Motion Denied and Order filed Oc tober 28 , 2021

In The 

## Fourteenth Court of Appeals

____________ NO. 14
- 2 1
- 00 4 04
- C V

____________ KHERA INTEREST, INC. , Appellant

V. WILMINGTON TRUST NATIONAL ASSOCIATION NOT IN ITS IN DIV IDUAL CAPACITY BUT SOL ELY AS TR USTEE OF THE MFRA TRUST 2015
- 1 , Appellee
On Appeal from the 151st District Court

Harris Count y, Texas Tri a l Court Cause No. 2020
- 11448

ORDER
Before th is court is app ellant ’ s motion to modify a supersedeas bond

. We deny the motion

. This appea l concerns the status of a mortgage lien hel d by appellee on real property (the “ Property ” ) to which appellant has the title

. On May 25, 2021, the trial court entered a final order granting declar a tory relief to a ppellee and holding2

appellant ’ s title to t he Propert y was subject to appellee ’ s mort gage li en. The order did not itself sp ecify t he mortg a ge lien ’ s v alue or amount.
After th is appeal began , appel l ee placed the Property on a non

- judicial foreclosure list and scheduled it for a September 7, 2021 foreclosure

. Before the P roperty could be for eclosed on , appellant filed a motion with the trial court on A ugust 26, 2021 to suspend enforcement of the judgment and set a supersedeas bond. While the moti on remain ed pending with the trial court, the pa rties agreed
to defer foreclosure through Sept ember if appellant deposited $2,500 in to the trial court ’ s regist ry. Appellant did so, and the foreclosure did not proceed as origi nally scheduled. On September 7, 2021, the trial court issued an order requ iring a monthly p a yment of $1,300 from appellant , which appellant had acknowledged was the Property ’ s mont hly rental rate at the time, in order to supersede the ju dgment w hile the appeal pro ceeded. While appellant has paid that amoun t as ordered by the tr ial court, it has sought relief from this court on the basis the trial

co urt o rdered an erroneous amount for supersedeas

. U nder Texa s Rule of Appellate Procedure 24.4 ( a)(1) , parties may seek appellate review on the sufficiency or excessiveness of the amoun t of a securit y
o rdered by a trial court as a supersedeas b ond. We review such decisions for an

a buse of discretion. See O.C.T.G. L.L.P. v Laguna Tubu lar Prods. Corp. 525 S.W.3d 822, 829 (Tex. App.

— Houston [14 th Dist.] 2017, mand. denied)

. An abuse of discretion exists w hen the trial court acts wi thou t r eference to any guiding rules and principles or when it acts ar bitra rily and unreasonably. See id. (citing McDaniel v. Yarbrough , 898 S.W.2d 251 , 253 (Tex. 1995)). Texas Rule of Appellate Pr ocedure 24.1 (a) authorizes judg ment de btors like appellant to supersede a judgment pending appeal by, among other met hods, filing3

with the trial cou rt a good and suf ficient bond , which must be in the amount required by Rule 24.2

. See Tex. R. App. P. 24.1( a)( 2) , (b)(1)(A). Rule 24.2

co ntains two possi bilities f or the prop er supersedeas amount in this case. When a judgment is fo r “ the recovery of an interest in real . . . property, ” the amount of the security “ must be at least[] the value of the property interest ’ s rent or revenue. ” Te x. R. App. P. 24.2(a )(2)(A ). When the judgment “ is for so mething other than money or an interest in property, ” there is less of a numeric limit to what must be or can be ordered by the tr ial court as a supersedeas bond . Rath er, th e trial court

“ must set the amoun t and type of sec urity ” so as to “ adequately protect the judgment creditor against loss or damage that the appeal might cause. ” T e x. R. App. P. 24.2(a)(3). Appellant ’ s initial argument contends that , becau se the underlying judgment is for s omethi ng other than money or a p roperty interest, the underlying supersedeas bond is excessive under Rule 24.2(a)(3) as it ex ceeds adequa te protection against lo ss or damage to ap pellee. This argument is not consistent with this court ’ s precedent. In Abdul lati f v. Chou d

h ri , we consider ed wh ich of those two rule s best fit a judgment awarding declaratory relief clarifying who held ownership interest s in several non
- corporate business associations. 536 S.W.3d 48, 50

– 51 (T ex. App.

— Houston [14th Dist.] 2017 , no pet .)

. Although the appellant in th at case contended that superseding such relief was governed by Rule 24. 2(a)(3) on the basis that the underlying declaratory judgments were for

s omething other than money and property, we held that Rule 24.2(a)(2) and its pr operty

- based limits applied since the underlying declarations “ validate[d] a transfer of i nterests in . . . property to [the appellee]. ” Id. at 55. That rule applies here with equal force . The current case ’ s declaratory judgment regarding how4

appelle e ’ s mortgage lien impacts appellant ’ s title to real property is just as much a judgment for the reco very of a property interest as a declaration about who owns , a nd the extent to which they ow n, interests in business a ssocia ti ons. So Rule 24.2(a )(2) and its standard for “ the value of the property interest ’ s rent or revenue , ” rather than Rule 24.2(a)(3) and its requirement for “ adequate [] protect [ion for] the judgment creditor , ” is the proper rule for evalu ating the amount of this case ’ s
su pers e deas bond.
That largely resolves appellant ’ s motion, as of the f our different amounts appellant contends are a more appropriate measure for the supersedeas bond, three of them (the interest o n the underlying note, zer o on the basis that the lien itself

serv es as adequate security, and the $2,500 deposit appellant initi ally placed in the trial court ’ s registry) do not alig n with Ru le 24.2(a )(2) ’ s the requirement that the bond be set at “ the value of the property interest ’ s rent or revenue

. ” All that remains is appellant ’ s fo urth proposal , the Property ’ s net r ental value . Appellant contends that in light of such costs as ownership and management expenses, it only nets $650 on the $1 ,300 it receives in rental money each month. However, particularly as there is no indicatio n that appellee would itse lf neces sarily be payin g those cos t s instead of a tenant, we see no abuse of discretion in the trial
court ’ s choice to use the total rent appellant receives, rather than the net amount it receives from rent. Cf. , e.g. , Hayes v. J ohnson , No. 05

- 17

- 01116

- CV, 2019 WL 2266390, at * 1 (Tex. App.

— Dallas May 28, 2019 , no pet.) (discuss ing an

arra ngement by which a property tenant not only paid the property owner rent each month, but also paid the owner ’ s insurance and p rop erty taxes and w as moreover

“ responsible for ‘ upke ep ’ ” ).5

Accordin gly, as this court finds no ab use of discretion in the trial court ’ s decision to require $1,300 per month to be deposited to supersede its judgment , we deny appellant ’ s motion to modify its supersedeas bond.
PER CURIAM

Panel Consists of Justices Wi se, Bou rliot, and Zimmerer

.