Reversed and Remanded and Memorandum Opinion filed July 1 4

, 2022.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00725

- CV

BLAINE M. STANDIFORD AND SHERYL E. STANDIFORD

, Appellant

V.

CITIMORTGAGE, INC.

, Appellee

On Appeal from the County Court at Law No

. 2

Travis Co unty, Texas

Trial Court Cause No. C

- 1

- CV

- 17

- 005410

MEMORANDUM OPINION

Appellants Sheryl and Blaine Standiford challenge a final order granting the

r elease of a $19,800 cash bond posted by appellants to appellee CitiMortgage, I nc.

In a sin g le issue, appel lants argue that the trial court abused it s discretion by

releasing the bond. We reverse and remand

.2 I. B ACKGROUND 1

At a foreclosure sale o n August 7, 2012, CitiMortgage obtained an interes t

in a property in Lago Vista, Texas. 2 The foreclosure an d CitiM o rtgag e ’ s

subsequent attempts to take possession o f the property ha ve resulted in numerous

appeals. Se e Standiford v. CitiMortgage, Inc.

, No. 14

- 18

- 00061

- CV, 2019 WL

3997106, at *1 (Tex. App.

— Houston [14th Dist.] Aug. 22, 2019, no pet.) (mem.

op. ) ; Standiford v. CitiMortgage, Inc.

, No. 03

- 15

- 00625

- CV, 2016 WL 4177237, at

*1 (Tex. App.

—

Austin Aug. 4, 2016, pet. dism ’ d w.o.j.) (mem. op.) ; Standiford v.

CitiMortgage, Inc.

, No. 03

- 14

- 00344

- CV, 2015 WL 6831578, at *1 (Tex. App.

—

Austin Nov. 3, 2015, pet

. denied) (mem. op.)

.

On April 26, 2017, CitiMortgage filed a forcible detainer suit against the

Standifords in justice court in Travis County , Texas

. The justice court found that

the Standif

ords were “ tenant[s] at sufferance pur suant to the foreclosure he l d

Augu s t 7, 2012, and that [Cit iMortgage] is entitled to judgment for possession of

the pre mises. ” The Stan dif ords appealed to county court, which entered final

summary judgment in favor of Citi Mortgage

. On November 27, 2017, the court

amen ded its summary judgment order, setting a supersedeas bond at $1 ,100 a

month if the Standifords chose to pursue an appeal of the county court ’ s judg ment

.

The Standifords the n appealed the count y court ’ s judgment

.

In August 2019, we rejec ted the Stan diford s ’ appeal of th e eviction

1 The Texa s Supreme Cour t ordered the Third Court of Appeal s in Austin to trans fer this

case to the Fourteenth Court of Appeals. We must therefore deci de the ca se in accordance with

t h e precedent of the Third Court of Appeals if o ur decision otherwi se wo uld have bee n

inconsistent with that court ’ s preceden t. See Tex. R. App. P. 41.3.

2 The facts of this case, as well as its procedural history, are well k nown to t he parties;

therefore, w e will discuss the facts of the case only to t he extent they are relev ant to the i ssues on

appea l. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is

as brief as practicable but that ad dresses e very issue raised and n e cessary to final d isposition of

the appeal.”).3

judgment and affi r med the county court ’ s judgment awarding CitiMortgage

possession of the property. Se e Standiford

, 2019 WL 3997106, at *1

. Several

months later, in November 201 9

, the S tandifords fil ed a motion t o r elease al l bond

payments to th e m

. According to the Standifords, “ [ t] he purposes of the bond

ordered in this case was to protect the value of these rights in this property.

. . .

Those rights now be long ex clusivel y and solely to the S tandi fords. ” I n March

2020, CitiM ortgage filed a coun t er

- motion

, outlining its claim to the bond

payments : “ During the pendency of th e appeal, CitiMortgage was denied the use

and possession of its property from the da te of the judgment, November 17, 2 017,

through the date CitiMor tgage sold the Property, Apri l 2 6

, 2019

— a total of 18

months. ” Accordingly

, CitiMortga ge argued that it was entitled to recover

$19, 800

— $1, 100 per month for each month it was de prived of the use and

enjoyment of the proper t y

.

O n March 30, 20 20, t he county court signed a n order r eleasi n g the

superse d e as bond funds in the amount of $19,800

, plus ac crued interest, to

CitiMortgage

. The Standifords filed a motion to return the bo nd, which the trial

court denied on May 29

, 2020. The Standifor ds filed a timel y appeal.

II. R ECOVERY OF S UPERSEDEA S B OND

A. S TANDARD OF R EVIEW & A PPLICABLE L AW

The release of a supersedeas bond is reviewed for an abuse of discretion.

Haedge v. Centr

al Tex. Catt lemen ’ s Ass ’

n

, 603 S.W.3d 824

, 827 (Tex. 2020) (per

curiam )

. “Under an abuse of discretion standard, we defer ‘ to the trial court ’ s

factual determinations if they are supported by evidence, ’ but review legal

determinations de novo.” Id. (quotin g Stockton v. Offenbach

, 336 S.W.3d 610, 615

(Tex. 2011)). A trial court abuses its discret i on “when it renders an a rbitra r y and

unreasonable decision lacking support in the facts or circumstances of the case,” or4

“when it acts in an arbitrary or unreasona ble manner without refere nce to guiding

r ules or principles.” Samlowski v. Wooten

, 332 S.W. 3 d 404, 410 (Tex. 2011).

A supe r sedeas bond is not an unconditional agreement to pay a stated sum of

money; it imposes only a contingent or conditional liability, and its primary

purpose is security

. Muniz v. Vasquez

, 797 S.W.2d 147, 150 (Tex. App.

— Ho uston

[14th Dist. ] 1990, no writ)

. I n calculating the amount of the bo nd to distribute to a

prevailing party, courts must determine the damage the prevailing party act ually

incurred during the appeal. See Haedge

, 603 S.W.3d at 828 ( “[T] he initial

calculation of a supersedeas bond for appe al i s different from the final calculation

of loss or damage that results from the appeal. ” ); McFadin v. Broadway

Coffeehouse

, LLC

, 539 S.W.3d 278, 285 (Tex. 2018) ( “ [T] he evi denc e presented at

the hearing setting the bond amount was evidence of what damages t h e appeal

might cause Coffeehouse if its judgment were not immediately enforced, not what

damages the appeal actually did cause it

. ” ) (empha sis in original)

.

B. A PPLICATIO N

In their sole issue, the Standif ords argue that the t rial court abused its

discreti o n by awarding the full amount of the supersede as bond to CitiM ortgage

when CitiMortgage had never claimed

, or proved, damages

. Be c a use this is a

transfer case, we must de term ine this case as the Third Court of Appeal s wou ld

determine it. See Mitschke v. B o rromeo

, No. 21

- 03 26,

___ S.W.3d

___,

___ , 2022

WL 1510317 (Tex. May 13, 2022) ( “ Transferee courts must follow whatever law

binds t he transferor court

. ” )

. Less than a yea r ago

, the Third Court of Appeals

issued a binding opin ion that ad dressed the same ar g u ment as raised by the

S tandifords. See Adams v. Godhania

, 635 S.W.3d 454, 457

– 58 (Tex. App.

—

Austin 2021, pet. denied ) (op. on reh ’ g)

.

In Adam s

, the Godhanias filed s uit to evi ct t he Adams from property th e5

Godhanias h ad purchased. Id. at 456. The God hania s prevailed, and the Adams

appealed to county court. Id. The justi ce of the pea ce set the total bond at $7,000

during the pe nding appeal. Id. Because of the value o f the pro pe r ty

, the Godhanias

asked the county court t o set a supersedeas bond at $144, 000. Th e trial court

believed that est imate was low, and set the total for the supersedeas bond at

$168,000, allowing the $7,000 bond posted by the justice court to be credited

tow a rds the new amount. Id. at 457

. The Adams appealed the judgment awarding

po ssess io n to the Godhanias, but t hat j udgment wa s affirmed ; the Ad ams

immediately surrendered possession of the property. Id

. The Godhanias

subsequently file d a mo tion to release th e bond

. T h e Ad ams argued that the

God hanias were not entitled to recover any amou nt of the supersedeas bond

because they only sought possession; the Godhanias did not plead or prove

damages at tr ial. Id. Additionally, t he Adams ur g ed tha t the court ’ s d eter m in ation

of the supersede as bond is not equivalent to a determination of dam ages. I d.

Nevertheless, the trial court released the full a mount of the bond funds to the

Godhanias.

On app eal, the Thi rd Court of Appeal s agreed with the Adam s “ to the extent

that [t he Godhanias ] are required to prove the amount of damages ‘ actually

incur red ’ du ring the appeal. ” Id. at 458 ( quoting Muniz

, 797 S.W.2d at 150 ). The

court then noted the following concerning t he calculation of damages :

A court may not summarily ascertai n the amount of mon etary

damages occasion ed by delay in appeal. When a judgm ent [ ho lder]

claims loss or damages resulting from the appeal, the [judgment

holder] must prove the extent of the damag e. Loss or damage in the

supersedeas context refers to moneta r y or material loss es ascertainab le

by pr oof, either by the judgment itself, or, wh ere that is not

conclusive, by evidence relating to proof of damages generally

. When

the supersedeas bond covers rental amounts that accrue while the case

is on appeal, the r ental amounts cann ot be determin ed on ap peal, but6

instead must be determine d by pr oof of facts transpiring after

judgment and during the pendency of appeal. Such a determination is

made by the t rial co urt following the completion of the appeal

.

Id. at 458

– 59 (internal citat ions and quota tions om itted ). Accordingly, the Austin

cou rt ag re ed with the Adams that the trial court abused its discretio n by releasing

the full amount of the bond to the God hanias without hearing any evidence of the

loss or damage the y actually incurred during the ap peal. Id. at 45 9.

However, the app ellate c ourt ex plicitly disagreed w ith the Adam s es ’

argument that the Godhanias “ ‘ waived ’ their right to recover any amount of the

bond by failing to plead for damages incurred during the a ppeal and that the trial

cou rt is prohibit ed from awardin g appellees any am ount of the bond because

damages incurred during the appeal were not award ed in the judgment

. ” Id. In

reaching th is con clusion

, the court noted that the Ad am s attempted to rely on

T exas Rules of Civil Procedur e Rule 510.11

, whic h provides that in an appeal of a

forcib le detainer case from the justice court to the county court, “[o]n the trial [de

novo] of the case in the county court the app ellant or appellee will be permitted to

plead, p rove and recover his damages

, if any, suff ered for withho lding or

defe nding posses sion of the premises during the pendency of the appeal.” See Tex.

R. Civ. P. 510.11 ; Adams

, 635 S.W.3d at 4 60. T he court rej e cted the Adams es ’

argument: “ However, in this ca s e, [the Adams] are seeking t o recover dama ges

incurred during the time peri od in w hich [they] appealed the county court ’ s

judgment to this Court. Thus, Rule 510.11 does not apply here. ” Adams

, 6 35

S.W.3d at 4 60.

The court additionally rej ecte d the Adams es ’ con tention that the Godhani as

could not r ecover damages that they did not plead:

[ The Adams] also cite to cases holding that “a judgment must be

supported b y the pleadings” and that “a party ma y not be granted7

relief in the absence of pleadings to suppor t that relief.” It is true th at

[the Godhan ias]

, by pleading f or posses sion only, c annot recover any

damages incurred prior to the county court ’ s judgment

. But [they]

may recover damages that wer e actually incurred during the pendency

o f the appeal of the c ounty court ’ s judgment to th is Court. Howe ver,

such damages c ould not be pl eaded b y [the Godhanias] or included in

the trial court ’ s judgment because they would be incurred after the

county cour t ’ s judgment had been rendered. The judgment he re

awarded pos s ession of the property to [t he Godhanias] and set bond in

the amount o f $16 8,000 t o suspend enforcement of the judgment. An

order releasing the bond to [the Godhanias]

, provided that it is limit ed

to the amount of damages [they] actually incurred dur ing t h e

pendency of the appeal, is not inconsist ent with that judgm ent

.

Id. (cita tions o mitted). Accordingly, the Third Court of Appeals reversed the trial

court ’ s order releasing the full amount of t he supersedeas bond to the Godhanias

and remanded the case to the trial court to hear evid ence and deter mine the actual

dam ages suff

ered by the Godhanias during the pendency of the appeal

. Id.

The case here p resents the same issue as Adams

. W e agree with the

Standif ords inasmuch as they assert that the trial court a bused its discretion in

di spersing the b ond funds to CitiMo rtg age with out h olding a hearing

. See id. While

CitiMortgage offered evidence t o support the award of $19,800

, that eviden ce did

not reflect the damages CitiMortgage actually incurred ; it only ser v ed a s evidence

o f the damages CitiMortga ge mi ght su ffer because of the appe al

. See id.

However, w e disagr ee with the Standifords ’ argument that CitiMortgage has

no right to a hearin g on its damages

. It is true that CitiMortgage cannot recover

damages prio r to the county court ’ s judgment, but it can r ecover damages incurred

d uring the pe ndency of the appeal of the county ’ s court ’ s judgment to the court of

appeals. See id. The Standifo rds argue that CitiMor tgage waived its right to claim

damages because it f

a ile d to amend its pleadings to seek dama ges p ursuant to

Texas Rules of Civi l Proce dure Rule 510.11

. But as the court concluded in Adams

,8

Rule 510.11 does not apply here ; Rule 510.1 1 deal s with damages “ during the

period from which the justice court renders jud g men t to the time the county court

r ender s jud gment ” whereas CitiM ortga ge seeks dam ages during the time period in

which the Standif

o rds appealed the coun ty court ’ s judgment to the ap pellate court.

Adams

, 635 S.W.3d at 459

– 60 ; see Tex. R. Civ. P. 510.11

. Ad d iti onally,

Citi Mortgage did not waive an y claim to its damages fo r fai lin g to plea d them

because s uch damages could not be plead by Citi Mortgage or be include d in the

county court ’ s judgment ; the damages would only have been incurred af ter t he

county cour t ’ s judgment had alre ad y been rendered. See Adams

, 635 S .W.3d at

4 60

.

Accordingly, we reverse the trial court ’ s order releasing the supersedeas

bond funds to CitiMortgage and remand the case to the trial court to hear evidence

to determine t he damages act u ally incurred by Citi Mortgage during the pendency

of t he appeal

— f

rom t h e date of t he county court ’ s judgment until the date the

Standifords surrendered po ssession of the property. We s ustain in part and overrule

in part the Standiford s ’ sol e issue.

III. C ONC LU S ION

W e reverse the tr ial court ’ s order releasing the s upersedeas bond funds to

Cit iMortgage and remand the case to the trial court for further proceedings

consistent with this opinion

.

/s/ Marg are t “ Meg ” Poissant

J usti ce

P a nel consists of Ju stice s Bourliot, P oissant

, and W ilson

.