EMF Swiss Avenue, LLC v. Peak's Addition Home Owner's Association, City of Dallas and Board of Adjustment for the City of Dallas

• Court: Court of Appeals of Texas
• Decided: February 16, 2018
• Docket: 05-17-01112-CV
• Status: Published

Opinion

Order entered February 16, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01112-CV

EMF SWISS AVENUE, LLC, Appellant

V.

PEAK'S ADDITION HOME OWNER'S ASSOCIATION, CITY OF DALLAS AND BOARD OF ADJUSTMENT FOR THE CITY OF DALLAS, Appellees

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-02532

OPINION Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart Opinion by Chief Justice Wright

Appellee Peak’s Addition Home Owner’s Association (HOA) filed a Motion to Review

Security. Because the trial court’s judgment is for something other than money or an interest in

property, the trial court was required to determine the amount of security appellant EMF Swiss

Avenue, LLC was required to post to supersede the judgment. See TEX. R. APP. P. 24.2(3).

Following a hearing, the trial court set that amount at $150,000. In its motion, HOA requests

this Court to vacate the trial court’s supersedeas order and increase the amount of security to

$1,000,000 or, alternatively, to determine some other amount of security based on the evidence

presented to the trial court. See id. (security for judgments “for something other than money or an interest in property” must protect judgment creditor from loss or damage appeal might cause).

HOA subsequently filed its brief on the merits challenging our jurisdiction over this appeal.

Because HOA’s jurisdictional complaints are intertwined with the parties’ positions regarding

the proper damages model to be used in determining security, the Court deferred the motion to

the submissions panel. As a result, on February 12, 2018, the Clerk of the Court notified the

parties of the Court’s decision.

HOA has filed a letter objecting to our decision to defer the motion to the submissions

panel. We will construe the letter as a motion to reconsider that decision. We grant HOA’s

motion to reconsider our decision to defer the motion. Having reviewed HOA’s motion to

review security, we conclude HOA has failed to show the trial court abused its discretion in

setting security. See Solar Soccer Club v. Prince of Peace Lutheran Church of Carrollton, 234

S.W.3d 814, 831 (Tex. App.—Dallas 2007, pet. denied)(trial court has broad discretion in

determining amount of security). Accordingly, we deny the relief requested in HOA’s motion to

review security.

/s/ CAROLYN WRIGHT CHIEF JUSTICE