VACATED; and Opinion Filed December 19, 2013.




                                           Court of Appeals
                                                            S      In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-13-00370-CV

                          TIERONE CONVERGED NETWORKS, INC., Appellant
                                             V.
                           LAVON WATER SUPPLY CORPORATION, Appellee

                                  On Appeal from the County Court at Law No. 5
                                              Collin County, Texas
                                      Trial Court Cause No. 005-00055-2013

                                          MEMORANDUM OPINION
                                    Before Justices O’Neill, Lang-Miers, and Evans
                                            Opinion by Justice Lang-Miers
          Before the Court is TierOne Converged Networks, Inc.’s motion to review the county

court’s October 2, 2013 order increasing the supersedeas bond from $10,800 to $40,500.

Tierone contends the county court abused its discretion because the evidence was legally and

factually insufficient to support the increase. We sustain Tierone’s issue and vacate the county

court’s order.

                                                              Background

          Tierone, an internet service provider, has a lease agreement with Lavon Water Supply

Corporation (Lavon) to place antennas and other equipment on three of Lavon’s water towers. 1

Tierone pays rent in the amount of $900 a month. Lavon sued to evict Tierone and won.

   1
       It appears the underlying dispute involves only the “main” water tower.
Tierone has appealed the judgment. It superseded the judgment by depositing one year’s rent in

the amount of $10,800 as ordered by the county court on February 15, 2013.

       On August 30, 2013, Lavon filed a motion in the county court to increase the supersedeas

bond. As grounds for an increase, it asserted that another internet service provider offered to pay

$3,375 a month to lease space on the water towers. After conducting a hearing, the county court

increased the supersedeas bond to $40,500. Tierone sought relief in this Court and we granted a

stay pending our review.

                                           Discussion

       Rule 24.3(a)(2) of the rules of appellate procedure provides that, even after the trial

court’s plenary power expires, the trial court has continuing jurisdiction to modify the amount of

security required to continue the suspension of a judgment’s execution if circumstances change.

TEX. R. APP. P. 24.3(a)(2).      On any party’s motion, we may review the sufficiency or

excessiveness of the amount of security and the trial court’s exercise of discretion in setting the

amount of security. See TEX. R. APP. P. 24.4. We review a trial court’s determination of the

amount of security, to the extent it turns on a question of fact, for an abuse of discretion. See

Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC, 356 S.W.3d 716, 718 (Tex.

App.—Dallas 2011, no pet.). To the extent a trial court’s ruling turns on a question of law, we

review it de novo. Id.

       In setting the supersedeas bond in an eviction suit, the county court must take into

consideration the value of rents likely to accrue during appeal, damages that may occur as the

result of the stay during appeal, and other damages or amounts as the court may deem

appropriate. TEX. PROP. CODE ANN. § 24.007(a) (West Supp. 2013). The proper measure of

damages for rental property is the reasonable value of rents likely to accrue during the appeal.

See Hart v. Keller Properties, 567 S.W.2d 888, 889 (Tex. Civ. App.—Dallas 1978, no writ).

                                               –2–
         At the hearing, Joe Birmingham testified that he is an owner of Wi-Five, a competitor

wireless internet service provider. Birmingham testified that he had proposed that if Lavon had a

water tower with no equipment on it, Wi-Five would put a minimum of 15 radios on the tower

and pay monthly rent in the amount of $3,375. He said he purchased $300,000 in equipment in

anticipation of signing a lease with those terms. He said Tierone stopped the contract from being

signed. He has been in “waiting mode” for over one and one-half years. He testified that

currently, Tierone is using one-hundred percent of the broadcast frequencies on the tower. He

also said there is no physical room on the main tower for Wi-Five to mount any equipment.

         Regarding the possibility that Wi-Five could share space with Tierone on Lavon’s main

water tower, Birmingham indicated it would be workable if one-hundred percent of the

frequencies are not being used, he is given “chunks of band,” and multiple years are guaranteed.

Birmingham indicated that he would put equipment on the tower and cooperate with Tierone

under those circumstances if he had a five-year contract.

         Nate Curling, a Wi-Five employee, testified that he went up on the tower to view

Tierone’s equipment. He testified that in order to make room for Wi-Five’s equipment on the

tower, Tierone would have to mount taller poles and consolidate its equipment onto the taller

poles.

         Ken Marshall, chief technical officer for Tierone, testified that Tierone and Wi-Five are

currently co-located on five water towers. On some of those towers, there are additional internet

providers as well. He said they have never had a problem working together on those towers.

Coordinating frequencies gets worked out all the time through cooperation. Tierone has no

objection to Wi-Five putting equipment on the tower. He testified that Tierone is prepared to

make whatever accommodations are necessary to allow Wi-Five to put equipment on the tower.

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Additionally, he testified that Tierone is willing to permanently waive the exclusivity provision

as to the frequencies in its contract. 2

          Tierone disputes the county court’s conclusion of law that Tierone did not controvert

Lavon’s evidence of current reasonable rental value.                              It was Lavon’s burden to show the

reasonable value of rents likely to accrue. See Hart, 567 S.W.2d at 889. The only evidence offered

by Lavon was the amount Wi-Five proposed to pay. Tierone contends that it is not enough for a

competitor to come to court and say that it would pay four, five, or ten times the current rental rate.

If this were the law, Tierone argues, any landlord could testify that he could lease the space for much

more pending appeal and the tenant would be required to post additional security for the hypothetical

damages or be evicted. We agree. After reviewing the evidence, we conclude there is no evidence

as to the reasonable value of rents likely to accrue. Because there was no testimony as to the

reasonableness of the proposed $3,375 monthly rent, there was nothing for Tierone to controvert.

Lavon failed to meet its burden to show the reasonable value of rents likely to accrue.

          Tierone also contends the evidence does not support the county court’s finding that the

stay prevents Lavon from taking advantage of other opportunities to lease space on the towers.

At the hearing, Marshall testified that Tierone would permanently waive the exclusivity clause

regarding the frequencies, make the necessary accommodations to make space for Wi-Five’s

equipment, and cooperate with regard to any frequency interference that may arise. Birmingham

testified that those conditions would be acceptable to him as long as he could get a five-year

contract.       With Tierone permanently waiving the exclusivity provision, there is nothing

preventing Wi-Five from signing a 5-year contract with Lavon. Moreover, the evidence revealed

that Tierone and Wi-Five are cooperating and sharing space on five other water towers. We



     2
       Paragraph 8 of the lease provides that: “Lessor agrees NOT to provide access to any other company, equipment or technology that
operates in the 2.4GHz or 5.2-5.8GHz ISM bands. (frequencies)”



                                                                –4–
conclude the evidence is insufficient to support the finding that the stay is preventing Lavon

from taking advantage of leasing space on the towers to other providers.

       For the above-noted reasons, we conclude the county court abused its discretion in increasing

the amount of the supersedeas bond. We vacate the county court’s October 2, 2013 order.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


130370F.P05




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