Dernick Resources, Inc. v. David Wilstein and Leonard Wilstein, Individually and as Trustee of the Leonard and Joyce Wilstein Revocable Trust
01-13-00853-CV
| Tex. App. | Oct 13, 2015Background
- Trial court entered judgment for the Wilsteins in July 2013 for $3,373,452.45; Dernick deposited appellate security in stages (total $1,583,427.08) to supersede that judgment.
- This Court issued an opinion in June 2015 modifying the judgment, increasing it to $4,489,376.71 (adding $750,000 in production-revenue damages plus prejudgment interest).
- Dernick sought rehearing (denied Sept. 22, 2015) and intends to seek Texas Supreme Court review; no mandate has issued from this Court.
- The Wilsteins moved to force Dernick to increase its supersedeas deposit to cover the Modified Judgment while further review is pending.
- The trial court denied the Wilsteins’ motion; Dernick filed this response arguing the motion is procedurally and legally improper because an appellate judgment is not enforceable until the mandate issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court may require increased supersedeas deposit based on appellate court’s modified judgment before mandate issues | Wilsteins: supersedeas should reflect the modified judgment and thus be increased now | Dernick: appellate modification is not enforceable until mandate issues; no changed circumstance supports increase | Court should deny motion; supersedeas amount remains until mandate issues |
| Whether issuance of the appellate opinion (absent mandate) constitutes a "changed circumstance" under Rule 24.3 to authorize altering appellate security | Wilsteins: opinion alters the judgment and so changes circumstances warranting adjustment | Dernick: Rule 51.1(b) and precedent make appellate judgments unenforceable until mandate; opinion alone is not a changed circumstance | Opinion alone is not a changed circumstance; only mandate or other true change permits modification |
Key Cases Cited
- Black v. Epperson, 40 Tex. 162 (Tex. 1874) (trial clerk lacks authority to issue execution until appellate mandate is filed)
- Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392 (Tex. 2009) (appellate judgment effectiveness versus enforceability; mandate governs enforcement)
- In re Long, 984 S.W.2d 623 (Tex. 1999) (trial court clerk not obliged to comply with appellate judgment until mandate issues)
- Miga v. Jensen, 299 S.W.3d 98 (Tex. 2009) (supersedeas defers payment until appellate process resolves)
- In re Nalle Plastics Family L.P., 406 S.W.3d 168 (Tex. 2013) (discussion of supersedeas and appellate-security principles)