-
ACCEPTED 03-15-00215-CV 5142301 THIRD COURT OF APPEALS 03-15-00215-CV AUSTIN, TEXAS 5/4/2015 3:34:30 PM JEFFREY D. KYLE CLERK CAUSE NO. _ IN THE COURT OF APPEALS OF TEXAS FILED IN THIRD DISTRICT 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN 5/4/2015 3:34:30 PM JEFFREY D. KYLE MOTION FOR REVIEW OF TRIAL COURT'S ORDER Clerk from CAUSE NO. C-1-CV-15-000869 FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATION AIKJ A FANNIE MAE, § Plaintiff, § AT LAW NO. 2 § v. § LENNY ACEVEDO ET AL § Defendant. § TRA VIS COUNTY, TEXAS Lenny Acevedo files this Motion for Review of Trial Court's Order. In support of his motion, Acevedo will show the following: Acevedo was sued twice by Fannie Mae for forcible detainer. Acevedo cited the two year statute of limitations as his defense. The judge in the justice court ruled in favor of Acevedo both times. In this instance, Fannie Mae appealed the second judgment for a trial de novo to county COUlt. The trial was held on March 30, 2015, and the judgment of the court was signed on April 2, 2015 and filed in the record on April 6, 20151• On April 9, 2015, seven days after notification of the judgment, Acevedo noticed the clerk of I Exhibit I - Judgment, attached hereto and incorporated herein. Motion for review Page 1 his intention to appeal". In its order, the court had not set a supersedeas bond amount, so Acevedo posted a $500 supersedeas surety bond ' at that time, in order to supersede the execution of the judgment. The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedeas bond, and because the signed judgment was not recorded until April 6, Acevedo did not have time to petition the court to set a bond amount, so he filed a $500 supersedeas bond in order to stay execution. The bond was posted in the registry of the court and the writ was stayed. The clerk did not contest the bond. On April 24, 2015, Fannie Mae filed a motion to challenge insufficient bond and for issuance of writ", The hearing for this motion was held on May 1,2015. At the hearing, Judge Shepperd stated that he had not set a bond amount and therefore, there was no bond in the record. Judge Shepperd reasoned that if he had not set a bond amount, there could be no bond. Judge Shepperd did not rule on the insufficiency of the bond, and ordered that the writ should issue pursuant to Tex.R.Civ.P. 24. The hearing was set for 9:00 a.m., and a writ of possession was issued by the court at 8:00 a.m .., hours before the judgment in the case. When Appellant 2 Exhibit 2 - Notice of Appeal, attached hereto and incorporated herein. 3 Exhibit 3 - Surety bond, attached hereto and incorporated herein. 4 Exhibit 4 - Motion to challenge insufficiency, attached hereto and incorporated herein. Motion for review Page 2 returned to his home after court, a 24 hour notice to vacate was posted to his front door. The notice was posted at 8:50. This was before the hearing started. ISSUES FOR REVIEW ISSUE 1 Did the court rule on the motion before it? ISSUE 2 If the trial cOUl1,in a trial for possession, did not set an amount of supersedeas bond, does Appellant have the right to post a supersedeas bond within ten days from judgment to stay execution of the judgment? ISSUE 3 Whether, on May 1, 2015, the trial court had jurisdiction to amend its judgment by setting a sufficient bond? ISSUE 4 Whether a court can issue process based on a judgment that has not yet been issued? ARGUMENTS AND AUTHORITIES A supersedeas bond is part of the right of appeal. The cOUl1,by not setting a supersedeas bond amount, denies Appellant the right to stay the judgment of the cOUl1as it pertains to execution of a writ. "The supersedeas bond is part of the right of appeal and is only intended to indemnify the judgment creditor from losses caused by delay of appeal. State v. Motion for review Page 3 Watts,
197 S.W.2d 197(Tex.Civ.App.-Austin 1946, writ ref'd) Muniz v. Vasquez,
797 S.W.2d 147(Tex.App.-Houston, 1990). The trial court is obligated to extend all rights of due process to all patties. In order to achieve this in a forcible detainer appeal, the COUltmust set an amount for supersedeas bond in its judgment. To fail to set an amount, the COUlthas denied rights to which an appellant is entitled. If the trial COUltdoes not set an amount for supersedeas bond in a hearing for possession, it denies Appellant the right to supersede enforcement of the judgment. The setting of the amount of bond in a suit for possession should be an automatic inclusion in any judgment for possession. " A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a given controversy, denies a remedy by due course of law". Dillingham v. Putnam, 109 Tex.1, 14 S.W.303 (Tex. 1890) The Dillingham court went on to hold that a legislative act making the right of appeal depend on the giving of a supersedeas bond, without reference to the appellant's ability to pay, was unconstitutional.
Id. 14 S.W.at 305. In the absence of an amount for supersedeas bond, Appellant filed a $500 surety bond. Appellant had no idea as to what a properly sufficient bond would be, but since time was of the essence, was able to find two sureties to sign a surety Motion for review Page 4 bond in the amount of $500. Appellant also knew that if the bond was not sufficient or defective, Fannie Mae had the right to petition the court for a higher amount of bond. The $500 bond was filed and the COUltaccepted the bond. Appellant had a right to file a bond to stay execution. In the absence of an amount set by the COUlt,ifhe had not filed a bond, he would have waived his right. At the hearing on the bond, the COUltdid not determine that the bond was defective or insufficient. Judge Shepperd stated that ten days had passed since his judgment, and he therefore could not now set a bond amount. The COUlt erred when, after motion and argument that the bond was insufficient, it did not determine that there was a bond, the bond was insufficient, set a sufficient bond amount and allow time to cure the defect. At the hearing on the Motion to challenge insufficient bond, Judge Shepperd stated that he did not have jurisdiction to set a bond because it was more than ten days after judgment. The judge erred, pursuant to the Texas Appellate Rules, the court maintains plenary power to set a sufficient bond when the sufficiency of the bond is challenged. Tex.R.App.P. 24.3(a)(1). The trial court, even if its plenary powers had expired, maintains the jurisdiction to amend its judgment. "Even after the trial court's plenary power expires, the trial cOUlthas continuing jurisdiction to order the amount and type of security and decide the sufficiency of the sureties." Tex.R.App.P. 24.3(a)(1); see Motion for review Page 5 Whitmire v. Greenridge Place Apartments,
333 S.W.3d 255at 260 (Tex.App- Houston [1st Dist.] 2010, pet. dism'd); In re M V G., 285 S.W3d 573, 575 (Tex.App.-Waco 2009)(order abating appeal) (per curium)("And if the judgment is superseded, the trial court nevertheless retains 'continuing jurisdiction' to evaluate the adequacy of the security required to supersede the judgment."_ Miller v. Kennedy & Mishew, Prj'l Corp.,80 S.W.3d 161, 164 (Tex.App.-F0l1 Worth 2002, no pet.)(holding that trial court possesses authority after the expiration of its plenary power to review the sufficiency of sureties on a supersedeas bond). Thus, if the bond in the present case was a supersedeas bond, the trial court had continuing jurisdiction to review the amount of the bond and the sufficiency of the sureties. See Tex.R.App.P. 24.3(a)(1). Cox v. Simmonds, Tex.App.-Corpus Christi 2015). In the instant case, the cOUl1was noticed by motion that the supersedeas bond was insufficient. The motion recognizes the fact that there is a supersedeas bond filed, notwithstanding an insufficient amount. The cOUl1erred when it ruled that because the court had not set the supersedeas bond amount, there was no bond. Rather, the court was obligated to rule on the insufficiency, amend his judgment, set a sufficient bond amount and allow Acevedo time to cure his defect. To determine that there was no bond is in direct contravention to the evidence in the record that a bond was filed, and constitutes judicial error. Motion for review Page 6 The court had an obligation, if there was a complaint of insufficiency, to set the amount sufficient to supersede execution of a writ and allow Appellant time to cure by posting a sufficient supersedeas bond. When the bond was challenged on the grounds of insufficiency, the COUlt is to determine 1) whether the bond was insufficient, 2) what amount of bond would be sufficient, and 3) allow five days to cure the defective bond. Ashley Furniture Industries Inc, v. Law Office of David Pierce,
311 S.W.3d 595, (Tex.App.-EI Paso, 2010). When the trial court is called upon to review the sufficiency of the sureties on a supersedeas bond, that review is conducted de novo. The trial court is to decide the sufficiency of the sureties or the insufficiency of the bond. The court must hold an evidentiary hearing to determine the sufficiency of the amount and type of security and the sufficiency of the sureties. Lamar County Elec. Co-op. Ass 'n,
51 S.W.3d 801, 805 (Tex.App.-Texarkana 2001, pet. denied)(recognizing trial COUlt may determine sufficiency of sureties on supersedeas bond). In this case, the court did not determine the sufficiency of the bond. Rather, it determined there was no bond and therefore a writ could issue. Appellant is not able to provide a copy of the order issued on May 1, 2015, as it is not yet in the record of the court. Motion for review Page 7 If the bond was defective, as it appears it may have been, the court must then determine the sufficient amount of supersedeas bond and enter an order giving Acevedo twenty-one days to file an amended supersedeas bond. Miller v. Kennedy & Minshew, 80 S.W3d 161 (Tex.App-Fort Worth, 2002). "-concluding supersedeas bond was insufficient to protect judgment creditors and citing Rule 24.1 (e), holding "the trial COUlt is required to order the specific action it deems necessary to adequately protect the judgment creditor." Huff Energy Fund, LP v. Longview Energy Company, No. 04-12-00630-CV, (Tex.App.-San Antonio, 2014). "The county court therefore had the authority to modify the amount of the supersedeas bond after the expiration of its plenary power." Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CV (Tex.App.-Houston [1st District], 2007). SUMMARY Acevedo had a right to post a surety bond even though the court had not included an amount for supersedeas in its original judgment. When a COUlt has a motion before it, the court must rule on that motion and no other. In the case of a motion for insufficient bond, the matter is handled de novo. At that point, the court looks only to the motion before it and determines the issue before it. That was not done in this case. Motion for review Page 8 The motion for insufficient bond, which was before the court, asks that because the Defendant had failed to post an appropriate bond in accordance with Tex.R.Civ.P. 24, a writ should issue. This is a defect in the pleadings and a judicial impossibility to grant a writ pursuant to Tex.R.Civ.P. 24. Tex.R.Civ.P. 24 is Duty of Clerk. Tex.R.App.P.24 is suspension of enforcement of judgment pending appeal in civil cases. When challenged with the insufficiency of a bond, the COUlt must rule on that insufficiency and determine what the sufficient amount to protect the creditor while on appeal is, and allow the time to cure the defect. The issue before the court was not that no bond was posted and therefore, judgement could not be stayed. The motion was for insufficiency of the bond. The court erred in not determining the matter before it, which was: was the bond insufficient? If it is determined that the bond is insufficient, the court must set a sufficient amount, and give the party time to post a sufficient bond. The court erred by not ruling on the issue before it and allowing Acevedo time to cure any defect. The writ was issued by the clerk of the court at 8:00 a.m. April 30, 2015 and posted at 8:50 a.m. on May 1,2015, the day of the hearing. The judgment in the Motion for review Page 9 hearing wasn't issued until close to 10:00 a.m ..5 Until the order of the court was issued, the $500 supersedeas bond had not been determined to be insufficient and therefore superseded the execution of a writ. This is impropriety at the very least. PRAYER Lenny Acevedo prays that this Court consider the facts and the law and reverse the judgment of the court and render this case for rehearing to set a sufficient supersedeas bond amount with time to cure. Respectfully submitted, /s/ James Minerve James Minerve State Bar No. 24008692 115 Saddle Blanket Trail Buda, Texas 78610 (210) 336-5867 (888) 230-6397 (Fax) Attorney for Lenny Acevedo CERTIFICATE OF CONFERENCE Due to the exigency of the time limitations on filing this motion, during the week end, I was unable to contact Mark Hopkins to confer as to his consent or disagreement about filing this motion. /s/ James Minerve CERTIFICATE OF SERVICE 5 There is no order in the record of the as of May 4, 2015 at 9:00 a.m., and parties were not given a copy of the order. Motion for review Page 10 A true and correct copy of the attached Motion for Review as was sent by U. S. Postal service on May 4, 2015 to: HOPKINS & WILLIAMS Mark D. Hopkins 12117 Bee Caves Road, Suite 260 Austin, Texas 78738 lsi James Minerve Motion for review Page 11 EXHIBIT 1 CAUSE NO. C-I-CV-lS·000869 FEDERAL NATIONAL MORTGAGE § ASSOCIATION A/IKIA FANNIE MAE, § Plaintiff, § § ~ § § LENNY ACEVEDO AND ALL § OTHER OCCUPANTS OF 1108 § FOX SPARROW COVE, § PFLUGERVILLE, TEXAS 78660 § § Defendant(s}. § , efendant") and all other occupants of 1108 Fox Sparrow Cove, Pfl idered the testimony, exhibits and all other e~ - _ _ \> ~ .... -0 iE~ iii --co =- CK C, KUEMPEL TRACT PHASE 3, SECTION FIVE, AN TRAVIS COUNTY, TEXAS, ACCORDING TO THE PLAT ."' .......... RD IN VOLUME 2002, PAGE 318, TRAVIS COUNTY, TEXAS. FURTHER ORDERED that Plaintiff have and recover from Defendants reasonable attorney's fees at the trial court level in the amount of $1,000.00, which may be collected from the bond posted by defendant, if any, payable immediately by the Clerk of the Court upon presentation of this order, together with reasonable attorney's fees if the case is JUDGMBNT H609·15/ Acevedo Page 1 unsuccessfully appealed to the Courts of Appeal in the amount of $2,000.00, reasonable attorney's fees if the case is unsuccessfully appealed on writ of error to the Supreme Court of Texas in the amount of $3,500.00, and if writ is granted by the Supreme Court but the appeal is unsuccessful, reasonable attorney fees in the amount of $2,500.00. ALL RELIEF NOT EXPRESSLY GRANTED HEREIN IS SIGNED this us: of ~ J SUBMITTED BY: JUDGMENT H609·15/ Acevedo Page 2 EXHIBIT 2 Filed: 4/9/201510:45:57 PM Dana DeBeauvoir Travis County Clerk CAUSE NO. C-I-CV-lS-000869 C-1-CV -15-000869 Adrianna Perez FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATON A!KIA FANNIE MAE § Plaintiff § § v. § - § AT LAW NO. 2 LENNY ACEVEDO and ALL § OCCUPANTS OF 1108 FOX SPARROW § COVE, PFLUGERVILLE, TEXAS 78660 § Defendants. § TRAVIS COUNTY, TEXAS NOTICE OF APPEAL Lenny Acevedo notices this Court of his Notice of Appeal to the 3rd Court of Appeals, from the Judgment issued on April 2, entered in the clerk's record on April 6, 2015. Respectfully submitted, CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the Notice of Appeal was sent on April 9, 2015 by U. S. Postal Service to: Mark D. Hopkins HOPKINS & WILLIAMS, PLLC 12117 Bee Caves Rd., Suite 260 Austin, Texas 78738 EXHIBIT 3 Filed: 4/9/201510:45:57 PM Dana DeBeauvoir Travis County Clerk CAUSE NO. C-l~CV-15~000869 C-1-CV -15-000869 Adrianna Perez FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATION A/KIA FANNIE MAE § Plaintiff § § v. § § AT LAW NO. 2 LENNY ACEVEDO and ALL § OCCUPANTS OF H08 FOX SPARROW § COVE, PFLUGERVILLE, TEXAS 78660 § Defendants. § TRA VIS COUNTY, TEXAS KNOW ALL MEN BY THESE PRESENT, THAT, WHEREAS, judgment was rendered on the 2ndt day of April, 2015, in the County Court of Law #2 of Travis County and State of Texas, in favor of Federal National Mortgage Association and against Lenny Acevedo and all other Occupants in Cause No. C-I-CV -15-000869 for possession, from which judgment the said, Lenny Acevedo desires to appeal to the 31'd Court of Appeals at Austin, Texas. NOW THEREFORE,· I, the said appellant Lenny Acevedo, as principal, and .6u14bl'C' «cdy and C",'L,f,rmo &lfIlj€1 as Sureties, acknowledge ourselves bound to pay to th~ Appellee Federal National Mortgage Association, the sum of $500.00, conditioned. that said appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on said appeal. Witness our hands this q ri day of April S, 2015 ~ .. ~ Le Acevedo>" Principal The State of Texas } }SS County of Travis } AFFIDAVIT OF SURETY 1'``4kJ ' do swear that I am worth, in my own right, at least the sum of $500.00, after deducting from my property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all my debts, and after satisfying all encumbrances upon my property which are known to me; that I reside in Jt4\.1" ~ County and have property in this State Hable to execution worth said amount or more. SWORN TO AND SUBSCRIBED BEFORE ME this ~ day of April_1, 2015 ,M'" . kEVjN 8IERWIR~H Notary PubU~ ..SIOle 0; Taxos Ir My Commission El(Qlres !f Oe'Obe, 21, 2017 ..I otary Public of the State of Texas The State of Texas } }SS County of Travis } AFFIDA VIT OF SURETY I,Cc:.·ll«Mct ~L...do swear that I am worth, in my own right, at least the sum of $500.00, after deducting from my property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all my debts, and after satisfying all encumbrances upon my property which are known to me; that I am a property owner in 7f?e.v. :..S County and have property in this State liable to execution worth said amount or more. SWORN TO AND SUBSCRIBED BEFORE ME this 9 fI-. day of April 1,2015. kEVIN "f~W.'lltH NotOry Pu~II~.SIQI. or Taxa. MVCommlWQh bplrs. 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Document Info
Docket Number： 03-15-00215-CV
Filed Date： 5/4/2015
Precedential Status： Precedential
Modified Date： 9/29/2016