Opinion
Appellate case number: 01-20-00597-CV
10-20-2020
Lanny V. Dao v. Mission Bend Homeowners Association, Inc.
ORDER Trial court case number: 2029-22355 Trial court: 61st District Court of Harris County
On August 21, 2020, appellant, Lanny V. Dao, filed notice of appeal challenging the trial court's August 6, 2020 Amended Judgment requiring appellant to, within thirty days of the date of the judgment, "remove and keep removed from the front yard and from view from the street" a wooden fountain which appellant had constructed in his front yard. The trial court's order further "permanently enjoined" appellant from displaying the fountain.
On August 21, 2020, appellant also filed a "Motion to Stay Enforcement of Final Judgment Pending Appeal and Set Amount of Supersedeas Bond" with the trial court, requesting that the trial court suspend enforcement of the judgment pending appeal, and to further set a supersedeas bond in lieu thereof. See TEX. R. APP. P. 24.2(a)(3). On October 14, 2020, the trial court denied appellant's motion to stay. On October 20, 2020, appellant filed his "Emergency Motion to Stay Injunction Pending Appeal" with this Court, requesting that we suspend enforcement of the judgment and set a reasonable security or bond necessary to supersede the permanent injunction pending appeal.
Shortly thereafter, appellant filed an "Opposed Amended Emergency Motion to Stay Injunction Pending Appeal." The only difference between the originally filed motion and the amended motion is a notation that appellee, Mission Bend Homeowners Association, Inc., had confirmed that it was opposed to the relief requested by appellant's motion. Also on October 20, 2020, appellee filed its response in opposition to appellant's emergency motion.
A judgment debtor, such as appellant here, may suspend the judgment of the trial court pending appeal by written agreement with the judgment creditor, by filing a bond, by making a deposit with the trial court clerk in lieu of a bond, or by providing alternate security as ordered by the court. See TEX. R. APP. P. 24.1(a). When the judgment is for something other than money or an interest in property, as is the case here, the trial court must set the amount and type of security the judgment debtor must post. See TEX. R. APP. P. 24.2(a)(3).
This does not, however, deprive the trial court of discretion to deny a motion to suspend enforcement of a judgment pending appeal. See TEX. R. APP. P. 24.2(a)(3); Mossman v. Banatex, L.L.C., 440 S.W.3d 835, 838 (Tex. App.—El Paso 2013, opinion on motion), disp. on merits, 479 S.W.3d 854 (Tex. App.—El Paso 2015, no pet.) ("Rule 24.2(a)(3) provides the trial court with 'a measure of discretion' to decline to permit the judgment to be superseded."). It is within the trial court's discretion to "decline to permit the judgment to be superseded if the judgment creditor posts security ordered by the trial court 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 determines, on final disposition, that the relief was improper." See TEX. R. APP. P. 24.2(a)(3); Mossman, 440 S.W.3d at 838.
Here, in its order denying appellant's request for a supersedeas bond, the trial court ordered appellee to post a bond in the amount of $100 as security. In his motion, appellant asserts that due to its "one-of-a-kind" nature, "no amount of security could be posted" by appellee to secure the judgment on appeal. However, the only evidence offered by appellant in support of this assertion is the conclusory affidavit of appellant. As such, appellant's motion fails to establish that the trial court abused its discretion in denying the motion to set supersedeas bond and setting the bond amount required to be posted by appellee.
Accordingly, appellant's motion for emergency relief is denied.
It is so ORDERED. Judge's signature: /s/ Terry Adams
[v] Acting individually [ ] Acting for the Court Date: October 20, 2020