Opinion issued February 21, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01111-CV
__________
ENVIROPOWER, L.L.C., Appellant
V.
BEAR, STEARNS & CO., INC., Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2004-37741
OPINION ON EN BANC ORDER (1)
After our May 10, 2007 opinion issued, EnviroPower filed a "Motion for Rehearing En Banc" regarding the definition of EnviroPower's net worth. See Tex. R. App. P. 49.7. A majority of the Court granted en banc reconsideration solely on this issue and issues the following opinion.
In this action to enforce a New York judgment, we review EnviroPower, L.L.C.'s ("EnviroPower") motion challenging the trial court's order that set the supersedeas bond in the amount of $200,000. See Tex. R. App. P. 24.4(a)(1).
We vacate the order of the trial court with respect to the supersedeas bond and remand for taking of evidence as to EnviroPower's current net worth and consideration of the necessity of other orders necessary to protect the judgment creditor against loss or damage that the appeal might cause.
Bond Amount
EnviroPower argues that the trial court erred in setting the supersedeas bond amount at $200,000. Specifically, EnviroPower contends that it was entitled to a stay of enforcement of the Texas trial court's judgment against it without being required to file a supersedeas bond. (2)
Standard of Review
We review the trial court's rulings concerning the amount and type of bond required and the sufficiency of the sureties under an abuse of discretion standard. Tex. R. App. P. 24.4; see also Miller v. Kennedy & Minshew, Prof'l Corp., 80 S.W.3d 161, 165 (Tex. App.--Fort Worth 2002, no pet.). The test for whether a trial court abused its discretion is whether the trial court acted arbitrarily or unreasonably in light of all the circumstances of the case. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Lewis v. Western Waste Indus., 950 S.W.2d 407, 410 (Tex. App.--Houston [1st Dist.] 1997, no writ).
Governing Law
Section 52.006 of the Texas Civil Practices and Remedies Code, governing the setting of supersedeas bonds, provides in relevant part:
(a) Subject to subsection (b), when a judgment is for money, the amount of security must equal the sum of:
(1) the amount of compensatory damages awarded in the judgment;
(2) interest for the estimated duration of the appeal; and
(3) costs awarded for the judgment.
(b) Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of:
(1) 50 percent of the judgment debtor's net worth; or
(2) $25 million.
Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a), (b) (Vernon Supp. 2007) (emphasis added). The statute further provides:
(d) An appellate court may review the amount of security as allowed under Rule 24, Texas Rules of Appellate Procedure, except that when a judgment is for money, the appellate court may not modify the amount of security to exceed the amount allowed under this section.
Id. § 52.006(d).
Texas Rule of Appellate Procedure 24.1, in turn, provides that a judgment debtor in a civil case may suspend enforcement of the judgment pending appeal by, inter alia, "filing with the trial court clerk a good and sufficient bond." Tex. R. App. P. 24.1(a)(2). A bond must be in the amount required by Rule 24.2. Tex. R. App. P. 24.1(b)(A). Rule 24.2 provides, in relevant part:
When the judgment is for 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. But the amount must not exceed the lesser of:
(A) 50 percent of the judgment debtor's current net worth; or
(B) 25 million dollars.
Tex. R. App. P. 24.2(a)(1) (emphasis added).
Rule 24.2 further states that a judgment debtor which provides a bond under subsection 24.2(a)(1)(A) in an amount based on its net worth must simultaneously file an affidavit of net worth that states "complete, detailed information concerning the debtor's assets and liabilities from which net worth can be ascertained." Tex. R. App. P. 24.2(c)(1). The affidavit is prima facie evidence of the judgment debtor's net worth. Tex. R. App. P. 24.2(c)(1). The judgment debtor has the burden of proving its net worth. Tex. R. App. P. 24.2(c)(3). Should the debtor's net worth be contested, the creditor may conduct reasonable discovery, following which the trial court must hear the contest and issue an order that states the debtor's net worth and states with particularity the factual basis for that determination. Tex. R. App. P. 24.2(c)(2),(3). If circumstances change, the trial court has continuing jurisdiction to modify the amount or type of security required to continue the suspension of a judgment's execution. Tex. R. App. P. 24.3(a).
Relevant Facts
EnviroPower is a two-person limited liability company formed for the development of coal-fired power plant sites. Due to lack of funding and possible bankruptcy, it closed its corporate offices in Lexington, Kentucky in January 2003 and moved into office space at El Paso LGP Company, its original lender and the possessor of a first lien on all of its assets and stock. In 2004, following domestication in Texas of a New York money judgment for $1.6 million against it by Bear Stearns & Co., Inc., ("Bear Stearns") EnviroPower sought relief from having to file a supersedeas bond to prevent enforcement of the judgment pending appeal. It filed an affidavit in the trial court establishing its negative current net worth as $12,000,000 and attached supporting documentation. It also presented evidence at the bond hearing that it had been denied a bond by every surety it had contacted and that it had recently been denied a $10,000 letter of credit.
Bear Stearns, the judgment creditor, filed a comprehensive "Response to Enviropower, L.L.C.'s Motion to Vacate Foreign Judgment, Motion for New Trial, and Motion to Stay Enforcement of Judgment" two days before the bond hearing. In that motion, it contested EnviroPower's affidavit of net worth on the ground that "the standard is to look at not only assets minus liabilities but projected revenues as well." Bear Stearns argued that the fixed asset schedule identifying EnviroPower's assets and their disposition, which EnviroPower had produced to it, did not represent EnviroPower's true net worth, which could be determined only from "the correspondence, the e-mails, [and] the documents that reflect there are ongoing negotiations with third parties" for the sale of EnviroPower. Because EnviroPower had refused to produce these documents, Bear Stearns argued that it had failed to carry its burden of proving its true net worth for supersedeas bond purposes.
At the bond hearing, Bear Stearns argued that the trial court should base its determination of EnviroPower's net worth for supersedeas bond purposes on its market value as determined by the $10,000,000 price a third party, Khanjee Holdings LLC, had agreed to pay for 100% of EnviroPower's stock pursuant to a contingent purchase agreement and a separate development agreement. EnviroPower argued that its affidavit set out its net worth in terms of its total current assets minus its liabilities, namely negative $12,000,000, and that consummation of the sale of the company to Khanjee was contingent on the occurrence of a number of milestones that had not occurred. (3) For example, the contingent purchase agreement required EnviroPower to execute long-term agreements with power customers, binding long-term fuel supply contracts, and binding contracts with construction contractors. EnviroPower averred that but for the potential future stock sale to Khanjee, it already would have filed for bankruptcy.
The trial court's order setting EnviroPower's supersedeas bond at $200,000 made the following relevant findings:
3. Net Worth has not been defined in the supersedeas bond statute.
4. One definition of Net Worth is assets minus liabilities.
5. Market Value means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
6. The evidence adduced at the hearing does not reflect the fair value of the primary assets for the Judgment Debtor, which are the federal air permits.
7. Judgment Debtor's assets minus liabilities is negative $12,000,000.00.
8. A buyer stands willing to purchase Judgment Debtor for $10,000,000.00.
9. The evidence adduced at the hearing establishes that business valuation experts do not rely exclusively on assets minus liabilities in determining the value of businesses.
10. Judgment Debtor's current net worth for purposes of setting a supersedeas bond is $8,000,000.00.
11. Judgment Debtor is likely to suffer substantial economic harm if required to post security in the full amount required by the supersedeas statute.
12. The Court determines that a supersedeas bond in the amount of $200,000 will not cause Judgment Debtor substantial economic harm.
(Emphasis added.) In short, the trial court implicitly agreed with Bear Stearns that the appropriate measure for determining a supersedeas bond was not EnviroPower's net worth, as determined by subtracting its assets from its liabilities, which the trial court found to be negative $12,000,000, but rather EnviroPower's "market value," as determined at the hearing, including projected revenues under the contingent purchase agreement and the undetermined value of EnviroPower's federal air permits.
We hold that the correct measure of a company's net worth for the purpose of setting a supersedeas bond under section 52.006 of the Texas Civil Practice and Remedies Code and Rule 24 of the Texas Rules of Appellate Procedure is the company's current assets minus current liabilities at the time the bond is set.
Discussion
Rule 24.2(a)(1) states that the amount of a supersedeas bond is capped at the lesser of "50 percent of the judgment debtor's current net worth; or . . . 25 million dollars." Tex. R. App. P. 24.2(a)(1) (emphasis added). The trial court found that "one definition of Net Worth is assets minus liabilities." In accordance with this definition, it found EnviroPower's net worth to be "negative $12,000,000," a value that would relieve EnviroPower of having to post a supersedeas bond. Yet it rejected this definition of net worth for supersedeas bond purposes and found EnviroPower's "current net worth for purposes of setting a supersedeas bond [to be] $8,000,000."
Rule 24.2(c)(3) requires that, after hearing a contest to an affidavit of net worth, "[t]he trial court must issue an order that states the debtor's net worth and states with particularity the factual basis for that determination." Tex. R. App. P. 24.2(a)(c)(3) (emphasis added). Yet the trial court did not state with particularity the factual basis for its determination that EnviroPower's net worth for supersedeas bond purposes was $8,000,000--which was $20,000,000 greater than the negative $12,000,000 net worth the trial court accepted as accurately setting out EnviroPower's assets minus its liabilities. Nor did the trial court state with particularity any basis for its finding number 11 that setting bond at $8,000,000 would cause EnviroPower to "suffer substantial economic harm" or for its finding number 12 that "a supersedeas bond in the amount of $200,000 will not cause Judgment Debtor substantial economic harm." (4) We conclude that the trial court erred.
This Court, as well as the Dallas Court of Appeals and our sister court in Houston, has defined "net worth" for purposes of setting a supersedeas bond as "the difference between total assets and total liabilities as determined by generally accepted accounting principles." LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 482 (Tex. App.--Houston [1st Dist.] 2007, pet. denied), quoting G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.--Dallas 2006, no pet.); accord Ramco Oil & Gas, Ltd. v. AngloDutch (Tenge), 171 S.W.3d 905, 915 (Tex. App.--Houston [14th Dist.] 2005, no pet.). Likewise, each of our sister courts of appeals that has previously construed the term "current net worth" for purposes of reducing a supersedeas bond under section 52.006 of the Civil Practice and Remedies Code and Rule of Appellate Procedure 24.2 has determined that "net worth is calculated by total assets minus total liabilities as determined by generally accepted accounting principles," or GAAP. G.M. Houser, 204 S.W.3d at 840; Ramco Oil & Gas, 171 S.W.3d at 915. The Fourteenth Court of Appeals has explained the reason for this construction of the term "net worth" for purposes of reducing a supersedeas bond under section 52.006 and Rule 24.2:
In amending section 52.006, the Legislature struck a new balance between a judgment creditor's interest in protecting its judgment pending appeal and a judgment debtor's interest in having the ability to challenge the adverse judgment on appeal. . . .
The thrust of the inquiry under section 52.006(c) is whether the judgment debtor has the ability to meet the supersedeas requirement as determined in 52.006(a) or (b) and whether doing so is likely to result in substantial economic harm. See Tex. Civ. Prac. & Rem. Code Ann. 52.006. In conducting this analysis, the trial court has the flexibility to take into account a number of factors that could affect the judgment debtor's ability to post bond or other security based on the facts and circumstances specific to the case. This inquiry, however, should not focus on the market capitalization of the company or its value as a whole but on the judgment debtor's actual ability to post the security required.
Ramco Oil & Gas, 171 S.W.3d at 917. We agree. To hold otherwise would be to require the forced sale of the judgment debtor company, in order to capture the funds sufficient to post the bond, thus defeating the Legislature's purpose in enacting Chapter 52. (5)
The dissenting opinion on en banc order falls into the trap that the Legislature intended to preclude by amending section 52.006, as discussed in Ramco. See 171 S.W.3d at 917. In short, it would require the trial court to hold a hearing to determine the value of the judgment's debtor's assets upon their sale and to use the "fair market value" of those assets, thus determined, to set the supersedeas bond, thereby thwarting the purpose of the Legislature in amending section 52.006. In its brief, EnviroPower explained the arbitrariness of using such a fair market value standard to determine a judgment debtor's net worth for supersedeas bond purposes by reference to its own case:
In 2000, EnviroPower applied for and received two federal air permits, which are required to construct coal-fired power plants. The development cost related to the air permits is reflected on the balance sheet, and Ms. Dawson testified regarding the permits at the hearing. These are intangible assets, with a limited life, and are not transferable or assignable. The permits would have already expired this year but for the initiation of minor construction at the sites. The permits have value only to someone who has the financial ability to develop the projects, and each plant costs about $700 million.
Importantly, the value of EnviroPower's air permits as reflected on its financial statements was not controverted at the hearing. Indeed, when asked whether any dispute existed with respect to EnviroPower's net worth represented in its financial statements, Bear Stearns' witness conceded he did not dispute EnviroPower's current book value and had "no reason to believe the books and records weren't kept accurately." He also agreed that any value represented by the air permits wouldn't become tangible until exchange of the funds in consideration of the stock sale. In light of the undisputed evidence presented by EnviroPower, the trial court has no sufficient evidentiary basis to find that the fair value of the air permits is not reflected on the financial statements.
We agree with EnviroPower.
We hold, in accordance with the foregoing law, that the trial court abused its discretion by failing to set EnviroPower's supersedeas bond in accordance with its finding number 7 that EnviroPower's current net worth as measured by its total current assets minus its total current liabilities was negative $12,000,000. See Tex. R. App. P. 24.4(a)(5) (trial court's rulings concerning amount of bond are reviewed under abuse of discretion standard).
Conclusion
We vacate trial court's order that set EnviroPower's supersedeas bond at $200,000 and remand to the trial court to determine the appropriate amount of a bond or alternate security, if any, under current conditions in accordance with this opinion. See Tex. R. App. P. 24.3, 24.4(d).
Evelyn V. Keyes
Justice
Panel consisted of Justices Taft, Keyes, and Hanks.
En banc consideration was requested. Tex. R. App. P. 49.7.
A majority of the justices of the Court voted in favor of reconsidering the case en banc. See id.
The en banc Court on reconsideration consists of Chief Justice Radack and Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley, and Bland.
Justice Keyes, writing for the majority of the en banc Court, joined by Chief Justice Radack and Justices Jennings, Alcala, Higley, and Bland.
Justice Bland, joined by Justice Jennings, specially concurring with the opinion of the en banc Court. See id.
Justice Hanks, joined by Justices Taft and Nuchia, dissenting from the order and opinion of the en banc Court.
1. See EnviroPower, L.L.C. v. Bear, Stearns & Co., Inc., No. 01-04-01111-CV,
__S.W.3d__ (Tex. App.--Houston [1st Dist.] Feb. 21, 2008, no pet. h.) (Order).
2. The factual background can be found in the opinion on the merits of the appeal of the
trial court's judgment, issued herewith. See EnviroPower, L.L.C. v. Bear, Stearns &
Co., Inc., No. 01-04-01111-CV, ___ S.W.3d___ (Tex. App.--Houston [1st Dist.] Feb.
21, 2008, no pet. h.).
3. The sale has still not been consummated.
4. 5.
The recent legislative modifications to supersedeas requirements effective as to cases in which a final judgment is signed on or after September 1, 2003, reflect a shift in concern from that of protecting the judgment creditor's ability to collect the judgment if affirmed on appeal, to protecting the judgment debtor from substantial economic harm by appellate security requirements that may effectively preclude the ability to seek appellate review.