Michael Combs and Michael Combs Properties, LLC v. Diane Crepeau and Lari Reninger

Opinion

Order Affirmed and Opinion Filed November 29, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00088-CV

MICHAEL COMBS AND MICHAEL COMBS PROPERTIES, LLC, Appellants V. DIANE CREPEAU AND LARI RENINGER, Appellees

On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-03038

MEMORANDUM OPINION ON MOTION TO REVIEW ORDERS RELATING TO SUPERSEDEAS BOND Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns Before the Court is appellants’ motion for rehearing of our opinion

reviewing supersedeas bond orders and request for a stay. We deny the

motion. On our own motion, we vacate the opinion and order dated August 21,

2023. This is now the opinion of the Court.

Appellants ask the Court to review the trial court’s April 18, 2023 and June

20, 2023 orders relating to the supersedeas bond. We conclude the April order is

moot. Because we conclude the trial court did not abuse its discretion in rendering

the June order, we affirm that order. Background

In the appealed judgment, the trial court awarded damages to appellees

totaling $1,707,971.22. The trial court also imposed a constructive trust over the

following assets in appellants’ possession: (1) two homes; (2) cash in the amount

of $172,000; (3) a one-ounce gold coin; and (4) future benefit pension payments in

the amount of $1,001 per month. Regarding the assets subject to the constructive

trust, the judgment provides that they are “held subject to further order of this

Court or transferred to the Plaintiffs in partial satisfaction of this Judgment at such

value as agreed between the parties, or absent agreement, determined by this

Court.”

Following the judgment, appellees asked that the trial court to set the

supersedeas bond in the amount of $847,113.70. Seeking a lower bond, appellants

successfully argued, in part, that the assets being held in constructive trust should

be excluded from their net worth. The trial court signed an order on March 7, 2023

setting the bond at $34,894.29.

When appellants did not post the supersedeas bond, appellees filed in the

trial court, on April 10, 2023, a motion to require appellants to deposit the non-real

property trust assets into the trial court’s registry. In the motion, appellants stated

that “to the extent that an order to deposit the trust assets into the registry of the

Court for safekeeping is an increase in the security for the judgment, the Court has

authority to increase the security pursuant to Tex. R. App. P. 24.3 which provides

–2– the trial court has continuing jurisdiction to order the amount and type of security

and to modify the amount or type of security required.” Following a hearing, the

trial court signed an order on April 18th. In the order, the trial court found, in part,

that the judgment provided that the trust assets were to be held “subject to further

Order of this Court or transferred to [appellees] in partial satisfaction of the

Judgment” and that appellants had not superseded the judgment. The trial court

ordered appellants to deposit into the trial court’s registry: (1) $172,000; (2) the

one-ounce gold coin; (3) $6,006, being the sum of the periodic pension payments

made to appellants since the judgment was entered; and (4) $1,001 per month by

the 15th day of each month beginning May 15, 2023. The order also provided that

posting a supersedeas bond would not relieve appellants’ obligations under the

order.

Three days later, on April 21st, appellants deposited $34,894.29 with the

district clerk. They also deposited into the trial court’s registry the gold coin and

$62,870.

Because appellants failed to fully comply with the April 18th order to

deposit $179,007 into the court’s registry, appellees filed, on May 19th, an

amended motion to enforce the order by contempt or, alternatively, to increase the

supersedeas bond. Following a hearing, the trial court signed an order on June

20th granting the motion and ordering the supersedeas bond “increased by

$111,000 for a total amount of $145,895.29 pursuant to the Court’s authority under

–3– Tex. R. App. P. 24.1 and 24.3.” Appellants seek review of both the April 18th and

June 20th trial court orders. Because the June order is a modified supersedeas

order, the April 18th order is moot and not before the Court.

Applicable Law

A judgment debtor may supersede a judgment by posting a good and

sufficient bond. 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,

interest for the estimated duration of the appeal, and costs awarded in the

judgment. TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(a); TEX. R. APP. P.

24.2(a)(1). The amount, however, cannot exceed the lesser of fifty percent of the

judgment debtor’s current net worth or $25,000,000. TEX. CIV. PRAC. & REM.

CODE ANN. § 52.006(b); TEX. R. APP. P. 24.2(a)(1).

Even after its plenary power expires, a trial court has continuing jurisdiction

to modify the amount and type of security required to suspend enforcement of the

judgment if circumstances change. See TEX. R. APP. P. 24.3(a)(2). We may review

the sufficiency or excessiveness of the amount of security and the type of security.

See id. 24.4(a)(1) & (3). We review a trial court’s ruling on the amount of a

supersedeas bond for an abuse of discretion. See G.M. Houser, Inc. v. Rodgers,

204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.).

Discussion

–4– Appellants seek review of the trial court’s June 20th order increasing the

supersedeas bond. At the hearing, appellants argued that the trial court could not

increase the amount of the supersedeas bond because there had been no change in

circumstances. A change in circumstance occurs when the supersedeas amount

becomes inadequate. See Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668

S.W.3d 771, 779 (Tex. App.—El Paso 2022, no pet.) (change occurred when bond

based on amount generated by an oil well and that well reached payout prompting

reconsideration of bond amount); Adams v. Godhania, 635 S.W.3d 454, 461 n. 2

(Tex. App.—Austin 2021, pet. denied) (by increasing bond, trial court impliedly

found that security posted had become inadequate to cover appellee’s potential

damages).

In their response, appellees assert that appellants, in successfully arguing

that trust assets should be excluded from their net worth, told the trial court that

they were holding those assets in a constructive trust and that those assets were not

in any danger of loss or damage. Appellees identify the change in circumstance

being appellants’ assurance at the hearing setting the bond that the trust assets were

safe from loss turning out to be false. When the trial court subsequently ordered

appellants to place the trust assets into the court’s registry for safekeeping, they

were unable to fully comply. We agree with appellees that appellants’ failure to

keep the trust assets safe from loss is a changed circumstance permitting an

–5– increase in the bond. Accordingly, we conclude the trial court did not abuse its

discretion in increasing the amount of the supersedeas bond.

We affirm the trial court’s June 20, 2023 order.

/Robert D. Burns, III/ ROBERT D. BURNS, III 230088NF.P05 CHIEF JUSTICE

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