BBX Operating, LLC v. American Fluorite, Inc., GeoSouthern Energy Partners, LP, and GeoSouthern Energy Corp.

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00278-CV
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BBX OPERATING, LLC, Appellant
V.
AMERICAN FLUORITE, INC., GEOSOUTHERN ENERGY PARTNERS,
LP, AND GEOSOUTHERN ENERGY CORP., Appellees
________________________________________________________________________
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 35155
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ORDER
The appellant, BBX Operating, LLC, filed a motion to review the amount
ordered by the trial court to supersede the judgment on appeal. See Tex. Civ. Prac.
& Rem. Code Ann. § 52.006(d); Tex. R. App. P. 24.4(a)(1). The trial court ordered
the appellant to provide security in the amount of $3,053,995.18, including
$2,429,547.65 in garnished funds and $624,447.53 in additional security. BBX
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contends the trial court abused its discretion by ordering BBX to post appellate
security that included $261,548.32 in prejudgment interest.
A judgment debtor may supersede a judgment for money by posting security
in an amount equal to the sum of compensatory damages awarded in the judgment,
interest for the estimated duration of the appeal, and costs awarded in the judgment.
See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a); Tex. R. App. P. 24.2(a)(1). “Not
every amount, even if compensatory, can be considered damages.” In re Nalle
Plastics Family Ltd. P’ship, 406 S.W.3d 168, 173 (Tex. 2013). Because it is not
compensatory damages, prejudgment interest should not be included in the amount
of security required to supersede the judgment. See Kennedy Con., Inc., v. Forman,
493 S.W.3d 103, 105 (Tex. App.—Houston [14th Dist.] 2014, mand. denied)
(holding that trial court did not abuse discretion in omitting prejudgment interest in
calculating amount required to supersede judgment).
We hold the trial court erred by requiring the appellant to provide security for
$261.548.32 in prejudgment interest. We reverse in part the trial court’s supersedeas
order, decrease the total security amount to $2,792,446.86, and set the amount of
additional security to supersede the trial court’s final judgment at $362,899.21. See
Tex. R. App. P. 24.4(d) (authorizing an appellate court to increase or decrease the
amount of a bond or to require other changes in the trial court’s order). Other than
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the amount of security ordered, we affirm the remaining provisions of the trial
court’s order. We suspend the appellees’ right to enforce the trial court’s judgment
for twenty days from the date of this Court’s order to allow appellant to post the
security we have ordered. See Tex. R. App. P. 24.4(e).
ORDER ENTERED December 12, 2019.
PER CURIAM
Before Kreger, Horton, and Johnson, JJ.
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