TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00132-CV
Donald L. Knepp and Andrea L. Knepp, Appellants
v.
K.R.A.K. Investments, LLC, Appellee
FROM THE HAYS COUNTY COURT AT LAW NO. 1, NO. 13-0777-C,
HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING
MEMORANDUM OPINION
PER CURIAM
Appellants Donald L. Knepp and Andrea L. Knepp have filed in this Court an
“Emergency Motion to Modify Supersedeas Bond,” complaining that (1) the amount of the
supersedeas bond set by the county court violates the 50% net-worth cap applicable to money
judgments and (2) the terms for posting the required security are too vague and indefinite to
adequately apprise them of the amount required to suspend enforcement of the underlying judgment.
Because we conclude that the order setting the supersedeas bond lacks clarity, we abate the appeal
and remand the case to the county court with instructions to specify the amount and terms for
suspending enforcement of the judgment pending appeal to this Court.
Appellee K.R.A.K. Investments, LLC initiated the underlying eviction proceedings
after acquiring the Knepps’ home in a foreclosure sale. See generally Tex. Prop. Code
§§ 24.001–.011. The justice court awarded possession of the property to K.R.A.K., and the Knepps
took a de novo appeal to the County Court at Law No. 1 of Hays County. See Tex. R. Civ. P.
510.9–.10 (governing appeal of eviction proceeding to county court). The Knepps remained in
possession of the property pending the resolution of that appeal by depositing $13,600 into the
court’s registry as security. See Tex. R. Civ. P. 510.9 (allowing party to appeal eviction judgment
to county court by filing bond or making cash deposit in amount required by justice court or by filing
sworn statement of inability to pay). On February 28, 2014, the county court signed a judgment
awarding K.R.A.K. possession of the subject property and damages of $11,281.92 in lost rental value
incurred while the appeal was pending in that court, $1,550 in expert witness fees, and $458 in court
costs. See Tex. R. Civ. P. 510.11 (allowing trial court to award prevailing party damages suffered
for “withholding or defending possession of the premises during the appeal”). The county court
based the lost rental value damages on findings that the rental value of the subject property is
$2,200 per month and the fact that the Knepps had occupied the property for 158 days while the
appeal was pending.
Pursuant to section 24.007 of the Texas Property Code, a county court judgment “in
an eviction suit may not . . . 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.” Tex. Prop.
Code § 24.007(a). Section 24.007 specifies that, in setting the supersedeas-bond amount in an
eviction proceeding, the court must “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
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may deem appropriate.” Id. The Texas Rules of Appellate Procedure likewise imbue trial courts
with discretion in determining the security required to suspend enforcement of a judgment involving
recovery of an interest in real property, subject only to the requirement that the minimum amount of
security be “the value of the property interest’s rent or revenue,” unless the court finds that the
amount required by the rules “is likely to cause the judgment debtor substantial economic harm.”
Tex. R. App. P. 24.2(a)(2), (b).
In the present case, the county court set the terms for suspending judgment pending
appeal as follows:
IT IS FURTHER ORDERED that should appeal be taken from this Court to
the Court of Appeals, the Order of this Court is that Defendants post a supersedeas
bond in the amount of $15,600.00. The Defendants placed into evidence that as to
net worth and income, the Defendant has income of approximately $3000.00 a
month. Defendants are required to post 50% of that income ($1,500.00) into the
registry of the court as periodic increases to the bond starting March 15th 2014.
The Court finds that the Defendants’ [sic] have made prior deposits into the
registry of the Court in the total amount of $13,600.00. All prior deposits are hereby
deemed part of the supersedeas bond such that Defendants must deposit an additional
$2,000.00 to post the entire bond.
(Emphases added.) The Knepps contend the county court erred in requiring them to post any
additional amount as security because (1) the amount required to supersede a “money judgment” is
capped at the lesser of the amount of the judgment, 50% of net worth, or $25 million and (2) they
have conclusively established a negative net worth, which means they cannot be required to post
additional security beyond the sums already in the court’s registry. See Tex. Civ. Prac. & Rem. Code
§ 52.006(a), (b) (capping amount required to suspend enforcement of money judgment); see also
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Tex. R. App. P. 24.2(a)(1) (same). They also complain that the terms of the “periodic increases” are
impermissibly vague and ambiguous.
We are unable to ascertain from the county court’s judgment how the supersedeas
bond was calculated, what the total amount of the bond is, or how the bond must be satisfied. The
judgment specifies that the supersedeas bond is set at $15,600 and that after crediting amounts
already deposited with the court, the Knepps “must deposit an additional $2,000.00 to post the entire
bond.” (Emphasis added.) However, the judgment also appears to require the Knepps to deposit
$1,500 into the court’s registry “as periodic increases to the bond,” starting March 15. This language
suggests that the total bond is actually in excess of $15,600, contrary to the statement that the “entire
bond” would be satisfied with the payment of an additional $2,000. To the extent the county court
intended to increase the amount of the bond incrementally as a proxy for the lost rental value that
is likely to accrue while the appeal is pending, the county court has neither clearly imposed such an
obligation nor specified the payment frequency. The only thing that can be determined for sure from
the judgment is that the Knepps were required to deposit an additional $1,500 into the court’s
registry on March 15, which they did. If the “entire bond” is truly $15,600, the Knepps may be
required to deposit another $500 now or at some unspecified future date. If the bond is $15,600 plus
the $1,500 due on March 15, they may be required to deposit an additional $2,000. And if the bond
is $15,600 plus “periodic increases,” they may have to deposit not only an additional $2,000 but
also further payments of $1,500 at unknown intervals. As a result of this ambiguity, neither the
Knepps nor K.R.A.K. have been adequately informed of the terms on which the underlying judgment
may be superseded pending appeal.
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We therefore abate this appeal and remand the case to the county court to specify the
precise amount and terms of the security required to suspend enforcement of the judgment on appeal.
See Tex. R. App. P. 24.3(a) (trial court has continuing jurisdiction to order amount and type of
security even after that court’s plenary power has otherwise expired), 44.4 (governing trial court’s
remediable error). The court’s supplemental order or judgment should be filed in this Court in a
supplemental clerk’s record within 30 days of the date of this opinion. In the meantime, until the
appeal is reinstated, we will consider that the trial court’s judgment has been adequately superseded.
Before Chief Justice Jones, Justices Pemberton and Rose
Abated and Remanded
Filed: April 8, 2014
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