ACCEPTED
03-15-00215-CV
5142301
THIRD COURT OF APPEALS
03-15-00215-CV AUSTIN, TEXAS
5/4/2015 3:34:30 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. _
IN THE COURT OF APPEALS OF TEXAS FILED IN
THIRD DISTRICT 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN
5/4/2015 3:34:30 PM
JEFFREY D. KYLE
MOTION FOR REVIEW OF TRIAL COURT'S ORDER Clerk
from
CAUSE NO. C-1-CV-15-000869
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT
ASSOCIATION AIKJ A FANNIE MAE, §
Plaintiff, § AT LAW NO. 2
§
v. §
LENNY ACEVEDO ET AL §
Defendant. § TRA VIS COUNTY, TEXAS
Lenny Acevedo files this Motion for Review of Trial Court's Order. In
support of his motion, Acevedo will show the following:
Acevedo was sued twice by Fannie Mae for forcible detainer. Acevedo cited
the two year statute of limitations as his defense. The judge in the justice court
ruled in favor of Acevedo both times. In this instance, Fannie Mae appealed the
second judgment for a trial de novo to county COUlt.
The trial was held on March 30, 2015, and the judgment of the court was
signed on April 2, 2015 and filed in the record on April 6, 20151• On April 9,
2015, seven days after notification of the judgment, Acevedo noticed the clerk of
I Exhibit I - Judgment, attached hereto and incorporated herein.
Motion for review Page 1
his intention to appeal". In its order, the court had not set a supersedeas bond
amount, so Acevedo posted a $500 supersedeas surety bond ' at that time, in order
to supersede the execution of the judgment.
The judgment of the county court may not be stayed unless within 10 days
from the judgment the appellant files a supersedeas bond, and because the signed
judgment was not recorded until April 6, Acevedo did not have time to petition the
court to set a bond amount, so he filed a $500 supersedeas bond in order to stay
execution.
The bond was posted in the registry of the court and the writ was stayed.
The clerk did not contest the bond.
On April 24, 2015, Fannie Mae filed a motion to challenge insufficient bond
and for issuance of writ", The hearing for this motion was held on May 1,2015.
At the hearing, Judge Shepperd stated that he had not set a bond amount and
therefore, there was no bond in the record. Judge Shepperd reasoned that if he had
not set a bond amount, there could be no bond.
Judge Shepperd did not rule on the insufficiency of the bond, and ordered
that the writ should issue pursuant to Tex.R.Civ.P. 24.
The hearing was set for 9:00 a.m., and a writ of possession was issued by the
court at 8:00 a.m .., hours before the judgment in the case. When Appellant
2 Exhibit 2 - Notice of Appeal, attached hereto and incorporated herein.
3 Exhibit 3 - Surety bond, attached hereto and incorporated herein.
4 Exhibit 4 - Motion to challenge insufficiency, attached hereto and incorporated herein.
Motion for review Page 2
returned to his home after court, a 24 hour notice to vacate was posted to his front
door. The notice was posted at 8:50. This was before the hearing started.
ISSUES FOR REVIEW
ISSUE 1
Did the court rule on the motion before it?
ISSUE 2
If the trial cOUl1,in a trial for possession, did not set an amount of supersedeas
bond, does Appellant have the right to post a supersedeas bond within ten days
from judgment to stay execution of the judgment?
ISSUE 3
Whether, on May 1, 2015, the trial court had jurisdiction to amend its judgment by
setting a sufficient bond?
ISSUE 4
Whether a court can issue process based on a judgment that has not yet been
issued?
ARGUMENTS AND AUTHORITIES
A supersedeas bond is part of the right of appeal. The cOUl1,by not setting a
supersedeas bond amount, denies Appellant the right to stay the judgment of the
cOUl1as it pertains to execution of a writ.
"The supersedeas bond is part of the right of appeal and is only intended to
indemnify the judgment creditor from losses caused by delay of appeal. State v.
Motion for review Page 3
Watts, 197 S.W.2d 197 (Tex.Civ.App.-Austin 1946, writ ref'd) Muniz v. Vasquez,
797 S.W.2d 147 (Tex.App.-Houston, 1990).
The trial court is obligated to extend all rights of due process to all patties.
In order to achieve this in a forcible detainer appeal, the COUltmust set an amount
for supersedeas bond in its judgment. To fail to set an amount, the COUlthas
denied rights to which an appellant is entitled.
If the trial COUltdoes not set an amount for supersedeas bond in a hearing for
possession, it denies Appellant the right to supersede enforcement of the judgment.
The setting of the amount of bond in a suit for possession should be an automatic
inclusion in any judgment for possession.
"" A law which practically takes away from either party to litigation the right
to a fair and impartial trial in the courts provided by the constitution for the
determination of a given controversy, denies a remedy by due course of law".
Dillingham v. Putnam, 109 Tex.1, 14 S.W.303 (Tex. 1890) The Dillingham court
went on to hold that a legislative act making the right of appeal depend on the
giving of a supersedeas bond, without reference to the appellant's ability to pay,
was unconstitutional. Id. 14 S.W. at 305.
In the absence of an amount for supersedeas bond, Appellant filed a $500
surety bond. Appellant had no idea as to what a properly sufficient bond would be,
but since time was of the essence, was able to find two sureties to sign a surety
Motion for review Page 4
bond in the amount of $500. Appellant also knew that if the bond was not
sufficient or defective, Fannie Mae had the right to petition the court for a higher
amount of bond. The $500 bond was filed and the COUltaccepted the bond.
Appellant had a right to file a bond to stay execution. In the absence of an
amount set by the COUlt,ifhe had not filed a bond, he would have waived his right.
At the hearing on the bond, the COUltdid not determine that the bond was
defective or insufficient. Judge Shepperd stated that ten days had passed since his
judgment, and he therefore could not now set a bond amount.
The COUlt erred when, after motion and argument that the bond was
insufficient, it did not determine that there was a bond, the bond was insufficient,
set a sufficient bond amount and allow time to cure the defect.
At the hearing on the Motion to challenge insufficient bond, Judge Shepperd
stated that he did not have jurisdiction to set a bond because it was more than ten
days after judgment. The judge erred, pursuant to the Texas Appellate Rules, the
court maintains plenary power to set a sufficient bond when the sufficiency of the
bond is challenged. Tex.R.App.P. 24.3(a)(1).
The trial court, even if its plenary powers had expired, maintains the
jurisdiction to amend its judgment. "Even after the trial court's plenary power
expires, the trial cOUlthas continuing jurisdiction to order the amount and type of
security and decide the sufficiency of the sureties." Tex.R.App.P. 24.3(a)(1); see
Motion for review Page 5
Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 at 260 (Tex.App-
Houston [1st Dist.] 2010, pet. dism'd); In re M V G., 285 S.W3d 573, 575
(Tex.App.-Waco 2009)(order abating appeal) (per curium)("And if the judgment
is superseded, the trial court nevertheless retains 'continuing jurisdiction' to
evaluate the adequacy of the security required to supersede the judgment."_ Miller
v. Kennedy & Mishew, Prj'l Corp., 80 S.W.3d 161, 164 (Tex.App.-F0l1 Worth
2002, no pet.)(holding that trial court possesses authority after the expiration of its
plenary power to review the sufficiency of sureties on a supersedeas bond). Thus,
if the bond in the present case was a supersedeas bond, the trial court had
continuing jurisdiction to review the amount of the bond and the sufficiency of the
sureties. See Tex.R.App.P. 24.3(a)(1). Cox v. Simmonds, Tex.App.-Corpus
Christi 2015).
In the instant case, the cOUl1was noticed by motion that the supersedeas
bond was insufficient. The motion recognizes the fact that there is a supersedeas
bond filed, notwithstanding an insufficient amount. The cOUl1erred when it ruled
that because the court had not set the supersedeas bond amount, there was no bond.
Rather, the court was obligated to rule on the insufficiency, amend his judgment,
set a sufficient bond amount and allow Acevedo time to cure his defect.
To determine that there was no bond is in direct contravention to the
evidence in the record that a bond was filed, and constitutes judicial error.
Motion for review Page 6
The court had an obligation, if there was a complaint of insufficiency, to set
the amount sufficient to supersede execution of a writ and allow Appellant time to
cure by posting a sufficient supersedeas bond.
When the bond was challenged on the grounds of insufficiency, the COUlt is
to determine 1) whether the bond was insufficient, 2) what amount of bond would
be sufficient, and 3) allow five days to cure the defective bond. Ashley Furniture
Industries Inc, v. Law Office of David Pierce, 311 S.W.3d 595, (Tex.App.-EI
Paso, 2010).
When the trial court is called upon to review the sufficiency of the sureties
on a supersedeas bond, that review is conducted de novo. The trial court is to
decide the sufficiency of the sureties or the insufficiency of the bond. The court
must hold an evidentiary hearing to determine the sufficiency of the amount and
type of security and the sufficiency of the sureties. Lamar County Elec. Co-op.
Ass 'n, 51 S.W.3d 801, 805 (Tex.App.-Texarkana 2001, pet. denied)(recognizing
trial COUlt may determine sufficiency of sureties on supersedeas bond).
In this case, the court did not determine the sufficiency of the bond. Rather,
it determined there was no bond and therefore a writ could issue. Appellant is not
able to provide a copy of the order issued on May 1, 2015, as it is not yet in the
record of the court.
Motion for review Page 7
If the bond was defective, as it appears it may have been, the court must then
determine the sufficient amount of supersedeas bond and enter an order giving
Acevedo twenty-one days to file an amended supersedeas bond. Miller v. Kennedy
& Minshew, 80 S.W3d 161 (Tex.App-Fort Worth, 2002).
"-concluding supersedeas bond was insufficient to protect judgment
creditors and citing Rule 24.1 (e), holding "the trial COUlt is required to order the
specific action it deems necessary to adequately protect the judgment creditor."
Huff Energy Fund, LP v. Longview Energy Company, No. 04-12-00630-CV,
(Tex.App.-San Antonio, 2014).
"The county court therefore had the authority to modify the amount of the
supersedeas bond after the expiration of its plenary power." Whitmire v.
Greenridge Place Apartments, No. 01-06-00963-CV (Tex.App.-Houston [1st
District], 2007).
SUMMARY
Acevedo had a right to post a surety bond even though the court had not
included an amount for supersedeas in its original judgment.
When a COUlt has a motion before it, the court must rule on that motion and
no other. In the case of a motion for insufficient bond, the matter is handled de
novo. At that point, the court looks only to the motion before it and determines the
issue before it. That was not done in this case.
Motion for review Page 8
The motion for insufficient bond, which was before the court, asks that
because the Defendant had failed to post an appropriate bond in accordance with
Tex.R.Civ.P. 24, a writ should issue. This is a defect in the pleadings and a
judicial impossibility to grant a writ pursuant to Tex.R.Civ.P. 24.
Tex.R.Civ.P. 24 is Duty of Clerk. Tex.R.App.P.24 is suspension of
enforcement of judgment pending appeal in civil cases. When challenged with the
insufficiency of a bond, the COUlt must rule on that insufficiency and determine
what the sufficient amount to protect the creditor while on appeal is, and allow the
time to cure the defect.
The issue before the court was not that no bond was posted and therefore,
judgement could not be stayed. The motion was for insufficiency of the bond.
The court erred in not determining the matter before it, which was: was the
bond insufficient? If it is determined that the bond is insufficient, the court must
set a sufficient amount, and give the party time to post a sufficient bond.
The court erred by not ruling on the issue before it and allowing Acevedo
time to cure any defect.
The writ was issued by the clerk of the court at 8:00 a.m. April 30, 2015 and
posted at 8:50 a.m. on May 1,2015, the day of the hearing. The judgment in the
Motion for review Page 9
hearing wasn't issued until close to 10:00 a.m ..5 Until the order of the court was
issued, the $500 supersedeas bond had not been determined to be insufficient and
therefore superseded the execution of a writ. This is impropriety at the very least.
PRAYER
Lenny Acevedo prays that this Court consider the facts and the law and
reverse the judgment of the court and render this case for rehearing to set a
sufficient supersedeas bond amount with time to cure.
Respectfully submitted,
/s/ James Minerve
James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
Attorney for Lenny Acevedo
CERTIFICATE OF CONFERENCE
Due to the exigency of the time limitations on filing this motion, during the
week end, I was unable to contact Mark Hopkins to confer as to his consent or
disagreement about filing this motion.
/s/ James Minerve
CERTIFICATE OF SERVICE
5 There is no order in the record of the as of May 4, 2015 at 9:00 a.m., and parties were not given a copy of the
order.
Motion for review Page 10
A true and correct copy of the attached Motion for Review as was sent by U.
S. Postal service on May 4, 2015 to:
HOPKINS & WILLIAMS
Mark D. Hopkins
12117 Bee Caves Road, Suite 260
Austin, Texas 78738
lsi James Minerve
Motion for review Page 11
EXHIBIT 1
CAUSE NO. C-I-CV-lS·000869
FEDERAL NATIONAL MORTGAGE §
ASSOCIATION A/IKIA FANNIE MAE, §
Plaintiff, §
§
~ §
§
LENNY ACEVEDO AND ALL §
OTHER OCCUPANTS OF 1108 §
FOX SPARROW COVE, §
PFLUGERVILLE, TEXAS 78660 §
§
Defendant(s}. §
, efendant") and all other
occupants of 1108 Fox Sparrow Cove, Pfl
idered the testimony, exhibits and all other e~
- _
_ \>
~ ....
-0
iE~
iii
--co
=-
CK C, KUEMPEL TRACT PHASE 3, SECTION FIVE, AN
TRAVIS COUNTY, TEXAS, ACCORDING TO THE PLAT
.""' ..........
RD IN VOLUME 2002, PAGE 318, TRAVIS COUNTY, TEXAS.
FURTHER ORDERED that Plaintiff have and recover from Defendants
reasonable attorney's fees at the trial court level in the amount of $1,000.00, which may be
collected from the bond posted by defendant, if any, payable immediately by the Clerk of the
Court upon presentation of this order, together with reasonable attorney's fees if the case is
JUDGMBNT
H609·15/ Acevedo Page 1
unsuccessfully appealed to the Courts of Appeal in the amount of $2,000.00, reasonable
attorney's fees if the case is unsuccessfully appealed on writ of error to the Supreme Court of
Texas in the amount of $3,500.00, and if writ is granted by the Supreme Court but the appeal is
unsuccessful, reasonable attorney fees in the amount of $2,500.00.
ALL RELIEF NOT EXPRESSLY GRANTED HEREIN IS
SIGNED this us: of ~ J
SUBMITTED BY:
JUDGMENT
H609·15/ Acevedo Page 2
EXHIBIT 2
Filed: 4/9/201510:45:57 PM
Dana DeBeauvoir
Travis County Clerk
CAUSE NO. C-I-CV-lS-000869 C-1-CV -15-000869
Adrianna Perez
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT
ASSOCIATON A!KIA FANNIE MAE §
Plaintiff §
§
v. §
- § AT LAW NO. 2
LENNY ACEVEDO and ALL §
OCCUPANTS OF 1108 FOX SPARROW §
COVE, PFLUGERVILLE, TEXAS 78660 §
Defendants. § TRAVIS COUNTY, TEXAS
NOTICE OF APPEAL
Lenny Acevedo notices this Court of his Notice of Appeal to the 3rd Court of Appeals,
from the Judgment issued on April 2, entered in the clerk's record on April 6, 2015.
Respectfully submitted,
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the Notice of Appeal was
sent on April 9, 2015 by U. S. Postal Service to:
Mark D. Hopkins
HOPKINS & WILLIAMS, PLLC
12117 Bee Caves Rd., Suite 260
Austin, Texas 78738
EXHIBIT 3
Filed: 4/9/201510:45:57 PM
Dana DeBeauvoir
Travis County Clerk
CAUSE NO. C-l~CV-15~000869 C-1-CV -15-000869
Adrianna Perez
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT
ASSOCIATION A/KIA FANNIE MAE §
Plaintiff §
§
v. §
§ AT LAW NO. 2
LENNY ACEVEDO and ALL §
OCCUPANTS OF H08 FOX SPARROW §
COVE, PFLUGERVILLE, TEXAS 78660 §
Defendants. § TRA VIS COUNTY, TEXAS
KNOW ALL MEN BY THESE PRESENT,
THAT, WHEREAS, judgment was rendered on the 2ndt day of April, 2015, in the
County Court of Law #2 of Travis County and State of Texas, in favor of Federal
National Mortgage Association and against Lenny Acevedo and all other
Occupants in Cause No. C-I-CV -15-000869 for possession, from which judgment the
said, Lenny Acevedo desires to appeal to the 31'd Court of Appeals at Austin,
Texas.
NOW THEREFORE,· I, the said appellant Lenny Acevedo, as principal, and
.6u14bl'C' «cdy and C",'L,f,rmo &lfIlj€1 as Sureties, acknowledge ourselves bound to
pay to th~ Appellee Federal National Mortgage Association, the sum of $500.00,
conditioned. that said appellant shall prosecute his appeal to effect, and shall pay
off and satisfy the judgment which may be rendered against him on said appeal.
Witness our hands this q ri day of April S, 2015
~ .. ~
Le Acevedo>" Principal
The State of Texas }
}SS
County of Travis }
AFFIDAVIT OF SURETY
1'~~4kJ ' do swear that I am worth, in my own right, at least the sum of
$500.00, after deducting from my property all that which is exempt by the
Constitution and Laws of the State from forced sale, and after the payment of all
my debts, and after satisfying all encumbrances upon my property which are
known to me; that I reside in Jt4\.1" ~ County and have property in this State
Hable to execution worth said amount or more.
SWORN TO AND SUBSCRIBED BEFORE ME this ~ day of April_1, 2015
,M'" .
kEVjN 8IERWIR~H
Notary PubU~ ..SIOle 0; Taxos Ir
My Commission El(Qlres !f
Oe'Obe, 21, 2017
..I
otary Public of the State of Texas
The State of Texas }
}SS
County of Travis }
AFFIDA VIT OF SURETY
I,Cc:.·ll«Mct ~L...do swear that I am worth, in my own right, at least the sum of
$500.00, after deducting from my property all that which is exempt by the
Constitution and Laws of the State from forced sale, and after the payment of all
my debts, and after satisfying all encumbrances upon my property which are
known to me; that I am a property owner in 7f?e.v. :..S County and have
property in this State liable to execution worth said amount or more.
SWORN TO AND SUBSCRIBED BEFORE ME this 9 fI-. day of April 1,2015.
kEVIN "f~W.'lltH
NotOry Pu~II~.SIQI. or Taxa.
MVCommlWQh bplrs.
Oofql~" 21. 2017
Notary Public of the State of Texas
-
I hereby approve the foregoing Bond, this _ day of April, 2015
County Clerk
ACOT HOI • "9225
PAl I.SO AUSTIN TX
0000000.06668 TX48036 Mar 31 (I 1 :29pm
W~~1~8O:fOb'a'i'gtN!2' o.O(\':"N~;'· ; ·l~lt.",,,,,,,';.t >N' "k".I!'~)rr~·~~k"'~~\i.~ ,,"_~-'. ,i" '
AT", TXN FEB
MAR)1 1.50 11775.95
~MJOt3·~AJATH~'Wlll'HDAA.WAIt~,,~~ 'lW;' ~"~{' "...; ,,: .u;~EK$!1.I. ~~OZ'':OOi v" " 11573.96·
PAl ISO AUSTIN TX
~~;;~~0000000066'69:\11')t.8036~Ma);· 31'>..fH1<1-29P1M
....
Surcharge 2.00
:MARlllj:'1'ATM ·'l'lQl,~'.IUi:.\! »s:« ~.~ < r~ {~ ~) '/;".... ,oJ. 60' • 1>1572/46
MAR30. DEBIT PURCHASE 8.65 11563.80
,yt~~~L. BXAttOiOj·59,7.2'8iO~·1,,·PFLUGBRV'ItLg 'l'X' J'~II-
• 508900028974
12345678 Mar 30
../~314''lJDBBl~RtlRCltASif·;;ItlJ:'·Jt;)',)..· 'l'''~' ,. ~( ,. l 11 ,',\';,' ,'1" . I, , ~21. 74 1-1242.06
VZwaLSS.IVR VN 800-922-0204 NJ
!4~·.tii:"~lf1ll(.: Og-0000189'1s:m~J·.S'6?8:\H!ix\~3·Nt' I... J;:'. ~ . l'!..f{"'\I!lI....,'i'~ " •• ~ "'. ,~ • I
• .11"t' ~...,~~ ....,
MARl1 CHARGE PBB - PAPBR STATEMBNT PEE 2.25 11239.·Ql·
'4.:,;-",J'~ •
,;. ...""· ...~JJJ-~.tt~~~!;-;-I~~).~.~ ••• 't :..
:..~lf" ;'.,,1 ·Wti:t.:l,t,'f~"£~t: .. :...),~'))" -1"1! ·.fif' .t.,\; \'~t~"r~,(,"r'" ~
Cleared Share Draft Recap
'i, 1\1>'l-N'~~Dt'i'ft;.{''i(·Date;j'.~ ..'tAlIIOunt;; *Drlitu "A'Iii~~\l4\59..'L t~HJUU.'1;W:.,~ ·!~98. '0.4 ;~l'1'6,1h •. ,.... MAR16·"",.... ~'l:90 '00 ~1'1'194 .MAR2·3 78.'84
1160 HAR9S 155.12 .1167 MAR18 505.00 1195 MAR2) 3000.00
,:N:;.~~~~~~>l~61"'- .IjMAR12·'~ ... ····~'350 OOl ..l'fGQ, .~MARt8··· y' 600 00,' ·];196 ~AAR3'0 . 1!i00~ 00·
*1163 MAR13 100.65 ·1193 MAR18 45.00 1197 MAR3 0 1900.00
,.
1-------------------------------------------------------------------1
'4'"V';'~', ",,1."- t"":}I1 ~r::'l
"';1'~. , t 1 Total··;·fot'·· 1 ''l'otal· 1
1 1 this period I year-to-date I
, ""''1".\ ,. .,."!,~ _too - . .e~"'~---~j,."~"f'~t':'~It".. ~- t'~- ~~ oJ .. r"" s, •• ~ -1- .;4-f." ""!,~~~-w "~~~.I __'lo..w ... '""':"'t -,. .... :..-1
ITotal OVerdraft Fees I 0.00 I 0.001
" '\.l,~~,t;3d
255, 260 (Tex. App.v-Houstonj l" Dist.] 2010, pet. dism'd) Furthermore, the
surety on a bond or the deposit made in lieu of a bond is subject to liability "for
all damages and costs that may be awarded against the debtor-c-up to the amount
of the bond, deposit, or security," if "the judgment is for the recovery of an
interest in real or personal property, and the debtor does not pay the creditor the
value of the property interest's rent or revenue during the pendency of the
appeal." TEX R. APP. P. 24.1(d)(3). Because appeals can take longer than
expected, the County court has autnority to modifY tfie amount of the supersedeas
bond even after then expiration of it's plenary power. rrEX R. APP. P. 24.3(a)
4. In this matter $500.00 is a wholly insufficient supersedeas bond amount for the
award of the possession of the property located at 1108 Fox Sparrow Cove,
Pflugerville.
MOTION FOR ISSUANCE OF WRIT
5. Because Defendant has failed to post an apQrop-riate tion