Magellan Terminals Holdings, L.P., and Paul R. Wilson in His Capacity as Receiver of Mexam Export Import Corporation v. Hector Vargas ( 2019 )

NUMBER 13-19-00354-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MAGELLAN TERMINALS HOLDINGS, L.P., AND
PAUL R. WILSON, AS RECEIVER OF MEXAM
EXPORT IMPORT CORPORATION, Appellants,
v.
HECTOR VARGAS, ET AL., Appellees.
On appeal from the 357th District Court
of Cameron County, Texas.
ORDER
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Order Per Curiam
Appellants, Magellan Terminals Holdings, L.P. and Paul R. Wilson as Receiver of
Mexam Export Import Corporation, bring this interlocutory appeal from a temporary
injunction granted in favor of appellee Hector Vargas. Currently before the Court is
appellants’ “Emergency Motion for Adequate Temporary Injunction Bond or Other Relief.”
Appellants argue that the temporary injunction bond of $1,000 set by the trial court
is inadequate to “protect [a]ppellants from the imminent risk of substantial loss [a]ppellants
may suffer in the event that the Temporary Injunction . . . is dissolved in whole or part.”
Appellants request this Court to exercise its authority under Texas Rule of Appellate
Procedure 29.3 and order Vargas to provide an adequate temporary injunction bond or to
grant other appropriate relief as necessary. See TEX. R. APP. P. 29.3.
Texas Rule of Appellate Procedure 29.3 provides in pertinent part: “When an
appeal from an interlocutory order is perfected, the appellate court may make any
temporary orders necessary to preserve the parties’ rights until disposition of the appeal
and may require appropriate security.” Id. The rule authorizes courts of appeals, during
interlocutory appeals, to “make any temporary orders necessary to preserve the parties'
rights.” In re Geomet Recycling LLC, 578 S.W.3d 82, 87 (Tex. 2019) (quoting TEX. R.
APP. P. 29.3). “Although Rule 29.3 does not say so explicitly, the authority it grants to
issue ‘any temporary order’ naturally includes only the authority to issue orders that are
consistent with the law.” Id. at 88 (quoting TEX. R. APP. P. 29.3).
We note that the temporary injunction bond was set by the trial court in the first
instance pursuant to Texas Rule of Civil Procedure 684. See TEX. R. CIV. P. 684. Rule
684 states in relevant part that “[i]n the order granting any temporary restraining order or
temporary injunction, the court shall fix the amount of security to be given by the
applicant.” Id. Before the issuance of the temporary injunction, the applicant must
execute and file with the clerk a bond “in the sum fixed by the judge[.]” Id. The purpose
of a bond as a condition to the granting of a temporary injunction is to secure the payment
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for the party against whom the injunction is issued, including the amount of the monetary
damages which it sustains as a result of the injunction, and costs, in the event the
injunction is subsequently held to be wrongfully issued and is dissolved. See id.; IAC,
Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 203 (Tex. App.—Fort Worth 2005,
no pet.).
The amount of a temporary injunction bond is within the trial court’s sound discretion
and will not be disturbed on appeal absent an abuse of that discretion. Khaledi v. H.K.
Global Trading, Ltd., 126 S.W.3d 273, 286 (Tex. App.—San Antonio 2003, no pet.); Four
Stars Food Mart, Inc. v. Tex. Alcoholic Beverage Comm’n, 923 S.W.2d 266, 269 (Tex.
App.—Fort Worth 1996, no writ). The determination of the adequacy of the bond is made
on a case-by-case basis based upon the record before the reviewing court. Maples v.
Muscletech, Inc., 74 S.W.3d 429, 431 (Tex. App.—Amarillo 2002, no pet.). An appellate
court is unable to determine whether the trial court abused its discretion where the parties
do not present evidence to the trial court concerning the amount of the bond. See Hartwell
v. Lone Star, PCA, 528 S.W.3d 750, 770 (Tex. App.—Texarkana 2017, pet. dism’d)
(“Without some evidence that would support a higher bond amount, we cannot say that the
trial court abused its discretion in setting the bond amount.”). Furthermore, a challenge to
the adequacy of the bond on appeal is subject to traditional notions of error preservation.
See Khaledi, 126 S.W.3d at 286 (concluding that a complaint regarding the amount of the
bond set pursuant to Texas Rule of Civil Procedure 684 must be raised in the trial court);
Matagorda Cty. Hosp. Dist. v. City of Palacios, 47 S.W.3d 96, 104 (Tex. App.—Corpus
Christi–Edinburg 2001, no pet.) (same).
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Here, appellants failed to contest the amount of the bond in the trial court. As a
result, there is no record from which we can assess whether the trial court abused its
discretion in setting the bond amount as it did. See Hartwell, 528 S.W.3d at 770; Khaledi,
126 S.W.3d at 286; City of Palacios, 47 S.W.3d at 104. In light of the foregoing, we
conclude that appellants have not established grounds for relief pursuant to Texas Rule of
Appellate Procedure 29.3.
The Court, having examined and fully considered the matters on file herein, is of the
opinion that appellants are not entitled to the relief requested. Accordingly, we DENY
appellants’ “Emergency Motion for Adequate Temporary Injunction Bond or Other Relief.”
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
24th day of September, 2019.
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