### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00132- CV

Donald L . Knepp and An drea L. K nepp, Ap pellants

v. K.R .A.K . Investm ents, LLC, Appellee

F ROM TH E H AY S CO UNTY COURT AT LAW NO . 1, NO. 13- 0777 -C, HO NORAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

P ER CURIAM

Appellants Donald L

. Knepp and Andre a L

. Knepp have filed in this Court an “Emer g ency Motion to Modify Supersede as Bond,” complaining that (1) the amount of the supers edeas bond set by the county court violates the 50% net-wor th cap applicable to money judgme nts and (2) the terms for posting the re q u i re d s ecurity are too vag ue and indefinite to adequately apprise them of the amount require d to suspend enfor ceme nt of the underly ing judgme nt. Be cause we conclude that the order setting the superse deas bond lacks clar ity , we abate the appea l and reman d the case to the county court with instructions to specify the amount and terms for suspending enfor ceme nt of the judg ment pending appea l to this Court.

Appellee K.R.A.K. I nvestments, L L C initiated the underly ing eviction proce eding s afte r acquir ing the Knepps ’ h ome in a fore closure sale. See generally Tex. Prop. Code§§ 24.001–.011. The justice court awa rded possession of the proper ty to K.R.A.K., and the Knepps took a de novo appea l to the County Court at L aw No. 1 of Hay s County

. See Tex. R. Civ. P. 510.9–.10 (g overning appea l of eviction proce eding to county court). The Knep p s re m ained in possession of the proper

ty pending the resolution of that appeal b y depositing $13,600 into the court’s r eg istry

as sec urity

. See Tex. R. Civ. P. 510.9 (allowing party to appea l eviction judgme nt to county court by filing bond or making cash deposit in amount require d by justice court or by filing

sworn statem en t o f i n ab ility to pay ). On Fe bruar

y 28, 2014, the county court signe d a judgme nt

awa rding K.R.A.K. possession o f th e subject proper ty and damag es of $11,281.92 in lost renta l value incurre d while the appea l was pending in that court, $1,550 in expert witness fee s, and $458 in court costs. See Tex. R. Civ. P. 510.11 (allowing trial court to awar d preva iling par ty damag es suffe red for “w i t h h o l d ing or defe nding possession of the premises during the appea l”). The county court based the l o s t renta l value damag es on finding s that the renta l value of the subject proper ty is $2,200 per month and the fac t that the Knepps h ad o ccupied the proper ty for 158 day s while the appea l was pending

.

Pursuant to section 24.007 of the Texas Property Code, a county court judgme nt “in an eviction suit may not
. . . be st ay ed pending appeal unless, within 10 day s of t he s i gn ing of the judgme nt, the appellant files a superse deas bond in an amount set by the county court.” Tex. Prop. Code § 2 4

. 0 07(a)

. Section 24.007 specifie s that, in setting the superse deas- bond amount in an eviction proce eding , the court must “provide protec tion for the appellee to the same extent as in any other appea l, taking into considera tion the value o f rents likely to acc rue during appea l, damag es which may occur as a re s u l t o f t he st ay during appea l, and other damag es or amounts as t he court

2may deem appropriate. ” Id

. The Tex as R ules of Appellate Procedur e li kewise imbue trial courts

with discretion in deter

mining the secur ity require d to suspend enfor ceme nt of a judgme nt involving

rec overy of an interest in rea l proper ty , subject only to the require ment that the minimum amount of

secur ity be “the value of the proper ty interest’s rent or reve nue,” unless t h e court finds that the amount require d by

the rules “is likely

to cause the judg ment debtor substantial ec onomic harm.” Tex. R. App. P . 24.2(a) (2), ( b).

I n the prese nt case , the county court set the terms for suspending judgme nt pending appea l as follows:

I T I S FURTHE R ORDERED that should appea l be taken from this Court to the Court of Appe als, the Orde r of this Court i s that Defe ndants post a superse deas bond in the amount of $15,600.00. The D efe ndants place d into evidenc e that as to net worth and income, the Def endant has income of approximately $3000.00 a month. Def

endants are require d to p o s t 5 0 % o f that income ($1,500.00) into the reg istry of the c ourt as periodic increase s to the bond starti ng March 15th 2014. The Court finds that the Def endants’ [si c] have made prior deposits into the reg istry of the Court in the total amount of $13,600.00. All prior deposits are here by deeme d part of the superse deas bond such that Def endants must deposit an additional $2,000.00 to post the entire bond

. (Emphase s ad ded.) The Knepps contend the county court err ed in requiring them to post any additional amount as secur ity beca use (1) the amount require d to superse de a “money judgme nt” is cappe d at t he lesser of t he amount of t he judgment, 50% of net wor th, or $25 milli on and (2) they have conclusively established a neg ative net worth, which means t h ey ca n not be require d to post additional secur ity bey ond the sums alre ady in the court’s reg istry

. See Tex. Civ. Prac. & Rem. Code § 5 2

. 0 0 6 (a ), (b) (ca

pping amount require d to suspend enfor ceme nt of money judgme nt); see also

3Tex. R. App. P. 24.2(a) (1) (same)

. They also complain that the terms of the “per iodic incre ases” are

impermissibly

vag ue and a

mbiguous. We are unable to ascert ai n fr om the county court’s judgme nt how the superse deas bond was calc ulated, what the total amount of the bond is, or how the bond must be satisfied. The judgme nt specif

i es that the superse deas bond is set at $15,600 and that afte r cre diting amounts alre ady deposited with the court, the Knepps “must deposit an additional $2,000.00 to post the entire bond. ” (Emphasis added.) Howeve r, the judgme nt also appea rs to require the Knepps to deposit $1,500 into the court’s reg istry “as periodic incre ases to the bond,” starting Marc h 15. This lang uag e sug g ests that the total bond is actua lly in excess of $15,600, contra ry to the statement that the “entire bond” would be satisfied with the pay ment of an additional $2,000. To the extent the county court intended to incre ase the amount of t he bond i ncre mentally as a proxy for the lost renta l value that is likely to acc rue while the appea l is pending , the county court has neither clea rly imposed such an obliga tion nor specifie d the pay ment fre quency . The only thing that can be deter mined for sure from
t he judgme nt is that the Knepps wer e require d to deposit an additional $1,500 into the court’s

re gi s t ry o n M arc h 15, which they did. I f the “entire bond” is truly $15,600, the Knepps may b e require d to deposit another $500 now or at some unspecifie d future date. I f the bond is $15,600 plus the $1,500 due on March 15 , they may be require d to deposit an additional $2,000. And if the bond is $15,600 plus “periodic increases,” they may have to deposit not only an additi o n al $ 2 , 0 0 0 but also further pay

ments of $1,500 at unknown intervals. As a result o f t h is ambig uity , neither the Knepps nor K.R.A.K. have been adequatel y informed of the terms on which the underly ing judgme nt may be super seded pe nding a ppeal.

4We there fore abate this appea l and rema nd the case to the county court to specify the prec ise amount and terms of the secur ity require d to suspend enfor ceme nt of the ju d g ment on appea l. S ee T ex . R

. App. P. 24.3(a) (trial court has continuing jurisdiction to order amount and ty pe o f

secur ity even afte r that cour t’s plenar y power has otherwise expired), 44.4 (g overning trial court’s

reme diable err or). The court’s supplemental order or judgme n t s h o uld be filed in this Court in a supplemental clerk’s record within 30 day s of t he d at e o f t his opinion. I n the m eantime, until the appea l is reinstated, we will consider that the trial court’s judgme nt has been adequately superse ded.

Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Abated a nd Remanded Filed: Apr il 8, 2014

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