Joshua Butler v. Kaur Holdings LLC

Opinion

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

-2- 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

-3- denied.

STEVEN L. HUGHES, Justice November 20, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

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