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Acra v. Bonaudo

Court of Appeals of Texas, Fifth District, Dallas

December 8, 2017

JUAN ACRA, SECNER USA, LLC, SECNER HR S.A. DE C.V. AND NORTH AMERICAN SECNER HOLDINGS, LLC, Appellants
v.
GIOVANNI BONAUDO AND MARIA JILMA MALDONADO, Appellees

         On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-01909

          Before Chief Justice Wright, Justice Francis, and Justice Stoddart

          MEMORANDUM OPINION ON MOTIONS FOR REVIEW OF NET WORTH DETERMINATION

          CRAIG STODDART, JUSTICE

         The underlying cause of action in this appeal stems from a business dispute among Juan Acra, Giovanni Bonaudo, and Bonaudo's wife, Maria Jilma Maldonado. The dispute concerns services Bonaudo provided Acra and the corporate appellants, businesses controlled by Acra. The final judgment awards Giovanni Bonaudo, in relevant part, $403, 488.72 in compensatory damages. The judgment is against appellants jointly and severally. Additionally, the judgment orders Acra to pay $18, 983.80 in courts costs.

         Seeking to suspend the judgment pending appeal, appellants filed a $100 cash deposit along with an affidavit of net worth. Bonaudo contested the affidavit and, following a hearing, the trial court signed individual orders requiring Acra and Secner HR S.A. de C.V. supersede the judgment by posting bonds in the amount of $462, 821.39 and $443, 837.59, respectively.[1] By separate motions, Acra and Secner HR seek review of the trial court's orders and ask they be vacated. We affirm the orders.

         BACKGROUND

         The affidavit was filed January 18, 2017 and asserted, in relevant part, that, as of that date, Acra's net worth was negative $71, 796.20 and Secner HR's net worth was negative $10, 282.42.[2] The affidavit listed Acra's assets as a $159, 583.50 interest in a condominium; a "checking account" with a balance of $3, 749.85; a "CHASE" account with a balance of $976.87; and a "Charles Schwab" account with a balance of $1, 465.75. Additionally, the affidavit reflected Acra owned shares in Secner HR and Secner USA worth a "negligible" amount and "shares in certain other companies" with a "de minimus or unknown" value. As to Acra's liabilities, the affidavit listed credit card debt totaling $20, 370.82; $15, 000 owed to his daughters' private school; "interfamily debts" in the amount of $46, 325; legal bills totaling $48, 711.35; "loans" in the amount of $2, 361.39; a mortgage in the amount of $92, 153.61; and, $12, 650 in certain "obligations" associated with the condominium. With respect to Secner HR, the affidavit averred its assets totaled $403, 037.66 and its liabilities totaled $413, 320.08.

         At the hearing on the contest, Bonaudo sought to exclude certain evidence, asserting Acra and Secner HR failed to fully comply with an order of production that followed Bonaudo's motion to compel net worth discovery. Acra and Secner HR did not dispute Bonaudo's claim and even acknowledged their failure to produce the ordered documents could impact their ability to demonstrate net worth. The trial court excluded most of the evidence Bonaudo sought to exclude and, as a result, the only evidence admitted as to Secner HR was that its assets were frozen due to an outstanding judgment obtained in Mexico. As to Acra, the evidence showed he maintained the $159, 583.50 interest in the condominium and the $976.87 in the Chase account; had approximately $3700 in a "Scotiabank" account; owned a house in Mexico, where his wife, whom he was in the process of divorcing as of the date of the hearing, lives with their two school-aged daughters; owned the Secner trademark; and owned sixty-five percent of the "Secner shares."[3] The evidence also showed he owed $92, 000, as of December 31, 2015, on the mortgage on his house in Mexico, approximately $3200 on a "credit line" and $13, 200 in credit card debt, and, along with the other appellants, $50, 000 in legal fees. Further, the evidence showed he owed money to his family, Secner HR, and his daughters' private school, but the amounts owed were excluded because of his failure to comply with the order compelling production. Acra estimated his net worth to be negative $143, 000, but did not offer evidence of the value of his house in Mexico; the value of the Secner trademark and "Secner shares;" the identity and value of the "other companies" in which he owned shares, as stated in the affidavit; or, the balance in the "Charles Schwab" or checking accounts listed in the affidavit.

         Finding neither Acra nor Secner HR presented "complete, detailed and credible admissible evidence" from which the net worth of each could be determined, the trial court concluded the $100 cash deposit posted as security was "insufficient" and ordered the challenged amounts be posted. These amounts were set in accordance with Texas Civil Practice and Remedies Code section 52.006 and Texas Rule of Appellate Procedure 24.2, both of which require the amount of a bond, filed to supersede a money judgment, equal the sum of compensatory damages awarded, interest for the estimated duration of the appeal, and costs awarded in the judgment. [4] See TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(a) (West 2015); TEX. R. APP. P. 24.2(a)(1).

         APPLICABLE LAW

         Under Texas Rule of Appellate Procedure 24.1, a judgment debtor may supersede the judgment by making a cash deposit with the trial court clerk in lieu of a bond. See Tex. R. App. P. 24.1(a)(3), (c)(1)(A). The deposit must be in the amount required by section 52.006 and rule 24.2. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a); Tex. R. App. P.24.1 (c)(2).

         When a judgment debtor makes a cash deposit in lieu of a bond, he must simultaneously file with the trial court clerk a net worth affidavit that provides detailed information concerning his assets and liabilities from which net worth can be ascertained. See Tex. R. App. P. 24.2(c)(1). A judgment creditor may contest the net worth affidavit and conduct reasonable discovery concerning the judgment debtor's net worth. See id. 24.2(c)(2). Upon completion of discovery, the trial court must hear the contest and "issue an order that states the debtor's net worth and states with particularity the factual basis for that determination." Id. 24.2(c)(3). The judgment debtor bears the burden of proving net worth at the hearing on the contest. Tex.R.App.P. 24.2(c)(3). Review of the trial court's order is for abuse of discretion. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.-Dallas 2006, no pet.).

         DISCUSSION

         In challenging the trial court's orders, Acra and Secner HR both complain the trial court abused its discretion because it failed to state in the orders their individual "net worth and state with particularity the factual basis for that determination." Acra further complains the evidence showing he had a negative net worth was ...


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