WC 1st and Trinity, LP WC 1st and Trinity GP, LLC WC 3rd and Congress, LP And WC 3rd and Congress GP, LLC v. the Roy F. and JoAnn Cole Mitte Foundation

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00905-CV

WC 1st and Trinity, LP; WC 1st and Trinity GP, LLC; WC 3rd and Congress, LP; and
WC 3rd and Congress GP, LLC, Appellants

v.

The Roy F. and JoAnn Cole Mitte Foundation, Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY,
NO. D-1-GN-18-007636, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellants have appealed from the trial court’s December 10, 2019 order

appointing a receiver for WC 1st and Trinity, LP and WC 3rd and Congress, LP (collectively, the

“Partnerships”). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(1). On December 12, 2019,

appellants filed an emergency motion for temporary relief requesting that this Court stay the trial

court’s receivership order while their appeal is pending, pursuant to our authority under Texas

Rule of Appellate Procedure 29.3. On December 19, 2019, this Court stayed in part the

receivership order, pending further order of this Court.

In our stay order, we (1) prohibited the receiver from filing voluntary petitions for

relief under Title II of the United States Code (the Bankruptcy Code) for the Partnerships,

(2) prohibited the alienation of the real property owned by the Partnerships, and (3) ordered the

parties and the receiver to notify the Court as soon as practicable of any foreclosure posting for
the real property owned by the Partnerships. In addition, we abated this appeal and remanded the

case to the trial court for a determination of whether appellants’ rights would be adequately

protected by supersedeas or another order under Texas Rule of Appellate Procedure 24. See Tex.

R. App. P. 24.1; see also Tex. R. App. P. 29.1, 29.3. We abated the appeal because although

Rule 29.3 authorizes this Court to make any temporary orders necessary to preserve the parties’

rights until disposition of the appeal and gives us the discretion to require appropriate security,

“the appellate court must not suspend the trial court’s order if the appellant’s rights would be

adequately protected by supersedeas or another order made under Rule 24.” Tex. R. App. P.

29.3. Accordingly, we abated this appeal for the trial court to consider whether “appellant’s

rights would be adequately protected by supersedeas or another order under Rule 24.”

After the trial court conducted a hearing and issued an order related to the

adequacy of supersedeas or another order under Rule 24, appellants filed an emergency motion

challenging the trial court’s supersedeas order and seeking temporary relief. We will grant the

motion in part.

LEGAL FRAMEWORK

Unless the law or the Texas Rules of Appellate Procedure provide otherwise, a

judgment debtor is entitled to supersede a judgment and thus defer its enforcement while

pursuing an appeal. See Tex. R. App. P. 24.1; see also Miga v. Jensen, 299 S.W.3d 98, 100

(Tex. 2009). The purpose of supersedeas is to preserve the status quo of the matters in litigation

as they existed before the issuance of the judgment from which an appeal is taken. See, e.g.,

Smith v. Texas Farmers Ins., 82 S.W.3d 580, 585 (Tex. App.—San Antonio 2002, pet. denied).

We review a trial court’s ruling on supersedeas for an abuse of discretion. See

Tex. R. App. P. 29.2 (establishing standard of review for trial court’s refusal to permit appellant

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to supersede interlocutory order); see also id. R. 24.4(a). A trial court abuses its discretion when

it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of

the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding

rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011). On a party’s

motion, we may review: (1) the sufficiency or excessiveness of the amount of security, (2) the

sureties on a bond, (3) the type of security, (4) the determination whether to permit suspension of

enforcement, and (5) the trial court’s exercise of discretion when ruling on the amount and type

of security and the sufficiency of sureties. See Tex. R. App. P. 24.4(a). We may require that the

amount of a bond be increased or decreased and that another bond be provided and approved by

the trial-court clerk. See id. R. 24.4(d). We may also require other changes in the trial court’s

order and remand to the trial court for entry of findings of fact or for the taking of evidence.

See id.

Rule 24.2(a)(3) governs the supersedeas issue in this appeal because the

receivership order is a judgment “for something other than money or an interest in property.”

Appellants are the two limited Partnerships that have been placed into receivership and their

respective general partners; appellee is The Mitte Foundation (“Mitte”), a minority limited

partner in both of the Partnerships. Each of the Partnerships’ sole purpose is “[t]o acquire, own,

hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with” certain

parcels of real property. Thus, although the receiver ultimately might dispose of the

Partnerships’ real property, because the order places the Partnerships (not merely their real-

property assets) into receivership, it is not a judgment “for the recovery of an interest in real or

personal property,” which would be governed by Rule 24.2(a)(2).

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 Under Rule 24.2(a)(3), “the trial court must set the amount and type of security

that the judgment debtor [here, appellants] must post. The security must adequately protect the

judgment creditor [here, Mitte] against loss or damage that the appeal might cause.” (Emphasis

added.) However, “the trial court may decline to permit the judgment to be superseded if [Mitte]

posts security ordered by the trial court in an amount and type that will secure [appellants]

against any loss or damage caused by the relief granted [i.e., the receivership order] to [Mitte] if

an appellate court determines, on final disposition, that the relief was improper.” Tex. R. App. P.

24.2(a)(3).

ANALYSIS

In this case, the trial court declined to permit the judgment to be superseded

because Mitte posted a $100,000 counter-supersedeas bond. Specifically, the trial court

concluded in its supersedeas order that (1) the receivership order is required to adequately protect

Mitte during the appeal of the receivership order and (2) the protective provisions in our

December 19, 2019 order, together with the counter-supersedeas bond posted by Mitte, “secure[]

Defendants/Appellants against any loss or damage caused by the relief granted” to Mitte, i.e., by

the order placing the Partnerships into receivership. The trial court further found that Mitte’s

rights cannot be adequately protected during the appeal by appellants’ posting a supersedeas

bond for the reasons set forth in the receivership order. In the alternative, the trial court stated

that if this Court disagrees and determines that appellants should be permitted to post a

supersedeas bond and supersede the receivership order, the bond “should, at a minimum, be in

the amount of $10,500,000” to protect Mitte’s rights. In addition, the trial court stated that an

order should be entered requiring appellants to preserve documents requested in discovery by

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Mitte and to notify all parties, including third parties, with custody of such documents of their

obligation to retain and preserve all documents related to appellants.

We hold that the trial court abused its discretion by concluding that the $100,000

counter-supersedeas bond posted by Mitte secures appellants “against any loss or damage caused

by” the receivership order “if an appellate court determines, on final disposition, that that relief

was improper.” Tex. R. App. P. 24.2(a)(3). The receivership order grants the receiver all

powers to manage the receivership assets that were granted to the general partners under the

Partnership agreements. A party’s management rights are “unique, irreplaceable, and ‘cannot be

measured by any certain pecuniary standard.’” Cheniere Energy, Inc. v. Parallax Enterprises

LLC, 585 S.W.3d 70, 83 (Tex. App.—Houston [14th Dist.] 2019, pet. filed) (affirming temporary

injunction maintaining status quo pending litigation of parties’ claims on merits related to control

over limited liability corporation). In addition, Mitte provided no evidence to support its

assertion that this amount would be sufficient to protect appellants. Appellants, on the other

hand, presented evidence of the risk of foreclosure on Partnership assets created by the

appointment of a receiver, which could put their loans in default and removes their ability to

negotiate with the lenders. Under the circumstances of this case, in which the Partnerships’

assets are worth millions of dollars (even if the precise value is currently disputed), a $100,000

bond is inadequate to protect appellants from the loss of their management rights and the danger

of foreclosure presented by the receivership, if this Court determines on appeal that the

receivership was improper.

We further hold that the trial court abused its discretion by refusing to allow

appellants to supersede the receivership order. The findings in the receivership order that the

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trial court relied on when determining that Mitte’s rights would not be adequately protected by a

bond include the following:

• The property of the Partnerships is in danger of being lost, removed, or
materially injured.

• The Partnerships are insolvent or in immediate danger of insolvency.

• The actions of the governing persons of the Partnerships are illegal, oppressive,
or fraudulent.

• The properties of the Partnerships are being misapplied or wasted.

While we express no opinion on whether these findings are correct, we conclude that in this

particular situation Mitte can be adequately protected “against loss or damage that the appeal

might cause” by a supersedeas bond. See Tex. R. App. P. 24.2(a)(3). Unlike appellants’

interests in their Partnership management rights, Mitte’s interests as a limited partner in the

Partnerships can be protected by monetary security.

The trial court ultimately did not allow appellants to post a supersedeas bond and

did not set a bond amount for appellants to post. However, in its order, it suggested in the

alternative that if this Court determines that appellants should be permitted to post a supersedeas

bond and supersede the receivership order, the bond “should, at a minimum, be in the amount of

$10,500,000” to protect Mitte’s rights. At the hearing, the trial court considered two possible

ways to measure Mitte’s possible loss or damage that the appeal might cause: (1) the current

fair-market value of Mitte’s interests in the Partnerships or (2) Mitte’s ability to recover on its

claims in the underlying lawsuit if the Partnerships became insolvent during the appeal of the

receivership order.

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 Appellants advocated for a bond amount of $3.7 million because Mitte had

represented to the IRS on its 2017 Form 990 that the fair-market value of its interests in the

Partnerships was $3.7 million.1 Mitte agreed that its 2017 valuation was based on a December

2016 appraisal of the 1st and Trinity property and an analysis of sales of properties comparable

to the 3rd and Congress property, but it advocated for a bond amount of $10.5 million because

more recently, in July 2019, the parties had signed a settlement agreement for this amount. Mitte

argued that whether the amount of the supersedeas bond was calculated to protect either the

current value of its interests in the Partnerships or all of its potential damages in the lawsuit,

which it might be unable to pursue if the Partnerships later failed because the receivership is

stayed, the $10.5 million settlement figure was “the best, most accurate figure.” The trial court

1
In their motion challenging the supersedeas order, appellants further argue that this
amount is more than sufficient to cover the carrying costs of the Partnerships for at least two
years and thus should be sufficient to protect Mitte’s rights while the receivership order is on
appeal. In some cases, courts have held that an appropriate bond amount to protect an appellee
against loss or damage that an appeal might cause is an amount equivalent to the actual cost of
protecting against the loss of a property and maintaining the property as it existed at the time the
trial court issued its judgment—i.e., appellee’s portion of property taxes, maintenance and
upkeep costs, and insurance for the duration of the appellate process. See Devine v. Devine, No.
07-15-00126-CV, 2015 WL 5228254, at *2, *4 (Tex. App.—Amarillo Sept. 2, 2015, order) (per
curiam); In re Estate of Hernandez, No. 04-14-00046-CV, 2014 WL 1713566, at *2 (Tex.
App.—San Antonio Apr. 30, 2014, no pet.) (mem. op.). As in this case, the properties at issue in
Devine and Hernandez ultimately might be sold at the conclusion of the appeal, and thus, the
trial courts viewed the loss or damage to the appellees as the cost of maintaining the properties
for the duration of the appeal. See Devine, 2015 WL 5228254, at *1; In re Estate of Hernandez,
2014 WL 1713566, at *2. In both of those cases, however, the property at issue was a property
for which the appellees bore responsibility for ensuring that the costs of maintaining the property
were paid. See Devine, 2015 WL 5228254, at *4 (post-divorce dispute in which receiver was
appointed to sell property and appellee was ex-wife with one-half undivided interest in house); In
re Estate of Hernandez, 2014 WL 1713566, at *1 (probate dispute in which appellees had been
appointed co-executors of estate with responsibility for maintaining house that was part of
estate). In this case, as a limited partner, Mitte does not have any direct responsibility for
ensuring that any costs of maintaining the property, such as debt service, taxes, and insurance,
are paid. Consequently, setting a bond in the amount of those costs would not adequately protect
Mitte from loss or damage that the appeal might cause it.

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did not state the basis for its alternative conclusion that $10.5 million would be the bond amount

required to protect Mitte’s rights.

We conclude that there is insufficient evidence in the record to support setting a

bond in either amount. The purpose of supersedeas is to preserve the status quo of the matters in

litigation as they existed before the issuance of the order from which the appeal is taken. In the

procedural posture of this interlocutory appeal, and under the particular circumstances present

here, the status quo of the matters in litigation is that Mitte holds a particular percentage interest

in each of the Partnerships and the only assets of those Partnerships are particular parcels of real

property. Here, although the parties dispute to what extent the properties are at risk of

foreclosure either with or without the appointment of a receiver, the possible loss or damage to

Mitte from an appeal stems from the risk that not placing the Partnerships into receivership

causes the value of Mitte’s interests in the Partnerships to decline or to be completely lost.

Thus, to preserve the status quo and adequately protect Mitte against that potential

loss or damage, Mitte is entitled to have appellants post a bond in the amount of the fair-market

value of Mitte’s interests in the Partnerships at the time of the receivership order. Mitte is not

entitled to a bond that would protect it from the possible loss of appellants’ ability to pay an

as-yet-undetermined final judgment in the underlying lawsuit. Based on the evidence in the

record before us, the trial court lacked sufficient evidence to determine the fair-market value of

Mitte’s interests in the Partnerships.

CONCLUSION

Accordingly, appellants’ emergency motion to review the trial court’s supersedeas

order and for temporary relief is granted in part. We reverse the trial court’s order on

supersedeas declining to allow appellants to post a bond and setting the amount of Mitte’s

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counter-supersedeas bond. Because the record before us does not contain a current appraisal of

the real-property assets of the Partnerships or other sufficient evidence of the fair-market value

of Mitte’s interests in the Partnerships at the time of the receivership order, we remand this

matter to the trial court to take evidence and make findings of fact on the amount of security

necessary to protect the value of Mitte’s interests in the Partnerships during the pendency of the

appellate process. See Tex. R. App. P. 24.4(d). We further instruct the trial court to enter an

appropriate order requiring appellants to post a bond in that amount. See id. We note that Texas

Rule of Civil Procedure 621a authorizes the parties to conduct discovery as necessary to obtain

information relevant to the value of Mitte’s interests in the Partnerships.

We temporarily stay the receivership order pending the trial court’s determination

of the bond amount that appellants must post to supersede the order. See id. R. 24.4(c). We

leave in place the portions of our prior partial stay order prohibiting the alienation of the real

property owned by the Partnerships and ordering the parties to notify the Court as soon as

practicable of any foreclosure posting for the real property owned by the Partnerships. See id.

The parties are ordered to file a joint status report with this Court concerning the status of the

trial-court proceedings or a motion to reinstate on or before March 19, 2020.

It is ordered on February 3, 2020.

Before Chief Justice Rose, Justices Triana and Smith

Abated and Remanded

Filed: February 3, 2020

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