In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00305-CV
____________________
D & K TRANSMISSION SPECIALTIES, INC., DARRELL
WESTERKAMP, AND KELLY WESTERKAMP, Appellants
V.
F. MICHAEL DAVIS AND DEBORAH F. DAVIS, Appellees
_______________________________________________________ ______________
On Appeal from the County Court at Law No. 2
Montgomery County, Texas
Trial Cause No. 14-28106 CV
________________________________________________________ _____________
ORDER
On July 3, 2014, the trial court signed a judgment in favor of F. Michael
Davis and Deborah F. Davis (appellees) “Granting Forcible Detainer and Writ of
Possession” for possession of real property and evicting D & K Transmission
Specialties, Inc., Darrell Westerkamp, and Kelly Westerkamp (appellants) from the
property. Within ten days of the judgment, the appellants deposited $29,200 in the
registry of the trial court as a cash deposit in lieu of a supersedeas bond. The
1
appellees asked the trial court to issue the writ of possession, notwithstanding the
deposit, because the deposit was not a “proper supersedeas bond” under section
24.007 of the Texas Property Code. See Tex. Prop. Code Ann. § 24.007 (West
Supp. 2014). The appellants filed a notice of appeal on July 8, 2014. A writ of
possession issued on or about August 7, 2014. The appellees filed a motion to
dismiss the appeal for mootness on the ground that only possession is at issue in
the appeal and the judgment awarding possession is immediately enforceable
because the appellants failed to supersede the judgment. The appellants filed
motions for emergency relief in which they argue that the cash deposit was the
equivalent of at least five months of rent, and asked this Court to determine the
sufficiency of the amount of security. Appellants’ motion also reflects that even
though the writ of possession issued, it had not been executed. We temporarily
stayed the writ of possession and directed the appellees to file a response. See Tex.
R. App. P. 24.4(c). In their response, the appellees argue the judgment cannot be
superseded because the appellants failed to comply with section 24.007 of the
Texas Property Code. Additionally, the appellants do not indicate that execution on
the writ of possession had occurred. Tex. Prop. Code Ann. § 24.007.
We “construe rules reasonably but liberally, when possible, so that the right
to appeal is not lost by creating a requirement not absolutely necessary from the
2
literal words of the rule.” Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (a
motion for new trial was filed on the date it was tendered to the trial court clerk,
not the date the filing fee was paid). Likewise, we avoid constructions of statutes
that defeat bona fide attempts to appeal. Crowson v. Wakeham, 897 S.W.2d 779,
783 (Tex. 1995). For instance, a party who files the wrong instrument may correct
the error by substituting the correct instrument. Linwood v. NCNB Texas, 885
S.W.2d 102, 103 (Tex. 1994).
Section 24.007 states:
A judgment of a county court in an eviction suit may not under any
circumstances be stayed pending appeal unless, within 10 days of the
signing of the judgment, the appellant files a supersedeas bond in an
amount set by the county court. In setting the supersedeas bond the
county court shall provide protection for the appellee to the same
extent as in any other appeal, taking into consideration the value of
rents likely to accrue during appeal, damages which may occur as a
result of the stay during appeal, and other damages or amounts as the
court may deem appropriate.
Tex. Prop. Code Ann. § 24.007. Accordingly, a party who wishes to appeal a
judgment for possession of real property must file a supersedeas bond in an amount
set by the court within ten days of the judgment. Id. Here, the appellants filed a
cash deposit of $29,200.00 within ten days of the judgment. However, the trial
court did not set the amount of security required to supersede the judgment, either
in the judgment or upon request of the appellants.
3
A party may seek appellate review of the trial court’s determination whether
to permit suspension of enforcement of a judgment. See Tex. R. App. P. 24.4(a)(4).
In this case, the appellants contend they attempted to supersede the judgment and
writ of possession by filing a $29,200 deposit with the trial court and requesting
the trial court to set the amount. Neither the Property Code nor the Rules of
Appellate Procedure expressly require a party to request that the trial court set a
bond; rather, the plain language of the statute states that the trial court “shall” set
the amount. Tex. Prop. Code Ann. § 24.007. In this case, the trial court did not set
the amount of the supersedeas bond in the judgment, so the appellants filed a
deposit in what they considered to be an appropriate amount, calculated in part
from the attorney’s fees awarded in the judgment. The appellants were incorrect
regarding the need to post an amount to supersede attorney’s fees, 1 but it does not
necessarily follow that their filing a deposit in an amount not set by the court or the
trial court not setting the amount of the supersedeas bond (in the judgment or by
direction to the parties) cannot be corrected, considering that the appellants made a
cash deposit within ten days of the judgment in a bona fide attempt to supersede
the judgment.
1
The appellants based the deposit on the amount of attorney’s fees awarded
in the judgment. But see In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168,
176 (Tex. 2013) (attorney’s fees are neither compensatory damages nor costs for
purposes of suspending enforcement of a money judgment).
4
The trial court retains continuing jurisdiction to order the amount and type of
security. See Tex. R. App. P. 24.3(a). The appellate court may remand to the trial
court for entry of findings of fact or for the taking of evidence. See Tex. R. App. P.
24.4(d). At this time, the appropriate remedy in this case is not dismissal of the
appeal, but a remand to the trial court to order the appellant to post an amount
based on the value of the property interest’s rent or revenue. See Tex. R. App. P.
24.2(a)(2).
It is, therefore, ORDERED that the appeal is abated and the case is
remanded to the trial court for a determination of the amount and type of security
based on the value of the property interest’s rent or revenue, for the anticipated
time for appeal. See Tex. R. App. P. 24.2(a)(2). All appellate deadlines are
suspended while the case is in the trial court. A supplemental record containing the
trial court’s order setting the amount of security, including any additional security
ordered by the trial court, shall be filed with the Court of Appeals by September
10, 2014. Our order of August 14, 2014, remains in effect.
ORDER ENTERED August 21, 2014.
PER CURIAM
Before Kreger, Horton, and Johnson, JJ.
5