Bassi Price, Inc. v. Malinche Cattle Co., Inc.; Kotara's Custom Hay Baling & Hay Sales--Appeal from 81st Judicial District Court of Wilson County

No. 04-01-00004-CV
BASSI PRICE, INC.,
Appellant
v.
MALINCHE CATTLE CO., INC.

and Kotara's Custom Hay Baling & Hay Sales,

Appellees
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 98-09-0327-CVW
Honorable Stella Saxon, Judge Presiding (1)
Opinion on Appellant's Motion for Review on Supersedeas Bond

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 9, 2001

MOTION TO STRIKE EXTRANEOUS MATERIAL DENIED; AFFIRMED

Appellant, Bassi Price, Inc., seeks review of the trial court's ruling that the supersedeas bond is inadequate. The trial court ordered a sufficient bond filed to include the amount of the judgments plus costs and interest. Because we hold the original amount of the bond was insufficient on its face, we affirm the order of the trial court.

To be sufficient to protect the interest of the judgment debtor, a bond must, at a minimum, be: (a) in an amount at least the amount of the judgment, interest for the estimated duration of the appeal, and costs; (b) payable to the judgment debtor; (c) signed by the judgment debtor or the debtor's agent; (d) signed by a sufficient surety or sureties as obligors; and (e) conditioned as required by Tex. R. App. P. 24.1(d). Tex. R. App. P. 24.1(b), 24.2(a)(1). Even after its plenary power has expired, the trial court retains jurisdiction to order the type and amount of security and decide the sufficiency of the sureties. Tex. R. App. P. 24.3(a). On the motion of a party, we may review the trial court's exercise of discretion under Rule 24.3(a). Tex. R. App. P. 24.4(a)(5). The standard of review for reviewing the trial court's ruling on the sufficiency of a supersedeas bond is abuse of discretion. TransAmerican Natural Gas Corp. v. Finkelstein, 905 S.W.2d 412, 414 (Tex. App.-San Antonio 1995, writ dism'd).

In the trial court, appellees, Malinche Cattle Company and Kotara's Custom Hay Baling & Hay Sales, challenged both the sufficiency of the amount of the bond and the sufficiency of the surety on the bond. The trial court's order does not address the sufficiency of the surety. (2) On its face, the original supersedeas bond did not include an amount for costs as required by Rules 24.1(b) and 24.2(a)(1). Accordingly, the trial court did not abuse its discretion in ordering a sufficient bond be filed. We affirm.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Although the Honorable Stella Saxon presided at the trial of this cause, the Honorable Ron Carr heard the challenges to supersedeas bond and entered the order finding the bond inadequate.

2. Bassi Price's Exhibits A and H, an affidavit from the surety and a purported listing of the surety's assets, are presented in support of the sufficiency of the surety. Because the trial court's order does not address the surety, the exhibits are not relevant to our determination. We decline to strike the exhibits but they are not considered in our review.