Magellan Terminals Holdings, L.P., and Paul R. Wilson in His Capacity as Receiver of Mexam Export Import Corporation v. Hector Vargas

• Court: Court of Appeals of Texas
• Decided: September 24, 2019
• Docket: 13-19-00354-CV
• Status: Published

Opinion

NUMBER 13-19-00354-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MAGELLAN TERMINALS HOLDINGS, L.P., AND PAUL R. WILSON, AS RECEIVER OF MEXAM EXPORT IMPORT CORPORATION, Appellants,

v.

HECTOR VARGAS, ET AL., Appellees.

On appeal from the 357th District Court of Cameron County, Texas.

ORDER Before Chief Justice Contreras and Justices Hinojosa and Tijerina Order Per Curiam

Appellants, Magellan Terminals Holdings, L.P. and Paul R. Wilson as Receiver of

Mexam Export Import Corporation, bring this interlocutory appeal from a temporary

injunction granted in favor of appellee Hector Vargas. Currently before the Court is appellants’ “Emergency Motion for Adequate Temporary Injunction Bond or Other Relief.”

Appellants argue that the temporary injunction bond of $1,000 set by the trial court

is inadequate to “protect [a]ppellants from the imminent risk of substantial loss [a]ppellants

may suffer in the event that the Temporary Injunction . . . is dissolved in whole or part.”

Appellants request this Court to exercise its authority under Texas Rule of Appellate

Procedure 29.3 and order Vargas to provide an adequate temporary injunction bond or to

grant other appropriate relief as necessary. See TEX. R. APP. P. 29.3.

Texas Rule of Appellate Procedure 29.3 provides in pertinent part: “When an

appeal from an interlocutory order is perfected, the appellate court may make any

temporary orders necessary to preserve the parties’ rights until disposition of the appeal

and may require appropriate security.” Id. The rule authorizes courts of appeals, during

interlocutory appeals, to “make any temporary orders necessary to preserve the parties'

rights.” In re Geomet Recycling LLC, 578 S.W.3d 82, 87 (Tex. 2019) (quoting TEX. R.

APP. P. 29.3). “Although Rule 29.3 does not say so explicitly, the authority it grants to

issue ‘any temporary order’ naturally includes only the authority to issue orders that are

consistent with the law.” Id. at 88 (quoting TEX. R. APP. P. 29.3).

We note that the temporary injunction bond was set by the trial court in the first

instance pursuant to Texas Rule of Civil Procedure 684. See TEX. R. CIV. P. 684. Rule

684 states in relevant part that “[i]n the order granting any temporary restraining order or

temporary injunction, the court shall fix the amount of security to be given by the

applicant.” Id. Before the issuance of the temporary injunction, the applicant must

execute and file with the clerk a bond “in the sum fixed by the judge[.]” Id. The purpose

of a bond as a condition to the granting of a temporary injunction is to secure the payment

2 for the party against whom the injunction is issued, including the amount of the monetary

damages which it sustains as a result of the injunction, and costs, in the event the

injunction is subsequently held to be wrongfully issued and is dissolved. See id.; IAC,

Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 203 (Tex. App.—Fort Worth 2005,

no pet.).

The amount of a temporary injunction bond is within the trial court’s sound discretion

and will not be disturbed on appeal absent an abuse of that discretion. Khaledi v. H.K.

Global Trading, Ltd., 126 S.W.3d 273, 286 (Tex. App.—San Antonio 2003, no pet.); Four

Stars Food Mart, Inc. v. Tex. Alcoholic Beverage Comm’n, 923 S.W.2d 266, 269 (Tex.

App.—Fort Worth 1996, no writ). The determination of the adequacy of the bond is made

on a case-by-case basis based upon the record before the reviewing court. Maples v.

Muscletech, Inc., 74 S.W.3d 429, 431 (Tex. App.—Amarillo 2002, no pet.). An appellate

court is unable to determine whether the trial court abused its discretion where the parties

do not present evidence to the trial court concerning the amount of the bond. See Hartwell

v. Lone Star, PCA, 528 S.W.3d 750, 770 (Tex. App.—Texarkana 2017, pet. dism’d)

(“Without some evidence that would support a higher bond amount, we cannot say that the

trial court abused its discretion in setting the bond amount.”). Furthermore, a challenge to

the adequacy of the bond on appeal is subject to traditional notions of error preservation.

See Khaledi, 126 S.W.3d at 286 (concluding that a complaint regarding the amount of the

bond set pursuant to Texas Rule of Civil Procedure 684 must be raised in the trial court);

Matagorda Cty. Hosp. Dist. v. City of Palacios, 47 S.W.3d 96, 104 (Tex. App.—Corpus

Christi–Edinburg 2001, no pet.) (same).

3 Here, appellants failed to contest the amount of the bond in the trial court. As a

result, there is no record from which we can assess whether the trial court abused its

discretion in setting the bond amount as it did. See Hartwell, 528 S.W.3d at 770; Khaledi,

126 S.W.3d at 286; City of Palacios, 47 S.W.3d at 104. In light of the foregoing, we

conclude that appellants have not established grounds for relief pursuant to Texas Rule of

Appellate Procedure 29.3.

The Court, having examined and fully considered the matters on file herein, is of the

opinion that appellants are not entitled to the relief requested. Accordingly, we DENY

appellants’ “Emergency Motion for Adequate Temporary Injunction Bond or Other Relief.”

IT IS SO ORDERED.

PER CURIAM Delivered and filed the 24th day of September, 2019.