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

Background

Appellees Wilsteins obtained a judgment; this Court amended/increased compensatory damages on appeal. Dernick provided a deposit in lieu of a supersedeas bond to suspend enforcement pending further review.
The Wilsteins moved to increase the deposit after this Court’s amended judgment raised compensatory damages by $448,985.59; they argue the deposit must match the amended judgment while the appeal continues.
Dernick contends the deposit need not be increased until this Court’s mandate issues (i.e., until the case is finally resolved), because enforcement and execution are not permitted before mandate.
Wilsteins argue appellate rules require the judgment (as currently effective) to be superseded during review and permit the court to reassess sufficiency of security based on changed conditions, including increased damages and interest.
The question presented: may a trial court (and/or this Court) require increased supersedeas security after an intermediate appellate court amends a money judgment but before mandate issues and while further review (e.g., PDR) is pending?

Issues

Issue	Plaintiff's Argument (Wilsteins)	Defendant's Argument (Dernick)	Held
Whether supersedeas/deposit must be increased to cover an appellate court’s amended judgment before mandate issues	The amended appellate judgment is the operative judgment during review; rules allow reassessment of sufficiency based on changed conditions (increased compensatory damages and interest), so deposit must be increased now	Mandate must issue before the appellate judgment is final/enforceable; therefore no increase is required until mandate issues	Court favors permitting increase while appeal continues—appellate judgment can be treated as the operative judgment for security purposes and changed conditions may justify increased security
Whether issuance of mandate is necessary before execution or before a court can require additional security	Supersedeas secures creditor against loss during appeal; when appellate court increases judgment, the security must reflect that change even if mandate not yet issued	Enforcement and the clerk’s authority to execute are triggered by mandate; until then the judgment is not final for enforcement	Mandate is procedural notice, not a prerequisite to treating appellate judgment as final for purposes of reassessing suspension/security; courts have allowed increased security before mandate
Whether changed circumstances may be considered when reviewing sufficiency of security	Yes — rules expressly permit review based on changed conditions (e.g., higher compensatory damages, interest, costs)	Argues the rules should not be applied to alter security while appellate review to the Supreme Court is pending	Court recognizes Rule 24.4(b) allows consideration of post-order changes and that increased damages/interest are precisely the changes to be considered

Key Cases Cited

Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392 (Tex. 2009) (discusses finality and mandate; concurring opinion on when an appeal is over)
Waffenschmidt v. MacKay, 763 F.2d 711 (5th Cir. 1985) (explains that supersedeas secures the judgment creditor during appeal and describes when execution may proceed)
Long v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d 73 (Tex. 2014) (addresses treatment of appellate amendments and post-judgment interest measured from trial-court judgment)
In re Long, 984 S.W.2d 623 (Tex. 1999) (addresses limits on enforcement prior to issuance of mandate in certain contexts)
Poplar Grove Planting & Ref. Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189 (5th Cir. 1979) (describes purpose of supersedeas as protecting prevailing party from loss during appeal)
Nat’l Convenience Stores, Inc. v. Martinez, 763 S.W.2d 960 (Tex. App.—Houston [1st Dist.] 1989, no writ) (permitting execution when bond is insufficient even if appeal remains)