George A. Molinar v. Mohd Rafaei ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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GEORGE A. MOLINAR, No. 08-14-00299-CV
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Appellant, Appeal from
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v. County Court at Law No. 3
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MOHD RAFAEI, of El Paso County, Texas
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Appellee. (TC # 2013-CCV02705)
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MEMORANDUM OPINION ON MOTION
George A. Molinar, pro se, has filed a motion pursuant to TEX.R.APP.P. 24.4 seeking
review of the trial court’s order setting the supersedeas bond at $1,000. Additionally, Molinar
filed a separate emergency motion seeking temporary relief in the event his Rule 24.4. motion is
granted. See TEX.R.APP.P. 24.4(c). We deny both motions.
FACTUAL SUMMARY
On May 26, 2011, the City of El Paso was awarded judgment in the amount of
$31,165.06 for delinquent taxes on real property located in El Paso County, and the County
Court at Law No. 5 entered an order of sale.1 Mohd Refaei purchased the property for $65,000,
and on February 20, 2013, Richard Wiles executed a sheriff’s tax deed to Refaei. When Molinar
failed to vacate the premises after Refaei made demand on him to do so, Refaei filed a forcible
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The suit was styled City of El Paso v. George Molinar (cause number 2008TX354).
entry and detain suit in the Justice of the Peace court. On June 4, 2013, the Justice of the Peace
entered judgment granting Refaei possession of the premises and ordered Molinar to vacate no
later than June 10, 2013. Molinar did not vacate and a writ of possession issued. Molinar
appealed to the county court at law. On July 30, 2014, the trial court entered judgment in
Refaei’s favor finding that he had not received any income from Molinar for the premises and
Refaei has the right of possession to the premises. The judgment also granted a writ of
possession. Molinar filed notice of appeal and the trial court set the supersedeas bond at $1,000.
Molinar deposited $1,000 cash in lieu of a supersedeas bond.
SUPERSEDEAS BOND
In his Rule 24.4 motion, Molinar asks the Court to review the supersedeas bond and find
that it is excessive.
Standard of Review and Applicable Law
As a general rule, a judgment debtor is entitled to supersede the judgment while pursuing
an appeal. Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009). When the judgment is for the
recovery of an interest in real property, the trial court determines the type of security that the
judgment debtor must post. TEX.R.APP.P. 24.2(a)(2). In the case of an interest in real property,
the amount of security must be at least the value of the property interest’s rent or revenue.
TEX.R.APP.P. 24.2(a)(2)(A). An appellate court is authorized to review the sufficiency or
excessiveness of the amount of security. TEX.R.APP.P. 24.4(a)(1). We may require that the
amount of a bond be increased or decreased and that another bond be provided and approved by
the trial court clerk. TEX.R.APP.P. 24.4(d).
A trial judge is given broad discretion in determining the amount and type of security
required. Miller v. Kennedy & Minshew, P.C., 80 S.W.3d 161, 164 (Tex.App.--Fort Worth 2002,
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no pet.). Consequently, our review of the trial court’s ruling is under the abuse of discretion
standard. EnviroPower, L.L.C. v. Bear, Stearns & Co., 265 S.W.3d 1, 2 (Tex.App.--Houston [1st
Dist.] 2008, pet. denied); TransAmerican Natural Gas Corporation v. Finkelstein, 905 S.W.2d
412, 414 (Tex.App.--San Antonio 1995, pet. dismissed). A trial court abuses its discretion when
it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of
the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding
rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)
No Abuse of Discretion
At a hearing on the supersedeas issue, Refaei’s counsel stated that a realtor had given him
an estimated rental value of $900 per month ($10,800 annually) for the property. Counsel added
that the property is not rentable in its present condition and Refaei would have to make repairs to
the property before it could be rented. The record also reflects that Molinar is currently living on
the property. The trial court did not set the supersedeas amount at the conclusion of that hearing.
At the next hearing, the court set the supersedeas bond in the amount of $1,000. The court
explained:
We’ve got probably about ten months to a year before this thing is resolved by the
Court of Appeals. And I’ve used a de minimus number of $100 a month to come
up with that amount of a thousand, which I consider to be de minimus for a place
to live.
Molinar argues that the trial court should have set the supersedeas bond at no more than
$100 total because the property is not rentable in its current condition. The trial court apparently
found, however, that the property has a minimal rental value of $100 per month because Molinar
is living on the premises. We conclude that the trial court did not abuse its discretion by setting
the supersedeas bond at $1,000. Molinar’s motions are denied.
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June 16, 2015 PER CURIAM
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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