In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-18-00385-CV
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GEORGE EARL DANNER, Appellant
V.
KATHRYN M. DANNER, Appellee
________________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 17-03-04143-CV
________________________________________________________________________
ORDER
By motion, George Earl Danner asked this Court to lower the supersedeas
bond the trial court required him to post to supersede Kathryn M. Danner’s right to
execute on a judgment pending the outcome of George’s appeal. Because the record
fails to show the trial court abused its discretion by setting George’s supersedeas
bond at $1,933,915.60, we deny his motion. Nevertheless, we note that trial courts
have continuing jurisdiction to consider modifying the security that they have
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required defendants to post to suspend a plaintiff’s right to enforce a judgment given
changes in circumstances that may occur while a case is subject to appeal. See Tex.
R. App. P. 24.3(a). Given that George can ask the trial court to reconsider the amount
of the supersedeas bond, we lift our stay of the trial court’s November 15, 2018 order
effective as of December 17, 2018, to allow George the opportunity to file a motion
in the trial court, with evidence supporting his claim seeking a reduction in the
required bond.
Background
The parties dispute whether the amount of the supersedeas bond should be
reduced. The necessity for the supersedeas bond in this case arises from the trial
court’s resolution of the parties’ rights to property in their divorce. The trial court
signed the final decree, which is at issue in this appeal, on September 7, 2018. Within
a month of the date the trial court issued the decree, George perfected his right to
appeal so that he could challenge the terms in the final decree. Approximately one
week after George filed his notice of appeal, Kathryn filed a motion asking that the
trial court require George to turn over the assets in four brokerage accounts, which
the trial court had divided between the parties in connection with the parties’ divorce.
The trial court held a hearing on Kathryn’s motion on October 31, 2018.
During the hearing, the attorneys for the parties agreed that the supersedeas bond
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should be $1,933,915.60. Just over a week after the hearing, George filed a motion
to reduce the amount of the supersedeas bond. George alleged that he did not have
sufficient assets to obtain a supersedeas bond of $1,933,915.60, but he failed to
attach any evidence to his motion. Nothing in the record shows that the trial court
conducted an evidentiary hearing on George’s motion. The record also fails to show
that George obtained a date for the trial court to conduct a hearing on his motion.
On November 13, 2018, without mentioning George’s November 9, 2018
motion, the trial court signed a post-judgment order and set George’s supersedeas
bond at $1,933,915.60. See Tex. R. App. P. 24.2(a). Two days later, the trial court
conducted a hearing to determine whether George had posted a supersedeas bond in
the amount required by its November 13, 2018 order. During the November 15
hearing, George’s attorney advised the trial court that he had filed a motion to reduce
the amount of the bond, but he acknowledged that George had previously agreed to
a supersedeas bond of $1,933,915.60. At the conclusion of the hearing, the trial court
denied George’s request and ordered that George turn over the funds in the brokerage
accounts pursuant to the awards in the final decree.
On the same date the trial court denied George’s request to reduce the
supersedeas bond, he filed an emergency motion in this Court asking us to stay the
trial court’s order enforcing the turnover order. Three days later, George filed a
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motion in this Court asking us to review and reduce the amount the trial court set for
his supersedeas bond. George attached six exhibits to the motion he filed in this
Court, including an affidavit about his net worth. We note that George’s net worth
affidavit contains the style of the case as if he intended to file the document in the
trial court; nothing on the document, however, shows that he filed it there. Moreover,
George’s net worth affidavit is not identified as an exhibit in any of the motions filed
with the District Clerk. And it does not appear the trial court ever had the opportunity
to consider George’s net worth affidavit, as it bears a date of November 19, 2018,
nine days after George asked the trial court to reduce the amount of the supersedeas
bond.
On November 21, 2018, this Court temporarily stayed the trial court’s
November 15, 2018 turnover order to review whether the trial court should have
enforced its judgment before resolving George’s impending appeal. See Tex. R.
App. P. 24.4(c). Approximately one week after we stayed the trial court’s order,
Kathryn filed pleadings in this Court opposing George’s request. Additionally,
Kathryn filed pleadings challenging this Court’s jurisdiction over George’s request
seeking to alter the amount of his bond. According to George, the trial court
summarily denied his motion to reduce his supersedeas bond without giving him the
chance to present evidence or argument to support his motion.
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Analysis
Nothing in the transcript of the hearing that resulted in the order requiring
George to turn over the brokerage accounts shows that George tried to present
evidence during the November 15 hearing to support his request for a reduced bond.
Additionally, there is no evidence showing that George attempted to call witnesses
to prove he could not secure a supersedeas bond, to prove that he had attempted but
could not secure such a bond, or to show that George objected to the trial court’s
decision to rule on Kathryn’s motion before he presented evidence on his motion.
Based on the proceedings that occurred during the November 15 hearing, we
hold the trial court did not err by denying George’s motion. That said, we note that
trial courts have the authority to alter the security that must be posted to suspend a
judgment, even after the trial court has otherwise lost its plenary power over the
judgment while the case is on appeal. See Tex. R. App. P. 24.3(a). If the trial court
alters the amount of the supersedeas bond, the trial court has exercised authority that
is subject to review upon appeal. See Tex. R. App. P. 24.4(a)(5). For that reason,
appellate courts have jurisdiction to consider a trial court’s ruling on a motion to
alter the amount the defendant must post to suspend another party’s right to execute
on the judgment while the case is on appeal. Id.
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But in this case, the motion George filed contained no supporting evidence,
and George also failed to support his motion with any evidence during the hearing
the trial court conducted after he filed a motion seeking a reduced bond. On this
record, we conclude that George has failed to show the trial court erred by denying
his motion. Based on our conclusion the trial court did not err but that it has
continuing jurisdiction to consider altering George’s bond, we lift the stay we
previously issued regarding the court’s order. We dissolve the stay, as of December
17, 2018, so that George may present the trial court with evidence supporting his
claim that the trial court should reduce the supersedeas bond.
ORDER ENTERED December 11, 2018.
PER CURIAM
Before McKeithen, C.J., Horton and Johnson, JJ.
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