Opinion
01-21-00602-CV
01-31-2023
SENIOR CARE LIVING VI, LLC AND MARK BOULDIN, Appellants v. PRESTON HOLLOW CAPITAL, LLC, UMB BANK, N.A., AND TMITRUST COMPANY, Appellees
On Appeal from the 458th District Court Fort Bend County, Texas Trial Court Case No. 19-DCV-265897
Panel consists of Justices Kelly, Farris, and Radack.
The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
OPINION ON MOTIONS FOR REVIEW OF SUPERSEDEAS ORDER
April L. Farris Justice
Present before the Court are cross-motions for review of the trial court's July 6, 2022 supersedeas order under Texas Rule of Appellate Procedure 24.4.
In the underlying litigation, the trial court issued a final judgment awarding damages of over $50 million in favor of Appellees, Preston Hollow Capital, LLC, UMB Bank, N.A., and TMI Trust Company. That August 4, 2021 final judgment revoked the pre-judgment receivership and imposed a "post-judgment" receivership pursuant to Civil Practice and Remedies Code section 31.002. The trial court simultaneously issued an "Order Appointing Post-Judgment Receiver" that vested the receiver with authority to operate, possess, and sell the living facility belonging to appellant Senior Care Living VI, LLC pursuant to section 31.002.
Appellants Senior Care Living VI, LLC and Mark Bouldin filed a notice of appeal from the final judgment and Order Appointing Post-Judgment Receiver. Several months later, Senior Care and Bouldin, separately, filed a notice of deposit in lieu of bond. See Tex. R. App. P. 24.1(a)(3). Senior Care alleged a negative net worth and filed a cash deposit of $10.00 to supersede the trial court's judgment pending appeal. See Tex. R. App. P. 24.1(c).
Preston Hollow filed a contest of Senior Care's alleged negative net worth, and the trial court held a hearing. See Tex. R. App. P. 24.2(c)(2)-(3). On July 6, 2022, the trial court entered an order concluding that Senior Care had a negative net worth and that its $10.00 deposit sufficed to supersede the judgment pending appeal. Yet in the very next line, the trial court ordered that "the August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect" pursuant to Texas Rule of Appellate Procedure 24.1(e). See Tex. R. App. P. 24.1(e) ("The trial court may make any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause.").
The trial court also entered orders, on June 13 and June 14, 2022, similarly concluding that Senior Care had a negative net worth. However, on July 6, 2022, the trial court entered an order vacating the June 13 and June 14, 2022 orders.
Appellees have filed a "Supplemental [Texas Rule of Appellate Procedure] 24.4 Motion for Review of Supersedeas Ruling" challenging the trial court's finding that Senior Care had a negative net worth, thereby authorizing Senior Care to supersede the judgment with a $10.00 deposit. Appellees also argue that the trial court's findings of fact regarding substantial economic harm were improper because Senior Care did not request that the trial court set the supersedeas bond amount pursuant to Texas Rule of Appellate Procedure 24.2(b) as opposed to Texas Rule of Appellate Procedure 24.2(a)(1), and the Appellees, as judgment creditors, were not afforded notice and a hearing. See Tex. R. App. P. 24.2(b) (authorizing trial court to require bond in "lesser amount" than that authorized by Rule 24.2(a)(1) when trial court finds amount "required by (a) is likely to cause the judgment debtor substantial economic harm").
On June 24, 2022, Appellees filed a "[Texas Rule of Appellate Procedure] 24.4 Motion for Review of Supersedeas Ruling," challenging the trial court's June 13 and June 14, 2022 orders. However, because the trial court withdrew those orders on July 6, 2022, this Court dismissed as moot Appellees' June 24, 2022 motion.
By contrast, Senior Care has filed a "Motion for Review Under [Texas Rule of Appellate Procedure] 24.4." Senior Care argues that this Court should vacate the provision of the trial court's supersedeas order allowing the post-judgment receivership-which authorizes the receiver to possess, control, and sell Senior Care's property-to continue in effect, despite the supersedeas order's contradictory directives that (1) Senior Care's $10.00 deposit sufficed to supersede the judgment pending appeal; and (2) "enforcement of the judgment is hereby suspended."
For the reasons below, we deny Appellees' "Supplemental Rule 24.4 Motion for Review of Supersedeas Ruling" with respect to the finding included in the trial court's supersedeas order that Senior Care had a negative net worth and was entitled to supersede the judgment with a $10.00 deposit. We grant the motion in part and vacate the trial court's findings with respect to the threat of "substantial economic harm" posed by a higher bond amount.
Further, we grant in part Senior Care's "Motion for Review Under [Texas Rule of Appellate Procedure] 24.4" and vacate the portion of the trial court's July 6, 2022 order stating that: "It is further ORDERED that the August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect in accordance with [Texas Rule of Appellate Procedure] 24.1(e)." We deny the remaining relief requested by Senior Care. Appellees' "Motion to Dismiss [Senior Care's] Motion for Review Under [Texas Rule of Appellate Procedure] 24.4 for Lack of Jurisdiction" is denied. We further vacate the temporary stay orders issued by this Court on July 8, 2022, and July 21, 2022.
Background
In 2017, Senior Care obtained $45 million in bond financing to construct a senior living facility in Fort Bend County, Texas (the "Property"). Appellees were the bondholders. Preston Hollow owned the largest portion of the senior debt and was the "Noteholder Representative." Bouldin personally guaranteed Senior Care's financing obligations. The Senior Care facility and its related assets were pledged as collateral to the bondholders.
After Senior Care purportedly defaulted on its bond obligations, the bond debt was accelerated in May 2019. Preston Hollow then initiated a lawsuit in the United States District Court for the Southern District of Texas against Bouldin, seeking a judgment based on Bouldin's guarantees of the bonds. The federal district court litigation was eventually dismissed due to issues relating to diversity of citizenship jurisdiction.
Separately, on August 26, 2019, Senior Care initiated the underlying state court litigation against appellees UMB Bank and TMI Trust Company. In its original petition, Senior Care sought a declaratory judgment that it was not in default of the bond financing agreements and that Appellees had wrongfully accelerated the debt. UMB Bank and TMI Trust Company asserted counterclaims against Senior Care for breach of contract, sought a declaratory judgment, and requested the appointment of a bond trustee and master trustee. Preston Hollow then filed a petition in intervention, adopting UMB Bank and TMI Trust Company's counterclaims and requests for relief.
Senior Care's August 26, 2019 original petition also alleged causes of action against Wade Williams. Those claims were eventually non-suited and are not related to the trial court's July 6, 2022 supersedeas order challenged here.
Preston Hollow also filed suit against Bouldin under a separate cause number. At Preston Hollow's request, the trial court consolidated the claims and causes of action asserted in that case into the underlying proceeding.
On July 6, 2020, the trial court entered a "Consent Order on Plaintiff's Motion to Appoint Receiver and Injunction." In this order, the trial court appointed a receiver and directed the receiver to "operate and administer the Property in an economical and efficient manner." In connection with the trial court's order, on July 9, 2020, Michael Morgan of Healthcare Management Partners, LLC, filed a notice of appearance as the court-appointed receiver.
The trial court held a bench trial in June 2021. On August 4, 2021, the trial court entered a final judgment against Senior Care and Bouldin and in favor of Appellees. In the final judgment, the trial court found that Senior Care "shall take nothing" with respect to any of its claims or causes of action. The trial court further found, with respect to Appellees' causes of action, that they "shall be granted judgment against Senior Care for 'Breach of Contract' . . . for the amounts due and owing pursuant to the Bonds and Notes made the subject of this case" and further "shall be granted judgment on its request for a receiver." The trial court therefore ordered that "Preston Hollow, as Representative . . . is awarded judgment against Senior Care and Bouldin, jointly and severally, in the amount of $52,597,040.06." The amount of the money judgment awarded by the trial court included the principal balance of the bonds and notes and pre-judgment interest.
The final judgment further "ordered adjudged and decreed" that "the pre-judgment receivership is terminated and the pre-judgment receiver (Michael Morgan, of Healthcare Management Partners, LLC) is hereby re-appointed on a post-judgment basis pursuant to [Civil Practice and Remedies Code section 31.002]." The final judgment stated that the "receiver's duties, responsibilities and authorities shall be set forth in a separate order of this Court entered concurrently herewith."
That same day, the trial court entered an "Order Appointing Post-Judgment Receiver," which appointed a receiver "pursuant to [Texas Civil Practice and Remedies Code section] 31.002." That order vested the receiver with numerous powers, including to maintain possession of and to operate the Property; to "conduct a sale of the Property made the subject of the receivership, in whole or in part"; and to "engage managers, brokers, attorneys and other professionals as is necessary and appropriate to effect a sale of the Property." On November 1, 2021, Senior Care and Bouldin each filed a timely notice of appeal from the trial court's August 4, 2021 final judgment and Order Appointing Post-Judgment Receiver.
For several months after entry of the judgment, Appellants made no efforts to supersede the judgment. Then, on May 12, 2022, Senior Care filed a "Notice of Deposit Payable to the [Trial Court] Clerk in Lieu of Bond Under [Texas Rule of Appellate Procedure] 24.1." In its notice to the trial court, Senior Care asserted that it "ha[d] a negative net worth," which allowed Senior Care to supersede the final judgment pending appeal by making a "deposit payable to the [trial court] clerk in the amount of $10.00." See Tex. R. App. P. 24.2(c)(1).
Senior Care's notice of deposit in lieu of bond was supported by a "Declaration of Mark Bouldin as Representative of Senior Care." In his declaration, Bouldin testified that Senior Care held liabilities "includ[ing] the judgment rendered in the [underlying litigation], which exceed[ed] $53,000,000." However, according to Bouldin, as of March 2022 Senior Care held assets of $32,910,000, representing the appraised value of the senior care facility which was the subject of the underlying litigation, as well as cash on hand of approximately $385,000. The sum of these assets, according to Senior Care's valuation of them, was "far less than the $53,000,000 judgment in this lawsuit." Accordingly, at that time, the final judgment was superseded pending appeal. See Tex. R. App. P. 24.1(a).
Days later, Preston Hollow filed a "Contest Regarding Senior Care's Supersedeas Bond and Net Worth," challenging Senior Care's assertion of a negative net worth. See Tex. R. App. P. 24.2(c)(2). Preston Hollow argued that "Senior Care improperly include[d] the liability for the final judgment in this case" to reach the conclusion it had a negative net worth. According to Preston Hollow, the liability owed by Senior Care pursuant to the judgment "must be disregarded-as a matter of law-in determining . . . net worth" pursuant to Rule 24.2. Further, in Bouldin's declaration in support of Senior Care's notice of deposit in lieu of bond, the only liability identified was the approximately $52 million owed pursuant to the judgment in the underlying litigation, while Bouldin identified over $33,000,000 in assets. Therefore, according to Preston Hollow, "Senior Care's net worth is at least $33.295 million." Based on its contest, Preston Hollow requested that the trial court "conduct a hearing . . . [to] require Senior Care to present evidence of net worth." See Tex.
On May 25, 2022, Preston Hollow filed an amended contest to Senior Care's notice of deposit in lieu of bond. In its amended contest, Preston Hollow made an "alternative request for receiver and injunction order." In this alternative request, Preston Hollow argued that "even if the Final Judgment is superseded, the [trial court] may continue the receivership order" to "enjoin Senior Care from dissipating or transferring assets." See Tex. R. App. P. 24.1(e), 24.2(d).
On May 26, 2022, Senior Care filed a "Supplemental Notice of Deposit of Cashier's Check Payable to the [Trial Court] Clerk in Lieu of Bond." Bouldin also submitted a supplemental declaration with the supplemental notice of deposit in lieu of bond. In his supplemental declaration, Bouldin stated that Senior Care's liabilities include "$42,671,500.00 in bonds payable," which "have not been repaid." Bouldin further testified that the bonds payable were secured by "a Multiple Indebtedness Deed of Trust filed on Senior Care's property," which, as of the time of his declaration, had "not been released and remain[ed] a liability of Senior Care."
The trial court held a hearing regarding Preston Hollow's contest to Senior Care's alleged negative net worth. During the hearing, Senior Care presented a single witness, court-appointed receiver Cameran Jordan. In connection with Jordan's testimony, three documents were admitted into evidence: (1) a January 2021 balance sheet, (2) a 2021 year-end statement of account relating to cash on deposit and pledged to bondholders as collateral under the bond documents, and (3) a partial April 2022 balance sheet maintained by Jordan. Based on these documents, Jordan testified that Senior Care had a negative net worth of approximately $11 million. Preston Hollow did not present any witnesses or offer any other evidence at the hearing.
At the hearing's conclusion, the trial court announced that it concluded Senior Care had a negative net worth, but that the receivership would be continued. The trial court initially entered two separate orders to this effect: a June 13, 2022 order, submitted by Preston Hollow; and a June 14, 2022 order, submitted by Senior Care.
Then, on July 6, 2022, the trial court entered an "Order Vacating June 13 and 14, 2022 Orders." That same day, the trial court entered a new order denying Preston Hollow's contest to Senior Care's deposit in lieu of bond. This July 6, 2022 order has largely the same effect as the June 13 and 14 orders, and the trial court found that, using Generally Accepted Accounting Principles ("GAAP"), Senior Care "had a negative net worth of $9,492,711.66." The trial court further found that "if Senior Care were to be required to post a bond, it would be likely to suffer substantial economic harm."
The trial court based its conclusion regarding substantial economic harm on several findings, including findings that "Senior Care's assets ha[d] been pledged pursuant to a Deed of Trust that ha[d] not been released," and "Senior Care ha[d] insufficient cash reserves to post a bond and requiring a bond would jeopardize Senior Care's ability to meet its ongoing operational obligations." Given its findings and conclusions, the trial court ordered that Senior Care's $10.00 cash deposit was "sufficient . . . to supersede the final judgment," and "no additional security [was] needed." Therefore, "enforcement of the judgment [was thereby] SUSPENDED."
Finally, the trial court ordered that the "Order Appointing Post-Judgment Receiver [was] continued in effect." The trial court's order did not include any limitations on the receiver's authority as granted in the August 4, 2021 Order Appointing Post-Judgment Receiver.
Standard of Review
"A judgment debtor is entitled to supersede the judgment while pursuing an appeal." Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009); see also In re Longview Energy Co., 464 S.W.3d 353, 359 (Tex. 2015) (observing that supersedeas rules "respect[] the importance of the right to a meaningful appeal"). "Supersedeas preserves the status quo of the matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken." Smith v. Tex. Farmers Ins. Co., 82 S.W.3d 580, 585 (Tex. App.-San Antonio 2002, pet. denied). "Enforcement of a judgment must be suspended if the judgment is superseded." Tex.R.App.P. 24.1(f). "Enforcement begun before the judgment is superseded must cease when the judgment is superseded." Id.
Texas Rule of Appellate Procedure 24 sets out the requirements for suspending enforcement of a judgment pending appeal in civil cases. See Tex. R. App. P. 24.1-.4. Unless the law or the appellate rules provide otherwise, the judgment debtor may supersede the judgment by:
(1) filing with the trial court clerk a written agreement with the judgment creditor for suspending enforcement of the judgment;
(2) filing with the trial court clerk a good and sufficient bond;
(3) making a deposit with the trial court clerk in lieu of a bond; or
(4) providing alternate security ordered by the court.Tex. R. App. P. 24.1(a).
The amount of security required to supersede a judgment pending appeal depends on the type of judgment. See Tex. R. App. P. 24.2(a). A money judgment, such as the judgment here, 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." Tex.R.App.P. 24.2(a)(1). This amount, however, is limited and must not exceed the lesser of 50% of the judgment debtor's current net worth, or $25 million. Tex.R.App.P. 24.2(a)(1)(A)-(B). The trial court "must lower the amount of security required by [subsection] (a) to an amount that will not cause the judgment debtor substantial economic harm if, after notice to all parties and a hearing, the court finds that posting a bond, deposit, or security in the amount required by [subsection] (a) is likely to cause the judgment debtor substantial economic harm." Tex.R.App.P. 24.2(b).
Where the deposit or bond amount is based on the judgment debtor's net worth, the judgment debtor must "file with the trial court clerk an affidavit that states the debtor's net worth and states complete, detailed information concerning the debtor's assets and liabilities from which net worth can be ascertained." See Tex. R. App. P. 24.2(c)(1). An affidavit meeting the requirements of Rule 24.2(c)(1) is "prima facie evidence of the debtor's net worth," and the judgment is superseded upon payment of the bond or deposit. Id.
However, a "judgment creditor may file a contest to the debtor's claimed net worth." Tex.R.App.P. 24.2(c)(2). When a contest is filed, the trial court must hold a hearing on the contest and "issue an order that states the [judgment] debtor's net worth." Tex.R.App.P. 24.2(c)(3). A judgment creditor is further protected by Rule 24.1(e), which authorizes a trial court to "make any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause" so long as the order is not in conflict with Civil Practice and Remedies Code Chapter 52. Tex.R.App.P. 24.1(e); Tex. Civ. Prac. & Rem. Code Ann. § 52.005. Chapter 52 provides that "[n]othing in this section prevents a trial court from enjoining the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business." Tex. Civ. Prac. & Rem. Code Ann. § 52.006(e).
On motion of a party, an appellate court may engage in a limited review of a trial court's supersedeas ruling. See Tex. R. App. P. 24.4. Specifically, the Rules of Appellate Procedure provide that an appellate court may review: (1) the sufficiency or excessiveness of the amount of security; (2) the sureties on a bond; (3) the type of security; (4) the decision whether to permit suspension of enforcement; and (5) the trial court's exercise of discretion in ordering the amount and type of security. Tex.R.App.P. 24.4(a). The appellate court may require that the amount of the "bond, deposit, or other security be increased or decreased" and that "another bond, deposit, or security be provided and approved by the trial court clerk." Tex.R.App.P. 24.4(d). The appellate court may also require other changes in the trial court's order and remand for entry of findings of fact or the taking of evidence. Id.
We generally review the trial court's supersedeas rulings for an abuse of discretion. See EnviroPower, L.L.C. v. Bear, Stearns & Co., 265 S.W.3d 1, 2 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably considering all the circumstances of the case. See Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); EnviroPower, 265 S.W.3d at 2. To the extent the ruling turns on a question of law, our review is de novo. Abdullatif v. Choudhri, 536 S.W.3d 48, 51 (Tex. App.-Houston [14th Dist.] 2017, op. on motion); Mansik & Young Plaza LLC v. K-Town Mgmt., LLC, 470 S.W.3d 840, 841 (Tex. App.-Dallas 2015, op. on motion).
Analysis
I. Appellees' Supplemental Motion for Review of Supersedeas Ruling
In their motion for review of the trial court's July 6, 2022 order on supersedeas, Appellees argue that the trial court erred in concluding that Senior Care's bond obligations, which form the basis of the judgment, were properly included as liabilities in Senior Care's net worth calculation. Appellees argue that the bond obligations should have been excluded, leaving Senior Care with "a positive net worth of more than $32 million." Appellees further argue that the trial court's "purported findings regarding substantial economic harm [were] improper because Senior Care never requested [such] relief and [the judgment creditors] were not afforded notice and a hearing" as required by Rule 24.2(b).
A. Inclusion of Bond Obligations as Liabilities in Net Worth Calculation
In their first issue, Appellees contend that the trial court improperly included Senior Care's bond obligations as liabilities, which led to the calculation that Senior Care had a negative net worth. In its notice of deposit in lieu of bond, filed May 12, 2022, and supplemental notice of deposit in lieu of bond, filed May 26, 2022, Senior Care submitted a declaration from Bouldin as representative of Senior Care. In his supplemental declaration, Bouldin testified that "Senior Care ha[d] a negative net worth." Bouldin's conclusion of a negative net worth was based on a January 2021 consolidated financial statement, a January 2021 consolidated balance sheet, and a March 2022 balance sheet.
Bouldin testified that, based on the most recent financial data available to him, Senior Care's assets included "822,422.67 in cash, accounts receivable, prepaid expenses, and fixed assets," as well as the appraised value of the Inspired Living at Sugar Land facility of $32,910,000.00. With respect to liabilities, Bouldin testified that "as is set forth on the 2021 Balance Sheet, Senior Care ha[d] $42,671,500.00 in bonds payable (and other liabilities)." According to Bouldin, as of the date of his supplemental declaration, "those bonds ha[d] not been repaid." Bouldin further stated that there was "a Multiple Indebtedness Deed of Trust filed on Senior Care's property, securing Senior Care's indebtedness in the amount of $44,675,[0]00.00." "That Deed of Trust," according to Bouldin, had "not been released and remain[ed] a liability of Senior Care." Based on these purported assets and liabilities, Bouldin concluded that "as of the date" of his supplemental declaration, "Senior Care ha[d] a negative net worth." Given this, Senior Care paid a $10.00 deposit in lieu of bond to supersede the judgment pending appeal.
In his supplemental declaration, Bouldin did not specifically identify or provide examples of Senior Care's "other liabilities."
In its contest, Preston Hollow argued that "Senior Care improperly include[d] the liability for the final judgment" as a liability in its net worth calculation. Preston Hollow contended that the damages awarded in a final judgment "must be disregarded" in determining net worth for the purposes of supersedeas. And because "Bouldin identified no other liabilities," when the final judgment debt is removed from the calculation, "Senior Care's net worth is at least $33.295 million."
Preston Hollow's amended contest, dated May 25, 2022, was filed prior to Senior Care's supplemental notice of deposit in lieu of bond, dated May 26, 2022, which attached Bouldin's supplemental declaration. As noted above, in his supplemental declaration, Bouldin testified that "Senior Care ha[d] $42,671,500.00 in bonds payable" as a liability.
On June 9, 2022, the trial court held a hearing on Preston Hollow's contest to Senior Care's alleged negative net worth. During the hearing, the trial court heard testimony from Cameran Jordan, the court appointed receiver, who is also a certified public accountant. Jordan testified that, using GAAP, Senior Care had a negative net worth of approximately $11 million. At the conclusion of the hearing, the trial court advised the parties that the receivership would remain in place, but the trial court "ha[d] to find based on the evidence that Senior Care ha[d] a negative net worth." Accordingly, the trial court ruled that "the $10[.00] [deposit in lieu of] bond [was] . . . sufficient, at [that] time." On July 6, 2022, the trial court entered an order confirming these rulings.
In the supplemental motion to review the trial court's order, Appellees challenge the trial court's finding that Senior Care had a negative net worth, allowing it to supersede the judgment pending appeal with a $10.00 deposit in lieu of bond. "[T]he correct measure of a company's net worth for the purposes of setting a supersedeas bond . . . is the company's current assets minus current liabilities at the time the bond is set." EnviroPower, 265 S.W.3d at 5; see also Ramco Oil & Gas, Ltd. v. Anglo-Dutch (Tenge) L.L.C., 171 S.W.3d 905, 914 (Tex. App.-Houston [14th Dist.] 2005, no pet.) ("The plain meaning of 'net worth,' as used in . . . Rule 24, is the difference between total assets and total liabilities determined in accordance with GAAP.").
Appellees assert that the trial court erred by allowing Senior Care to include the bond obligations as a liability for the purposes of calculating net worth. Generally, for the purposes of setting a supersedeas bond, Texas courts have held that the amount of a money judgment is a contingent liability and should not be included in the net worth calculation. See O.C.T.G., L.L.P. v. Laguna Tubular Prods. Corp., 525 S.W.3d 822, 831 (Tex. App.-Houston [14th Dist.] 2017, op. on motion) (holding that court "cannot say the trial court abused its discretion in excluding the judgment" from net worth calculation); Anderton v. Cawley, 326 S.W.3d 725, 726-27 (Tex. App.-Dallas 2010, op. on motion) (concluding trial court "did not abuse its discretion in excluding the amount of the judgment" from net worth calculation); Grisaffi v. Rocky Mountain High Brands, Inc., No. 05-18-01020-CV, 2019 WL 3773853, at *2 (Tex. App.-Dallas Aug. 12, 2019, mem. op. on motion) ("For purposes of determining net worth under [R]ule 24.2 and [Civil Practice and Remedies Code] section 52.006, the contingent money judgment that is sought to be superseded is not included as a liability.").
Accordingly, Appellees argue that, "[a]s a matter of law, the bond obligations that are the subject of the Final Judgment in this case should not have been included in determining Senior Care's net worth," because those bond obligation amounts represent a contingent liability. Senior Care responds that this argument misrepresents the trial court's conclusions regarding net worth. Specifically, Senior Care argues that the trial court "did not consider the contingent money judgment of $52,847,040.06" in making its ruling regarding Senior Care's net worth. Instead, according to Senior Care, the trial court made findings regarding the "unchallenged" testimony of Jordan, the receiver and a certified public accountant, who testified that, under GAAP, Senior Care had total liabilities of $47,759,228.86.
Notably, Senior Care's total liabilities are largely made up of the $42,671,500.00 in bonds payable. While it is certainly true that those bond obligations form the basis of the underlying litigation-specifically, the dispute over whether Senior Care defaulted on the terms of the bond obligations, or whether Appellees breached the terms of the agreements-and the trial court's final judgment, the "money judgment of $52,847,040.86" was not identified as a liability in Bouldin's supplemental declaration, nor by Jordan at the June 9, 2022 hearing. This is an important distinction. In the cases cited by Appellees regarding contingent liabilities, the judgment debtors expressly attempted to classify a money judgment as a liability for the purposes of establishing a negative net worth. See O.C.T.G., L.L.P., 525 S.W.3d at 824-25 (in support of net worth affidavit, judgment debtor "included the amount of the judgment, prejudgment interest, and costs and legal fees associated with the instant case" as liabilities); Anderton, 326 S.W.3d at 726 ("In calculating his net worth, [judgment debtor] included the amount of the judgment as a liability."); Grisaffi, 2019 WL 3773853, at *1 (in affidavit to establish net worth, judgment debtor stated his "liabilities are $3,500,000," representing "default judgment entered against [judgment debtor] in that amount").
Here, by contrast, Senior Care did not expressly attempt to include the amount of the judgment entered against it-$52,597,040.06-as a liability for the purpose of establishing net worth. In his supplemental declaration, Bouldin testified that "Senior Care's liabilities . . . greatly exceed $34 million," including "$42,671,500.00 in bonds payable." Further, Bouldin testified that "those bonds have not been repaid" and that there was "a Multiple Indebtedness Deed of Trust filed on Senior Care's property, securing Senior Care's indebtedness in the amount of $44,675,[0]00.00," which had "not been released and remain[ed] a liability of Senior Care."
In their respective claims, causes of action, and defenses asserted in the underlying litigation, Senior Care and Bouldin alleged that Appellees wrongfully accelerated the debt owed on the bonds and notes. However, regardless of the outcome of the merits of this appeal, or any further proceedings in the trial court, the underlying indebtedness is not necessarily extinguished. Stated otherwise, even if Preston Hollow had wrongfully accelerated the debt, Senior Care and Bouldin would remain responsible for the bond amounts pursuant to the terms of the contracts and notes. The liability created by the bonds and notes existed prior to the underlying litigation, and Appellees have not presented this Court with any precedent suggesting that this pre-existing liability transformed into a contingent liability because of the trial court's final judgment.
Accordingly, we conclude that the trial court did not err by including Senior Care's bond indebtedness as a liability for the purposes of establishing Senior Care's net worth. We therefore deny Appellees' motion with respect to this point of error.
B. Substantial Economic Harm
Rule 24.2 requires that a "trial court must lower the amount of security required by [subsection] (a) to an amount that will not cause the judgment debtor substantial economic harm if, after notice to all parties and a hearing, the [trial] court finds that posting a bond, deposit, or security in the amount required by [subsection] (a) is likely to cause the judgment debtor substantial economic harm." Tex.R.App.P. 24.2(b).
In their second point of error, Appellees contend that the trial court erred by including a finding that "[s]hould Senior Care be required to post any bond for any amount above $10.00, the amount of the cash deposit presently on file, Senior Care would suffer substantial economic harm." Appellees argue that the trial court erred by including this "substantial economic harm" finding for two reasons. First, based on the plain language of the rules, the trial court may only lower a bond amount under Rule 24.2(b) "after notice to all parties and a hearing" regarding substantial economic harm. According to Appellees, "Senior Care did not seek this relief under Rule 24.2(b), Senior Care did not provide notice of any hearing on this issue, and the trial court did not hold any hearing on this issue."
In response, Senior Care argues that it "raised the issue of substantial [economic] harm in the uncontroverted Supplemental Declaration of Mark Bouldin." Then, based on Senior Care's assertion of a negative net worth, "Preston Hollow noticed a hearing, requesting that the trial court increase the amount required to supersede the judgment."
Second, Appellees argue that by including the substantial economic harm language, the trial court "skip[ped] steps." Appellees contend that Rule 24.2(b) "contemplates that the trial court will calculate the amount of bond or deposit required" to supersede the judgment. See Tex. R. App. P. 24.2(b). Then, if "the amount required by [subsection] (a) is likely to cause the judgment debtor substantial economic harm," the trial court must lower the amount. Id. Here, the trial court made no such finding under subsection (a), instead concluding that Senior Care's $10.00 deposit in lieu of bond sufficed to supersede the judgment. Appellees therefore conclude that "it [was] premature to determine whether 'the amount required by [subsection] (a)' [was] too high."
We agree. Because the trial court concluded that Senior Care's $10.00 deposit in lieu of bond was sufficient to supersede the judgment pending appeal, the question whether some other bond amount pursuant to Rule 24.2(a) would cause Senior Care substantial economic harm was never properly before the trial court. The language of subsection (b) implies that a judgment debtor may challenge a trial court's calculation of a bond or deposit under subsection (a). See LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 486-87 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) (concluding judgment debtor did not establish it would "suffer substantial economic harm if required to post" bond of $74,868.02, which was "fifty percent of [judgment debtor's] actual net worth" pursuant to Rule 24.2(a)(1)(A)). Here, no such bond was set by the trial court, and no challenge under Rule 24.2(b) was properly noticed and presented to the trial court.
We therefore conclude the trial court erred in including the "substantial economic harm" finding. Accordingly, we grant Appellees' motion as to their second point of error, in part. We vacate subparagraph "k"-and all of its subparts- of paragraph "5" from the trial court's July 6, 2022 order on supersedeas. However, because we conclude that the trial court did not err by allowing Senior Care to include its bond indebtedness in its net worth calculation, we deny Appellees' motion to the extent it requests that we "instruct the trial court to set a bond under Rule 24.2(a)."
II. Senior Care's Rule 24.4 Motion for Review of Supersedeas Ruling
A. Jurisdiction to Review Supersedeas Order's Express Continuation of the August 4, 2021 Order Appointing Post-Judgment Receiver
On July 6, 2022, Senior Care filed its own "Motion for Review" of the trial court's supersedeas order, asserting that the trial court abused its discretion by permitting enforcement of the judgment despite the trial court's finding that Senior Care's $10.00 deposit in lieu of bond sufficed to supersede the judgment pending appeal. Specifically, Senior Care argues that the trial court "refused to suspend enforcement of the judgment," because the trial court ordered "that the August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect" pending appeal. According to Senior Care, by allowing the receivership to remain "in effect" pending appeal, the trial court "vested [the] receiver with the present power to liquidate Senior Care's assets-including Senior Care's real property."
On July 28, 2022, Appellees filed a response to Senior Care's motion for review of the supersedeas order. Separately, but also on July 28, 2022, Appellees moved to dismiss Senior Care's motion for review for lack of jurisdiction. In the motion to dismiss, Appellees argue that "[t]his Court lacks jurisdiction" to review "the trial court's decision to continue the receivership as an additional supersedeas requirement under Texas Rule of Appellate Procedure 24.1(e)."
The Civil Practice and Remedies Code provides that an "appellate court may review the amount of security as allowed under Rule 24." See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(d). Our authority is detailed further in Rule 24.4 itself, which provides that a party may seek review of a trial court's supersedeas order on a limited basis, including review of: (1) the sufficiency or excessiveness of the amount of security; (2) the sureties on any bond; (3) the type of security; (4) the determination whether to permit suspension of enforcement; and (5) the trial court's exercise of discretion under Rule 24.3(a). See Tex. R. App. P. 24.4(a) (emphasis added).
According to Appellees, the challenged portion of the trial court's July 6, 2022 ruling does not fall within our review authority as outlined in Rule 24.4 or Civil Practices and Remedies Code section 52.006. Appellees suggest that the trial court's order unequivocally suspended enforcement of the judgment because it expressly ordered that "enforcement of the judgment is hereby SUSPENDED." Therefore, Appellees contend, Senior Care's motion does not challenge the trial court's determination to permit suspension of enforcement, and Rule 24.4(a)(4) does not provide this Court with jurisdiction to review the order. Rather, the trial court's July 6, 2022 order "expressly states that it is an order under Rule 24.1(e) to adequately protect judgment creditors during appeal." According to Appellees, because the Rules of Appellate Procedure and Texas Civil Practice and Remedies Code do not expressly grant us jurisdiction to review such an order, we must lack jurisdiction to do so.
By contrast, Senior Care argues that Appellees' dismissal motion ignores our authority to review a trial court's order regarding the determination whether to permit suspension of enforcement. See Tex. R. App. P. 24.4(a)(4). Senior Care argues that the trial court's order, which provided that the "August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect" pending appeal, allows enforcement of the judgment "[d]espite the fact that Senior Care has properly suspended the judgment." Accordingly, Senior Care argues that we may exercise our authority to review whether the trial court erred in its determination to allow enforcement of the judgment pending appeal.
We agree with Senior Care and hold that Rule 24.4(a)(4) vests us with jurisdiction to resolve whether the trial court's express continuation of the post-judgment receivership resulted in a denial of judgment suspension, in whole or in part. The circumstances here are unique: the trial court's supersedeas order expressly "suspended" enforcement of the judgment pending appeal, yet it also expressly allows the Order Appointing Post-Judgment Receiver to remain in effect pending appeal pursuant to Rule 24.1(e). We cannot ignore the practical effects of those contradictory directives.
The final judgment expressly "terminated" the pre-judgment receivership and replaced it with a receivership pursuant to Civil Practice and Remedies Code section 31.002, entitled "Collection of Judgment Through Court Proceedings." That statute authorizes the appointment of a receiver to aid in the execution of a judgment by taking possession of nonexempt property, selling it, and paying the proceeds to the judgment creditor. Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(3).
Consistent with this statutory authority, the trial court's Order Appointing Post-Judgment Receiver vests the receiver with broad powers to aid in judgment execution, including to "take and have complete and exclusive control and possession of the Property"; to "control, manage, administer, operate, protect, lease and market the Property"; to "receive and collect any and all sums due or owing to [the judgment debtors] in any manner related to the Property"; and, most significantly, "to conduct a sale of the Property made the subject of the receivership, in whole or in part, in a commercially reasonable manner." (Emphasis added).
The trial court's continuation of the post-judgment receivership is antithetical to its directives that: (1) "Senior Care Living VI, LLC's cash deposit in lieu of supersedeas bond in the amount of $10.00 is sufficient under Texas Rule of Appellate Procedure 24.2 to supersede the final judgment"; and (2) "enforcement of the judgment is hereby SUSPENDED." Civil Practice and Remedies Code section 31.002, after all, is a judgment-execution tool. By the statute's own terms, a receivership established under this section is a form of "aid from a court of appropriate jurisdiction . . . in order to . . . obtain satisfaction on the judgment." Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a); Haden v. David J. Sacks, P.C., 332 S.W.3d 523, 528 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) (stating that section 31.002 "aids collection of final money judgments by empowering trial courts to issue various orders aimed at requiring a judgment debtor to turn over to a judgment creditor nonexempt property that the debtor owns and controls").
A judgment creditor has a right to have execution issue to enforce a judgment pending appeal, but only where no supersedeas bond has been filed or approved. See Tex. R. Civ. P. 627. Rule of Appellate Procedure 24.1 states in no uncertain terms that "[e]nforcement of a judgment must be suspended if the judgment is superseded. Enforcement begun before the judgment is superseded must cease when the judgment is superseded." Tex.R.App.P. 24.1(f). Senior Care's $10.00 cash deposit therefore prevents enforcement of the judgment pending appeal and requires the cessation of any enforcement or execution proceedings that may have begun before the deposit, including any judgment-execution remedies authorized by section 31.002. See In re Fuentes, 530 S.W.3d 244, 246 (Tex. App.-Houston [1st Dist.] 2017, orig. proceeding) (recognizing that once judgment is superseded, judgment may not be executed and security may not be impaired).
Because the trial court's order that the "Order Appointing Post-Judgment Receiver is continued in effect" would effectively nullify the order's prior sentence that "enforcement of the judgment is hereby SUSPENDED," we hold that we have jurisdiction to review the order as a "determination whether to permit suspension" of judgment enforcement. See Tex. R. App. P. 24.4(d). We further hold that the trial court's invocation of Rule 24.1(e) as the basis for continuing the section 32.001 post-judgment receivership does not deprive us of jurisdiction. Rule 24.1(e) only authorizes a trial court to make "any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause." Tex.R.App.P. 24.1(e). If a trial court orders relief that has the effect of denying the suspension of judgment execution, that denial is reviewable under Rule 24.4(d).
Accordingly, we deny Appellees' "Motion to Dismiss [Senior Care's] Motion for Review Under [Texas Rule of Appellate Procedure] 24.4 for Lack of Jurisdiction."
B. Merits of Senior Care's Challenge to Supersedeas Order's Continuation of Post-Judgment Receivership
Senior Care asks this Court to review and vacate the portion of the trial court's July 6, 2022 supersedeas order stating that the "August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect." Senior Care argues that this directive conflicts with the order's prior sentences ordering that enforcement of the judgment be suspended because Senior Care's cash deposit suffices to supersede the final judgment, such that "no additional security is needed." Senior Care further argues that the Order Appointing Post-Judgment Receiver cannot be sustained under Rule 24.1(e) because the order permits the receiver to control, market, and sell Senior Care's property, thereby effectuating execution of judgment. Senior Care also argues that the trial court's order violates Rule 24.2(d) by prohibiting Senior Care from possessing and using the Property in the normal course of business.
"A judgment debtor is entitled to supersede the judgment while pursuing an appeal." Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009); see also In re Longview Energy Co., 464 S.W.3d 353, 359 (Tex. 2015) (observing that supersedeas rules "respect[] the importance of the right to a meaningful appeal"). Rule 24.1(f) states plainly that "[e]nforcement of a judgment must be suspended if the judgment is superseded." Tex.R.App.P. 24.1(f). The trial court has no discretion to deny enforcement suspension of a superseded money judgment.
The August 4, 2021 Order Appointing Post-Judgment Receiver expressly appointed the receiver pursuant to Civil Practice and Remedies Code section 31.002. As explained above, a receiver appointed by a trial court under section 31.002 is a tool to aid judgment execution. Hydroscience Techs., Inc. v. Hydroscience, Inc., No. 05-11-01536-CV, 2012 WL 1882204, at *2 (Tex. App.-Dallas May 22, 2012, mem. op. on motion) (describing section 31.002 as concerning "appointment of a receiver to collect a judgment"). Section 31.002 states that "[a] judgment creditor is entitled to aid from a court . . . to obtain satisfaction on the judgment." Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a). Section 31.002(b) vests the trial court with authority to confer such aid in the form of "a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to a judgment creditor to the extent required to satisfy the judgment." Id. § 31.002(b).
That is what happened here. Undisputedly, the Order Appointing Post-Judgment Receiver gives the receiver all of these powers with respect to Senior Care's property. Consequently, the trial court effectively denied Senior Care its right to judgment suspension in ordering that the August 4, 2021 Order Appointing Post-Judgment Receiver be continued in effect. That denial constitutes an abuse of the court's discretion.
Appellees respond that the trial court did not abuse its discretion by continuing the receivership because this a legitimate use of the trial court's authority conferred by Rule 24.1(e). Indeed, the trial court's July 6, 2022 order states that the "August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect in accordance with [Texas Rule of Appellate Procedure] 24.1(e)."
We disagree. Rule 24.1(e) authorizes the trial court to "'make any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause,' but only so long as the order is not in conflict with Chapter 52" of the Civil Practice and Remedies Code. Huff Energy Fund, L.P. v. Longview Energy Co., 510 S.W.3d 479, 486 (Tex. App.-San Antonio 2014, op. on motion) (citing Tex.R.App.P. 24.1(e) and Tex. Civ. Prac. & Rem. Code Ann. § 52.005). Section 52.006 states that "nothing in this section prevents a trial court from enjoining the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business." Tex. Civ. Prac. & Rem. Code Ann. § 52.006; see also Tex. R. App. P. 24.2(d) (prohibiting trial court from making "any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business").
The August 4, 2021 Order Appointing Post-Judgment Receiver-which authorized the receiver to market and sell Senior Care's property-interferes with Senior Care's use, transfer, conveyance, or dissipation of assets in the normal course of business. Because this section 31.002 receivership is a tool designed to effectuate judgment execution, the trial court had no discretion to allow the receivership to continue, with no changes to the authority granted in the August 4, 2021 Order Appointing Post-Judgment Receiver, once it found that Senior Care's $10.00 deposit was sufficient to supersede the judgment.
Appellees also argue that the trial court had authority to continue the post-judgment receivership even after Senior Care superseded the judgment because the purpose of supersedeas is to preserve the status quo; the Property had been under receivership for approximately two years already; and Rule 24.2(d) permits continuation of the "normal course of business."
While we agree that the purpose of supersedeas is to "preserve the status quo," we disagree with Appellees that the trial court's continuation of a section 31.002 receivership accomplishes this goal. "Supersedeas preserves the status quo of matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken." In re City of Cresson, 245 S.W.3d 72, 74 (Tex. App.-Fort Worth 2008, no pet.); Alpert v. Riley, 274 S.W.3d 277, 297 (Tex. App.- Houston [1st Dist.] 2008, pet. denied). Although a receiver had been in place and had possession of the Property since the October 2019 consent order, the trial court "terminated" that receivership and replaced it with a section 31.002 receivership. Prior to judgment, title to the Property remained with Senior Care, despite the consent-order receivership. Notably, the consent order did not give the pre-judgment receiver the right to sell the Property.
The post-judgment receivership is a different animal. Consistent with section 31.002, the trial court's August 4, 2021 Order Appointing Post-Judgment Receiver vests the receiver with the authority to sell "the Property made the subject of the receivership, in whole or in part." That order defines the "Property" to include substantially all of Senior Care's assets. If the receiver were to exercise this authority pending appeal of the trial court's judgment, the status quo of Senior Care's ownership would not be preserved. Furthermore, Appellees are incorrect in arguing that Rule 24.2(d) prohibits any order that interferes with the "normal course of business." Instead, Rule 24.2(d) prohibits "any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business." Tex.R.App.P. 24.2(d) (emphasis added).
For these reasons, we find that the trial court abused its discretion by ordering that the August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect in accordance with Rule 24.1(e) pending appeal. The question thus becomes one of remedy. Appellees argue that "if this Court finds any of the terms of the receivership order impermissible, the Court should instruct the trial court to prepare a more-tailored receivership that protects [Appellees] and the value of their collateral under Rule 24.1(e)-allowing the Receiver to continue the status quo of operating and preserving the value of the senior living facility and cash collateral-while removing any judgment 'enforcement' provisions (such as the Receiver selling the senior living facility)."
We decline this invitation. Rule 24.4(a)(4) gives us authority to review "the determination whether to permit suspension of enforcement." Consistent with that limited authority, we simply hold that the trial court's order continuing the section 31.002 receivership effectuates a denial of enforcement suspension, thereby constituting an abuse of the trial court's discretion. Accordingly, we vacate that provision of the order. However, the prior sentence stating that "[i]t is finally ORDERED that enforcement of the judgment is hereby SUSPENDED" remains in force and effect.
Nothing in Rule 24.4(a)(4) gives this Court authority to craft-on our own- some alternative arrangement to the section 31.002 receivership that might satisfy Rule 24.1(e) while avoiding the prohibition on permitting enforcement of a superseded judgment. Despite Appellees' argument, Hydroscience Technologies does not suggest that we may do so. See 2012 WL 1882204, at *2. In that case, the Dallas Court of Appeals upheld a trial-court created arrangement-termed a "receivership"-by which the trial court appointed a "receiver" under Civil Practice and Remedies Code Chapter 64 to "monitor" the judgment debtor's use of the property. Id. at *1. The receiver had "no control over [the judgment debtor's] property," but rather would "monitor [the judgment debtor's] activities and report any suspicious transfers to the trial court." Id. at *2.
In affirming that arrangement as a proper use of the trial court's authority permitted by Rule 24.1(e), the Dallas Court emphasized that this arrangement was "not a receivership in the classic sense. Rather, it is a remedy designed to protect a shareholder's rights pending appeal." Id. Significantly, the trial court distinguished this arrangement from a section 31.002 receivership of the sort at issue here. The Dallas Court explained that section 31.002 was not applicable because that section "concern[ed] appointment of a receiver to collect a judgment." Id.
Here, we do not speculate as to whether it is possible to modify a section 31.002 judgment-collection receivership into permissible relief pursuant to Rule 24.1(e). Instead, we may only vacate any portions of the trial court's order that amount to an abuse of discretion. And here, we conclude that the trial court abused its discretion by permitting the continuation of the post-judgment receivership after finding that Senior Care had paid a sufficient deposit to suspend execution of the judgment pending appeal. Accordingly, we leave any determination regarding whether relief is warranted pursuant to Rule 24.1(e) to the trial court.
Conclusion
For the reasons discussed above, we conclude that the trial court did not abuse its discretion in finding that Senior Care's $10.00 deposit in lieu of bond was sufficient to supersede the judgment pending appeal. However, we conclude that the trial court abused its discretion in its finding regarding "substantial economic harm" to Senior Care. The Court therefore grants Appellees' "Supplemental Rule 24.4 Motion for Review of Supersedeas Ruling" as to their second point of error, in part. We vacate subparagraph "k"-and all of its subparts-of paragraph "5" of the trial court's July 6, 2022 "Order Denying Preston Hollow Capital, LLC's Amended Rule 24.2 Contest Regarding Senior Care Living VI, LLC's Supersedeas Bond and Net Worth." Appellees' motion is denied in all other respects.
With respect to Senior Care's "Motion for Review Under Rule 24.4," because we have concluded that the trial court did not abuse its discretion by suspending enforcement of the judgment pending appeal, we conclude that the trial court did abuse its discretion in ordering the August 4, 2021 Order Appointing Post-Judgment Receiver to remain "in effect." We therefore grant the motion in part and vacate the following provision of the trial court's July 6, 2022 order: "It is further ORDERED that the August 4, 2021 Order Appointing Post-Judgment Receiver is continued in effect in accordance with [Texas Rule of Appellate Procedure] 24.1(e)."
We further deny Appellees' "Motion to Dismiss [Senior Care's] Motion for Review Under Rule 24.4 for Lack of Jurisdiction." We further vacate the temporary stay orders issued by this Court on July 8, 2022, and July 21, 2022. We remand to the trial court for further proceedings consistent with this opinion. See Tex. R. App. P. 24.3(a)(2).