Affirmed as Modified and Opinion Filed August 25, 2015




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00696-CV

                               PAULA WICKLIFFE, Appellant
                                          V.
                                CHARLES TOOLEY, Appellee

                           On Appeal from the Probate Court No. 1
                                    Dallas County, Texas
                            Trial Court Cause No. PR-14-04150-1

                MEMORANDUM OPINION ON MOTION TO
                   REVIEW SUPERSEDEAS BOND
               Before Chief Justice Wright and Justices Lang-Miers and Stoddart
                               Opinion by Chief Justice Wright
       Before the Court is the motion of Paula Wickliffe asking this Court to review the

supersedeas bond. Wickliffe filed an original petition for bill of review seeking to have a default

judgment set aside. The default judgment set aside a deed allegedly transferring property from

the decedent to Wickliffe. Charles Tooley is the executor of the deceased’s estate. The trial

court granted summary judgment in favor of Tooley. Wickliffe appeals that order.

       The trial court set the supersedeas bond at $75,000 and required that it be a corporate

surety bond. Wickliffe contends the amount of the bond is excessive and that the trial court erred

in requiring the bond be a corporate surety bond.          We may review the sufficiency or

excessiveness of the amount of security and the type of security. See TEX. R. APP. P. 24.4(a)(1)
& (3). We review a trial court’s ruling for an abuse of discretion. See G.M. Houser, Inc. v.

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

          A judgment debtor may supersede a judgment by posting “a good and sufficient bond.”

See TEX. R. APP. P. 24.1(a)(2). Rule 24.2 establishes the amount of security for different types of

judgments. When the judgment is for the recovery of an interest in real property, the amount of

security must be at least the value of the property interest’s rent or revenue. See TEX. R. APP. P.

24.2(a)(2)(A).

          Appellant presented two witnesses at the hearing on the supersedeas bond.            Henry

Hudson is Wickliffe’s stepfather. Wickliffe currently resides in the house. Hudson testified that

the house is in very poor exterior and interior condition. Hudson, who owns a rental house,

thinks the house could rent for $350 to $400 a month. On cross-examination, counsel for Tooley

asked Hudson if he agreed with Coldwell Banker’s valuation of $150,000 for the property.1

Hudson said he disagreed with that valuation and said that, in his opinion, the land was worth

between $55,000 and $60,000 and the house was worth between $5,000 and $6,000.

          William Topham testified that he is a realtor who went out to look at the property. He

too testified to the poor condition of the property. He estimated that the house would rent for

$450 to $500 a month.                   On cross-examination, Topham testified that Coldwell Banker’s

estimated value for the property at $150,000 was reasonable.

          Wickliffe asked the trial court to set the bond at $5,400. That amount was derived from

multiplying $450, the monthly rental value estimated by Topham, by twelve months. Relying on

the valuation of the property, Tooley asked the trial court to set the bond between $30,000 and

$150,000. The trial court set the bond at $75,000 and required it to be a corporate surety bond.



   1
       No documentary evidence of Coldwell Banker’s valuation was admitted into evidence.



                                                                  –2–
       Based on rule 24.2(a)(2)(A), the property’s overall value is not a relevant factor in setting

the bond. Rather, the only relevant factor is the value of the property interest’s rent or revenue.

See TEX. R. APP. P. 24.2(a)(2)(A). The only evidence at the hearing pertaining to this factor was

that the property would rent anywhere from $350 to $500 a month. For this reason, we conclude

the trial court abused its discretion in setting the bond at $75,000.

       Wickliffe also contends the trial court erred in requiring the bond to be a corporate surety

bond because no evidence was presented to support the requirement. As a general rule, a party is

required to present a complaint to the trial court before being allowed to raise the complaint on

appeal. See Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 688 (Tex. App.—Dallas

2009, no pet.). The trial court stated on the record at the hearing that it was requiring a corporate

surety bond. Wickliffe did not object to the trial court’s stated requirement at the hearing.

Therefore, we conclude Wickliffe has waived this complaint.

       Wickliffe requested the bond be set at $5,400. This amount is supported by evidence

admitted at the hearing. Accordingly, we modify the trial court’s order to reduce the amount of

the supersedeas bond to $5,400. We affirm the order in all other respects.




150696F.P05
                                                       /Carolyn Wright/
                                                       CAROLYN WRIGHT
                                                       CHIEF JUSTICE




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