejudgment interest in

calculating amount required to supersede judgment).

We hold the trial court erred by requiring the appellant to provide security for

$261.548.32 in prejudgment interest. We reverse in part the trial court’s supersedeas

order, decrease the total security amount to $2,792,446.86, and set the amount of

additional security to supersede the trial court’s final judgment at $362,899.21. See

Tex. R. App. P. 24.4(d) (authorizing an appellate court to increase or decrease the

amount of a bond or to require other changes in the trial court’s order). Other than

2 the amount of security ordered, we affirm the remaining provisions of the trial

court’s order. We suspend the appellees’ right to enforce the trial court’s judgment

for twenty days from the date of this Court’s order to allow appellant to post the

security we have ordered. See Tex. R. App. P. 24.4(e).

ORDER ENTERED December 12, 2019. PER CURIAM Before Kreger, Horton, and Johnson, JJ.