Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 366th Judicial District Court Collin County,
Texas Trial Court Cause No. 366-02669-2018
Chief Justice Burns, Justice Whitehill, and Justice Nowell.
MEMORANDUM OPINION ON MOTION TO REVIEW SUPERSEDAS
D. BURNS, III CHIEF JUSTICE.
appeal from the trial court's judgment that awarded both
money damages to appellee and foreclosure of its lien on
appellants' property to satisfy the judgment. By order
signed October 25, 2019, the trial court set the supersedeas
bond at $69, 620.86. Appellants now ask this Court to review
the order and reduce the amount of the bond.
motion of a party, we may review the sufficiency or
excessiveness of a bond. See Tex. R. App. P.
24.4(a). We review a trial court's ruling for an abuse of
discretion. See G.M. Houser, Inc. v. Rodgers, 204
S.W.3d 836, 840 (Tex. App.-Dallas 2006, no pet.). A trial
court abuses its discretion if the evidence is legally or
factually insufficient to support its findings. Id.
money judgment, the amount of security required to suspend
enforcement of the judgment pending appeal must equal the
amount of compensatory damages awarded, interest for the
estimated duration of the appeal, and costs awarded.
See Tex. R. App. P. 24.2(a)(1). On a showing by the
judgment debtor that the judgment debtor is likely to suffer
substantial economic harm if required to post security in the
required amount, the trial court shall lower the amount of
security to an amount that will not cause the judgment debtor
substantial economic harm. See id. 24.2(b). Whether
an appellant is likely to suffer substantial economic harm is
a question of fact that we review for abuse of discretion.
Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge)
L.L.C., 171 S.W.3d 905, 918 (Tex. App.-Houston [14th
Dist.] 2005, no pet.). Factors to consider in assessing
whether posting a bond will result in substantial economic
harm include: (1) the cost of obtaining the bond; (2) the
availability of sufficient assets to cover that cost; (3) the
availability of other sources from which the judgment debtor
could secure funds to obtain the bond; (4) the judgment
debtor's ability to borrow the funds; (5) the impact on
the judgment debtor arising from the sale of assets
sufficient to obtain the bond; and (6) the likelihood that
selling assets to obtain the bond will result in the
insolvency of the judgment debtor. See id. at 917.
their amended motion to set the bond, appellants stated that
setting the bond at more than $500 would cost them
substantial economic harm. They listed the six factors that
the trial court may consider. They attached a one-page
exhibit labeled "Personal Monthly Budget." Without
applying the six factors to their situation, they conclude
their motion by stating that they can only pay a $500 bond
without suffering substantial economic harm.
trial court conducted a hearing. The only evidence appellants
admitted was an exhibit that included each appellant's
affidavit stating that they could not afford a bond in excess
of $500, the one-page personal monthly budget, and two
earnings statements for appellant Zubeda Taj. In arguing the
motion, counsel for appellants stated: "Your Honor, this
is simple, they can't afford an exorbitant bond. It would
be economic duress to place one on them and deny them undue
process. That's all I have, Your Honor." Appellee
then proceeded to point out that appellants failed to put on
any evidence of the six factors to consider in determining
substantial economic harm.
their motion filed with this Court, appellants attach
exhibits that were not presented to the trial court. They
include an email from a bonding company denying their
application due to poor credit and new affidavits stating for
the first time that they have no assets to leverage to cover
the cost of the bond. Review may be based both on conditions
as they existed at the time the order setting the bond was
signed and on changes in those conditions afterward.
See Tex. R. App. P. 24.4(b). Appellants do not
assert in their motion that conditions have changed. For this
reason, we cannot consider the documents attached to their
presented no evidence as to the cost of obtaining a bond, the
availability of other sources from which they could secure
funds to obtain the bond, their ability to borrow funds, or
the impact on them arising from the sale of assets sufficient
to obtain a bond. See Ramco Oil, 171 S.W.3d at 917.
Because appellants failed in their burden to establish