Still American, LLC, Unio Global Trade, LLC, Adolfo Rafael Vivas, Marcela Vogel, Michael Vogel, and Adolfo Pedro Vivas v. Baron Global Distributors, LLC and Zinc Point Manufacturing, Inc.

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00111-CV __________________

STILL AMERICAN, LLC, UNIO GLOBAL TRADE, LLC, ADOLFO RAFAEL VIVAS, MARCELA VOGEL, MICHAEL VOGEL, AND ADOLFO PEDRO VIVAS, Appellants

V.

BARON GLOBAL DISTRIBUTORS, LLC AND ZINC POINT MANUFACTURING, INC., Appellees

__________________________________________________________________

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 22-10-14637 __________________________________________________________________

MEMORANDUM OPINION ON MOTION

Michael Vogel and Marcela Vogel (two of the Appellants in this appeal) filed

a motion for review of the trial court’s order regarding the amount of security

required by them to supersede the judgment. We stayed enforcement of the judgment

while we considered the motion. See Tex. R. App. P. 24.4(c). After completion of

the underlying jury trial, the trial court entered an Amended Judgment awarding the

1 Appellees $12,361,628.84 in compensatory damages, plus prejudgment interest and

costs.

All defendants filed a notice of appeal. Michael Vogel and Marcela Vogel

each filed a net worth affidavit in the trial court and a supersedeas bond in the amount

of $55,818.44, which they calculated to be one-half of each individual’s net worth

that they calculated to be $111,636.89. In the affidavits, each person states that their

community assets total $655,474.66 and their community liabilities are $432,200,89.

In each affidavit, the affiant also states, “The liability represented by the Final

Judgment does, however, affect the value of a company in which we have a

pecuniary interest, so it is included in the value of our ownership of that company.”

Baron Global Distributors, LLC and Zinc Point Manufacturing, Inc. filed a

Contest to the Vogels’ net worth affidavits. The trial court held an evidentiary

hearing on January 17, 2025, pertaining to the net worth affidavits and the setting of

a supersedeas bond for the Vogels. Michael Vogel testified at the hearing that he

prepared the spreadsheet he used for the net worth affidavits. Michael testified that

he excluded from his net worth assets that would be exempt under Chapters 41 and

42 of the Texas Property Code, but he included as liabilities the mortgage on their

homestead and the loan they owed on an exempt vehicle. Michael testified that they

also owned a small rental property in Houston that they rented for $1,200 per month.

He identified two motorcycles that he stated he assigned value to using the Kelley

2 Blue Book. Regarding the value of the ownership interest he and his wife hold in

businesses, Michael testified that he and Marcela each own a 15 percent interest in

Unio Global Trade, but because of the outstanding judgment in this case they

considered their shares to have zero value. Michael stated he had “a rough idea[]”

that in August 2024 they had about “$179,000 and some change[]” in their brokerage

account, to the “best of [his] recollection” they have about $11,000 in their personal

checking account, “[r]oughly maybe” $5,000 in another checking account, and

“maybe some -- less than $10,000, likely[]” in a third checking account.

In calculating their liabilities, Michael testified that he included quarterly

estimated tax payments of their income from their businesses. He testified he also

included his personal liability as guarantor of the Unio Global building lease and the

lease on his daughter’s college apartment for the upcoming year. Michael testified

that all their assets and liabilities are community and none of them are separate.

The trial court questioned Michael further to gain more clarity on the value of

the Vogels’ assets and liabilities. Michael admitted he lacked an exact recollection

of how much cash they had in August 2024, but he said, “the total might have been

somewhere around 600,000 or 500,000.” One motorcycle was worth about $5,000

and the other about $6,000. Michael believed the rental house might be valued at

“120-something.”

3 The trial court pressed the witness further on the zero value they placed on

their ownership of Unio Global Trade, noting that in lieu of a supersedeas bond the

company had made a cash deposit of $649,130.27 into the registry of the court in

November 2024, and considering it is a pass-through entity, the Vogels’ 30 percent

interest should be worth more than zero. Michael responded that “by the time we

signed the affidavit, if I recall correctly, it was around $1.2 million.” Pressed on what

Unio Global Trade owns, Michael testified that Unio owns two forklifts and a bank

account that at the time of the hearing had on deposit about $133,000 in cash.

According to Michael, another company they own, Vogel Marketing, had no

customers in August 2024 and at the time of the hearing it only had some “odd work

here and there.”

On redirect, Michael testified that if they sold their residence today, he would

put it on the market for “[m]aybe somewhere around $600,000.” The trial court noted

that the Vogels’ spreadsheet calculation had excluded any value of their residence

in Montgomery County, Texas from their assets, but then they had included their

mortgage payment on that residence in their liabilities, and the Vogels had given no

value in their assets for multiple vehicles such as a 2023 Toyota Corolla and a 2023

Tesla Model Y worth about $53,000, and a BMW motorcycle worth about $12,000,

because their attorney told them those assets were exempt.

4 In response to a question from his counsel regarding the effect of possibly

posting an additional $110,000 bond between Marcela and Michael, Michael replied,

“we would have to liquidate assets to be able to cover that,” such as the brokerage

account and the motorcycles. He explained that after posting the supersedeas bonds,

paying tax liabilities, and college expenses, and considering they had legal expenses,

“it would probably be seriously detrimental.” Vogel’s counsel then passed the

witness.

The trial court stated on the record that the Vogels had provided no evidence

regarding liabilities other than the existence of a car note, a mortgage, and

educational expenses. The trial court concluded that it could not make a reasoned

decision regarding net worth without information about the assets and liabilities that

had not been provided, and Vogel’s testimony that they “would have to liquidate

assets” did not show substantial economic harm for purposes of section 52.006(c) of

the Civil Practice and Remedies Code.

On January 20, 2025, the trial court entered an Order Setting Supersedeas

Bond and found that the Vogels’ Net Worth affidavits failed to contain the required

“complete, detailed information concerning the debtor’s assets and liabilities f[ro]m

which net worth can be ascertained,” that the affidavits were conclusory comments

as to both assets and liabilities, and neither affidavit is “prima facie evidence of the

debtor’s net worth[.]” The trial court stated in the Order that based on the evidence

5 the Court received, the Vogels “were not truthful in their affidavits[.]” The trial court

found, “[t]he burden was on the Vogels—they failed to provide sufficient

information from which the Court may determine their net worth.” The trial court

explained that it therefore set the amount of the bond in the default amount dictated

under Rule 24.2(a)(1).

The trial court set the amount of the bond required of Michael Vogel to

supersede the judgment during the appeal as $14,463,105.74, and the amount of the

bond required of Marcela Vogel to supersede the judgment during the appeal as

$14,463,105.74. The trial court calculated the amount of the bonds by adding

compensatory damages of $12,361,628.84, two years of interest in the amount of

$2,101,476.90, and no costs. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a).

In its order, the trial court found the Vogels failed to establish the value of

several of their assets, including the value of their ownership interest in Unio Global

Trade, LLC and the value of a rental property they own. The trial court ruled they

failed to show that use of the statutory formula to set the supersedeas bond would

cause them to suffer substantial economic harm. The trial court found Michael Vogel

and Marcela Vogel were not truthful in their affidavits, “given that even as to the

incomplete list of assets about which he testified, Michael Vogel’s live-in-court

assessment of their total community property assets is $2,379,400.00.” Referring to

6 the extent of his direct knowledge of their assets and liabilities, during the hearing

Michael admitted, “I may be leaving a couple out.”

On the motion of a party, an appellate court may review the sufficiency or

excessiveness of the amount of security. See Tex. R. App. P. 24.4(a)(1). We review

the trial court’s determination of the amount of security for an abuse of discretion.

See Hunter Bldgs. & Mfg., L.P. v. MBI Global, L.L.C., 514 S.W.3d 233, 236 (Tex.

App.—Houston [14th Dist.] 2013, op. on motion); Ramco Oil & Gas, Ltd. v. Anglo

Dutch (Tenge) L.L.C., 171 S.W.3d 905, 909-10 (Tex. App.—Houston [14th Dist.]

2005, op. on motion), disp. on merits, 207 S.W.3d 801 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied). Generally, the test for abuse of discretion is whether the

trial court acted without reference to any guiding rules and principles or whether the

trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898

S.W.2d 251, 253 (Tex. 1995). The trial court abuses its discretion if the evidence is

legally or factually insufficient to support its findings. See In re Smith, 192 S.W.3d

564, 570 (Tex. 2006) (orig. proceeding) (per curiam); Ramco, 171 S.W.3d at 910.

If we conclude the trial court abused its discretion by setting an excessive

bond amount, we may order the amount of the security decreased to the amount

required by section 52.006(b) of the Civil Practice and Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann. § 52.006; Tex. R. App. P. 24.4(a)(1). Our review

requires a two-step analysis: (1) consider whether the trial court had sufficient

7 information upon which to exercise its discretion; and (2) whether the trial court

erred in its application of discretion. Montelongo v. Exit Stage Left, Inc., 293 S.W.3d

294, 297 (Tex. App.—El Paso 2009, op. on motion [mand. denied]), dismissed due

to settlement, Montelongo v. Cisneros, No. 08-08-00324-CV, 2010 Tex. App.

LEXIS 7729 (Tex. App.—El Paso Sept. 22, 2010, no pet.).

The Vogels argue the issue before us is solely a matter of statutory

construction of section 52.006 of the Civil Practice and Remedies Code, which they

argue we review do novo. They contend the trial court erred by requiring the Vogels

to include their homestead and other exempt property in their net worth calculations.

They argue they should not be required to include those assets, since none of those

assets are subject to seizure to satisfy debts. Thus, they argue exempt property must

be excluded from the calculation performed pursuant to section 52.006(a)-(b).

“Net worth” is not defined in Chapter 52 of the Civil Practice and Remedies

Code, but the term is generally used to describe the difference between total assets

and total liabilities determined in accordance with generally accepted accounting

principles. See Ramco, 171 S.W.3d at 913-15. Indeed, the Vogels’ affidavits state

their understanding is that the term “refers to the difference between my total assets

and current total liabilities[.]”

The Vogels provide no case authority for their argument that a trial court must

exclude exempt assets from the calculations under section 52.006(a)-(b). For most

8 individual judgment debtors, some property may indeed be exempt from execution,

but that does not mean equity that a person holds in what may otherwise be assets

that are exempt from execution should be excluded from the determination of net

worth for purposes of calculating a supersedeas bond. They ask this Court to

construe section 52.006(a)-(b) to exclude exempt assets from the calculation of a

judgment debtor’s net worth. Their rationale is that if exempt property is included in

net worth for purposes of calculating the bond required under section 52.006(a)-(b),

they might be required to post a bond in an amount greater than the value of their

non-exempt assets that would be available to satisfy the judgment. Under such a

scenario, they contend, a judgment debtor would be forced either to forego

supersedeas or to sell, transfer, or encumber exempt assets to post the supersedeas

bond, thereby converting exempt assets into non-exempt assets. We note that the

Vogels elected to include the mortgage payments and note payments on their

homestead and certain notes in their liability column and included nothing of the

value of those assets in the asset column. Further, we conclude the record here

simply does not support their argument. We reject the Vogels’ suggested

construction of section 52.006.

The Vogels had the burden to prove their net worth. See Tex. R. App. P.

24.2(c)(3). Therefore, to show the trial court abused its discretion based on the

legally insufficient evidence, the judgment debtor must show the evidence

9 conclusively establishes, as a matter of law, all vital facts in support of their position.

See Ramco, 171 S.W.3d at 910. We must bear in mind that the trial court is the sole

judge of the credibility of the witnesses and the weight to give their testimony. See

id.

The Vogels argue that their net worth affidavits were uncontroverted, but the

plaintiffs challenged the affidavits, and the trial court held an evidentiary hearing

and was the sole judge of the credibility of the witness. Considered in the light most

favorable to the trial court’s findings, the evidence shows the evidence offered by

Vogel was at best incomplete and inconsistent. Vogel acknowledged various

omissions in his testimony, including a failure to attribute any value to ownership in

or transactions with entities appellants controlled and his calculations were based on

conclusory assumptions. See Tex. Black Iron, Inc. v. N. Am. Interpipe, Inc., No. 14-

20-00068-CV, 2020 Tex. App. LEXIS 5861, at **18-19 (Tex. App.—Houston [14th

Dist.] July 28, 2020, mem. op. on motion) (concluding that incomplete, inaccurate,

and misleading financial statements were insufficient to support appellants’ stated

net worth as a matter of law). On this record, the trial court could reasonably

conclude that the testimony provided by Vogel lacked credibility.

The Vogels also suggest this Court should consider the documents they

offered into evidence at the hearing in our review of the Order Setting Supersedeas

Bond, but the trial court excluded the exhibits after sustaining hearsay objections,

10 and the Vogels have not challenged the evidentiary rulings in their Motion for

Review. Citing Natural Gas Pipeline Co. v. Justiss, the Vogels argue that Michael

Vogel is entitled to opine on his assets and liabilities, so long as that opinion is based

on his perception and the opinion is helpful to determining a fact in issue. See 397

S.W.3d 150, 157 (Tex. 2012). The record shows the trial court allowed Vogel to

testify as to his opinion regarding the value of his assets and the amount of his

liabilities. The trial court found his testimony to be untrustworthy and insufficient to

establish net worth.

“In determining whether the Judgment Debtors have shown that the trial court

abused its discretion as to these issues by ruling based on factually insufficient

evidence, we examine the entire record, considering both the evidence in favor of,

and contrary to, the challenged finding.” Ramco, 171 S.W.3d at 910. “After

considering and weighing all the evidence, we set aside the fact finding only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust.” Id.

We conclude the evidence is legally and factually sufficient to support the trial

court’s findings that appellants did not satisfy their burden to prove their net worth

and that, from the evidence presented, the trial court was unable to determine their

net worth. The evidence does not conclusively establish, as a matter of law, all vital

11 facts in support of appellants’ contention they met their burden to prove net worth.

See Tex. Black Iron, Inc., 2020 Tex. App. LEXIS 5861, at *20.

Here the trial court was unable to determine a specific net worth amount from

the evidence, and the trial court then set the bond in the default amount dictated by

Rule 24.2(a)(1) including the sum of compensatory damages awarded in the

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

judgment. The trial court did not abuse its discretion in setting the amount of the

supersedeas. See id. at *20; Ruff v. Ruff, No. 05-18-00326-CV, 2018 Tex. App.

LEXIS 4155, at **12-13 (Tex. App.—Dallas June 8, 2018 [mand. denied]) (mem.

op. on motion); Newsome v. N. Tex. Neuroscience Ctr., P.A., No. 08-09-00025-CV,

2009 Tex. App. LEXIS 8628, at *15 (Tex. App.—El Paso Nov. 9, 2009, mem. op.

on motion), disp. on merits, 2021 Tex. App. LEXIS 10230 (Tex. App.—El Paso

Dec. 30, 2021) (mem. op.).

For the reasons we have explained above, we deny Appellants’ motion and

affirm the trial court’s Order setting the supersedeas and we vacate our April 26,

2025 Order staying execution of the judgment, and lift our stay.

ORDER AFFIRMED.

Submitted on May 14, 2025 Opinion delivered May 15, 2025

Before Golemon, C.J., Johnson and Wright, JJ. 12