Court of Appeals of Texas, Sixth District, Texarkana
ROBERT YORK PETTIT, JEFFREY YORK PETTIT, INDIVIDUALLY AND AS TRUSTEE OF THE BIG HORN PHALANX TRUST, JOSEPH AUSTIN PETTIT AND EMILY ANNE PETTIT COVEY, Appellants
MARILYN EILEEN PETTIT TABOR, Appellee
Appeal from the 8th District Court Delta County, Texas Trial
Court No. 10985
Morriss, C.J., Burgess and Stevens, JJ.
York Pettit, Jeffrey York Pettit, individually and as trustee
of the Big Horn Phalanx Trust, Joseph Austin Pettit, and
Emily Anne Pettit Covey (collectively Pettit) moved this
Court to review and overturn the trial court's order
requiring that they post a $100, 000.00 bond to supersede the
underlying judgment. Pettit maintains that because the
lion's share of the judgment is properly considered
disgorgement for supersedeas bond purposes, the only amount
subject to bond is the award of court costs plus interest,
totaling $6, 279.83. In the event the challenged awards are
not properly classified as disgorgement, Pettit alternatively
asks that the supersedeas bond be set within the range of
$36, 831.15 to $39, 526.10. For the reasons stated below, we
deny the requested relief.
alleged below, Marilyn Eileen Pettit Tabor and her brother,
Robert York Pettit, each owned a fifty percent undivided
interest in two tracts of land and were joint signatories on
a bank account intended to be used for maintenance of the
land. Tabor alleged that after having told Robert that she
was considering conveying her interest in the properties to
her children because she had been sued regarding an old
business transaction, Robert strongly encouraged her to deed
her interests to him on a temporary basis, promising to
reconvey the interests to Tabor on her request. Tabor deeded
her interests in the subject property to Robert. She
also-allegedly at Robert's urging-removed her name from a
joint bank account with Robert containing $40, 000.00. Tabor
alleged that Robert refused to reconvey the property
interests and sued for their return, as well as for her share
of the maintenance account.
a bench trial, the trial court determined that Tabor's
transfer of her undivided fifty percent interest and title to
two tracts of real property to Pettit was void based on fraud
and imposed a constructive trust on the property in favor of
Tabor. The court further ordered Pettit to execute deeds to
reconvey Tabor's property interests to her. Finally, the
judgment awarded Tabor $20, 000.00, representing her interest
in the maintenance account, $50, 000.00 in exemplary damages,
$43, 084.39 in attorney fees, and $5, 924.37 in costs.
filed a motion to set a supersedeas bond, asking the trial
court to set bond in the amount of $6, 279.83, representing
court costs plus interest for one year. Tabor responded,
asking the trial court to set bond in accordance with Rule
24.2(a)(2)(A) of the Texas Rules of Appellate Procedure, with
the bond representing at least the value of the
interest's rent or revenue. Tabor claimed that because
the rule only provides a floor for the bond amount, the trial
court should set the bond at $525, 934.27, representing
one-half of the real property's market value, plus costs
no testimony was presented at the hearing on Pettit's
motion to set a supersedeas bond, Pettit attached to his
motion a document captioned "Lease Property Price
Opinion for Jeffrey York Pettit, Trustee," relative to
both tracts. The document was authored by Terry Driggers of
Terry Driggers Realty Services, LLC, and was supported by
county appraisal district tax records, including rental
comparisons for the home situated on the Hunt County
tract. Driggers opined that, with respect to the
224.4-acre tract in Hunt County, "[a]n option would be
to lease the pasture for $10-$12 an acre but knowing that a
farmer would most likely want a longer term lease to protect
the investment they would make in fencing and clean-up."
A second option, according to Driggers, "would be to
lease to 2-3 hunters which might pay $1000-$1200 a gun to
hunt." Driggers opined that this option "would
generate around $2240 to $3000 a year."
stated that per the tax records, the 1, 728 square-foot home
on this tract was built in 2000 with enclosed front and back
porches totaling 540 square feet, a septic system, and no
central air or heat. According to Driggers, "This home .
. . would easily rent in the Commerce area because of the
University. . . . To a single family, in my opinion, the home
would have a rent value of $1200 to $1500 a month."
Finally, with respect to the seventy-acre Delta County tract,
Driggers stated that the land is currently leased for
hunting, since it is heavily wooded. "An option would be to
maybe add two hunters up to $1000 a gun for a possible $2000
extra a year lease."
judgment may be superseded by a bond, deposit, or security
equal to the sum of compensatory damages awarded in the
judgment, interest for the estimated duration of the appeal,
and costs awarded in the judgment, subject to certain
limitations. See Tex. R. App. P. 24.2(a)(1); Tex.
Civ. Prac. & Rem. Code Ann. § 52.006. To supersede a
judgment for the recovery of an interest in real property,
the amount of security "must be at least . . . the value
of the property interest's rent or revenue."
Tex.R.App.P. 24.2(a)(2)(A); see Wickliffe v. Tooley,
No. 05-15-00696-CV, 2015 WL 5013691, at *1 (Tex. App.-Dallas
Aug. 25, 2015, no pet.) (mem. op.).
Rule 24.4 of the Texas Rules of Appellate Procedure, an
appellate court may review, among other things, "the
sufficiency or excessiveness of the amount of security"
and "the trial court's exercise of discretion"
in "order[ing] the amount and type of security."
Tex.R.App.P. 24.4(a)(1), (5), 24.3(a)(1). And, under Rule
24.4(d), an appellate court has discretion to modify a trial
court's order on security. See Tex. R. App. P.
24.4(d); BP Am. Prod. Co. v. Red Deer Res., LLC, No.
07-14-00032-CV, 2014 WL 3419496, at *2 (Tex. App.-Amarillo
July 11, 2014, order) (per curiam). In the present case, the
trial court awarded Tabor both monetary damages and real
property interests. Consequently, we must evaluate the trial
court's supersedeas calculations under both Rule
24.2(a)(1) and 24.2(a)(2).
review a trial court's determination of the amount of
security required under an abuse of discretion
standard." Eagle Oil & Gas Co. v. Shale
Exploration, LLC, 510 S.W.3d 92, 94 (Tex. App.-Houston
[1st Dist.] 2016, mem. order) (citing In re Longview
Energy Co., 464 S.W.3d 353, 358 (Tex. 2015) (orig.
proceeding)). Generally, "[t]he test for abuse of
discretion is whether the trial court acted without reference
to any guiding rules and principles or whether the act was
arbitrary and unreasonable." McDaniel v.
Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Because a
trial court does not have "discretion in determining
what the law is or applying the law to the facts[, ] . . . a
failure by the trial court to analyze or apply the law
correctly . . . constitutes an abuse of discretion."
Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615,
624 (Tex. 2005) (quoting In re Kuntz, 124 S.W.3d
179, 181 (Tex. 2003) (orig. proceeding)).
Supersedeas Bond Related to the Award of Property
contends that because the trial court (1) found that the
transfer of Tabor's real property interests to Pettit
were void due to Pettit's fraud and (2) imposed a
constructive trust on the real property in favor of Tabor,
this remedy is for disgorgement. Pettit therefore contends
that this award should not have been included in the trial
court's supersedeas bond calculations. We disagree.
relies on Longview Energy in support of this
proposition. In that case, Longview Energy sued minority
shareholders, among others, for breach of fiduciary duty
related to the acquisition of assets in a shale formation.
In re Longview Energy Co., 464 S.W.3d 353, 355-56
(Tex. 2015) (orig. proceeding). The trial court's
judgment placed a constructive trust over the wrongfully
acquired assets as well as ...