Order issued March 30, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-20-00606-CV

———————————

PORT ARTHUR STEAM ENERGY, L.P., Appellant

V.

OXBOW CALCINING LLC, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2020-18313

ORDER ON MOTION TO REVIEW SUPERSEDEAS BOND

Pursuant to Texas Rule of Appellate Procedure 24.4, appellant, Port Arthur 

Steam Energy, L.P. (“PASE”), requests that this Court review and vacate or 

reverse the trial court’s order requiring a $1,207,282.97 bond to supersede 

execution of an arbitration award that was confirmed by the trial court. PASE also 
2

requests that the bond amount to be set at no more than $138,574.28. We deny 

PASE’s Motion to Review Supersedeas Order.

1

Background

PASE owns a waste heat recovery facility in Port Arthur, Texas. Appellee,

Oxbow Calcining LLC (“Oxbow”), owns and operates an adjacent coke-calcining

plant in Port Arthur. PASE and Oxbow’s predecessor entered into a Heat 

Exchange Agreement (“HEA”),2the alleged breach of which caused the parties to 

engage in arbitration.

On March 17, 2020, an arbitration panel issued an arbitration award in favor 

of Oxbow. The arbitration award was confirmed by the trial court in a July 23, 

2020 final judgment.

3

 The arbitration panel found, among other things, that PASE 

breached the HEA4and that Oxbow had no liability to PASE. The arbitration

award ordered PASE to pay the following:

1 PASE filed a combined Motion to Review Supersedeas Order and Emergency 

Motion to Stay. On January 7, 2021, the Court granted the portion of PASE’s 

motion requesting a stay of the trial court proceedings pending this Court’s 

disposition of the motion to review supersedeas order. We now address the 

remaining portion of PASE’s combined motion.

2 According to the arbitration award, “Broadly speaking, Oxbow provided waste 

heat generated by the calcining process to PASE.”

3 The final judgment granted Oxbow’s motion to confirm the arbitration award and 

denied PASE’s motion to vacate the arbitration award. 

4 The arbitration panel found that PASE breached the HEA by bringing an action in 

state court and by failing to fund an escrow account. 
3

• $500,000 in escrow plus interest at five percent from August 31, 2019 in 

the amount of $68.49 per day until March 17, 2020, the date of the 

arbitration award;

• An annual escrow deposit of $500,000 every August 31, beginning on 

August 31, 2020, until the balance equals $2,000,000;

5

• $44,425.00 in American Arbitration Association administrative fees;

• $244,798.57 in compensation and expenses of the arbitrators;

• $138,574.278 in reimbursement to Oxbow for the amount it had 

deposited with the American Arbitration Association; and

• Interest at the rate of five percent per year post award and post judgment 

until fully paid.

On April 4, 2020, Oxbow propounded post-judgment discovery on PASE. 

On August 7, 2020, Oxbow filed a motion to compel PASE’s post-judgment 

discovery responses. 

On August 21, 2020, PASE posted a bond of $138,574.28 to suspend 

enforcement of the trial court’s final judgment pending appeal. PASE filed a 

notice of appeal the next day.

6

 On October 14, 2020, Oxbow filed a motion to 

increase the amount of security, asserting that the bond was insufficient to

5 The escrow payments “relate[] to PASE’s ongoing obligation under the HEA and 

[the arbitration award] to ‘expeditious[ly]’ dismantle and remove its Steam 

Production Facility (which adjoins Oxbow’s Port Arthur facility).” 

6 PASE states in its motion that it is appealing the arbitration panel’s escrow ruling 

“on multiple grounds.”
4

supersede the judgment of $1,185,345.99.

7

 In its motion, Oxbow asked the trial 

court to order PASE to post an additional bond of $1,046,771.71. PASE filed a 

response, and the motion to increase the amount of security was heard on

November 18, 2020. On November 24, 2020, the trial court signed an Order 

Increasing Amount of Security to Supersede Judgment (the “supersedeas order”), 

stating in pertinent part:

The security [PASE] must post to supersede the [j]udgment is 

increased by the amount of $1,068,708.69 and the deadline to 

supersede the [j]udgment with this increased amount shall be 

March 1, 2021. The amount of the supersedeas bond shall increase by

$500,000.00 on August 31, 2021, and by $500,000.00 on August 31, 

2022.

The order also required PASE to respond to certain post-judgment discovery. On 

December 31, 2020, PASE filed in this Court its Motion to Review Supersedeas 

Order. 

In its motion, PASE asserts that the $138.574.28 bond it posted was a 

sufficient bond because (1) Oxbow was not awarded compensatory damages in the 

trial court’s judgment, (2) the security amount bears no relationship to any 

potential loss Oxbow could incur while PASE’s appeal is pending, and (3) ordering 

the additional security will cause PASE substantial economic harm and hinder its 

7 Oxbow asserts that the trial court’s judgment comprises the $500,000 escrow 

payment due on August 31, 2019, the $500,000 escrow payment due on August 

31, 2020, $13,629.51 in pre-award interest on the $500,000 August 31, 2019 

escrow payment, $138,574.28 in arbitration administrative fees and expenses and 

compensation, and $33,142.40 in post-award and post-judgment interest. 
5

ability to pursue its appeal and other litigation with Oxbow. PASE also asserts that

it should not have to respond to the requested post-judgment discovery. In 

response to PASE’s motion, Oxbow asserts that (1) the escrow-payment awards 

are compensatory damages and therefore the trial court’s supersedeas order 

correctly required PASE to pay an additional $1,068,708.69 to supersede the 

court’s judgment, (2) even if the escrow payments are not compensatory damages, 

requiring security for them is still proper, (3) the supersedeas order is not excessive 

and does not cause PASE substantial economic harm, and (4) this Court lacks 

jurisdiction over PASE’s appeal of the trial court’s post-judgment discovery ruling.

Standard of Review 

A trial court’s ruling on the amount of supersedeas bond is reviewed for an 

abuse of discretion. Eagle Oil & Gas Co. v. Shale Expl., LLC, 510 S.W.3d 92, 94 

(Tex. App.—Houston [1st Dist.] 2016, order); EnviroPower, L.L.C. v. Bear,

Stearns & Co., Inc., 265 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2008, order). 

To survive an abuse-of-discretion challenge, the evidence must be legally and 

factually sufficient to support the trial court’s ruling. G.M. Houser, Inc. v.

Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.). “The test for 

whether a trial court abused its discretion is whether the trial court acted arbitrarily 

or unreasonably in light of all the circumstances of the case.” EnviroPower, 265

S.W.3d at 2. Upon a finding that the trial court abused its discretion, this Court has 
6

the authority to order the amount of the security increased or decreased, but if 

increased, it must be an amount not to exceed the lesser of fifty percent of the 

judgment debtor’s net worth or $25,000,000. TEX. CIV. PRAC. & REM. CODE ANN.

§ 52.006; TEX. R. APP. P. 24.2, 24.4.

Discussion

Texas Rule of Appellate Procedure 24 governs the suspension of 

enforcement of a trial court judgment. It states in pertinent part:

(a) Methods. Unless the law or these rules provide otherwise, a 

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). When the judgment is for money, the amount of the bond 

or security “must equal 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); see also TEX. CIV. PRAC. & REM. CODE

§ 52.006(a). When the judgment is for something other than money or a property

interest, the trial court determines the amount and type of supersedeas bond that 

the judgment debtor must post. TEX. R. APP. P. 24.2(a)(3). The purpose of 
7

supersedeas bond is to “preserve[] 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).

A. Compensatory Damages 

During the hearing on Oxbow’s motion to increase the amount of security, 

the trial court determined that the funds to be escrowed are compensatory damages. 

The Texas Civil Practice and Remedies Code defines “[c]ompensatory damages”

as “economic and noneconomic damages.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 41.001(8) (internal quotations omitted). “Economic damages” are defined as 

“compensatory damages intended to compensate a claimant for actual economic or 

pecuniary loss; the term does not include exemplary damages or noneconomic 

damages.” Id. § 41.001(4) (internal quotations omitted). “Noneconomic damages” 

are defined as “damages awarded for the purpose of compensating a claimant for 

physical pain and suffering, mental or emotional pain or anguish, loss of 

consortium, disfigurement, physical impairment, loss of companionship and 

society, inconvenience, loss of enjoyment of life, injury to reputation, and all other 

nonpecuniary losses of any kind other than exemplary damages.” Id. § 41.001(12)

(internal quotations omitted).
8

According to PASE, no security is needed for the escrow account it was 

ordered to fund because those funds do not constitute compensatory damages.

PASE asserts that the arbitration panel’s award ordering PASE to deposit funds 

into an escrow account rather than awarding the funds to Oxbow “in any manner,

whether as costs, compensatory damages, liquidated damages, penalties, interest, 

or otherwise,” coupled with the fact that Oxbow “never claimed, argued, or much 

less established that it suffered a loss of approximately $2 million or that the 

approximately $2 million in escrow funding required by the [j]udgment constitutes 

compensation to Oxbow for a loss Oxbow actually incurred” negates any 

possibility that the escrowed funds could be compensatory damages. 

PASE relies on the definition of “damages” in In re Xerox Corp., 555 

S.W.3d 518 (Tex. 2018) (orig. proceeding). In In re Xerox Corp., the Texas

Supreme Court held that the proportionate-responsibility scheme in chapter 33 of 

the Texas Civil Practice and Remedies Code does not apply to the Texas Medicaid 

Fraud Prevention Act. 555 S.W.3d at 539. In its analysis, the supreme court 

compared the definitions of “damages” and “penalty”:

“Damages” are “[m]oney claimed by, or ordered to be paid to, a

person as compensation for loss or injury.” “Damages” compensate

for loss—actual or reasonably estimable—and no more. But, not all

compensation constitutes “damages,” even when an award is

necessary to make a party whole. For example, attorney’s fees are

generally not damages, even if compensatory. More recently, we
9

reaffirmed in Wal-Mart Stores, Inc. v. Forte,

[8]

that “not all

compensatory recovery can be considered damages,” and explained

that “civil penalties are different from compensatory damages.”

A “penalty” is “[p]unishment imposed on a wrongdoer,” especially,

“a sum of money exacted as punishment for either a wrong to the

state or a civil wrong (as distinguished from compensation for an

injured party’s loss).” Penalties “go beyond compensation” and “are

intended to punish, and label defendants wrongdoers.” Monetary

liability that exists even when no loss has occurred can only be a fine

or a penalty, not damages. But that does not mean penalties do not

and cannot have “compensatory traits.” Indeed, the Legislature may

choose a penalty regime precisely because harm ensuing from a

wrong may be inestimable and, therefore, must be deterred and

prevented. Moreover, penalties necessarily compensate in the sense

that the hallmark of a penalty is that it goes beyond compensating for

a loss.

Id. at 529–30 (internal footnotes omitted). PASE asserts that the escrow award 

cannot be classified as compensatory damages because Oxbow was not awarded

the escrow fund as “compensation for a loss.”9

Oxbow, on the other hand, asserts that the escrow funds are compensatory 

damages because the payment of the escrow funds was ordered by the arbitration 

panel. Oxbow relies on the definition of damages from In re Xerox Corp. to assert 

8 497 S.W.3d 460 (Tex. 2016).

9 During the hearing in the trial court, Oxbow stated that the escrowed funds are 

liquidated damages. “Liquidated damages constitute a penalty unless (1) the harm 

caused by the breach is incapable or difficult of estimation and (2) the amount of 

liquidated damages is a reasonable forecast of just compensation. . . . A remedy 

unrelated to actual loss is a penalty.” In re Xerox Corp., 555 S.W.3d 518, 532–33

(Tex. 2018) (orig. proceeding) (internal footnotes omitted). Oxbow did not 

re-urge its liquidated damages argument in its response to PASE’s motion in this 

Court.
10

that the escrow funds need not be paid to it to constitute damages, given that 

Oxbow has a claim to the maintenance of the escrow funds. Id. at 529.

Specifically, Oxbow states that the HEA and the arbitration award describe the 

circumstances under which it has a claim to the escrow funds. The arbitration 

award says that the HEA “did not prohibit Oxbow from demanding debts due from 

PASE in cash.” And section 8.6(b) of the HEA, which enumerates the 

requirements for the escrow deposits, states that the funds in the escrow account 

may only be removed by PASE “upon [Oxbow’s] written acknowledgment that 

PASE has satisfied all of its obligations under [s]ection 8.6(a)” of the HEA. 

Oxbow asserts that the escrow funds are not, as PASE argues, potential 

compensation for a future loss but are, rather, compensation for a current loss: 

PASE’s continued failure to remove its equipment as required at the termination of 

the HEA agreement.

10

 According to Oxbow, the escrow award gave it the “benefit 

of its bargain,” the typical measure of damages in a breach-of-contract suit, but that 

without a sufficient supersedeas bond, it will not have access to the escrowed 

funds, if necessary. PASE does not dispute the lack-of-access argument. Rather, it 

says it “does not want to put a million-plus in escrow, and not be able to use 

it . . . for legal fees or to maintain [its] assets.”

10 PASE acknowledged during the trial court’s hearing that it was “leaving all of its 

equipment[] while the appeal [was] pending.” PASE subsequently stated that it 

“w[ould] not remove its plant assets and equipment[] while the appeal [was]

pending.”
11

The cases PASE relies on are inapt. See In re Xerox Corp., 555 S.W.3d at 

532–33 (liquidated damages are penalty unless harm caused by breach is difficult 

to estimate and damage amount is “reasonable forecast of just compensation”); In 

re Longview Energy Co., 464 S.W.3d 353, 361 (Tex. 2015) (orig. proceeding) 

(disgorgement, like attorney’s fees, is not measure of compensatory damages); In

re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 172 (Tex. 2013) (orig. 

proceeding) (attorney’s fees are not compensatory damages); Flores v. Millennium 

Interests, Ltd., 185 S.W.3d 427, 433–34 (Tex. 2005) (liquidated damages award in 

relevant Texas Property Code provision was punitive).

The assertion that the escrow payments are compensatory damages is 

cogent, given that Oxbow has an actual claim to $1,000,000 in escrow payments.

B. Economic Harm

PASE asserts that the supersedeas order will cause substantial economic 

harm, depriving it of money it needs to “manage, protect, and maintain its assets, 

and to pursue relief in the courts.” But, during the hearing on Oxbow’s motion to 

increase the amount of security, PASE stated, and its representative testified, that 

PASE’s assets—especially the value of the equipment in its plant—are significant:

• “You have no idea . . . [of] the magnitude of . . . the dollars that are tied up 

in this equipment, and assets, and the value. But it, it – it’s a lot – way

more than any $2 million.”

• “[T]oday – if you were just going to rip it all out, or leave something in 

place and walk away – it, it’s worth, you know, over $5 million. And if 
12

you netted out the cost of scrapping some things, it’s still way over $4 

million.” 

• “[W]e’ve got evidence that . . . Oxbow was valuing this for a buy-out 

purpose, at $30 million, a few years ago.”

• “[I]t’s insured for over $60 million. This is a major plant, with major

assets.”

• “[I]f we put on [evidence of] the assets, Judge, you will see . . . [w]e’re 

talking about what, what’s insured for $60 million. This isn’t just some 

chumpy [sic] little outfit.”

• [W]e came up with . . . an overall value. The assets themselves [are worth] a 

little over $5 million. We have a number for removal and demolition costs 

– that’s $740,715. And so the . . . total net value of the assets, minus the 

removal and demo costs, was $4,427,559.

And PASE said that Oxbow “is fully protected by the value of PASE’s plant

assets” but that it has no intention of selling the assets.11

“[T]he correct measure of a company’s net worth for the purpose of setting a 

supersedeas bond under section 52.006 of the Texas Civil Practice and Remedies 

Code and Rule 24 of the Texas Rules of Appellate Procedure is the company’s 

current assets minus current liabilities at the time the bond is set.” EnviroPower,

265 S.W.3d at 5. Given PASE’s statements and testimony about the value of the 

11 According to PASE,

it was [not] appropriate to start selling the[] assets that c[ould] be easily 

removed, and tak[e] value away from, from th[e] plant, without putting that 

money in escrow. And PASE d[id] not want to put a million dollars-plus in 

escrow, and not be able to use it . . . for legal fees, or to maintain these 

assets.
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assets, the trial court did not abuse its discretion when it concluded that PASE can 

find a source of funds to pay the additional bond amount. 

Further, PASE could have requested a hearing to enable the trial court to 

determine its net worth for establishing the amount of the bond. TEX. R. APP. P. 

24.2(c). Although PASE argued that the legislature has recognized a “new 

balance” between the judgment creditor’s right to a sufficient supersedeas bond 

and the judgment debtor’s right to prevent the dissipation of its assets during 

appeal, PASE did not try to prove its net worth in challenging the requested bond 

increase. Texas Rule of Appellate Procedure 24.2 requires the trial court to lower 

the bond 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 [the trial court] is 

likely to cause the judgment debtor substantial economic harm.” TEX. R. APP. P.

24.2(b). The rule continues:

(c) Determination of Net Worth.

(1) Judgment Debtor’s Affidavit Required; Contents; Prima 

Facie Evidence. A judgment debtor who provides a bond, 

deposit, or security . . . in an amount based on the debtor’s net 

worth must simultaneously 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. An 

affidavit that meets these requirements is prima facie evidence 

of the debtor’s net worth for the purpose of establishing the 

amount of the bond, deposit, or security required to suspend
14

enforcement of the judgment. A trial court clerk must receive 

and file a net-worth affidavit tendered for filing by a judgment 

debtor.

(2) Contest; Discovery. A judgment creditor may file a 

contest to the debtor’s claimed net worth. The contest need not 

be sworn. The creditor may conduct reasonable discovery 

concerning the judgment debtor’s net worth.

(3) Hearing; Burden of Proof; Findings; Additional Security. 

The trial court must hear a judgment creditor’s contest of the 

judgment debtor’s claimed net worth promptly after any 

discovery has been completed. The judgment debtor has the 

burden of proving net worth. The trial court must issue an 

order that states the debtor’s net worth and states with 

particularity the factual basis for that determination. If the trial 

court orders additional or other security to supersede the 

judgment, the enforcement of the judgment will be suspended 

for twenty days after the trial court’s order. If the judgment 

debtor does not comply with the order within that period, the 

judgment may be enforced against the judgment debtor.

TEX. R. APP. P. 24.2(c). PASE did not request a hearing to enable the trial court to 

determine its net worth for posting bond. Rather, on the day of the hearing, PASE

tendered to the court in camera a bank-balance sheet that was filed under seal in 

this Court. 

Even if the hearing on Oxbow’s motion to increase the amount of security

was intended also to be a hearing to determine PASE’s net worth—which was not 

the case—PASE’s filing of a balance sheet as of October 31, 2020 does not satisfy 

the requirement that it file “complete, detailed information concerning [its] assets 

and liabilities from which net worth can be ascertained.” TEX. R. APP. P.
15

24.2(c)(1). Neither the balance sheet, nor the affidavit of PASE’s counsel, which 

was also filed the day of the hearing, addresses PASE’s assets. As the testimony 

from the hearing shows, PASE’s assets include several million dollars’ worth of 

equipment in its Port Arthur plant.

Had there been a net-worth hearing, the trial court would have had to “issue 

an order that state[d] the debtor’s net worth and state[d] with particularity the 

factual basis for that determination.” TEX. R. APP. P. 24.2(c)(3). Given PASE’s 

apparent decision to not request a net-worth hearing, its argument that it cannot 

afford the increased bond is unavailing.

C. Post-Judgment Discovery

PASE also asks this Court for relief from the post-judgment discovery 

propounded by Oxbow. But PASE waived its objections to most of the discovery

requests during the hearing on Oxbow’s motion to increase the amount of security.

PASE stated that it did not “have any particular problem with . . . answering those 

questions, because the assets ha[d] been disclosed,” but that PASE would not 

provide information about its bank balance. PASE also said that it was “inclined”

to answer the discovery, “except for cash positions and bank accounts.” The trial 

court gave PASE until January 15, 2021 to respond to Oxbow’s post-judgment 

discovery and held that PASE did not need to disclose the amount in its bank 

accounts. The trial court’s order said PASE need not respond to two 
16

interrogatories and one request for production that “seek information relating to 

PASE’s bank accounts, bank institutions, and cash balances, except that PASE

shall be required to provide information regarding any transfer of money away 

from its bank accounts or bank institutions between January 1, 2018 and January 

15, 2021.” Given that PASE agreed during the hearing to answer the other

discovery requests, this issue is moot.12

Conclusion

We conclude that the trial court did not abuse its discretion in ordering the 

bond increased by $1,068,708.69, inclusive of interest, and we deny PASE’s

Motion to Review Supersedeas Order. The stay previously imposed by this 

Court’s January 7, 2021 order is lifted. We dismiss as moot Oxbow’s request for 

reconsideration of this Court’s January 7, 2021 stay order.

12 Oxbow asserts that this Court lacks jurisdiction over PASE’s complaints about the

post-judgment discovery. At least one appellate court has ruled on a 

post-judgment discovery motion in similar circumstances. See Huff Energy Fund,

L.P. v. Longview Energy Co., 510 S.W.3d 479, 487–88 (Tex. App.—San Antonio 

2014, no pet.) (holding trial court, in response to rule 24.4 motion, did not abuse 

its discretion in ordering post-judgment production of documents for monitoring 

of trust assets during pendency of appeal). Noting that the court of appeals and the 

trial court concluded that the post-judgment discovery was reasonable, the Texas 

Supreme Court held that ordering the discovery was not an abuse of discretion. In

re Longview Energy Co., 464 S.W.3d 353, 362 (Tex. 2015) (orig. proceeding).
17

PER CURIAM

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.