Mary Decker v. Clifford Homes, LLC

ACCEPTED
03-15-00393-CV
5923451
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/2/2015 2:53:07 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00393-CV

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
7/2/2015 2:53:07 PM
MARY DECKER, Relator JEFFREY D. KYLE
Clerk

Original Proceeding from the County Court at Law #4, Williamson County,
Texas; Cause No. 15-0508-CC4
Styled “Clifford Homes, LLC.
v.
Mary Decker and Christopher Decker
and/or all other occupants of 1607 Main St.”

Hon. Mickey R. Pennington, Presiding Judge

RELATORS EMERGENCY PETITION FOR WRIT OF MANDAMUS
and
EMERGENCY MOTION FOR STAY OF WRIT

Matthew L. Wilson David Rogers
Texas Bar No. 24079588 Texas Bar No. 24014089
LAW OFFICE OF MATTHEW WILSON, PLLC LAW OFFICE OF DAVID ROGERS
1201 Spyglass Drive 1201 Spyglass Drive
Suite 100 Suite 100
Austin, TX 78746 Austin, TX 78746
MWilson@matthewwilsonlaw.com Firm@DARogersLaw.com
Telephone: 512-201-4519 Telephone: 512-923-1836
Fax: 512-777-5988 Fax: 512-777-5988

ATTORNEYS FOR RELATOR, MARY DECKER

ORAL ARGUMENT NOT REQUESTED

Decker – Writ of Mandamus and Emergency Motion to Stay Writ i
IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and
addresses of all counsel:

PARTIES COUNSEL

Mary Decker Matthew L. Wilson
Texas Bar No. 24079588
WILSON LAW OFFICE, PLLC
1201 Spyglass Drive
Suite 100
Austin, TX 78746
Telephone: 903-705-2540
Fax: 512-201-4082

David Rogers
Texas Bar No. 24014089
LAW OFFICE OF DAVID ROGERS
1201 Spyglass Drive
Suite 100
Austin, TX 78746
Telephone: 512-923-1836
Fax: 512-201-4082

Clifford Homes, LLC . J. Hyde
Texas Bar No. 24027083
The J. Hyde Law Office, PLLC
111 E. 17th St. #12015
Austin, TX 78711
Telephone: 512-200-4080
Fax: 512-582-8295

Decker – Writ of Mandamus and Emergency Motion to Stay Writ ii
TABLE OF CONTENTS

Page

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ....................................................................................................iii

Index of Authorities ................................................................................................. iv

Appendices ............................................................................................................... v

Statement of the Case ............................................................................................... 1

Facts ......................................................................................................................... 2

Argument & Authorities .......................................................................................... 4

Rule 510.8(d)(3) prohibits issuing writ..................................................................... 4

The Logic of Consistency ......................................................................................... 5

Sauce for the Gander ................................................................................................ 7

Prayer ....................................................................................................................... 8

Certificate of Service .............................................................................................. 10

Certificate of Conference........................................................................................ 10

Decker – Writ of Mandamus and Emergency Motion to Stay Writ iii
INDEX OF AUTHORITIES

CASES

CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) ............................................... 7
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) ................. 6
Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 606 (Tex. 1996).......................... 7
Knepp v. K.R.A.K. Invs., LLC, 2014 Tex. App. LEXIS 3699, 2014 WL
1464978 (Tex. App. Austin Apr. 8, 2014)................................................................ 8
Marshall v. Hous. Auth., 198 S.W.3d 782, 2006 Tex. LEXIS 193, 49 Tex.
Sup. J. 399 (Tex. 2006) ............................................................................................ 6
Peck v. Fed. Home Loan Mortg. Corp., 2013 Tex. App. LEXIS 15154, 2013
WL 6805665 (Tex. App. Austin Dec. 18, 2013) ..................................................... 6
Perales v. Riviera, 13-03-002-CV, 2003 WL 21705740 (Tex. App. July 24,
2003) citing El Paso Dev. Co. v. Berryman, 729 S.W.2d 883, 888
(Tex.App.-Corpus Christi 1987, no writ) ................................................................. 4
Republican Party of Texas v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997) .......................7
Walker v. Packer, 827 S.W.2d 833, 839–844 (Tex. 1992) ....................................... 7
Wilhelm v. Federal Nat'l Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) .................................................................... 5, 6

RULES

Tex. R. App. P. §24.400(a)……………………1

CODES
TEX. PROP. CODE §24.007(a)………………3, 5, 7
TEX. GOV’T CODE § 22.220, 22.221…….4

Decker – Writ of Mandamus and Emergency Motion to Stay Writ iv
APPENDICES

ITEM A Judgment of the Justice Court

ITEM B Judgment of the County Court

ITEM C Notice of Appeal and Motion for Bond Application

ITEM D Email from Relator’s counsel to county court clerk

ITEM E Response email from county court clerk to counsel

Decker – Writ of Mandamus and Emergency Motion to Stay Writ v
No. 03-15-00393-CV

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS

MARY DECKER, Relator

Hon. Mickey R. Pennington, Presiding Judge

RELATOR’S PETITION FOR WRIT OF MANDAMUS and
EMERGENCY MOTION FOR STAY OF WRIT

Relator, MARY DECKER submits this Petition for Writ of

Mandamus and Emergency Motion for Stay of Writ complaining of the

Honorable Mickey Pennington, visiting judge of the County Court at Law

No. 4 of Williamson County, Texas.

David Rogers, of the Law Office of David Rogers, and Matthew

Wilson WILSON LAW OFFICE, PLLC, attorneys of record for Relator Decker,

pursuant to Tex. R. App. P. §24.400(a). and the Third Court of Appeals

1
Local Rules and procedures, file their Opposed Motion for Writ of

Mandamus and Emergency Motion for Stay of Writ.

STATEMENT OF THE CASE

1. Relator respectfully seeks relief based on exceptional circumstances

and the significant timing issues in setting a supersedeas bond after a final

judgment order in Williamson County Court.

2. On June 26, 2006, Mary Decker purchased her home at 607 Main

Street, Cedar Park, Texas 78613. Mary Decker made every monthly

payment and never defaulted on her loan.

3. Nevertheless, the mortgage servicer wrongfully foreclosed and sold

the property to Clifford Homes, LLC. on August 5, 2014 at a foreclosure

sale.

4. Clifford Homes filed the underlying forcible detainer action, Cause

No. 2JE-14-0454 in the Williamson County Justice Court. The Justice court

dismissed the forcible detainer suit, and set the bond at $1,500.1 Clifford

Homes paid the bond and appealed the decision to Williamson County Court

#4.

5. On June 23, 2015, the Honorable Judge Mickey Pennington signed an

order at the County Court granting Clifford Home’s Traditional Motion for

1
See Exhibit A – Justice Court Judgment, Cause #2JE-14-0454
Decker – Writ of Mandamus and Emergency Motion to Stay Writ 2
Summary Judgment.2 Relator’s counsel requested the court set a

supersedeas bond at the hearing on June 23, 2015. The court refused to set a

bond at the hearing. The court’s entry of final judgment did not set a bond.

6. On June 25, 2015, Relator filed a notice of appeal and a motion to set

bond.3

7. On June 29, 2015, Relator’s counsel went to the County Court and

requested the court clerk to set a hearing to set bond. The court did not set a

hearing and requested Relator’s counsel send the court an email.

8. On June 29, 2015, Relator’s counsel sent the County Court Clerk an

email in order to set a timely hearing to set the supersedeas bond.4

9. On June 30, 2015, the county court clerk responded to the email

requesting each attorney submit arguments and proposed orders to Judge

Pennington by July 7, 2015.5

10. The requested submission date is too late and fourteen days after the

entry of final judgment. A judgment of a county court in an eviction suit

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. TEX. PROP. CODE §24.007(a).
2
See Exhibit B – County Court Judgment, Cause #15-0508-CC4
3
See Exhibit C – Notice of Appeal and Motion for Bond Application and Emergency
Motion to Stay Writ of Possession Until Bond is Set
4
See Exhibit D – Email from Relator’s counsel to county court clerk
5
See Exhibit E – Response email from county court clerk to attorneys
Decker – Writ of Mandamus and Emergency Motion to Stay Writ 3
11. Relator has made every effort in order to supersede the judgment

pending appeal within the 10 day statutory limit. (Day 10 falls on July 3,

2015, a state and federal holiday preceding a weekend. Under the rules, the

bond is therefore due on there first day not a weekend or holiday, July 6,

2015.)

12. Now, Relator faces imminent irreparable injury6 from losing

possession of her home as a result of the trial court’s abuse of discretion.

Accordingly, the petition for writ of mandamus and emergency stay are

being sought by this motion to preserve the status quo.

STATEMENT OF JURISDICTION

13. Jurisdiction in this mandamus action is mandatory and exclusive in

the Texas Third Court of Appeal. TEX. GOV’T CODE § 22.220, 22.221.

ISSUE PRESENTED

14. Did the trial court abuse its discretion by refusing to set a bond and

failing to give the Relator an opportunity to supersede judgment of a forcible

detainer case pending appeal?

ARGUMENT

15. Relator is facing an impossible position with no adequate remedy at

6
“[E]very piece of real estate is unique, and if foreclosure were allowed before a full
determination of the underlying claims, appellees would be irreparably harmed.” Perales
v. Riviera, 13-03-002-CV, 2003 WL 21705740 (Tex. App. July 24, 2003) citing El Paso
Dev. Co. v. Berryman, 729 S.W.2d 883, 888 (Tex.App.-Corpus Christi 1987, no writ).
Decker – Writ of Mandamus and Emergency Motion to Stay Writ 4
law. Relator has made every reasonable effort in order to have the county

court set a supersedeas bond. A judgment of a county court in an eviction

suit 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. TEX. PROP. CODE

§24.007(a). When a county court fails to set a supersedeas bond, Relator has

no opportunity to supersede the judgment in a forcible detainer case.

16. The prevailing party in a forcible detainer case has no incentive to

have a bond set within the statutory ten-day deadline. To the contrary, the

prevailing party would prefer that no supersedeas bond be set in order to

take possession of the property at the earliest possible opportunity.

17. To compound this problem, an appellate court's power to stay the

judgment of the county court in a forcible detainer action is limited. An

appellate court may not stay the judgment unless a supersedeas bond in

accordance with section 24.007 has been filed. See Tex. Prop. Code

§ 24.007; Wilhelm v. Federal Nat'l Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex.

App.—Houston [14th Dist.] 2011, no pet.).

18. Although the failure to supersede a forcible-detainer judgment does

not divest a defendant of his right to appeal when the defendant is no longer

in possession of the premises, an appeal from the judgment in that case is

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 5
moot unless the defendant asserts “a potentially meritorious claim of right to

current, actual possession.” Marshall v. Hous. Auth., 198 S.W.3d 782, 2006

Tex. LEXIS 193, 49 Tex. Sup. J. 399 (Tex. 2006); Wilhelm, 349 S.W.3d at

768.

19. The Third Court has dismissed forcible detainer appeals as moot once

the appellant no longer has possession of the property. Peck v. Fed. Home

Loan Mortg. Corp., 2013 Tex. App. LEXIS 15154, 2013 WL 6805665 (Tex.

App. Austin Dec. 18, 2013)

20. The current statutory scheme and jurisprudence in forcible detainer

cases force parties like the Relator into a position where they have don’t

have an adequate remedy on appeal, and once they do appeal the controversy

is moot because they have already lost possession of their property.

21. Relator should not lose possession of her home and lose the chance to

supersede the county court’s judgment, because the trial court refuses to set

a bond in the ten day limit to pay the bond required by statute.

Mandamus is appropriate relief

22. In order to be entitled to mandamus relief, Relator must meet two

requirements: (1) the trial court must have clearly abused its discretion and

(2) there must be an absence of an adequate remedy at law. In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) This case satisfies

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 6
both requirements.

23. Because mandamus is an “extraordinary remedy,” it is available only

in limited circumstances when necessary to “correct a clear abuse of

discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law” [CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.

1996) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985)); see also Republican Party of Texas v. Dietz, 940 S.W.2d 86,

88 (Tex. 1997); Walker v. Packer, 827 S.W.2d 833, 839–844 (Tex. 1992)].

24. The trial court has abused its discretion by not setting a supersedeas

bond within ten days of the final judgment required by TEX. PROP. CODE

§24.007(a). The trial court refused to set a bond when requested at the

hearing on June 23, 2015. The court has not set the bond after Relator filed

a motion requesting bond and notice of appeal, and the court has not set a

hearing after being requested within the time period required by statute.

This independent abuse of discretion has deprived Relator of an adequate

remedy at law. Relator has no remedy at law to supersede the county court

judgment.

25. Mandamus has been issued to require the trial court to lower the

amount of a supersedeas bond. Isern v. Ninth Court of Appeals, 925 S.W.2d

604, 606 (Tex. 1996). When a county court sets an unclear supersedeas

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 7
bond they have been instructed to specify the amount and terms for

suspending enforcement of the judgment pending appeal. Knepp v. K.R.A.K.

Invs., LLC, 2014 Tex. App. LEXIS 3699, 2014 WL 1464978 (Tex. App.

Austin Apr. 8, 2014)

Mandamus is an available and required remedy because there is
no adequate remedy by appeal

26. Setting no supersedeas bond is more detrimental, because when the

court refuses to set a bond, neither party has been adequately informed of the

terms on which the underlying judgment may be superseded pending appeal.

27. Relator made every payment on her loan, and was foreclosed upon

due to no fault of her own. Now she is facing an imminent eviction due to

the trial court’s failure to set a timely bond. She will be forced from her

home without even the opportunity to post a supersedeas bond to suspend

the writ of possession.

28. Unless the writ of possession is stayed, this Court’s jurisdiction to

consider the merits of Appellants appeal will be vitiated.

29. Now, Relator face imminent irreparable injury from losing her home

on July 6, 2015, as a result of the trial court’s abuse of discretion.

Accordingly, the petition for mandamus and emergency stay being sought

are the only adequate remedies available to Relator.

Prayer
Decker – Writ of Mandamus and Emergency Motion to Stay Writ 8
30. Appellants respectfully request this Court rule on this motion by July

6, 2015, because the circumstances involve an emergency. Appellants

request that this Court grant their petition for mandamus and emergency

motion to stay the impending writ of possession.

Respectfully submitted,

Matthew Wilson, Attorney at Law

__/s/ Matthew Wilson___________
Matthew Wilson

Texas Bar No. 24079588
WILSON LAW OFFICE, PLLC
1201 Spyglass Drive
Suite 100
Austin, TX 78746
MWilson@matthewwilsonlaw.
com
Telephone: 903-705-2540
Fax: 512-777-5988

David Rogers
Texas Bar No. 24014089
LAW OFFICE OF DAVID ROGERS
1201 Spyglass Drive
Suite 100
Austin, TX 78746
Firm@DARogersLaw.com
Telephone: 512-923-1836
Fax: 512-777-5988

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 9
CERTIFICATE OF NOTICE & SERVICE

I hereby certify that a true and correct copy of the foregoing Motion
was served by the Court’s online filing system on this the 2nd day of July,
2015, to:

Dr. J. Hyde,
THE J. HYDE LAW OFFICE, PLLC
111 E. 17th Street #12015
Austin. Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
E-mail: jhyde@jhydelaw.com

Attorney for Appellee / Real Party in Interest

_/s/ David Rogers_________
David Rogers

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 10
CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that
this document contains 1,700 words.

__/s/__David Rogers___________
David Rogers
SBN 24014089
Law Office of David Rogers
1201 Spyglass Suite 100
Austin, TX 78746
(512) 923-1836
(512) 777-5988 [Facsimile]
Firm@DARogersLaw.com

Decker – Writ of Mandamus and Emergency Motion to Stay Writ 11
No. 03-15-00393-CV

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS

MARY DECKER, Relator

Hon. Mickey R. Pennington, Presiding Judge

RELATOR’S APPENDIX OF ATTACHMENTS

ITEM A Judgment of the Justice Court

ITEM B Judgment of the County Court

ITEM C Notice of Appeal and Motion for Bond Application

ITEM D Email from Relator’s counsel to county court clerk

ITEM E Response email from county court clerk to counsel
ITEM A
Judgment of the Justice Court
ITEM B
Judgment of the County Court
CAUSE NO.ls-050&CC4

CLIFFORD HOMES, LLC, $ IN THE COIJNTY COI]RI'AT LAW
$
Plaintiff, $
$
$
$
MARYDECKER, $ NUMBER4
CHRISTOPHER DECKER, and/or $
AIL OTHER OCCUPANTS OF $
1607 MAIN STREET, $
CEDAR PARK, TEXAS 78613, $
$
Defendants. $ WILLIAMSON COLINTY, TEXAS

ORDER GRANTING PLAINTIFF'S TRADITIONAL MOTION FOR SUMIV1ARY
JUDGMEI{T AND ENTRY OF F'INAL JUDGMENT

On the 23rd day of June, 2015, came to be heard Plaintiffs Traditional Motion for
Summary Judgment ("Motion"). Having heard the arguments of counsel aad having
reviewed the parties' briefing on the Motion and the record evidence, the Court finds that
Plaintiff is entitled to summary judgment on its claim for forcible detainer, as Plaintiff
has proven as a matter of law that it is entitled to immediate possession of the premises
looated at 1607 Main Sffeet, Cedar Park, Texas 78613.

IT IS THEREFORE ORDERED that the Plaintiff, CLIFFORD HOMES, LLC,
recover from the Defendants MARY DECKER, CHRISTOPHER DECKER, and/or ALL
OTI{ER OCCUPANTS OF 1607 MAIN STREET, CEDAR PARK, TEXAS 78613, AS
follows:

L Possesgion of the premises at 160? Main Steet, Cedar Park, Texas 78613.
2. Court costs.

It is FURTHER ORDERED that Plaintiff is entitled to a return of the cash appeal
bond filed by Plaintiff in the amount of $1,500.00. The clerk's office is ordered to
RELEASE this cash bond to Plaintiff. This is a FINAL ruDGMENT.

Siened this ? 3 day of -fu-, ,2015
FILED
at /o sY o'chdt---l-il
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JUN 2 3 2915 Honoragl6 Judge Pr6siding

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ITEM C
Notice of Appeal and Motion for Bond
Application
Filed: 6/25/2015 4:47:56 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Regina Cockrell, Deputy Clerk

CAUSE NO. 15-0508-CC4

CLIFFORD HOMES, LLC., § IN THE COUNTY COURT AT LAW
§
Plaintiff, §
§
v. §
§
MARY DECKER, § NUMBER 4
CHRISTOPHER DECKER, and/or §
ALL OTHER OCCUPANTS OF §
1607 MAIN STREET, §
CEDAR PARK, TEXAS 78613 §
§
Defendants. § WILLIAMSON COUNTY, TEXAS
§
DEFENDANT’S NOTICE OF APPEAL
COMES NOW Mary Decker, Defendant, and notices this court that she will
appeal this court’s order of June 23, 2015.

Introduction

1. Plaintiff is Clifford Homes, LLC
2. Defendants are Mary Decker and Christopher Decker and All Other
Occupants.
3. This is an appeal from Justice of the Peace Precinct 2.
4. May 7, 2015 Plaintiff’s filed their Motion for Summary Judgment.
5. June 17, 2015 Defendant filed her Response to Plaintiff’s Motion for
Summary Judgment.
6. A hearing was held in this matter on June 23, 2015.

Facts

7. The Honorable Mickey Pennington signed his order in favor of Plaintiff’s
Summary Judgment on June 23, 2015.
8. Defendant desires to appeal and files this notice.
9. The appeal is taken to the Third Court of Appeals.
10. Defendant has filed her request for supersedeas bond separately from this
notice.
11. A copy of the judgment to be appealed is attached to this notice as
“Attachment 1”.

Respectfully submitted,

___/s/ David Rogers______________
David Rogers
State Bar #24014089
LAW OFFICE OF DAVID ROGERS
1201 Spyglass Drive, Suite 100
Austin, TX 78746
Firm@DARogersLaw.com
Tel. (512) 923-1836
Fax (512) 777-5988
Matthew Wilson
State Bar #24079588
WILSON LAW OFFICE, PLLC
MWilson@MatthewWilsonLaw.com
Attorneys for Mary Decker

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing notice was
served upon all parties of record in accordance with the Texas Rules of Civil Procedure
on this 25th day of June, 2015.

__/s/ David Rogers___________

David Rogers
State Bar #24014089
Attorney for Mary Decker

The J. Hyde Law Office, PLLC
Dr. J. Hyde
111 E. 17th Street #12015
Austin, Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
Attachment 1
CAUSE NO.ls-050&CC4

ORDER GRANTING PLAINTIFF'S TRADITIONAL MOTION FOR SUMIV1ARY
JUDGMEI{T AND ENTRY OF F'INAL JUDGMENT

L Possesgion of the premises at 160? Main Steet, Cedar Park, Texas 78613.
2. Court costs.

Siened this ? 3 day of -fu-, ,2015
FILED
at /o sY o'chdt---l-il
A!)
JUN 2 3 2915 Honoragl6 Judge Pr6siding

iJo^qERU
counU Gte*H;lrieffEnh co,r
r
Filed: 6/25/2015 4:42:37 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Regina Cockrell, Deputy Clerk

CAUSE NO. 15-0508-CC4

CLIFFORD HOMES, LLC., § IN THE COUNTY COURT AT LAW
§
Plaintiff, §
§
v. §
§
MARY DECKER, § NUMBER 4
CHRISTOPHER DECKER, and/or §
ALL OTHER OCCUPANTS OF §
1607 MAIN STREET, §
CEDAR PARK, TEXAS 78613 §
§
Defendants. § WILLIAMSON COUNTY, TEXAS
§
DEFENDANT’S MOTION FOR BOND APPLICATION AND EMERGENCY
MOTION TO STAY WRIT OF POSSESSION UNTIL BOND IS SET

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Mary Decker, Defendant/Occupant of the property
located at 1607 Main Street, Cedar Park, Texas 78613, and files this defendant’s motion
for bond application and clarification and emergency motion to stay writ of possession
until bond is set.

SUMMARY
1. On June 23, 2015, the Honorable Judge Mickey Pennington signed an order
granting Plaintiff’s Traditional Motion for Summary Judgment. Defendant moves the
Court to clarify the County Court’s judgment dated June 23, 2015 as follows. The
court’s entry of final judgment did not set a bond. See Exhibit A. Defendant’s counsel
requested the court set a bond at the hearing on June 23, 2015. The court refused to set a
bond at the hearing.

2. Defendant perfected this appeal on June 25, 2015, by filing a notice of appeal.
“An appeal is perfected when a written notice of appeal is filed with the trial court clerk.
The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction
over all parties to the trial court’s judgment or order appealed from.” See Tex. R. App. P.
25.1(a)(b).

3. Defendant is unable to ascertain from the county court’s judgment how or
whether a supersedeas bond was calculated, what the total amount of the bond is, or how
the bond must be satisfied. The bond conditions are impermissibly vague and ambiguous
because the court never set a bond. As a result of this ambiguity, neither the Plaintiff nor
Defendant have been adequately informed of the terms on which the underlying judgment
may be superseded pending appeal.

4. Defendant therefore requests the county court to specify the precise amount and
terms of the security required to suspend enforcement of the judgment on appeal.
Defendant requests that a bond be set at five hundred dollars ($500) to avoid any
ambiguities over whether a bond has been set and paid. See Tex. R. App. P. 24.3(a) (trial
court has continuing jurisdiction to order amount and type of security even after that
court’s plenary power has otherwise expired). See Tex. R. App. P. 44.4 (a) (governing
trial court’s remedial error when failure or refusal to act prevents the proper presentation
of a case to the court of appeals). See Tex. R. App. P. 44.1 (2) (governing standard for
reversible error when the error prevents the appellant from properly presenting the case to
the court of appeals).

5. With defendant’s filing of her notice of appeal, she declares her intention to
appeal and does not waive her right to supersede the judgment until a bond has been set.
Plaintiff’s failure to request a bond to protect the judgment and the court’s refusal to set a
bond at the hearing in no way reflects defendant’s waiver of her legal right to have the
trial court’s judgment superseded pending appeal to the court of appeals.

REASONABLE BOND TO BE SET
TEX. CIV. PRAC & REM. CODE §52.006 is explicit about protecting money

judgments.1 No evidence was introduced by Clifford Homes at any time that it was

1
§ 52.006. Amount of Security for Money Judgment
(a) Subject to Subsection (b), when a judgment is for money, the amount
incurring any money damages, that it had suffered any money damages, or that it was

likely to suffer any money damage in the future. Had Clifford Homes introduced such

evidence, and had the Court ruled that an award of damage were appropriate, the Court

would have been limited by TEX. CIV. PRAC & REM. CODE §52.006 (b):

(b) Notwithstanding any other law or rule of court, when a judgment is
for money, the amount of security must not exceed the lesser of:
(1) 50 percent of the judgment debtor's net worth; or
(2) $ 25 million.
Clifford Homes has presented no evidence.2 There is no testimony before the court, and

no affidavits or self-authenticating documents that could support a large request for bond

in this case.

6. The clear intent34 of Clifford Home’s is to set the Appellant’s bond at an amount

that would shut the courthouse door and force the Defendant to give up her home and

give up her rights without the opportunity for full and final adjudication of her claims by

the Appellate courts.

of security must equal the sum of:…
2
“[P]leadings, even if sworn, are not evidence. See Laidlaw Waste Sys., Inc. v. City of
Wilmer, 904 S.W.2d 656, 660, 38 Tex. Sup. Ct. J. 973 (Tex. 1995). Further, an attorney's
opening argument is not evidence. Weslaco Federation of Teachers v. Texas Educ.
Agency, 27 S.W.3d 258, 263 (Tex. App.--Austin 2000, no pet.).” Schade v. Rhodes, 2004
Tex. App. LEXIS 5419, 8 (Tex. App. Houston 1st Dist. June 17, 2004)“However,
counsel's argument is not evidence. See Chase v. State, 750 S.W.2d 41, 43 (Tex. App.--
Fort Worth 1988, pet. ref'd).”Bolden v. State, 1997 Tex. App. LEXIS 409, 9 (Tex. App.
Dallas Jan. 31, 1997)
3
Plaintiff’s counsel has stated that there is no amount of bond that his client would
accept.
4
This is in contrast to the judgment at the justice court. Defendant prevailed, the court
set at $1,500 bond, and the Plaintiff exercised its legal right to pay the bond and
supersede the judgment pending appeal. Defendant is entitled to the same legal
protections.
NET WORTH BOND CAP
7. According to TEX. CIV. PRAC & REM. CODE § 52.006, amount of bond may not

exceed fifty percent of net worth. Mary Decker has an actual net worth of negative

-$88,040.66. (See Exhibit B, attached Affidavit and Net Worth Calculation).

8. The Austin Court of Appeals has recently endorsed the method of limiting bond

caps requested by Defendants.

To suspend a money judgment pending appeal in a civil case, section
52.006, subsection (a), of the civil practice and remedies code requires that
a judgment debtor furnish a bond, deposit, or other security in an amount
"equal [to] the sum of: (1) the amount of compensatory damages awarded
in the judgment; (2) interest for the estimated duration of the appeal; and
(3) costs awarded in the judgment." TEX. CIV. PRAC. & REM. CODE ANN. §
52.006(a); see TEX. R. APP. P. 24.2(a)(1) (rule implementing section
52.006, subsection (a)). This amount, however, may not exceed the lesser
of fifty percent of the judgment debtor's current net worth or $ 25 million.
TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(b); see TEX. R. APP. P.
24.2(a)(1). Additionally, if the trial court finds that the judgment debtor is
likely to suffer "substantial economic harm" from posting security in the
amount otherwise required, the court "shall lower the amount of the
security to an amount that will not cause the judgment debtor substantial
economic harm." TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(c); see
Tex. R. App. P. 24.2(b).

Shook v. Walden, 304 S.W.3d 910, 914 (Tex. App.--Austin 2010)

9. Black’s Law Dictionary defines net worth as “the amount by which assets exceed

liabilities” or “remainder after deduction of liabilities from assets” or the difference

between total assets and liabilities of individual, corporation, etc.” BLACK’S LAW

DICTIONARY at 1041 (6th ed. 1990).

10. In EnviroPower, LLC v Bear Sterns & Co., Inc. 265 S.W. 3d 1 4-5 (Tex App.-

Houston [1st Dist.] 2008), the court defines “Net Worth” for purposes of setting a
supersedeas bond as the difference between total assets and total liabilities as determined

by generally accepted accounting principals at the time the bond is set. See also LMC

Complete Automotive Inc. v Burke, 229 S.W.3d 469, 482 (Tex App-Houston [1st Dist.]

2007); Texas Custom Pools, Inc. v. Clayton, 293 SW3d 299 (Tex. App.—El Paso 2009).

The Dallas Court of Appeals calculated net worth by taking the difference between the

assets and liabilities as shown on the judgment debtor’s balance sheet and held that its net

worth was negative. Therefore, the court of appeals ordered the security set at zero.5

G.M. Houser, Inc. v Rodgers, 204 S.W. 3rd 836, 846 (Tex App- Dallas 2006, no pet.)

11. Pursuant to TEX. R. APP. P. 24.2(c)(1), Mary Decker’s affidavit, with assets and

liabilities detailed, show a net worth of less than zero. A judgment debtor who provides a

bond, deposit, or security under Rule 24.2(a)(1)(A) in an amount based on the debtor's

net worth must simultaneously file an affidavit that states the debtor's net worth and

states complete, detailed information concerning the debtor's assets and liabilities from

which net worth can be ascertained. TEX.R.APP.P. 24.2(c)(1). Mary Decker has provided

such an analysis. The attached affidavit and analysis shows that she has a net worth of

negative (-$88,040.60). Defendant requests the court set the supersedeas bond at $500.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant, Mary Decker, prays that

this honorable Court grant Defendant’s Motion for Bond Application and Motion to Stay

5
On this record, we conclude the net worth of G.M. Houser, Ltd. is a negative $ 333,516
and the net worth of Houser Materials, L.L.C. is $ 2688. We reverse and render the trial
court's June 30, 2006 order fixing security for supersedeas. Therefore, we order that the
security for supersedeas for G.M. Houser, Ltd. is set at $ 0, and the security for
supersedeas for Houser Materials, L.L.C. is set at $ 1344, which is fifty percent of Houser
Materials, L.L.C.'s net worth.
Writ of Possession until bond is set.

Respectfully submitted,

Matthew Wilson
State Bar #24079588
WILSON LAW OFFICE, PLLC
MWilson@MatthewWilsonLaw.com
Attorneys for Mary Decker

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing was served
upon all parties of record in accordance with the Texas Rules of Civil Procedure on this
25th day of June, 2015.

__/s/ David Rogers___________

David Rogers
State Bar #24014089
Attorney for Mary Decker

The J. Hyde Law Office, PLLC
Dr. J. Hyde
111 E. 17th Street #12015
Austin, Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
Attorney for Clifford Homes, LLC.
CAUSE NO.ls-050&CC4

ORDER GRANTING PLAINTIFF'S TRADITIONAL MOTION FOR SUMIV1ARY
JUDGMEI{T AND ENTRY OF F'INAL JUDGMENT

L Possesgion of the premises at 160? Main Steet, Cedar Park, Texas 78613.
2. Court costs.

Siened this ? 3 day of -fu-, ,2015
FILED
at /o sY o'chdt---l-il
A!)
JUN 2 3 2915 Honoragl6 Judge Pr6siding

iJo^qERU
counU Gte*H;lrieffEnh co,r
r
ITEM D
Email from Relator’s counsel to county
court clerk
7/2/2015 Gmail - Fwd: Bond: Clifford Homes v. Mary Decker; 15-0804-CC4

Charlotte Secord

Fwd: Bond: Clifford Homes v. Mary Decker; 150804CC4
1 message

Matthew Wilson Thu, Jul 2, 2015 at 10:43 AM
To: David Rogers , Charlotte Secord

Begin forwarded message:

From: Matthew Wilson
Subject: Bond: Clifford Homes v. Mary Decker; 15-0804-CC4
Date: June 29, 2015 1:03:32 PM CDT
To: "SThreadgill@wilco.org"
Cc: David Rogers , "Dr. J. Hyde"
Hi Mrs Threadgill,

This email is to request a hearing to set a bond in the forcible detainer case: 150509CC4. The visiting judge granted summary
judgment on June 23rd and did not set a bond despite a specific request for bond. A notice of appeal, motion to set bond, and a motion to
stay writ of possession were filed in this case last week. I have three specific questions in this case.

1) Will a hearing be set this week in order to set bond?
2) If a hearing cannot be set this week before the ten day deadline, can a nominal bond be set until the court can set a hearing to set
bond?
3) Will the court allow a writ of possession to issue in instances where a bond has not been set and a notice of appeal has been filed with
the court?

Thanks,

Matthew L. Wilson

Wilson Law Office, PLLC
https://mail.google.com/mail/u/0/?ui=2&ik=9f7152a45d&view=pt&search=inbox&th=14e4f6fdfced7690&siml=14e4f6fdfced7690 1/3
7/2/2015 Gmail - Fwd: Bond: Clifford Homes v. Mary Decker; 15-0804-CC4

Attorney at Law
512.201.4519 Direct
512.923.1836 Office
512.201.4082 EFax
MWilson@MatthewWilsonLaw.com
MatthewWilsonLaw.com
Serving With Honor

CONFIDENTIALITY NOTICE: This email communication (including any attached document(s)) may contain information that is confidential, proprietary and/or
privileged. The information is intended for the sole use of the indicated addressee(s). If you are not an intended recipient of this email communication, please be
advised that any disclosure, copying, distribution or other use of this communication or any attached document is strictly prohibited. Moreover, any such inadvertent
disclosure shall not compromise or waive the attorneyclient privilege as to this communication or otherwise. If you have received this fax communication in error,
please notify the sender immediately by email (mwilson@matthewwilsonlaw.com), and promptly destroy all copies of this communication and any attached
document(s). Thank you.

PastedGraphic24 copy.tiff

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7/2/2015 Gmail - Fwd: Bond: Clifford Homes v. Mary Decker; 15-0804-CC4

22K

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ITEM E
Response email from county court clerk to
counsel
7/2/2015 Gmail - Fwd: Cause No. 15-0804-CC4; Bond: Clifford Homes v. Mary Decker

Charlotte Secord

Fwd: Cause No. 150804CC4; Bond: Clifford Homes v. Mary Decker
1 message

Matthew Wilson Thu, Jul 2, 2015 at 10:44 AM
To: David Rogers , Charlotte Secord

Begin forwarded message:

From: Sharrion Threadgill
Subject: Cause No. 15-0804-CC4; Bond: Clifford Homes v. Mary Decker
Date: June 30, 2015 10:02:44 AM CDT
To: "Dr. J. Hyde" , Matthew Wilson
Cc: David Rogers

Gentlemen –
Judge Pennington has requested each attorney submit a proposed Order along with written argument and he will provide a
ruling. Your arguments along with proposed Orders should be submitted on or before July 7th.
Should you have any questions, please contact me.
----------------------------------
Sharrion Threadgill, Court Administrator
Williamson County Court at Law #4
405 Martin Luther King, Box 17
Georgetown, Texas 78626
5129431681
5129431685 fax
SThreadgill@wilco.org

https://mail.google.com/mail/u/0/?ui=2&ik=9f7152a45d&view=pt&search=inbox&th=14e4f709f3df8fab&siml=14e4f709f3df8fab 1/4
7/2/2015 Gmail - Fwd: Cause No. 15-0804-CC4; Bond: Clifford Homes v. Mary Decker

From: Dr. J. Hyde [mailto:jhyde@jhydelaw.com]
Sent: Monday, June 29, 2015 1:55 PM
To: Matthew Wilson
Cc: Sharrion Threadgill; David Rogers
Subject: Re: Bond: Clifford Homes v. Mary Decker; 150804CC4
Dear Ms. Threadgill,
We certainly do not oppose a quick hearing. However, in the interest of saving all parties time and
expense, as well as the convenience of the visiting judge, we believe the bond request can be
resolved based on the written submissions and accompanying evidence. At this point, it seems
that any testimony at the hearing would be duplicative of what has already been submitted. In
any event, we recognize the timesensitive nature of Defendant's request, as the statutory
deadline for Defendant to suspend enforcement of the judgment pending appeal is 6 July 2015.
Thank you.
J
On Mon, Jun 29, 2015 at 1:03 PM, Matthew Wilson wrote:
Hi Mrs Threadgill,
This email is to request a hearing to set a bond in the forcible detainer case: 150509CC4. The visiting judge granted
summary judgment on June 23rd and did not set a bond despite a specific request for bond. A notice of appeal, motion to set
bond, and a motion to stay writ of possession were filed in this case last week. I have three specific questions in this case.
1) Will a hearing be set this week in order to set bond?
2) If a hearing cannot be set this week before the ten day deadline, can a nominal bond be set until the court can set a hearing
to set bond?
3) Will the court allow a writ of possession to issue in instances where a bond has not been set and a notice of appeal has
been filed with the court?

https://mail.google.com/mail/u/0/?ui=2&ik=9f7152a45d&view=pt&search=inbox&th=14e4f709f3df8fab&siml=14e4f709f3df8fab 2/4
7/2/2015 Gmail - Fwd: Cause No. 15-0804-CC4; Bond: Clifford Homes v. Mary Decker

Thanks,

Matthew L. Wilson
Wilson Law Office, PLLC
Attorney at Law
512.201.4519 Direct
512.923.1836 Office
512.201.4082 EFax
MWilson@MatthewWilsonLaw.com
MatthewWilsonLaw.com
Serving With Honor

https://mail.google.com/mail/u/0/?ui=2&ik=9f7152a45d&view=pt&search=inbox&th=14e4f709f3df8fab&siml=14e4f709f3df8fab 3/4
7/2/2015 Gmail - Fwd: Cause No. 15-0804-CC4; Bond: Clifford Homes v. Mary Decker

please notify the sender immediately by email (mwilson@matthewwilsonlaw.com), and promptly destroy all copies of this communication and any attached
document(s). Thank you.

Dr. J. HYDE
The J. HYDE Law Office, PLLC
111 E. 17th St. #12015
Austin, Texas 78711
T: 512.200.4080
F: 512.582.8295
E: jhyde@jhydelaw.com
CONFIDENTIALITY NOTICE: This communication is attorney/client privileged and confidential and
solely for the identified recipient. Any disclosure, copying, distribution, or use of the contents of
this communication is strictly prohibited. If you have received this email in error, immediately
notify the sender by reply email and permanently delete this transmission.
TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including
attachments) was not intended or written to be used, and it cannot be used, by you for the
purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2)
promoting, marketing, or recommending to another party any transaction or matter addressed
herein.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion
was served by the Court’s online filing system on this the 2nd day of July,
2015, to:

Dr. J. Hyde,
THE J. HYDE LAW OFFICE, PLLC
111 E. 17th Street #12015
Austin. Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
E-mail: jhyde@jhydelaw.com

Attorney for Appellee / Real Party in Interest

_/s/ David Rogers_________
David Rogers