Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/13/2015 4:38:37 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-13-00853-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/13/2015 4:38:37 PM CHRISTOPHER PRINE CLERK No. 01-13-00853-CV In the First District Court of Appeals Dernick Resources, Inc.
Appellant / Cross-Appellee V .
David Wilstein and Leonard Wilstein, Individually and
as Trustee of the Leonard and Joyce Wilstein Revocable
Trust Appellees / Cross-Appellants On Appeal from Cause No. 2002-31310 164th District Court of Harris County, Texas Hon. Alexandra Smoots-Hogan, Presiding RESPONSE TO “EMERGENCY” MOTION TO INCREASE AMOUNT OF DEPOSIT IN LIEU OF SUPERSEDEAS BOND
Jackson Walker L.L.P. Squire Patton Boggs (US) LLP
Kathrine M. Silver D. Patrick Long ksilver@jw.com pat.long@squirepb.com Richard A. Howell Dylan O. Drummond rahowell@jw.com dylan.drummond@squirepb.com 1401 McKinney St., Suite 1900 2000 McKinney Ave., Suite 1700
Houston, TX 77010 Dallas TX 75201 (713) 752-4340 (Telephone) (214) 758-1500 (Telephone)
(713) 752-4221 (Facsimile) (806) 758-1550 (Facsimile)
Counsel for Appellant / Cross-Appellee Dernick Resources, Inc. *2 TABLE OF CONTENTS Table of Contents .................................................... i
Index of Authorities ............................................... ii
Introduction ........................................................... 1
Factual Background ............................................... 2
Argument in Response ............................................. 3
I. This Court’s Judgment Only Becomes Enforceable When the Mandate Issues ........................................ 4 II. Professor Carlson Confirms This Understanding of the Rules ................................................................ 7 III. Reliance on the Mandate to Enforce the Judgment is Routine Practice in this Court and Other Courts ............ 10 Conclusion & Prayer ............................................ 13
Appendix
September 25, 2015 Order Denying Plaintiffs’ Motion to Increase Supersedeas Deposit ................................... Tab A Excerpt from Prof. Elaine A. Carlson, Supersedeas Issues in Texas , in State Bar of Tex. Prof. Dev. Program, Civil Appellate Practice 101, Ch. 11 (2015) ........................... Tab B Page i [010] ‐ [8150] ‐ 6461/3/AMERICAS
INDEX OF AUTHORITIES Cases
Texas Supreme Court
Black v. Epperson ,
40 Tex. 162 (1874) ................................................ 1, 7 Edwards Aquifer Auth. v. Chem. Lime, Ltd ,
291 S.W.3d 392 (Tex. 2009) .................................... 1, 5 In re Corral-Lerma ,
451 S.W.3d 385 (Tex. 2014) (per curiam) (orig. proceeing) ............................................... 12–13 In re Long ,
984 S.W.2d 623 (Tex. 1999) (per curiam) (orig. proceeing) ..................................................... 5 In re Longview Energy Co. ,
464 S.W.3d 353 (Tex. 2015) (orig. proceeing) .............. 12–13 Miga v. Jenson ,
299 S.W.2d 98 (Tex. 2009) ........................................ 7 In re Nalle Plastics Family L.P. ,
406 S.W.3d 168 (Tex. 2013) (orig. proceeding) ............. 9, 12 Intermediate Appellate Courts
In re City of Cresson ,
245 S.W.3d 72 (Tex. App.—Fort Worth 2008, orig proceeding) ..................................................... 5 Dernick Res., Inc. v. Wilstein ,
No. 01-13-00853-CV, 2015 Tex. App. LEXIS 6684 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet. h.) ............................................................ 2–3 Entergy Gulf Sts., Inc. v. Traxler ,
No. 09-09-00362-CV, 2013 Tex. App. LEXIS 362 (Tex. App.—Beaumont Jan. 17, 2013, no pet.) (mem. op.) ... 12 Page ii *4 Sandoval v. Am. Point Realty, Ltd. ,
No. 01-14-00988-CV, 2015 Tex. App. LEXIS 6922 (Tex. App.—Houston [1st Dist.] July7, 2015) (mem. op.) (per curiam) .................................................... 10–11 Smith v. Fifth Third Mortg. ,
Order dated Dec. 4, 2013, No. 05-13-00499-CV (Tex. App.—Dallas Nov. 5, 2013, pet. denied) ............ 11–12 Strebel v. Wimberly ,
371 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ......................................................... 11 Univ. Life Ins. Co. v. Giles ,
982 S.W.2d 488 (Tex. App.—Texarkana 1998, writ denied) .......................................................... 5 Warren E&P, Inc. v. Gotham Ins. Co. ,
Agreed Motion to Expedite Mandate, No. 08-10-00198- CV (Tex. App.—El Paso Nov. 5, 2014, no pet.) ............... 12 Rules
Tex. R. App . P. 9.5(d), (e) ............................................. 15
Tex. R. App . P. 18.1 ...................................................... 4
Tex. R. App . P. 24.1(f) ............................................... 3, 6
Tex. R. App . P. 24.2(a)(1) ............................................... 2
Tex. R. App . P. 24.3(a)(2) ............................................ 6–7
Tex. R. App . P. 51.1(b) ............................................ 3, 4, 7
Secondary Sources
Yogi Berra with Dave Kaplan, When You Come
to a Fork in the Road, Take It (2001) ................. 1 Elaine A. Carlson, Reshuffling the Deck: Enforcing and
Superseding Civil Judgments on Appeal after House Bill 4 , 46 S. Tex. L. Rev . 1035 (2005) ............................ 9–10 Page iii *5 Prof. Elaine A. Carlson, Supersedeas Issues in Texas , in State Bar
of Tex. Prof. Dev. Program, Civil Appellate Practice 101, Ch. 11 (2015) ...................................................... 1, 9 6 Roy W. McDonald & Elaine A. Carlson, Texas Civil Practice
§ 14:20 (2d ed. 1998) ...................................... 4, 9–10 Stacey Obenhaus, It Ain’t Over ‘Til It’s Over: The Appellate
Mandate in Texas Courts , App. Advoc ., Winter 2003 .. 1, 5–6 Page iv
INTRODUCTION As the late, great Yogi Berra sagely declared, “‘It ain’t over ‘til it’s over.’” [1] Texas law has made clear for nearly 150 years that the
trial court judgment remains operative until the appeal is over and the
mandate issues. [2] Appellees and Cross-Appellants David Wilstein and
Leonard Wilstein, Individually and as Trustee of the Leonard and
Joyce Wilstein Revocable Trust (the “Wilsteins”) fundamentally
misunderstand the distinction between the effectiveness of this
Court’s judgment and enforcement of it. [3]
Because no law supports its grant, and without even any “emergency” underlying its supposed urgency, this Court should
deny the Wilsteins’ Emergency Motion to Increase Amount of
Deposit in Lieu of Supersedeas Bond (the “Motion”).
*7 FACTUAL BACKGROUND The trial court rendered final judgment (the “Original Judgment”) in favor of the Wilsteins in July 2013 for
$3,373,452.45. In response, Dernick Resources, Inc. (“Dernick”)
deposited with the Court $583,427.08 in November 2013 to supersede
the Original Judgment. A year later, Dernick deposited another million
dollars into the trial court’s registry, which raised the total appellate
security on deposit to $1,583,427.08. The Wilsteins admit that this
amount: (1) has been found to be sufficient by both this Court and the
trial court; and (2) “fully superseded” the Original Judgment. [4]
(Wilsteins’ Motion to Increase Supersedeas Deposit, at 2–3).
In June 2015, this Court issued its decision and judgment in the case, which modified the Original Judgment by increasing it to
$4,489,376.71 (the “Modified Judgment”)—awarding the Wilsteins
and additional $750,000.00 for production-revenue damages and
$365,924.26 in prejudgment interest on that claim. Dernick Res., Inc. v.
*8 Wilstein , No. 01-13-00853-CV, 2015 Tex. App. LEXIS 6684, at *73
(Tex. App.—Houston [1st Dist.] June 30, 2015, no pet. h.). Dernick
sought rehearing, which was denied September 22, 2015. Dernick now
intends to petition the Texas Supreme Court for review.
On September 25, 2015, the trial court below denied the Wilsteins attempt to require Dernick to increase its supersedeas
deposit based upon the Modified Judgment. ( App’x Tab A ).
ARGUMENT IN RESPONSE The black-letter law governing the resolution of this Motion is not open to serious dispute. “[E]nforcement of a judgment must be
suspended ” when the “judgment is superseded ,” and an “appellate
court’s judgment” cannot “be enforced” by the trial court ” until the “trial
court clerk receives the mandate .” Compare Tex. R. App . P. 24.1(f)
(emphasis added), with Tex. R. App . P. 51.1(b) (emphasis added).
The supersedeas amount can only change once the mandate issues.
But the Wilsteins argue that the supersedeas amount should be increased to account for the additional $750,000 included in the
Modified Judgment (along with postjudgment interest on this
amount)—prior to issuance of the mandate. This proposal is converse
*9 to the procedure routinely applied by Texas intermediate appellate
courts, and recited in legal hornbooks and treatises as well. See , e.g. ,
6 Roy W. McDonald & Elaine A. Carlson, Texas Civil Practice § 14:20
(2d ed. 1998) [hereinafter Texas Civil Practice ].
The Court should decline the Wilsteins’ invitation to radically depart from established appellate procedure, and deny their Motion.
I. This Court’s Judgment Only Becomes Enforceable When the
Mandate Issues
The Wilsteins are wrong to suggest that the amount necessary to supersede a judgment changes when this Court issues an opinion.
This Court’s judgment only becomes enforceable when the mandate
issues.
Just as a trial court’s judgment may be reversed or reconsidered, the same is true of a decision by a court of appeals. For
this reason, the rules create a device called the mandate. Therefore,
the appellate judgment becomes enforceable only when the mandate
issues. Tex. R. App . P. 51.1(b). The mandate does not issue until the
appellate process has run its full course. Tex. R. App . P. 18.1. This is
why an appeal results in both an appellate judgment and a mandate.
“Postponing enforcement of [appellate court] decisions is not the
*10 same as postponing when they are effective .” Edwards Aquifer Auth. v.
Chem. Lime, Ltd. , 291 S.W.3d 392, 411 (Tex. 2009) (Brister, J.,
concurring). The former is not self-executing, but is instead
provisional until the latter issues.
Texas courts—including the Supreme Court—recognize that appellate court judgments are “ not enforceable in the trial court until
… mandate issues .” In re City of Cresson , 245 S.W.3d 72, 74
(Tex. App.—Fort Worth 2008, orig. proceeding) (emphasis added);
see In re Long , 984 S.W.2d 623, 624, 626 (Tex. 1999) (per curiam)
(orig. proceeding) (trial court clerk not obligated to comply with
appellate court judgment until mandate issued); see also Chem. Lime ,
291 S.W.3d at 415 (Tex. 2009) (Willett, J., concurring) (the “date of
the mandate” is when the “judgment [becomes] enforceable”).
As their sole contrary authority in the trial court, the Wilsteins relied on an overturned court of appeals decision. ( See Dernick Resp.
Mot. Increase Supersedeas Deposit, at 3–4 (explaining that Universe
Life Insurance Co. v. Giles , 982 S.W.2d 488, 491–92 (Tex. App.—
Texarkana 1998, writ denied), was overturned by the Texas Supreme
Court in In re Long , 984 S.W.2d at 626); Stacey Obenhaus, It Ain’t
*11 Over ‘Til It’s Over: The Appellate Mandate in Texas Courts , App.
Advoc ., Winter 2003, at 7 n.31 (same). The Wilsteins apparently
agree that Giles is not good law—it makes no appearance in their
motion to this Court—but they have replaced it with nothing. They
now cite no authority for their novel suggestion that a supersedeas
amount should change before issuance of the mandate.
Rule 24.1(f) commands that “enforcement of a judgment must be suspended if the judgment is superseded.” Tex. R. App .
P. 24.1(f). The Wilsteins acknowledge that Dernick’s deposit was
sufficient to supersede the trial court’s judgment. ( See Wilsteins’
Emergency Mot. Increase Deposit, at 3 (calling the deposit “no longer
sufficient”); Wilsteins’ Motion to Increase Supersedeas Deposit, at 3
(“[O]riginal [J]udgment was fully superseded”)). Therefore, it is
undisputed that Dernick has suspended enforcement of the trial
court’s judgment during the pendency of the appeal of this matter.
After a trial court loses plenary power as the Court below has here, it only retains “continuing jurisdiction … to modify the amount
or type of security required to continue the suspension of a
judgment’s execution … [i]f circumstances change .” Tex. R. App .
*12 P. 24.3(a)(2) (emphasis added). As a matter of law, there can be no
change in the circumstances regarding suspension of the Original
Judgment because the Modified Judgment cannot be enforced by the
trial court until it receives this Court’s mandate. See Black v. Epperson ,
40 Tex. 162, 180 (1874) (trial court clerk without “authority to issue
execution” until appellate court’s mandate filed in clerk’s office);
Tex. R. App . P. 51.1(b). And without any change in the
circumstances possible until the mandate issues, no “emergency” can
exist to justify the filing of this Motion.
As the Texas Supreme Court has explained, superseding a judgment “defers payment until the matter is resolved.” Miga v.
Jensen , 299 S.W.3d 98, 100 (Tex. 2009). This matter will be
“resolved” only once the mandate issues—after review in the Texas
Supreme Court is completed.
II. Professor Carlson Confirms This Understanding of the Rules
Without explanation, the Wilsteins dismiss the import and effect of the mandate as “facially erroneous.” (Wilsteins’ Emergency
Mot. Increase Deposit, at 1). To the contrary, this is literally
“Appellate Practice 101.”
*13 Professor Elaine Carlson addressed this precise issue in a paper presented last month at the Texas Civil Appellate Practice 101 course: [5]
[T]here is no authority that empowers the trial court to order an increase or decrease in appellate security premised upon an appellate court judgment when that judgment is subject to further appellate review, and no mandate has issued .
⁂ Until a final adverse judgment on appeal is rendered, the security continues to serve to supersede the trial court’s judgment. An appealable judgment, which by its nature may not be enforced until completion of the appellate process, should not be considered a changed circumstance that would support trial court modification of appellate security. To hold to the contrary, would be inconsistent with not only one final judgment principles and with the clear directive that an appellate judgment is not enforceable unless a mandate has issued and no further appellate review is sought. A trial court empowered to increase appellate security requirements when no Court of Appeals mandate has issued and Texas Supreme Court review is pending, would, in effect, have the ability to enforce the appealable judgment.
⁂ Thus, the trial court judgment should remain the operative judgment until the appellate process is complete and a judgment is entered by the appellate court *14 and the appellate court issues its mandate requiring recognition and enforcement of its judgment.
Prof. Elaine A. Carlson, Supersedeas Issues in Texas , in State Bar of
Tex. Prof. Dev. Program, Civil Appellate Practice 101 Ch. 11, at 29–30
(2015) (emphasis added) ( App’x Tab B ).
Professor Carlson is a recognized expert on Texas civil procedure in general and supersedeas in particular. See In re Nalle
Plastics Family L.P. , 406 S.W.3d 168, 170 (Tex. 2013)
(orig. proceeding) (quoting Elaine A. Carlson, Reshuffling the Deck:
Enforcing and Superseding Civil Judgments on Appeal after House Bill 4 ,
46 S. Tex. L. Rev . 1035, 1038 (2005) [hereinafter Reshuffling the
Deck ]).
Professor Carlson’s article is consistent with her treatise, McDonald & Carlson , on Texas civil procedure:
Even though the court of appeals may modify the trial court judgment, if the trial court judgment is properly superseded, no additional appellate security should be required. An appealable judgment , which by its nature may not be enforced until completion of the appellate process, is not a changed circumstance that would support trial court modification of appellate security.
*15 Texas Civil Practice § 14:20 (emphasis added); accord Reshuffling the
Deck , 46 S. Tex. L. Rev . at 1106.
This commentary accurately describes Texas law. This Court’s modification of the trial court’s judgment cannot constitute a
“changed circumstance,” and therefore does not require additional
appellate security.
III. Reliance on the Mandate to Enforce the Judgment is Routine
Practice in this Court and Other Courts This Court and other courts of appeals routinely apply the black-letter rule that appellate security should not be altered until the
mandate issues. The issue arises most frequently when a defendant
seeks release of a supersedeas bond, which requires expedited issuance
of the mandate.
The best example is this Court’s decision this past summer in Sandoval v. American Point Realty, Ltd ., No. 01-14-00988-CV, 2015
Tex. App. LEXIS 6922 (Tex. App.—Houston [1st Dist.] July 7, 2015)
(mem. op.) (per curiam). In that case, pursuant to an agreement, the
appellants filed an unopposed motion to dismiss the appeal and asked
this Court to order “that the Clerk of the Court expeditiously release
the funds Appellants posed as security.” Appellant’s Unopposed
*16 Motion to Dismiss, at 2, in Am. Point Realty , 2015 Tex. App. LEXIS
6922. The motion said nothing about the mandate, but this Court
correctly recognized that the relief sought—releasing the security—
was only proper upon issuance of the mandate. As a result, the panel
“construe[d] this motion to include a motion to expedite the
mandate” and directed the trial clerk to release the security “after
receipt of the mandate.” Am. Pointe Realty , 2015 Tex. App.
LEXIS 6922, at *1–2.
This is routine. In Strebel v. Wimberly , this Court reversed and remanded a trial court’s judgment. 371 S.W.3d 267, 269 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied). The appellant requested
expedited issuance of the mandate because he “continue[d] to incur
costs related to the supersedeas bond for each day that the mandate
does not issue.” See Unopposed Motion to Immediately Issue
Mandate, at 1, in Strebel , 371 S.W.3d 267. Numerous other cases and
litigants have recognized the connection between issuance of the
mandate and release of the supersedeas bond. [6]
*17 There is no serious dispute to the contrary. It is understandable that the Wilsteins seek to enforce this Court’s modification of the
judgment without waiting for the appellate process to conclude. It is
similarly understandable that defendants who succeed on appeal seek
release of a supersedeas bond as soon as possible. To both, our rules of
appellate procedure provide the same answer—wait for the mandate
to issue.
In recent years, the Texas Supreme Court has regularly resisted plaintiffs’ attempts to impose additional supersedeas requirements,
mindful that our supersedeas rules are “protective of debtors” and
preserve “the right to a meaningful appeal.” In re Longview Energy
Co ., 464 S.W.3d 353, 359–60 (Tex. 2015) (an award that “bears no
resemblance to any recognized form of damages” need not be
superseded); see also Nalle Plastics, 406 S.W.3d at 175–76 (attorney’s
this case only to the extent that the bond shall be released when the mandate
issues.”); Agreed Motion to Expedite Mandate, at 1–2, Warren E&P, Inc. v.
Gotham Ins. Co ., No. 08-10-00198-CV (Tex. App.—El Paso Nov. 5, 2014, no pet.)
(“In order to facilitate recovery of the supersedeas bond posted below …, Pedeco
requests that the Court issue an expedited mandate.”); Entergy Gulf Sts., Inc. v.
Traxler , No. 09-09-00362-CV, 2013 Tex. App. LEXIS 362, at *1 (Tex. App.—
Beaumont Jan. 17, 2013, no pet.) (mem. op.) (“The parties also request that the
surety be released from its obligation on the supersedeas bond and that the
mandate issue immediately.”).
*18 fees need not be superseded); In re Corral-Lerma , 451 S.W.3d 385,
387–88 (Tex. 2014) (per curiam) (orig. proceeding) (interest on
attorney’s fees need not be superseded).
The Wilsteins’ novel attempt to increase Dernick’s supersedeas amount should meet with the same fate. Their arguments are
unsupported by any authority and conflict with black-letter rules of
appellate procedure. The Motion should be denied.
CONCLUSION AND PRAYER For the foregoing reasons, Dernick requests the Court to: (1) Deny the Wilsteins’ Motion;
(2) Award Dernick its reasonable and necessary attorney fees
incurred in opposing the Motion; and (3) Grant all other and such relief to Dernick to which it may be
entitled, either at law or in equity. *19 Respectfully submitted, By: /s/ D. Patrick Long JACKSON WALKER, L.L.P. Kathrine M. Silver Texas Bar No. 24013510 ksilver@jw.com Richard A. Howell Texas Bar No. 10106500 rahowell@jw.com 1401 McKinney, Suite 1900 Houston, TX 77010 (713) 752-4340 (Telephone) (713) 752-4221 (Facsimile) SQUIRE PATTON BOGGS (US), LLP
D. Patrick Long Texas State Bar No. 12515500 patrick.long@squirepb.com Dylan O. Drummond Texas State Bar No. 24040830 dylan.drummond@squirepb.com 2000 McKinney Avenue, Suite 1700 Dallas, TX 75201 (214) 758-1500 Telephone (214) 758-1550 Facsimile Counsel for Appellant / Cross- Appellee Dernick Resources, Inc. *20 CERTIFICATE OF SERVICE In compliance with Texas Rule of Appellate Procedure 9.5(d) & (e), the undersigned counsel electronically served
on October 13, 2015 a copy of the foregoing via the manner indicated
below:
Britton D. Monts via Electronic Filing Manager
bmonts@themontsfirm.com via Certified Mail, RRR
The Monts Firm via U.S. Mail (First Class)
401 Congress Avenue, Suite 1540 via Federal Express
Austin, TX 78701 via Facsimile
Facsimile: (512) 692-2981 via E-mail
via Hand Delivery Tom C. McCall, Esq. via Electronic Filing Manager
tmccall@themccallfirm.com via Certified Mail, RRR
David B. McCall, Esq. via U.S. Mail (First Class)
dmccall@themccallfirm.com via Federal Express
The McCall Firm via Facsimile
3660 Stoneridge Road, Suite F-102 via E-mail
Austin, TX 78746 via Hand Delivery
Facsimile: (512) 477-2271 *21 Kendall M. Gray via Electronic Filing Manager
kendallgray@andrewskurth.com via Certified Mail, RRR
Georgia L. Lucier via U.S. Mail (First Class)
georgialucier@andrewskurth.com via Federal Express
Andrews Kurth LLP via Facsimile
600 Travis Street, Suite 4200 via E-mail
Houston, TX 77002 via Hand Delivery
Facsimile: (713) 238-7349
Attorneys for Plaintiffs David Wilstein
and Leonard Wilstein, Individually
and as Trustee of the Leonard and
Joyce Wilstein Revocable Trust
/s/ D. Patrick Long Kathrine M. Silver Richard A. Howell D. Patrick Long Dylan O. Drummond *22 APPENDIX Page A-1 Deposit in Lieu of Supersedeas Bond—Appendix
TAB A Page A-2 Deposit in Lieu of Supersedeas Bond—Appendix
TAB B Page A-3 Deposit in Lieu of Supersedeas Bond—Appendix
SUPERSEDEAS ISSUES IN TEXAS Presented by:
DUSTIN M. HOWELL Assistant Solicitor General Office of the Texas Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711 (512) 936-0826 (Telephone) (512) 474-2697 (Telefax) dustin.howell@texasattorneygeneral.gov Written by:
PROF. ELAINE A. CARLSON Stanley J. Krist Distinguished Professor of Texas Law South Texas College of Law Houston, Texas 77002 (713) 646-1870 (Telephone) (713) 646-1777 (Telefax) ecarlson@stcl.edu State Bar of Texas CIVIL APPELLATE PRACTICE 101 September 9, 2015 Austin
CHAPTER 11 *28 Supersedeas Issues in Texas Chapter 11
A voluntary and unconditional satisfaction of security is insufficient to bond the trial court’s
judgment pending appeal will moot the controversy. [352] judgment. However, there is no authority that
Absent some remaining controversy, the appellate empowers the trial court to order an increase or
court must dismiss for want of jurisdiction. Appellate decrease in appellate security premised upon an
courts may not issue advisory opinions. [353] However, appellate court judgment when that judgment is subject
payment on a judgment will not moot an appeal if the to further appellate review, and no mandate has issued.
judgment debtor clearly expresses an intent to exercise his right to pursue an appeal. [354] Generally, the Put another way, the obligation of a judgment debtor is to post appellate security in accordance with Appellate
involuntary satisfaction of a judgment will not moot an Rule 24 to suspend enforcement of the trial court
appeal. [355] judgment. The court of appeals is to issue its mandate
only when further appellate review is not sought.
H. Supersedeas on Appeal to Texas Supreme Specifically, the court of appeals mandate may issue
Court or U.S. Supreme Court only when one of the following periods expires:
A take-nothing judgment does not require a
supersedeas bond, since there is no judgment requiring (1) Ten days after the time has expired for filing
enforcement against assets. If a take-nothing judgment a motion to extend time to file a petition for
is reversed by a court of appeals, a supersedeas bond review or a petition for discretionary review
presumptively need not be posted in order to forestall if:
execution pending Texas or United States Supreme
Court review, because execution should not occur until the mandate issues. [356] A losing party may move the (A) no timely petition for review or petition for discretionary review has been filed;
court of appeals for a stay of judgment. [or]
Once appellate security is filed in accordance with (B) no timely filed motion to extend time to
Appellate Rule 24, enforcement of that judgment is file a petition for review or petition for appeal.”
suspended pending a final “adverse judgment on However, the trial court retains jurisdiction [357] discretionary review is pending. [358]
to modify the required appellate security in the event When further review is sought but denied by the Texas
that a surety becomes insufficient, or the amount of Supreme court, the mandate is to issue:
Ten days after the time has expired for filing [352] Continental Cas. Co. v. Huizar, 740 S.W.2d 429 (Tex. a motion to extend time to file a motion for
1987); Dalho Corp. v. Tribble & Stephens, 762 S.W.2d 733 rehearing of a denial, refusal, or dismissal of
(Tex. App.—San Antonio 1988, no writ). a petition for review, or a refusal or dismissal
[353] See Continental Cas. Co. v. Huizar, 740 S.W.2d 429 of a petition for discretionary review, if no
(Tex. 1987) (payment under duress would not render appeal moot). to extend time is pending. timely filed motion for rehearing or motion [359]
[354] (acknowledging that a litigant must be able to halt the accrual of post-judgment interest and yet preserve the right to appeal). Miga v. Jensen, 96 S.W.3d 207 (Tex. 2002) determining when funds deposited to supersede a judgment may be released and is not to do so “until the The district clerk bears the responsibility for
[355] Riner v. Briargrove Park Prop. Owners, Inc., 858 S.W.2d 370, 370 (Tex.1993). extinguished.” [360] The clerk also responsible for issuing writs of execution. conditions of The clerk [361] liability in [Rule 24.1] (d) are is the officer
[356] See T EX . R. A PP . P. 51.1. See also In re Long, 984 S.W.2d 623, 625 (Tex. 1998) (orig. proceeding) (When a capacity, the timely filing of a notice of appeal operates as a county official, such as a district clerk, is sued in an official is directed under the rules, that execution is not to issue when a trial court judgment has been superseded on appeal. [362] The district clerk is further directed that it is
supersedeas bond and suspends enforcement of the
underlying judgment on appeal; accordingly, the underlying
superseded judgment cannot form the basis for contempt for
acts occurring during the appeal in violation of the lower court judgment which are the subject of the appeal until there is a mandate issued by the final appellate court.). But see Universe Life Ins. Co. v. Giles, 982 S.W.2d 488, 490 T EX . R. A . PP P. 18.1. [359] [358] T EX R. . A PP . P. 18.1(a)(2).
(Tex. App.—Texarkana 1998, pet. denied) (Once appeal is final, a supersedeas bond no longer precludes enforcement of judgment.). [360] [361] T EX Tex. R. App. P. 24.1(c)(3). . R. IV C . P. 627.
[357] T EX . R. A PP . P. 24.1. [362] T EX . R. C IV . P. 627.
29
Supersedeas Issues in Texas Chapter 11
not to enforce an appellate court judgment until the judgment.” [368] However, if a stay is denied, the rules
clerk receives the mandate. [363] are silent as to any right to supersede. It is unnecessary
Until a final adverse judgment on appeal is to supersede when a stay of enforcement is obtained.
rendered, the security continues to serve to supersede
the trial court's judgment. An appealable judgment, I. Disposition of Security on Conclusion of
which by its nature may not be enforced until Appellate Review
completion of the appellate process, should not be The liability of a surety on a supersedeas bond, or
considered a changed circumstance that would support other appellate security, following final disposition on
trial court modification of appellate security. To hold appeal is dependent upon the nature of the appellate
to the contrary, would be inconsistent with not only judgment. Appellate rule 24.1(d) provides the surety [369]
one final judgment principles and with the clear is responsible up to the amount of the bond, deposit in
directive that an appellate judgment is not enforceable lieu of bond, or alternate security if (1) the debtor does
unless a mandate has issued and no further appellate not perfect the appeal, or the appeal is dismissed, when
review is sought. A trial court empowered to increase the debtor does not perform the trial court judgment or
appellate security requirements when no Court of (2) the debtor does not perform an adverse judgment
Appeals mandate has issued and Texas Supreme Court final on appeal.
review is pending, would, in effect, have the ability to Texas Rule of Appellate Procedure 43.5 instructs
enforce the appealable judgment. If the judgment the court of appeals in affirming the trial court
debtor could not provide the additional security, the judgment or modifying it and rendering judgment
judgment would be subject to enforcement, contrary to against the appellant to also render judgment against
Appellate Rule 51.1(b) prohibiting enforcement of an the sureties on the appellant’s supersedeas bond “for
appellate judgment until the trial court clerk receives the mandate from the appellate court, signaling that against the appellant.” the performance of the judgment and any costs taxed [370] Appellate Rule 60.5,
appellate review is complete. [364] Thus, the trial court applicable to the Supreme Court, also speaks in terms
judgment should remain the operative judgment until of the surety performing the entire judgment and does
the appellate process is complete and a judgment is not contain language limiting the surety’s obligation to
entered by the appellate court and the appellate court the amount of the bond, deposit, or alternate security
issues enforcement of its judgment. [365] States Supreme Court. Court on a petition for writ of certiorari. Under limited circumstances, a stay may be obtained from the United pending disposition by the United States Supreme mandate may be sought from the Texas Supreme Court court authorized to issue the mandate may grant a stay upon a determination that the “grounds are substantial [367] The appellate circumstances requiring the stay. must state the grounds for the petition and the A motion to stay mandate [366] and that the petitioner or others would incur serious hardship from the mandate’s issuance of the United Should a petition for review be denied, a stay of its mandate requiring recognition and . T . P. 18.2; Supreme Court Rules 18, 51(1); PP A R. [368] See T EX any deposit in lieu of a bond, or may alternate security liability that must be undertaken by the surety on “a bond, PP . P. 24.1(d) speaks in terms of conditions of A EX . R. [369] 28 USC § 21.01(f). when no surety is involved as the party itself will post a ordered by the court.” However, there will be instances certain negotiable instruments or even court approved deposit in lieu of bond, such as cash, cashier’s check, or alternate security. Thus, the rule addresses conditions of liability that must be undertaken by the surety in superseding judgments and is silent as to the parties’ responsibilities.
States Supreme Court were later to reverse the Strictly speaking, a surety is one backing up the obligation
of another and thus a party is not and cannot be a surety to itself. However, the court no doubt intended that the EX A . R. [363] T PP . P. 51.1(b). . P. 24.1(d) A R. . PP conditions of liability expressed in T would apply to appellants when acting without a surety. EX . PP A R. . EX T
[364] The author is aware of one instance in which an appellate [365] 51.1(b). P. . P. 43.5; Whitmire v. Greenridge Place PP A R. [370] T EX . Apartments, 333 S.W.3d 255, 261 (Tex. App.—Houston [1st Dist.] 2010, no pet.). (Notwithstanding the expiration of the
court ordered the modification of the appellate security appellate court’s plenary power, that court may amend its
necessary to continue suspension of the enforcement of a judgment to reflect the sureties’ liability on a supersedeas
judgment based upon the appellate modification of that bond. An appellate court has a mandatory duty under TRAP
judgment. See unpublished order of Nov. 8, 2004, Harris v. 43.5 to render judgment against the sureties on the
Sterquell, No. 07-01-0071-CV, Amarillo Court of Appeals. supersedeas bond when the court affirms the trial court’s
[366] See T EX . A R. PP . P. 18; Supreme Court Rules 18, 51(1); EX 28 USC § 21.01(f). T [367] . PP A R. P. 18.2. . judgment. Upon affirming the trial court’s judgment, involving no judicial discretion which thus may be corrected rendering judgment against the sureties is a ministerial act after expiration of the court's plenary power.).
30
[1] Edwards Aquifer Auth. v. Chem. Lime, Ltd. , 291 S.W.3d 392, 413, 413 n.2 (Tex. 2009) (Willett, J., concurring) (quoting Yogi Berra with Dave Kaplan, When You Come to a Fork in the Road, Take It 88 (2001) and citing generally Stacey Obenhaus, It Ain’t Over ‘Til It’s Over: The Appellate Mandate in Texas Courts , App. Advoc ., Winter 2003).
[2] See , e.g. , Black v. Epperson , 40 Tex. 162, 180 (1874) (trial court clerk without “authority to issue execution” until appellate court’s mandate filed in clerk’s office); Prof. Elaine A. Carlson, Supersedeas Issues in Texas , in State Bar of Tex. Prof. Dev. Program, Civil Appellate Practice 101 Ch. 11, at 30 (2015) (emphasis added).
[3] See Chem. Lime , 291 S.W.3d at 411 (Brister, J., concurring).
[4] In order to supersede the Original Judgment, Dernick was required to deposit the sum of: (1) the interest for the estimated duration of the appeal; and (2) the awards for compensatory damages and costs. Tex. R. App . P. 24.2(a)(1). Here, the $1,583,427.08 deposited by Dernick into the Court’s registry is sufficient to supersede the Original Judgment during appellate proceedings lasting in excess of 19 years .
[5] Which, as opposed to the Advanced Civil Appellate Practice Course, is offered annually as a general overview of the basic tenets of Texas appellate practice, in part to assist applicants prepare for the civil appellate law exam administered by the Texas Board of Legal Specialization.
[6] See , e.g ., Order dated Dec. 4, 2013, at 1, in Smith v. Fifth Third Mortg. , No. 05-13-00499-CV (Tex. App.—Dallas Nov. 5, 2013, pet. denied) (“We GRANT appellee’s November 6, 2013 motion to release the supersedeas bond in