Marlene W. Mitchell v. Wilmington Savings Funds Society, FSB, D/B/A Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00089-CV
___________________________

MARLENE W. MITCHELL, Appellant

V.

WILMINGTON SAVINGS FUNDS SOCIETY, FSB, D/B/A CHRISTIANA TRUST
AS OWNER TRUSTEE OF THE RESIDENTIAL CREDIT OPPORTUNITIES
TRUST III, Appellee

On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2017-005148-1

Before Sudderth, C.J.; Kerr and Pittman, JJ.
Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION
ON MOTION FOR REVIEW OF SUPERSEDEAS ORDER

I. Introduction

After pro se Appellant Marlene W. Mitchell’s home was foreclosed upon,

Appellee Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Owner

Trustee of the Residential Credit Opportunities Trust III filed an eviction suit against

her in November 2016. The eviction suit was not tried until August 2017 because

Mitchell filed two bankruptcy cases in rapid succession and then removed the eviction

case to federal court. The federal court granted Wilmington’s motion to remand in

June 2017, and on August 9, 2017, the justice court decreed that Wilmington was

entitled to recover possession of the premises, and Mitchell appealed to the county

court at law.

On February 5, 2018, the county court at law heard the case, rendered

judgment of possession and for court costs to Wilmington, and set Mitchell’s appeal

bond at $10,000. Mitchell appealed the judgment of possession to this court, and on

August 17, 2018, she filed her appellate brief in this court. We asked her to file a

corrected brief by August 30, 2018, and she did so.

Wilmington, which was copied on our corrected brief request to Mitchell, filed

a motion to increase the supersedeas bond on August 29, 2018, arguing that the trial

court should require an additional $10,000 cash bond to protect Wilmington’s interest

in the property.

2
 On September 10, 2018, Mitchell responded to Wilmington’s motion but did

not raise any change in her financial circumstances; the trial court heard the motion

the next day, increased the appeal bond from its initial amount of $10,000 to $15,000,

and gave Mitchell ten days to post it.

Several days later, on September 19, 2018, Mitchell attempted to file a “writ of

mandamus” in this court, complaining that on September 11, 2018, the county court

had demanded an increase of $5,000 to keep her supersedeas bond in effect “in

violation of Texas Business & Commerce Code, ‘UCC’ and several USC statutes and

public policy,” among other complaints. As Mitchell’s appeal remains pending in this

court, we construed her petition for writ of mandamus as a motion to review the trial

court’s supersedeas order under rule of appellate procedure 24.4. See Tex. R. App. P.

24.4. We affirm the trial court’s order.

II. Suspension of Judgment Pending Appeal

A. Applicable Law

Under property code section 24.007, in pertinent part,

A judgment of a county court 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 (West Supp. 2017).

3
 Under rule of appellate procedure 24.3, the trial court has continuing

jurisdiction, if circumstances change, 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)(2). A party may then seek review of the trial court’s ruling by motion in the

court of appeals, which may review—as pertinent here—the sufficiency or

excessiveness of the amount of security and the trial court’s exercise of discretion

under rule 24.3(a). Tex. R. App. P. 24.4(a). Review may be based both on conditions

as they existed at the time the trial court signed an order and on changes in those

conditions afterward, and the court may issue any temporary orders necessary to

preserve the parties’ rights. Tex. R. App. P. 24.4(b)–(c). The motion must be heard at

the earliest practicable time. Tex. R. App. P. 24.4(d). The amount of security

involved in the recovery of an interest in real property must be at least the value of

the real property interest’s rent or revenue. Tex. R. App. P. 24.2(a)(2)(A).

The trial court is given broad discretion in determining the amount of security

required. See Hernandez v. U.S. Bank Tr. N.A. for LSF8 Master Participation Tr., 527

S.W.3d 307, 309 (Tex. App.—El Paso 2017, no pet.) (citing Miller v. Kennedy &

Minshew, P.C., 80 S.W.3d 161, 164 (Tex. App.—Fort Worth 2002, no pet.)). A trial

court abuses its discretion if the court acts without reference to any guiding rules or

principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate

court cannot conclude that a trial court abused its discretion merely because the

4
appellate court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at

620. An abuse of discretion does not occur when the trial court bases its decision on

conflicting evidence and some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009);

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).

B. Evidence

To her petition for writ of mandamus, Mitchell attached a copy of the order

increasing the supersedeas bond, among other documents. She also filed a copy of

her statement of inability to afford payment of court costs or an appeal bond.

1. September 11, 2018 Order

The county court’s September 11, 2018 order reflects that Wilmington filed a

motion to increase the supersedeas bond and that the court, having considered the

motion, the court’s file, any response, and the arguments of counsel and parties,

granted the motion and ordered the original February 5, 2018 bond amount increased

from $10,000 to $15,000, due within 10 days, “and in cash only.”

2. Trial Record

We also reviewed the record of the trial court’s decision to set the original bond

at $10,000. During the trial court proceedings on February 2, 2018, the trial court

explained that for setting the supersedeas bond for a residential property, it would

take testimony about the property’s monthly rental value and then bond it from six to

5
twelve times the monthly rental. Then, if the appeal “drags on too long, the owner

can come and ask for more money.”

After rendering judgment as a matter of law on the question of possession in

this forcible detainer action and awarding to Wilmington both possession and court

costs, the trial court heard testimony with regard to the supersedeas bond amount.

Mitchell testified that the monthly payment on the home had been “$1,280

years ago” and that $125,000 was “the best offer that anybody has been able to give

[her].” Wilmington’s witness, a licensed realtor, testified that the fair rental value

based on the neighborhood would be $2,250 to $2,500 a month and that “[i]f

someone is offering $125, I would buy it for $135.” The trial court pulled up the

Tarrant County Appraisal District’s estimate of $362,000, which Mitchell decried as

“ridiculous.” The trial court considered the range of $125,000 to $360,000 to reach a

value of $225,000, 1 and the realtor further testified that the house was over 4,000

square feet and would rent for “probably close to $2,000 a month,” to which Mitchell

added, “the stove only has one burner that works.”

The trial court opted to set the bond at “$10,000 cash or corporate” and signed

the judgment on February 5, 2018, which would have covered five months of rent at

1
($360,000 + $125,000)/2 would have been $242,500. The property was
purchased at foreclosure for $255,945.41. The judicial foreclosure judgment reflected
that Mitchell had owed “at least $248,704.52 as of August 2015” when she defaulted
on her loan.

6
$2,000 per month. Mitchell did not file a motion to review that supersedeas ruling.

Cf. Tex. R. App. P. 24.4(a).

3. Post Trial Proceedings

On February 12, 2018, the court clerk issued a certificate of cash deposit in lieu

of supersedeas bond, reflecting that Mitchell had deposited $10,000 in lieu of a

supersedeas bond. Before depositing the cash bond, however, Mitchell purported to

file a supersedeas bond of $10,000 on February 8, 2018, via her “Personal UCC

Contract Trust Account . . . established with the Department of the Treasury.” She

also tried to offer a handwritten $800,000 promissory note into the court’s registry.

Mitchell received two extensions of time from this court to file her appellant’s

brief. She received an additional ten days when we requested that she correct her

brief to comply with the applicable rules of appellate procedure.

C. Analysis

Seven months passed before the trial court increased the bond, essentially

reducing the amount of monthly rent over those seven months to $1,428.57, or only

$148.57 more than Mitchell had admitted to paying per month at some point “years

ago” and prior to the foreclosure. To her response to Wilmington’s motion, Mitchell

did not attach any evidence to show a change in circumstances that might warrant a

reduction in the amount of the bond. Based on the record before us, we cannot say

that the trial court abused its discretion by granting Wilmington’s motion in part and

increasing the amount of bond by $5,000 (rather than the additional $10,000

7
requested by Wilmington). Therefore, we overrule Mitchell’s complaint and affirm

the trial court’s order requiring an additional $5,000 supersedeas bond.

III. Conclusion

Having construed Mitchell’s “writ” as a motion for review, we affirm the trial

court’s order requiring the posting of an additional $5,000 bond.

/s/ Bonnie Sudderth

Bonnie Sudderth
Chief Justice

Delivered: September 27, 2018

8