J.M. Arpad Lamell v. OneWest Bank, FSB, a Foreign Corporation

ACCEPTED
14-14-00175
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/19/2015 3:06:49 PM
CHRISTOPHER PRINE
CLERK

No. 14-14-00175-CV

IN THE COURT OF APPEALS FILED IN
14th COURT OF APPEALS
FOURTEENTH DISTRICT OF TEXAS HOUSTON, TEXAS
HOUSTON 2/19/2015 3:06:49 PM
CHRISTOPHER A. PRINE
Clerk

J. M. ARPAD LAMELL, Appellant

“Lamell”

v.

ONEWEST BANK, FSB, Appellee

“OneWest”

_____________________________________________________________

MOTION TO REDUCE SUPERSEDEAS SECURITY

____________________________________________________________

February 19, 2015

J M ARPAD LAMELL, pro se
5131 Glenmeadow Drive
Houston, TX 77096
lamell@alum.mit.edu
(713) 857 2483
Appellant
 TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................... ii

KEY TO RECORD REFERENCES.................................................................. iii

TABLE OF AUTHORITIES.............................................................................. iv

I. BACKGROUND FACTS ................................................................................. 1

II. ARGUMENT AND AUTHORITY ................................................................ 4

A. Take Nothing Judgment Granted No Damages or Other Affirmative
Relief ........................................................................................................... 4
B. This Court May Review Amount of Supersedeas Security ..................... 5
C. A Supersedeas Bond is Inextricably Founded in a Cause of Action ........ 5
D. Lamell’s Supersedeas Security was Cash Posted in Lieu of Bond .......... 6
E. No Performance to Secure ...................................................................... 6
F. Posted Cash in Lieu is for Security; Is Not an Award ............................. 7

III. CONCLUSION .............................................................................................. 7

PRAYER .............................................................................................................. 8

CERTIFICATE OF SERVICE ........................................................................... 9

EXHIBITS ...........................................................................................................10

Motion to Reduce Supersedeas Security 2015-02-19 | ii
 KEY TO RECORD REFERENCES

Naming Conventions

Code name in Motion = FILENAME OF COA DIGITAL FILE, page range,

record references in document are formatted as follows: [KEY:p. # - p. #]

Clerk's Record References

KEY long-form filename as submitted to COA
“Title” date filed with COA

CLK = CLK REC (01 OF 01) FLD 053112.pdf – pgs 001– 212
“Clerk’s Record - Volume I” transferred from 14-12-
00412-CV and filed March 25, 2014

CR = CR (01 OF 01) FLD 043014.pdf – pgs 001– 755
“Original Clerk’s Record” filed April 30, 2014

CR-SUP = CR SUP (01 OF 01) FLD 063014.pdf – pgs 01– 78
“1st Supplemental Clerk’s Record” filed June 30, 2014

CR-SUPP = CR SUPP (01 OF 01) FLD 092214.pdf pgs 01– 59
“3rd Supplemental Clerk’s Record” filed Sept 22, 2014

CR-SUP4 = CR FOURTH SUP FLD 021115.pdf pgs 01-64
“4th Supplemental Clerk’s Record” filed Feb 11, 2015

Motion to Reduce Supersedeas Security 2015-02-19 | iii
 TABLE OF AUTHORITIES
Cases

Bayoud v. Nassour,
408 S.W.2d 344 (Tex.Civ.App., Dallas, 1966, writ ref. n. r. e.) .......................... 7
Casray Oil Corporation v. Royal Indemnity Co.,
165 S.W.2d 244 (Tex.Civ.App., Galveston, 1942), affirmed
141 Tex. 33, 169 S.W.2d 955 (1943) .................................................................. 6
City of Athens, Texas v. Gulf States Telephone Co.,
374 S.W.2d 757 (Tex.Civ.App., Tyler, 1964, no writ)) ....................................... 6
GM Houser, Inc. v. Rodgers,
204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.) .................................... 4
LMC Complete Automotive, Inc. v. Burke,
229 SW 3d 469, 483 (Tex. App. —Houston [1st Dist.] 2007, pet. denied).......... 5
Mea v. Mea,
464 S.W. 2d 201, 208 (Tex.App.—Tyler 1975, no writ) ..................................... 7
Reyes v. Credit Based Asset Servicing,
190 S.W.3d 736, 741-2 (Tex. App.—San Antonio 2005, no pet.),
concurring J. Duncan .......................................................................................... 7
Robertson v. Land,
519 S.W.2d 227, 228 (Tex. App.—Tyler 1975, no writ) ..................................... 6

Statutes

TEX. CIV. PRAC. & REM. CODE §52.001 ................................................................. 6
TEX. CIV. PRAC. & REM. CODE §52.006 .......................................................... 1, 4, 5
TEX. CIV. PRAC. & REM. CODE §52.006(d) ..........................................................1, 5

Rules

TEX. R. APP. P. 24.1(d) ........................................................................................ 6, 8
TEX. R. APP. P. 24.1(d)(3) ................................................................................... 6, 8
TEX. R. APP. P. 24.2(a)(2) ...................................................................................... 6
TEX. R. APP. P. 24.4(a) ........................................................................................... 6

Motion to Reduce Supersedeas Security 2015-02-19 | iv
TO THE HONORABLE COURT OF APPEALS:

Comes now Appellant J. M. ARPAD LAMELL (“Lamell”) requesting,

pursuant to TEX. R. APP. P. 24.4(a) and TEX. CIV. PRAC. & REM. CODE §52.006(d),

that this Court review the excessiveness of and reduce the amount of the

Supersedeas Bond set by the trail court in its Order Setting Supersedeas Bond

Amount Pending Appeal. As grounds therefore Lamell would show as follows:

I. BACKGROUND FACTS

Lamell filed his Plaintiff’s Amended 2009 Petition against

Appellee/Defendant OneWest Bank, FSB (“OneWest”) on May 3, 2010 [CLK:63-

118]. OneWest answered on May 28, 2010 with Defendant’s Original Answer

offering only a general denial and raising no counterclaims or other claims for

affirmative relief [CLK:119-120]. OneWest has never amended or supplemented

its Defendant’s Original Answer since.

On February 27, 2012 Lamell filed his Plaintiff’s Application for Temporary

Restraining Order to restrain OneWest from proceeding with non-judicial

foreclosure sale of his property pending adjudication and final determination of his

suit against OneWest.

On February 28, 2012 Lamell’s Plaintiff’s Application for Temporary

Restraining Order was granted setting a Temporary Injunction hearing for March

Motion to Reduce Supersedeas Security 2015-02-19 | 1
9, 2012 [CLK:129-131].

On April 10, 2012, the trial court issued its Order Denying Plaintiff’s

Application for Temporary Injunction [CLK:191].

In respect of the court’s April 10, 2012 order, Lamell filed his Notice of

Accelerated Appeal on April 30, 2012.

On May 16, 2012, Lamell filed his Motion to Stay Enforcement of Order

Denying Injunctive Relief or Alternatively set Supersedeas Bond Amount Pending

Appeal [CR-SUP:3-9].

On May 24, 2012, OneWest filed its Defendant’s Response to Plaintiff’s

Motion to Stay Enforcement of Order Denying Injunctive Relief, or Alternatively,

set Supersedeas Bond Amount Pending Appeal [CR-SUP:10-17].

On May 31, 2012 the trial court issued its Order Setting Supersedeas Bond

Amount Pending Appeal [CR-SUP:21-2] to “supercede and stay enforcement” of

its April 10, 2012 Order Denying Plaintiff’s Application for Temporary Injunction.

In connection with this order, Lamell was directed to file a “good and sufficient
1
bond” in a schedule of payments totaling $31,209.76.

Lamell subsequently paid into the registry of the Court cash deposits in lieu

1
The order calls for an initial payment of $15,679.00 on or before June 1, 2012, followed by 9
monthly payments of $1,735.64 ending in a final payment on or before March 1, 2013

Motion to Reduce Supersedeas Security 2015-02-19 | 2
 2
of Supersedeas Bond totaling $31,309.76.

On April 12, 2013, the court signed its interlocutory Order Granting

Defendant OneWest’s Traditional and No Evidence Motion for Summary Judgment
3
[SUP-CLK:3].

On November 19, 2013 OneWest filed its Third Motion to Authorize Release

of Bond to Defendant OneWest [CR-SUP:53-70]. Lamell filed his Plaintiff’s

Response in Opposition to Third Motion to Authorize Release of Bond to

Defendant OneWest on January 31, 2014 (“Opposition”). Lamell’s Opposition

identified that OneWest’s request was unsupported by any evidence, by its
4
pleadings, by the rules, and by the court’s judgment. [CR-SUPP:38-49].

The court’s former interlocutory summary judgment order was replaced on

2
Amount shown is exclusive of accrued interest. See Clerk’s Certificates of Deposit in lieu of
Supersedeas Bond in“4th Supplemental Clerk’s Record” [CR-SUP4:3-42]. Upon filing of 4th
Supplemental Clerk’s Record (filed Feb 11, 2015), certificates for the months of August 2013
and December 2013 were erroneously omitted. Request for correction on an expedited priority
basis has been made. It is hoped that the missing certificates will be added to the Court record
prior to submission.
3
The court’s order was interlocutory only because Lamell’s claims against Harris County Tax
Assessor were still outstanding and had not yet been disposed of.
4
The indicated record reference points to the first page of Lamell’s Opposition which shows a
filing date of September 10, 2014. This date does not reflect the true and correct filing date of
January 31, 2014. This discrepancy was resolved by Lamell’s Motion to Re-establish Lost Filing
[CR-SUP4:43-58]. The court’s order approving said motion - Order to Re-establish Lost Filing -
is attached hereto as Exhibit “A.” Though request in writing has been made to include this order
in the clerk’s most recent supplement (as shown in the record [CR-SUP4:59]), this order was
nonetheless erroneously omitted and does not currently appear in the 4th Supplemental Clerk’s
Record. Correction has been requested on an expedited, priority basis. It is hoped the missing
document will be included in the record prior to submission.

Motion to Reduce Supersedeas Security 2015-02-19 | 3
January 31, 2014 by its final and appealable Modified Order Granting Summary

Judgment and Final Judgment in Case No. 2010-11491 (Exhibit “B”). The court’s

take-nothing order/final judgment contained clear and specific notation as follows:

“This Order disposes of all parties and all claims and is appealable” [CR:716-7]

(emphasis added). The court’s order did not award any money damages or property

to OneWest.

The trial court’s Order Granting OneWest Bank FSB’s Third Motion to

Authorize Release of Bond of January 31, 2014 has become an issue within

Lamell’s present appeal before this Court as addressed in Appellant’s Brief,

pgs.65-71 and in Appellant’s Supplemental Brief, pgs. 2-9.

Lamell’s appeal is set for submission on Tuesday, February 24, 2015.

II. ARGUMENT AND AUTHORITY

A. Take Nothing Judgment Granted No Damages or Other Affirmative Relief

“When a judgment is for money, the amount of the security must equal 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.” GM Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas

2006, no pet.) (citing TEX. CIV. PRAC. & REM. CODE §52.006; TEX. R. APP. P.

24.2(a)(1)).

Motion to Reduce Supersedeas Security 2015-02-19 | 4
 Other provisions of the Rule provide the basis for supersedeas security when

judgment awards property to an appellee. TEX. R. APP. P. 24.2(a)(2). In this matter

however, the court’s final, take-nothing, judgment contained no award for the

recovery of an interest in real or personal property. TEX. R. APP. P. 24.1(d)(3).

Since the judgment awarded neither money damages nor property to OneWest,

there is nothing to secure and the Court should adjust the bond amount to zero.

B. This Court May Review Amount of Supersedeas Security

On the motion of a party, an appellate court may review the sufficiency or

excessiveness of the amount of security. TEX. CIV. PRAC. & REM. CODE

§52.006(d); TEX. R. APP. P. 24.4(a); LMC Complete Automotive, Inc. v. Burke, 229

SW 3d 469, 483 (Tex. App. —Houston [1st Dist.] 2007, pet. denied). “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.” TEX. R. APP. P. 24.4(b);

LMC Complete Automotive, Inc., supra.

C. A Supersedeas Bond is Inextricably Founded in a Cause of Action

“The Supersedeas Bond given by appellants is a mere incident to a cause of

action and judgment appealed from and is given to afford the adverse party the

means of enforcing the judgment appealed from if appeal or writ of error is not

prosecuted with effect.” Robertson v. Land, 519 S.W.2d 227, 228 (Tex. App.—

Motion to Reduce Supersedeas Security 2015-02-19 | 5
Tyler 1975, no writ) (citing Casray Oil Corporation v. Royal Indemnity Co., 165

S.W.2d 244 (Tex. Civ. App., Galveston, 1942), affirmed 141 Tex. 33, 169 S.W.2d

955 (1943). Also see City of Athens, Texas v. Gulf States Telephone Co., 374

S.W.2d 757 (Tex. Civ. App. —Tyler 1964, no writ)).

D. Lamell’s Supersedeas Security was Cash Posted in Lieu of Bond

Lamell made cash deposits totaling $31,209.76 in lieu of bond (“Security”)

to the Court's registry to secure that he will “perform its judgment, sentence or

decree and pay all such damages and costs as said court may award against him.”
5
[CR-SUP:65-7] TEX. R. APP. P. 24.1(c).

E. No Performance to Secure

The trial court awarded no money damages whatsoever against Lamell

leaving nothing further for Lamell to “perform.” Nor did the trial court’s final

judgment award any non-economic damages to OneWest, such as award of the

subject property by strict judicial foreclosure [CR:716-7].

The plain language of Rule 24.2 contemplates that the purpose of a

supersedeas bond or the equivalent security is to secure an appellant’s performance

of the trial court’s final judgment. When, as here, an appellee neither sought nor

5
“In this chapter, ‘security’ means a bond or deposit posted, as provided by the Texas Rules of
Appellate Procedure, by a judgment debtor to suspend execution of the judgment during appeal
of the judgment.” TEX. CIV. PRAC. & REM. CODE §52.001.

Motion to Reduce Supersedeas Security 2015-02-19 | 6
received any award of money damages or recovery of an interest in real or personal

property, there is simply no performance nor any value to secure. TEX. R. APP. P.

24.1(d)(3). Reyes v. Credit Based Asset Servicing, 190 S.W.3d 736, 741-2 (Tex.

App.—San Antonio 2005, no pet.), concurring J. Duncan. Therefore, there is no

breach of condition of the Security. Insofar as the court’s final order established

money/property damages of zero, it is axiomatic that the amount of security

required must be reduced to zero as well.

F. Posted Cash in Lieu is for Security; Is Not an Award

Where appellant has deposited cash in lieu of a bond, then such cash must of

necessity serve as indemnity to appellee in addition to appellant's personal liability

for the performance of the judgment. This cash deposit, however, is not in payment

of the judgment and costs, but is only security for the payment of such. Mea v.

Mea, 464 S.W. 2d 201, 208 (Tex.App.—Tyler 1975, no writ) (citing Bayoud v.

Nassour, 408 S.W.2d 344 (Tex.Civ.App., Dallas, 1966, writ ref. n. r. e.).; TEX. R.

APP. P. 24.1(d).

III. CONCLUSION

Lamell’s Appeal is directed to error in the court’s issuance of its Modified

Order Granting Summary Judgment and Final Judgment and its separate Order

Granting OneWest Bank FSB’s Third Motion to Authorize Release of Bond.

Motion to Reduce Supersedeas Security 2015-02-19 | 7
Lamell’s present motion is directed to the excessiveness of the bond amount.

While clearly disposing of all of Lamell’s claims, the court’s take-nothing

order granting summary judgment, as the final and over-arching order in this

matter, did not create any debt of money owed to OneWest that would establish it

as a judgment debtor under the rules. Consequently, there was no debt of money or

property created or owed by virtue of the court’s final judgment, i.e. the “debt”

created was for zero dollars. It follows as a matter of definition that the amount of

supersedeas security should be reduced to zero as well.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant J. M. Arpad Lamell

prays that this Motion to Reduce Supersedeas Security be granted, that the amount

of supersedeas security required be reduced to zero dollars, and that the Court

order the cash balance of Lamell’s deposits paid in lieu of bond into the court’s

registry to be released to him.

Respectfully submitted,

/s/ J. M. Arpad Lamell
J M Arpad Lamell, pro se
5131 Glenmeadow Drive
Houston, TX 77096
713 857 2483
lamell@alum.mit.edu

Motion to Reduce Supersedeas Security 2015-02-19 | 8
 CERTIFICATE OF SERVICE

I hereby certify that on February 19, 2015, a true and correct copy of the
foregoing “Motion to Reduce Supersedeas Security” was sent by e-service/e-mail
to Mr. Thomas Hanson, lead counsel for Appellee OneWest to the address as
shown below.

/s/ J. M. Arpad Lamell

J M Arpad Lamell

Via: TexFile e-service and e-mail.
To: Thomas M. Hanson
DYKEMA
Commercia Bank Tower
1717 Main Street, Ste. 4000
Dallas, TX 75201
(214) 462-6420 telephone (214) 462-6401 telecopier
thanson@dykema.com
www.dykema.com
Counsel for Appellee OneWest Bank

Motion to Reduce Supersedeas Security 2015-02-19 | 9
 EXHIBITS

Exhibit “A” – Order to Re-establish Lost Filing
(Supplementation Pending)

Exhibit “B” – Modified Order Granting Summary Judgment and Final Judgment
[CR:716-7]

Motion to Reduce Supersedeas Security 2015-02-19 | 10
 Cause No. 2010-11491

J. M ARP AD LAMELL § IN THE DISTRICT COURT OF
Plaintiff. §
§ HARRIS COUNTY, TEXAS
v. §
§ l271h JUDICIAL DISTRICT
ONEWEST BANK, FSB §
Defendant. §

ORDER TO RE-ESTABLISH LOST FILING

Came before this Court for oral hearing on January 9, 2015, Plaintiffs Motion to Re-

establish Lost Filing. Plaintiff Arpad Lamell appeared in person. Defendant OneWest did not

appear nor did it file an opposition.

The Court having considered the Motion, the evidence presented, and the testimony and

arguments of Plaintiff, finds that Plaintiff's Motion should be GRANTED.

IT IS, THEREFORE, ORDERED that Plaintiffs Motion to Re-establish Lost Filing be

GRANTED and the Court declares that the copy of Plaintiffs Response in Opposition to Third

Motion to Authorize Release of Bond to Defendant OneWest presently imaged in the District

Clerk's Record as Image Nos: 62288269 (Motion), 62288211 (Affidavil of J.M Arpad Lame/I),

62288270 (Exhibit A) and bearing a filing date of September 10, 2014, is a true and correct copy

of the Opposition as it was presented to the Court, served on Defendant's Counsel, and filed on

January 31 , 2014.

SO ORDERED this r:: of January, 2015.
/

FI LED
Chris Daniel
Dlatrlct Clerk

JAN 0 9 201
 l._l .. Ul._U 11J J.uu.uu niWI

Chris Daniel - District Clerk
Harris County

CAUSE NO. 2010-11491

J. M. ARP AD LAMELL §
§
IN THE DISTRICT COURT 31"tm f...
Plaintiff, § HARRIS COUNTY, TEXAS
v. §
§
§ ---~~_._JUDICIAL DISTRICT
ONEWEST BANK, FSB, a § FI L ~-.u
Chris Daniel District Clark
FOREIGN CORPORATION, §

Defendant.
§ DEC 2 8 2013
f.me=-~:--:--=-"""""'"'::--::---­
Harrls County, Texas

BY.----------~---------
oeputy

MODIFIED ORDER GRANTING SUMMARY JUDGMENT 0{ WJ/ h Yla a~

ot l ( t(cu mS o_ vt o1' r s Thomas M. Hanson
State Bar No. 24068703
DYKEMA GOSSETT, PLLC
1717 Main Street, Ste. 4000
Dallas, TX 75201
(214) 462-6420 telephone
(214) 462-6401 telecopier
thanson@dykema.com
ATTORNEYS FOR ONEWEST BANK, FSB

Agreed as to Form Only

Is/ J. M. Aroad Lamell
J. M. Arpad Lamell, Pro Se
5131 Glenmeadow Drive
Houston, TX 77096
713 857 2483
lamell@alum.mit.edu

Motwn to Modify Judgment - Order pg. 2

717