KERWIN STEPHENS; THUNDERBIRD OIL & GAS, LLC;THUNDERBIRD RESOURCES, LLC; THUNDERBIRD LANDSERVICES, LLC; STEPHENS & MYERS, LLP; AND CHESTERCARROLL, Appellants
THREE FINGER BLACK SHALE PARTNERSHIP; TREKRESOURCES, INC.; TIBURON LAND & CATTLE, L.P.; L.W.HUNT RESOURCES, LLC; AND RICHARD RAUGHTON, Appellees and L.W. HUNT RESOURCES, LLC AND RICHARD RAUGHTON, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST OFARAPAHO ENERGY, LLC, Cross-Appellants
KERWIN STEPHENS; THUNDERBIRD OIL & GAS, LLC; THUNDERBIRD RESOURCES, LLC; THUNDERBIRD LAND SERVICES, LLC; STEPHENS & MYERS, LLP; AND CHESTER CARROLL, Cross-Appellees
Appeal from the 32nd District Court Fisher County, Texas
Trial Court Cause No. DC-2013-0016
consists of: Wright, C.J., Willson, J., and Bailey, J.
Stephens and Thunderbird Resources, LLC have filed in this
court a second motion to review under Rule 24.4 of the Texas
Rules of Appellate Procedure. On October 27, 2016, this court
previously denied movants' first motion for review under
Rule 24.4, in which movants sought to post real property as
alternate security. Movants now assert that they have
obtained written commitments to post a bond or cash
deposit-conditioned on the release or subordination of
judgment-related liens that have been filed by the plaintiffs
and intervenors in the case below-and that the trial court
abused its discretion when it refused to lift the
judgment-related liens that prevent movants from posting a
bond or selling land for a cash deposit. We agree.
judgment debtor is entitled to supersede the judgment while
pursuing an appeal." Miga v. Jensen, 299 S.W.3d
98, 100 (Tex. 2009). This may be accomplished by means that
include "filing with the trial court clerk a good and
sufficient bond" or "making a deposit with the
trial court clerk in lieu of a bond." Tex.R.App.P.
24.1(2), (3). The Texas Supreme Court has determined that the
current rules and statutory provisions related to supersedeas
are "protective of debtors, consistent with deep,
populist Texas traditions" and that they "respect
the importance of the right to a meaningful appeal."
In re Longview Energy Co., 464 S.W.3d 353, 359 (Tex.
issue here are the competing rights of the movants to
supersede the judgment and of the judgment creditors to
enforce a judgment that has not been
superseded. The judgment-related liens have prevented
movants from posting a supersedeas bond. On December 12,
2016, movants obtained a letter from the president and chief
executive officer of BancCentral National Association that
confirmed the bank's intent to provide a $6.3 million
irrevocable letter of credit (ILOC) to Stephens to be secured
with real property and farm equipment. The letter reads in
Our bank intends to provide the ILOC as soon as you receive
approval from the court in Fisher County, Texas to post a
supersedeas bond using the ILOC as collateral for the surety
bond, and as soon as you obtain releases of any liens on the
land collateral and equipment, including those associated
with the abstracts of judgment in Cause No. DC-2013-00016.
Those releases may be placed in escrow pending the issuance
of this ILOC. It will take approximately 14 business days
following the court approval and lien release for our bank to
provide the ILOC documentation, security instruments, note,
and other related paperwork for the closing and issuance of
that, alternative to the posting of a bond by means of the
ILOC, movants also have a tentative agreement to sell the
real property at issue so that a cash deposit in lieu of bond
may be used to supersede the judgment. The record indicates
that the real property upon which the judgment creditors have
obtained judgment liens and have begun execution is the only
means available to the movants to supersede the judgment.
to the law set forth above and based upon the evidence
presented, we believe that the trial court abused its
discretion when it refused to enter an order to subordinate
the judgment liens or release the abstracts of judgment as
necessary to permit the movants to supersede the judgment
while, at the same time, protecting the judgment creditors.
However, we adhere to our previous ruling that the trial
court did not abuse its discretion when it refused to suspend
the judgment based upon alternate security. See Tex.
R. App. P. 24.1(a)(4). We note that Rule 24.1(f) appears to
apply to the situation in this case. That rule provides that,
if enforcement of a judgment has begun before the judgment is
superseded, such enforcement "must cease when the
judgment is superseded" and that, if "execution has
been issued, the clerk will promptly issue a writ of
supersedeas." Tex.R.App.P. 24.1(f).
grant in part movants' Rule 24.4 motion, and we remand
the cause to the trial court so that it may conduct
proceedings consistent with this order and pursuant to Rule
24.3 of the Texas Rules of Appellate Procedure. The temporary
stay issued by this court on December 30, 2016, remains in
effect until thirty days after the trial court has issued an
order with respect to such proceedings.
We note that the amount of the bond or
cash deposit is not at issue here. See Tex. R. App.