Order Affirmed and Opinion Filed November 29, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00088-CV
MICHAEL COMBS AND MICHAEL COMBS PROPERTIES, LLC,
Appellants
V.
DIANE CREPEAU AND LARI RENINGER, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-03038
MEMORANDUM OPINION ON MOTION TO REVIEW ORDERS
RELATING TO SUPERSEDEAS BOND
Before Chief Justice Burns, Justice Molberg, and Justice Goldstein
Opinion by Chief Justice Burns
Before the Court is appellants’ motion for rehearing of our opinion
reviewing supersedeas bond orders and request for a stay. We deny the
motion. On our own motion, we vacate the opinion and order dated August 21,
2023. This is now the opinion of the Court.
Appellants ask the Court to review the trial court’s April 18, 2023 and June
20, 2023 orders relating to the supersedeas bond. We conclude the April order is
moot. Because we conclude the trial court did not abuse its discretion in rendering
the June order, we affirm that order.
Background
In the appealed judgment, the trial court awarded damages to appellees
totaling $1,707,971.22. The trial court also imposed a constructive trust over the
following assets in appellants’ possession: (1) two homes; (2) cash in the amount
of $172,000; (3) a one-ounce gold coin; and (4) future benefit pension payments in
the amount of $1,001 per month. Regarding the assets subject to the constructive
trust, the judgment provides that they are “held subject to further order of this
Court or transferred to the Plaintiffs in partial satisfaction of this Judgment at such
value as agreed between the parties, or absent agreement, determined by this
Court.”
Following the judgment, appellees asked that the trial court to set the
supersedeas bond in the amount of $847,113.70. Seeking a lower bond, appellants
successfully argued, in part, that the assets being held in constructive trust should
be excluded from their net worth. The trial court signed an order on March 7, 2023
setting the bond at $34,894.29.
When appellants did not post the supersedeas bond, appellees filed in the
trial court, on April 10, 2023, a motion to require appellants to deposit the non-real
property trust assets into the trial court’s registry. In the motion, appellants stated
that “to the extent that an order to deposit the trust assets into the registry of the
Court for safekeeping is an increase in the security for the judgment, the Court has
authority to increase the security pursuant to Tex. R. App. P. 24.3 which provides
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the trial court has continuing jurisdiction to order the amount and type of security
and to modify the amount or type of security required.” Following a hearing, the
trial court signed an order on April 18th. In the order, the trial court found, in part,
that the judgment provided that the trust assets were to be held “subject to further
Order of this Court or transferred to [appellees] in partial satisfaction of the
Judgment” and that appellants had not superseded the judgment. The trial court
ordered appellants to deposit into the trial court’s registry: (1) $172,000; (2) the
one-ounce gold coin; (3) $6,006, being the sum of the periodic pension payments
made to appellants since the judgment was entered; and (4) $1,001 per month by
the 15th day of each month beginning May 15, 2023. The order also provided that
posting a supersedeas bond would not relieve appellants’ obligations under the
order.
Three days later, on April 21st, appellants deposited $34,894.29 with the
district clerk. They also deposited into the trial court’s registry the gold coin and
$62,870.
Because appellants failed to fully comply with the April 18th order to
deposit $179,007 into the court’s registry, appellees filed, on May 19th, an
amended motion to enforce the order by contempt or, alternatively, to increase the
supersedeas bond. Following a hearing, the trial court signed an order on June
20th granting the motion and ordering the supersedeas bond “increased by
$111,000 for a total amount of $145,895.29 pursuant to the Court’s authority under
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Tex. R. App. P. 24.1 and 24.3.” Appellants seek review of both the April 18th and
June 20th trial court orders. Because the June order is a modified supersedeas
order, the April 18th order is moot and not before the Court.
Applicable Law
A judgment debtor may supersede a judgment by posting a good and
sufficient bond. TEX. R. APP. P. 24.1(a)(2). When the judgment is for money, the
amount of the bond must equal the sum of compensatory damages awarded,
interest for the estimated duration of the appeal, and costs awarded in the
judgment. TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(a); TEX. R. APP. P.
24.2(a)(1). The amount, however, cannot exceed the lesser of fifty percent of the
judgment debtor’s current net worth or $25,000,000. TEX. CIV. PRAC. & REM.
CODE ANN. § 52.006(b); TEX. R. APP. P. 24.2(a)(1).
Even after its plenary power expires, a trial court has continuing jurisdiction
to modify the amount and type of security required to suspend enforcement of the
judgment if circumstances change. See TEX. R. APP. P. 24.3(a)(2). We may review
the sufficiency or excessiveness of the amount of security and the type of security.
See id. 24.4(a)(1) & (3). We review a trial court’s ruling on the amount of a
supersedeas bond for an abuse of discretion. See G.M. Houser, Inc. v. Rodgers,
204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.).
Discussion
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Appellants seek review of the trial court’s June 20th order increasing the
supersedeas bond. At the hearing, appellants argued that the trial court could not
increase the amount of the supersedeas bond because there had been no change in
circumstances. A change in circumstance occurs when the supersedeas amount
becomes inadequate. See Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668
S.W.3d 771, 779 (Tex. App.—El Paso 2022, no pet.) (change occurred when bond
based on amount generated by an oil well and that well reached payout prompting
reconsideration of bond amount); Adams v. Godhania, 635 S.W.3d 454, 461 n. 2
(Tex. App.—Austin 2021, pet. denied) (by increasing bond, trial court impliedly
found that security posted had become inadequate to cover appellee’s potential
damages).
In their response, appellees assert that appellants, in successfully arguing
that trust assets should be excluded from their net worth, told the trial court that
they were holding those assets in a constructive trust and that those assets were not
in any danger of loss or damage. Appellees identify the change in circumstance
being appellants’ assurance at the hearing setting the bond that the trust assets were
safe from loss turning out to be false. When the trial court subsequently ordered
appellants to place the trust assets into the court’s registry for safekeeping, they
were unable to fully comply. We agree with appellees that appellants’ failure to
keep the trust assets safe from loss is a changed circumstance permitting an
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increase in the bond. Accordingly, we conclude the trial court did not abuse its
discretion in increasing the amount of the supersedeas bond.
We affirm the trial court’s June 20, 2023 order.
/Robert D. Burns, III/
ROBERT D. BURNS, III
230088NF.P05 CHIEF JUSTICE
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