                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-18-00385-CV
                             _________________

                    GEORGE EARL DANNER, Appellant

                                        V.

                      KATHRYN M. DANNER, Appellee
________________________________________________________________________

                   On Appeal from the 418th District Court
                        Montgomery County, Texas
                      Trial Cause No. 17-03-04143-CV
________________________________________________________________________

                                     ORDER

      By motion, George Earl Danner asked this Court to lower the supersedeas

bond the trial court required him to post to supersede Kathryn M. Danner’s right to

execute on a judgment pending the outcome of George’s appeal. Because the record

fails to show the trial court abused its discretion by setting George’s supersedeas

bond at $1,933,915.60, we deny his motion. Nevertheless, we note that trial courts

have continuing jurisdiction to consider modifying the security that they have
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required defendants to post to suspend a plaintiff’s right to enforce a judgment given

changes in circumstances that may occur while a case is subject to appeal. See Tex.

R. App. P. 24.3(a). Given that George can ask the trial court to reconsider the amount

of the supersedeas bond, we lift our stay of the trial court’s November 15, 2018 order

effective as of December 17, 2018, to allow George the opportunity to file a motion

in the trial court, with evidence supporting his claim seeking a reduction in the

required bond.

                                        Background

      The parties dispute whether the amount of the supersedeas bond should be

reduced. The necessity for the supersedeas bond in this case arises from the trial

court’s resolution of the parties’ rights to property in their divorce. The trial court

signed the final decree, which is at issue in this appeal, on September 7, 2018. Within

a month of the date the trial court issued the decree, George perfected his right to

appeal so that he could challenge the terms in the final decree. Approximately one

week after George filed his notice of appeal, Kathryn filed a motion asking that the

trial court require George to turn over the assets in four brokerage accounts, which

the trial court had divided between the parties in connection with the parties’ divorce.

      The trial court held a hearing on Kathryn’s motion on October 31, 2018.

During the hearing, the attorneys for the parties agreed that the supersedeas bond

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should be $1,933,915.60. Just over a week after the hearing, George filed a motion

to reduce the amount of the supersedeas bond. George alleged that he did not have

sufficient assets to obtain a supersedeas bond of $1,933,915.60, but he failed to

attach any evidence to his motion. Nothing in the record shows that the trial court

conducted an evidentiary hearing on George’s motion. The record also fails to show

that George obtained a date for the trial court to conduct a hearing on his motion.

      On November 13, 2018, without mentioning George’s November 9, 2018

motion, the trial court signed a post-judgment order and set George’s supersedeas

bond at $1,933,915.60. See Tex. R. App. P. 24.2(a). Two days later, the trial court

conducted a hearing to determine whether George had posted a supersedeas bond in

the amount required by its November 13, 2018 order. During the November 15

hearing, George’s attorney advised the trial court that he had filed a motion to reduce

the amount of the bond, but he acknowledged that George had previously agreed to

a supersedeas bond of $1,933,915.60. At the conclusion of the hearing, the trial court

denied George’s request and ordered that George turn over the funds in the brokerage

accounts pursuant to the awards in the final decree.

      On the same date the trial court denied George’s request to reduce the

supersedeas bond, he filed an emergency motion in this Court asking us to stay the

trial court’s order enforcing the turnover order. Three days later, George filed a

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motion in this Court asking us to review and reduce the amount the trial court set for

his supersedeas bond. George attached six exhibits to the motion he filed in this

Court, including an affidavit about his net worth. We note that George’s net worth

affidavit contains the style of the case as if he intended to file the document in the

trial court; nothing on the document, however, shows that he filed it there. Moreover,

George’s net worth affidavit is not identified as an exhibit in any of the motions filed

with the District Clerk. And it does not appear the trial court ever had the opportunity

to consider George’s net worth affidavit, as it bears a date of November 19, 2018,

nine days after George asked the trial court to reduce the amount of the supersedeas

bond.

        On November 21, 2018, this Court temporarily stayed the trial court’s

November 15, 2018 turnover order to review whether the trial court should have

enforced its judgment before resolving George’s impending appeal. See Tex. R.

App. P. 24.4(c). Approximately one week after we stayed the trial court’s order,

Kathryn filed pleadings in this Court opposing George’s request. Additionally,

Kathryn filed pleadings challenging this Court’s jurisdiction over George’s request

seeking to alter the amount of his bond. According to George, the trial court

summarily denied his motion to reduce his supersedeas bond without giving him the

chance to present evidence or argument to support his motion.

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                                          Analysis

      Nothing in the transcript of the hearing that resulted in the order requiring

George to turn over the brokerage accounts shows that George tried to present

evidence during the November 15 hearing to support his request for a reduced bond.

Additionally, there is no evidence showing that George attempted to call witnesses

to prove he could not secure a supersedeas bond, to prove that he had attempted but

could not secure such a bond, or to show that George objected to the trial court’s

decision to rule on Kathryn’s motion before he presented evidence on his motion.

      Based on the proceedings that occurred during the November 15 hearing, we

hold the trial court did not err by denying George’s motion. That said, we note that

trial courts have the authority to alter the security that must be posted to suspend a

judgment, even after the trial court has otherwise lost its plenary power over the

judgment while the case is on appeal. See Tex. R. App. P. 24.3(a). If the trial court

alters the amount of the supersedeas bond, the trial court has exercised authority that

is subject to review upon appeal. See Tex. R. App. P. 24.4(a)(5). For that reason,

appellate courts have jurisdiction to consider a trial court’s ruling on a motion to

alter the amount the defendant must post to suspend another party’s right to execute

on the judgment while the case is on appeal. Id.



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      But in this case, the motion George filed contained no supporting evidence,

and George also failed to support his motion with any evidence during the hearing

the trial court conducted after he filed a motion seeking a reduced bond. On this

record, we conclude that George has failed to show the trial court erred by denying

his motion. Based on our conclusion the trial court did not err but that it has

continuing jurisdiction to consider altering George’s bond, we lift the stay we

previously issued regarding the court’s order. We dissolve the stay, as of December

17, 2018, so that George may present the trial court with evidence supporting his

claim that the trial court should reduce the supersedeas bond.

      ORDER ENTERED December 11, 2018.
                                                          PER CURIAM


Before McKeithen, C.J., Horton and Johnson, JJ.




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