                                                                                                                ACCEPTED
                                                                                                            04-15-00267-CV
                                                                                                FOURTH COURT OF APPEALS
                                                                                                     SAN ANTONIO, TEXAS
                                                                                                       5/21/2015 8:48:05 PM
                                                                                                             KEITH HOTTLE
                                                                                                                     CLERK

                                          NO. 04-15-00267-CV

                                                                                        FILED IN
                                                                                 4th COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                 IN THE COURT OF APPEALS                         05/21/2015 8:48:05 PM
                               THE FOURTH DISTRICT OF TEXAS                          KEITH E. HOTTLE
                                   SAN ANTONIO, TEXAS                                     Clerk




                      DOLORES REYNOSO and JUAN REYNOSO,
                                                                                   Appellants,

                                                       V.


                                    LOFT CONCEPTS, INC.,
                                                                                        Appellee.


                   Appeal from the County Court at Law Number Three
                                  Bexar County, Texas
                           Trial Court Case No. 2015CV00936
                            Hon. David J. Rodriguez Presiding


            APPELLANT’S RESPONSE TO APPELLEE’S MOTION FOR
         REVIEW OF SUFFICIENCY OF BOND, AND FOR DETERMINATION
           WHETHER SUSPENSION OF ENFORCEMENT OF JUDGMENT



TO THE HONORABLE COURT OF APPEALS:

        NOW COME DOLORES REYNOSO AND JUAN REYNOSO, Appellants in the above

styled and numbered cause, and file this Response to appellee’s Motion for Review of Sufficiency

of Bond, and for Determination whether Suspension of Enforcement of Judgment.



Response to Appellee’s Motion for Review of Sufficiency of Bond, Sureties on Appeal Bond, and for
Determination Whether Suspension of Enforcement of Judgment
                                                                                                Page 1 of 5
                                             Factual Background
    1. On April 9, 2015, this cause was heard and a judgment issued in favor of Appellee. See
        Exhibit A.
    2. On page 2 of the judgment in the second to last paragraph it states that the clerk of the court
        shall immediately issue a writ of possession pursuant to Texas Property Code 24.0061
        (Exhibit G).
    3. On April 17, Appellants filed a Notice of Appeal and posted a Supersedeas Bond in the
        amount of $15,000.00. See Exhibit B.
    4. On April 20, 2015, Defendants were served with a Writ of Possession dated April 9. See
        Exhibit C.
    5. Appellants were divorced, October 24, 2013, the Final Divorce Decree awarded the
        property to Appellant Dolores Reynoso, and Appellant Juan Reynoso has not occupied the
        property since before the divorce.
    6. May 21, 2015, Appellant Dolores Reynoso filed an amended Appeal Bond, excluding Juan
        Reynoso as an appellant, expressly making the bond payable to the Appellee, removing
        Joshua Capo as a surety, and adding Jose Capo as a surety. Appellant Dolores Reynoso
        married Jose Capo May 1986 and divorced him July 1997. (Exhibit I).
                                                   Argument
    7. The Appellee’s Motion should be dismissed because the Motion is groundless.
    8. The Appellants timely filed an appeal bond pursuant to Texas Property Code 24.007 and
        Texas Rules of Civil Procedure 510.13. See Exhibits D and E.
    9. Both Texas Property Code 24.007 and Texas Rules of Civil Procedure 510.13 state that a
        judgment in a forcible detainer action is stayed if the Defendant files a supersedeas bond
        within 10 days of the signing of the judgement.
    10. As stated above the Appellant, Defendant in the trial court, filed a notice of appeal and a
        supersedeas bond April 17, 2015, eight days after the signing of the County Court At Law
        3 judgment.
    11. Paragraph 2 on page 2 of Appellee’s Motion, Appellee complains that the Appellant
        submitted no evidence at trial. This point is immaterial because the Appellant raised a Pea
        to the Jurisdiction, which was dismissed by the trial court and may be raised anew on
        appeal.

Response to Appellee’s Motion for Review of Sufficiency of Bond, Sureties on Appeal Bond, and for
Determination Whether Suspension of Enforcement of Judgment
                                                                                                Page 2 of 5
    12. Paragraph 10, page 4 of Appellee’s Motion complains that the appeal bond fails to comply
        with Texas Rule of Appellate Procedure (TRAP) 24.1(b)(1)(B, C and/or D).
    13. Appellee asserts that the appeal bond does not comply with TRAP 24.1(b)(1)(B), because
        the appeal bond is not made payable to the Appellee. This allegation is simply false.
    14. The appeal bond reads in part, “now, therefore, the said Dolores Reynoso and Juan
        Reynoso, and their sureties, covenant that Defendant will prosecute this appeal with effect
        ad pay all costs and damages which may be adjudged against the Defendant, provided the
        sureties shall not be liable in an amount greater than $15,000, said amount being amount
        of the bond herein.”
    15. Under the appeal bond, the sureties are liable to the Appellee, the only opposing party, for
        all costs and damages up to the bond amount.
    16. Next, in paragraph 11 on page 4 of Appellee’s motion, Appellee complains that Appellant
        Juan Reynoso has not signed the Appeal bond. This fact has no bearing on the validity of
        the bond respecting Dolores Reynoso. At best, this fact would mean that Appellant Juan
        Reynoso could not supersede the judgment.
    17. In paragraph 12, page 5 of Appellee’s motion, Appellee contends there is no evidence that
        the Bexar County Clerk approved the appeal bond. This contention is absurd, because the
        Bexar County Clerk stamped filed the appeal bond and accepted it, manifesting the
        acceptance and approval of the appeal bond.
    18. In paragraphs 13-16, pages 5-6 of Appellee’s motion, Appellee complains that one of the
        sureties, Joshua Capo resides at the residence and was convicted of a felony; and questions
        the financial sufficiency of both sureties because neither a net worth affidavit, as required
        by TRAP 24.2(c).
    19. However, TRAP 24.2(c) clearly states that it applies to bonds for money judgments under
        TRAP 24.2(a)(1). TRAP 24.2(c) does not apply to TRAP 24.2(a)(2) recovery of an interest
        in property. Recovery under a forcible detainer action is limited to an interest in real
        property, possession. And TRAP 24.2 requires that the bond be tied to the value of the
        property. See Exhibit G
    20. TRAP 24.1(b)(1)(D) states that the bond may be signed by a surety or sureties. See Exhibit
        H. Christopher Capo does not reside at the property, is gainfully employed, single, and the
        property he listed on the Oath is worth at least $15,000.

Response to Appellee’s Motion for Review of Sufficiency of Bond, Sureties on Appeal Bond, and for
Determination Whether Suspension of Enforcement of Judgment
                                                                                                Page 3 of 5
    21. Nevertheless, the case law is replete with holdings that a loser in an forcible detainer suit
        has 5 days to correct a defective appeal bond once notified that the bond is defective. Rowe
        v. Watkins, 340 S.W.3d 860, 863 (2011), (“When the appeal bond contains defects or
        irregularities, either of form or substance, the case should not be dismissed without first
        allowing the appealing party five days, after notice of the defect, to correct or amend the
        defective appeal.”) Tex.R. Civ. P. 571. Although the rules do not prescribe a specific type
        of notice, we have held that the notice must, in the very least, conform to due process which
        is met if the notice affords the party a fair opportunity to appear and defend her interests.
        Ashley Furniture Industries Inc. ex rel. RBLS Inc. v. LAW OFFICE OF DAVID PIERCE,
        311 S.W.3d at 598; Watkins v. Debusk, 286 S.W.3d 58, 62 (2009); In re A.Y., 16 S.W.3d
        387, 388 (Tex.App.-El Paso 2000, no pet.).
    22. In the alternative, if the Court disagrees with the foregoing arguments, Appellant has filed
        and attached an appeal bond which cures the purported defects cited by the Appellee. If
        the court desires affidavit of net worth, the Appellant will provide such affidavits.
                                                   Conclusion
    23. Based on the foregoing argument, the Court should deny or dismiss the Appellee’s
        Motion.

                                                       Respectfully submitted,

                                                                 /s/ James Minerve
                                                 By:
                                                         James Minerve
                                                         State Bar No. 24008692
                                                         115 Saddle Blanket Trail
                                                         Buda, Texas 78610
                                                         (888) 819-1440 Office
                                                         (210) 336-5867 Direct
                                                         (888) 230-6397 Fax
                                                         Email: jgm@minervelaw.com
                                                         Attorney for Appellants Dolores Reynoso
                                                         and Juan Reynoso




Response to Appellee’s Motion for Review of Sufficiency of Bond, Sureties on Appeal Bond, and for
Determination Whether Suspension of Enforcement of Judgment
                                                                                                Page 4 of 5
                                   CERTIFICATE OF SERVICE

      I, the undersigned, hereby certify that a true and correct copy of the attached Appellant’s
Response to Appellee’s Motion to Appellee’s counsel in accordance with the Texas Rules of Civil
Procedure on May 21, 2015.

Trey Wilson
RL Wilson Law Firm
111 W. Olmos Dr.
San Antonio, Texas 78212
Email: rlw3d@sa-law.com




                                                       /s/ James Minerve
                                                 ______________________________
                                                 James Minerve




Response to Appellee’s Motion for Review of Sufficiency of Bond, Sureties on Appeal Bond, and for
Determination Whether Suspension of Enforcement of Judgment
                                                                                                Page 5 of 5
