                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-14-00305-CV
                          ____________________

        D & K TRANSMISSION SPECIALTIES, INC., DARRELL
        WESTERKAMP, AND KELLY WESTERKAMP, Appellants

                                       V.

        F. MICHAEL DAVIS AND DEBORAH F. DAVIS, Appellees
_______________________________________________________          ______________

               On Appeal from the County Court at Law No. 2
                       Montgomery County, Texas
                      Trial Cause No. 14-28106 CV
________________________________________________________          _____________

                                    ORDER

      On July 3, 2014, the trial court signed a judgment in favor of F. Michael

Davis and Deborah F. Davis (appellees) “Granting Forcible Detainer and Writ of

Possession” for possession of real property and evicting D & K Transmission

Specialties, Inc., Darrell Westerkamp, and Kelly Westerkamp (appellants) from the

property. Within ten days of the judgment, the appellants deposited $29,200 in the

registry of the trial court as a cash deposit in lieu of a supersedeas bond. The


                                        1
appellees asked the trial court to issue the writ of possession, notwithstanding the

deposit, because the deposit was not a “proper supersedeas bond” under section

24.007 of the Texas Property Code. See Tex. Prop. Code Ann. § 24.007 (West

Supp. 2014). The appellants filed a notice of appeal on July 8, 2014. A writ of

possession issued on or about August 7, 2014. The appellees filed a motion to

dismiss the appeal for mootness on the ground that only possession is at issue in

the appeal and the judgment awarding possession is immediately enforceable

because the appellants failed to supersede the judgment. The appellants filed

motions for emergency relief in which they argue that the cash deposit was the

equivalent of at least five months of rent, and asked this Court to determine the

sufficiency of the amount of security. Appellants’ motion also reflects that even

though the writ of possession issued, it had not been executed. We temporarily

stayed the writ of possession and directed the appellees to file a response. See Tex.

R. App. P. 24.4(c). In their response, the appellees argue the judgment cannot be

superseded because the appellants failed to comply with section 24.007 of the

Texas Property Code. Additionally, the appellants do not indicate that execution on

the writ of possession had occurred. Tex. Prop. Code Ann. § 24.007.

      We “construe rules reasonably but liberally, when possible, so that the right

to appeal is not lost by creating a requirement not absolutely necessary from the

                                         2
literal words of the rule.” Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (a

motion for new trial was filed on the date it was tendered to the trial court clerk,

not the date the filing fee was paid). Likewise, we avoid constructions of statutes

that defeat bona fide attempts to appeal. Crowson v. Wakeham, 897 S.W.2d 779,

783 (Tex. 1995). For instance, a party who files the wrong instrument may correct

the error by substituting the correct instrument. Linwood v. NCNB Texas, 885

S.W.2d 102, 103 (Tex. 1994).

      Section 24.007 states:

      A judgment of a county court in an eviction suit may not under any
      circumstances be stayed pending appeal unless, within 10 days of the
      signing of the judgment, the appellant files a supersedeas bond in an
      amount set by the county court. In setting the supersedeas bond the
      county court shall provide protection for the appellee to the same
      extent as in any other appeal, taking into consideration the value of
      rents likely to accrue during appeal, damages which may occur as a
      result of the stay during appeal, and other damages or amounts as the
      court may deem appropriate.

Tex. Prop. Code Ann. § 24.007. Accordingly, a party who wishes to appeal a

judgment for possession of real property must file a supersedeas bond in an amount

set by the court within ten days of the judgment. Id. Here, the appellants filed a

cash deposit of $29,200.00 within ten days of the judgment. However, the trial

court did not set the amount of security required to supersede the judgment, either

in the judgment or upon request of the appellants.

                                         3
      A party may seek appellate review of the trial court’s determination whether

to permit suspension of enforcement of a judgment. See Tex. R. App. P. 24.4(a)(4).

In this case, the appellants contend they attempted to supersede the judgment and

writ of possession by filing a $29,200 deposit with the trial court and requesting

the trial court to set the amount. Neither the Property Code nor the Rules of

Appellate Procedure expressly require a party to request that the trial court set a

bond; rather, the plain language of the statute states that the trial court “shall” set

the amount. Tex. Prop. Code Ann. § 24.007. In this case, the trial court did not set

the amount of the supersedeas bond in the judgment, so the appellants filed a

deposit in what they considered to be an appropriate amount, calculated in part

from the attorney’s fees awarded in the judgment. The appellants were incorrect

regarding the need to post an amount to supersede attorney’s fees, 1 but it does not

necessarily follow that their filing a deposit in an amount not set by the court or the

trial court not setting the amount of the supersedeas bond (in the judgment or by

direction to the parties) cannot be corrected, considering that the appellants made a

cash deposit within ten days of the judgment in a bona fide attempt to supersede

the judgment.
      1
         The appellants based the deposit on the amount of attorney’s fees awarded
in the judgment. But see In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168,
176 (Tex. 2013) (attorney’s fees are neither compensatory damages nor costs for
purposes of suspending enforcement of a money judgment).
                                          4
      The trial court retains continuing jurisdiction to order the amount and type of

security. See Tex. R. App. P. 24.3(a). The appellate court may remand to the trial

court for entry of findings of fact or for the taking of evidence. See Tex. R. App. P.

24.4(d). At this time, the appropriate remedy in this case is not dismissal of the

appeal, but a remand to the trial court to order the appellant to post an amount

based on the value of the property interest’s rent or revenue. See Tex. R. App. P.

24.2(a)(2).

      It is, therefore, ORDERED that the appeal is abated and the case is

remanded to the trial court for a determination of the amount and type of security

based on the value of the property interest’s rent or revenue, for the anticipated

time for appeal. See Tex. R. App. P. 24.2(a)(2). All appellate deadlines are

suspended while the case is in the trial court. A supplemental record containing the

trial court’s order setting the amount of security, including any additional security

ordered by the trial court, shall be filed with the Court of Appeals by September

10, 2014. Our order of August 14, 2014, remains in effect.

      ORDER ENTERED August 21, 2014.

                                                          PER CURIAM

Before Kreger, Horton, and Johnson, JJ.




                                          5
