Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-02532
Chief Justice Wright and Justices Francis and Stoddart
CAROLYN WRIGHT, CHIEF JUSTICE.
the Court is appellant EMF Swiss Avenue, LLC's
("EMF") amended emergency motion for review of the
trial court's denial of EMF's motion to set
supersedeas security. The underlying proceeding involved
appellee Peak's Addition Homeowner's
Association's ("HOA") appeal of the Dallas
Board of Adjustment's determination that a building
permit was properly issued for construction on property owned
by EMF. The judgment at issue is declaratory in nature.
Specifically, the judgment grants summary judgment for the
HOA and reverses the Dallas Board of Adjustment's
decision upholding the building official's decision to
issue a building permit. The issue before us is whether that
judgment constitutes a judgment for something other than
money or an interest in real property such that the trial
court was required to set security pursuant to rule of
appellate procedure 24.2(a)(3). We agree with EMF that rule
24.2(a)(3) applies to this judgment and required the trial
court to set security in accordance with that rule. We grant
the motion and remand the issue of security to the trial
court for hearing and issuance of a written order setting
security within the parameters of rule 24.2(a)(3).
a developer in the process of constructing a five-story,
253-unit multifamily development on a property in Dallas. The
construction was approved through the City of Dallas
permitting process. EMF began work and, after more than one
year of work on the project, EMF has spent more than $13
million on construction. The HOA challenged the issuance of
the permits through the City of Dallas administrative process
because the permits do not require EMF to conform to a Dallas
ordinance limiting building to two stories (26 feet) in
height. The HOA appealed the issuance of the permits to the
Dallas Board of Adjustment, and the Board upheld the
Director's decision. The HOA then appealed to the
district court, with the City and the Board as
respondents/defendants. EMF intervened.
trial court granted the HOA's motion for summary judgment
and entered a judgment that reversed the Board's
decision. The September 11, 2017 judgment states that
"the decision of the Dallas Board of Adjustment
upholding the interpretation of the building official is
Reversed." (emphasis in original). On September
14, 2017, the City issued a "Stop Work" order to
halt all construction on the project. EMF filed an emergency
motion to stay enforcement of the judgment, which the trial
court denied. EMF then appealed the judgment and filed a
motion to determine supersedeas security in the trial court.
The trial court denied the motion to determine supersedeas
security without explanation.
seeks this Court's review of the denial of supersedeas
under Rule 24.4 and argues that the trial court was required
under Rule 24.2(a)(3) to either set the amount and type of
security required to suspend enforcement or order the amount
and type of security required for the HOA to post to prevent
suspension of enforcement of the judgment. Following this
Court's request, the HOA, the City of Dallas, and the
Board of Adjustment filed responses to the motion, and EMF
filed a reply brief The HOA maintains that the judgment may
not be superseded because it is not subject to execution, is
not a judgment "for something" as required by the
rules, and, as such, EMF is not a judgment debtor The City
and the Board do not affirmatively state that the trial court
abused its discretion They do, however, concur in EMF's
contention that all civil judgments can be superseded unless
excepted by statute and that Chapter 211 of the Texas Local
Government Code does not preclude a court from setting a
the law or the rules of appellate procedure provide
otherwise, a judgment may be superseded and enforcement of
the judgment suspended pending appeal. Tex.R.App.P. 24.1(a).
The purpose of supersedeas is to preserve the status quo of
the matters in litigation as they existed before the issuance
of the judgment from which an appeal is taken. Devine v.
Devine, No. 07-15-00126-CV, 2015 WL 2437949, at *2 (Tex.
App.-Amarillo May 20, 2015, no pet.) (citing Smith v.
Tex. Farmers Ins. Co., 82 S.W.3d 580, 585 (Tex. App.-San
Antonio 2002, pet. denied)). Rule 24.1 sets out the
requirements for suspending enforcement of a judgment pending
appeal in civil cases. Tex.R.App.P. 24.1. A supersedeas bond
must be in the amount required by rule 24.2. Tex.R.App.P.
24.1(b)(1)(A). Under Rule 24.2, the amount of the bond
depends on the type of judgment. Tex.R.App.P. 24.2(a). When
the judgment is "for something other than money or an
interest in real property, " the security must
adequately protect the judgment creditor against loss or
damage that the appeal might cause. Tex.R.App.P. 24.2(a)(3).
24.2(a)(3) applies, the trial court may decline to permit the
judgment to be superseded only if the judgment creditor posts
security ordered in an amount and type that will secure the
judgment debtor against any loss or damage caused by the
relief granted the judgment creditor if the appellate court
reverses. Tex.R.App.P. 24.2(a)(3); Klein Ind. Sch. Dist.
v. Fourteenth Court of Appeals, 720 S.W.2d 87, 88 (Tex.
1986). Rule 24.2(a)(3) is routinely applied to judgments that
are declaratory or injunctive in nature. E.g., In re
State Bd. for Educator Certification, 452 S.W.3d 802,
803 (Tex. 2014) (Rule 24.2(a)(3) applied to permanent
injunction prohibiting Board from revoking or treating as
revoked teacher's certification); El Caballero Ranch,
Inc. v. Grace River Ranch, L.L.C., No. 04-16-00298-CV,
2016 WL 4444400, at *5 (Tex. App.-San Antonio Aug. 24, 2016,
no pet.) (Rule 24.2(a)(3) applied to final judgment declaring
a valid, express easement); Orix Capital Markets, LLC v.
La Villita Motor Inns, No. 04-09-00573-CV, 2010 WL
307885, at *1 (Tex. App.-San Antonio Jan. 27, 2010, pet.
denied) (Rule 24.2(a)(3) applied to judgment that is
primarily declaratory in nature); Klein, 720 S.W.2d
at 88 (stating because disputed portion of judgment is
injunction, judgment debtor's entitlement to supersedeas
is controlled by subsection pertaining to "other"
judgments) (orig. proceeding).
24.4 allows this Court to review the trial court's
decision not to permit suspension of enforcement, and permits
us to increase or decrease the amount of the bond, require
other changes to the order, or remand to the trial court for
entry of findings of fact or taking of evidence. Tex.R.App.P.
24.4. This Court reviews a trial court's ruling under
rule 24.2(a)(3) for an abuse of discretion. Hydroscience
Techs., Inc. v. Hydroscience, Inc., 358 S.W.3d 759,
760-61 (Tex. App.-Dallas 2011, no pet.). (citing Tex.R.App.P.
24.4(a)(5) and EnviroPower, L.L.C. v. Bear, Stearns &
Co., 265 S.W.3d 1, 2 (Tex. App.-Houston [1st Dist.]
2008, pet. denied)).
disagree with the HOA's contention that the judgment may
not be superseded because it presents nothing on which the
HOA can execute and is not a judgment "for
something." Rule 24.2(a)(3) applies to this judgment
because the judgment is not for money and is not for an
interest in property. Rather, the judgment is declaratory and
injunctive in nature because it ...