DENY; and Opinion Filed July 21, 2015




                                         S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-14-01137-CV

           BISHOP ABBEY HOMES, LTD. AND NATHAN HALSEY, Appellants
                                     V.
                      BYRON AND PAIGE HALE, Appellees

                        On Appeal from the 439th Judicial District Court
                                   Rockwall County, Texas
                              Trial Court Cause No. 1-11-1207

                       MEMORANDUM OPINION ON MOTION
        TO REVIEW TRIAL COURT’S SUPERSEDEAS ORDER
                 Before Chief Justice Wright and Justice Lang-Miers and Stoddart
                                 Opinion by Chief Justice Wright
        Before the Court is the motion of Bishop Abbey Homes, Ltd. (Bishop Abbey) and Nathan

Halsey to review the trial court’s order setting the supersedeas bond at $4,199,485.50. See TEX.

R. APP. P. 24.4 (party may seek review of trial court’s ruling on amount of bond). We affirm the

trial court’s order.

        Following a jury trial, the trial court rendered judgment in favor of appellees Byron and

Paige Hale against their home builder Bishop Abbey and its principal Halsey. Based on the

jury’s findings of negligence, deceptive trade practices, unconscionable conduct, gross

negligence, and fraud, the trial court rendered judgment against Bishop Abbey and Hale in an

amount exceeding $4 million. Halsey filed a motion in the trial court to suspend enforcement of

the judgment without security. Halsey also filed an affidavit of net worth in which he stated that
his net worth was negative $13,115,757. He later amended the affidavit to aver that his net

worth was negative $14,652,582. The Hales challenged Halsey’s net worth claim and conducted

discovery. After a hearing, the trial court denied Halsey’s motion and signed an order setting the

amount of the supersedeas bond at $4,199,485.50, the amount of the judgment minus a

settlement credit.

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

TEX. R. APP. P. 24.1(a)(2); Peyson Petroleum, Inc. v. Wheeler, No. 05-14-00852-CV, 2015 WL

3932937, at *1 (Tex. Civ. App.—Dallas June 26, 2015, no pet.) (mem. op. on motion to review

trial court’s supersedeas order). When the judgment is for money, the amount of the bond must

equal the sum of compensatory damages awarded, interest for the estimated duration of the

appeal, and costs awarded in the judgment. TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(a)

(West 2015); TEX. R. APP. P. 24.2(a)(1). The amount, however, cannot exceed the lesser of fifty

percent of the judgment debtor’s current net worth or $25,000,000. TEX. CIV. PRAC. & REM.

CODE ANN. § 52.006(b); TEX. R. APP. P. 24.2(a)(1).

       A judgment debtor must file an affidavit that states his net worth and “states complete,

detailed information concerning the debtor’s assets and liabilities from which net worth can be

ascertained.” TEX. R. APP. P. 24.2(c)(1). An affidavit meeting these requirements is prima facie

evidence of the debtor’s net worth for the purpose of establishing the amount of the supersedeas

bond. Id. A judgment creditor may file a contest to the debtor’s net worth and conduct

discovery. TEX. R. APP. P. 24.2(c)(2). The trial court must conduct a hearing on the creditor’s

contest. TEX. R. APP. P. 24.2(c)(3). The judgment debtor has the burden of proving net worth.

Id. The trial court must issue an order that states the debtor’s net worth and states with

particularity the factual basis for that determination. Id.




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       We review a trial court’s ruling on the amount of a supersedeas bond for abuse of

discretion. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no

pet.). The trial court is the sole judge of the credibility of witnesses and the weight to be given

their testimony. Id.

       We conclude the record supports the trial court’s finding that Halsey “did not present

credible evidence to determine his net worth,” for the reasons that follow.

       At the hearing on his motion to suspend the judgment without security, Halsey offered

into evidence a November 25, 2014 balance sheet showing a net worth of negative $14,652,582.

He testified that the balance sheet was prepared in accordance with generally accepted

accounting principles (GAAP).        Halsey also prepared one-page balance sheets for his

“partnership interests.” He testified that each of these entities had a negative net worth. Halsey

conceded, however, that there was no way to verify the amounts he listed on the balance sheet

for many of the entities because “the documents don’t exist.” Similarly, Halsey conceded he did

not produce documents to support other items in his affidavit regarding his liability on various

loan agreements and personal guaranties.

       Halsey testified that Bishop Abbey was engaged in the construction of single family

homes from 2003 to 2007. Halsey is now the “managing member” of Bon Amour International

and Bellatorra Skin Care, entities that manufacture and distribute skin care products. Through a

partnership with a distribution company in China, Bon Amour sells products in Asia. Although a

previous affidavit of net worth filed by Halsey showed that his interest in Bon Amour was worth

$35,000, his November 2014 balance sheet omitted the interest. Halsey testified that the interest

was actually owned by the Halsey Family Trust and had a negative value.

       Bellatora Skin Care, formed for sales in the United States, signed a contract in early 2015

with Barney’s; its “distribution model is a luxury retail model.” Halsey anticipated that the first

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purchase order from Barney’s would “be a couple hundred thousand dollars probably.”

Nevertheless Halsey testified that Bellatora is currently “not worth anything.”

       Halsey also started a company called TexStar Oil to “acquire oil and gas interests for

development.” TexStar Oil made a public filing with the Securities and Exchange Commission

for the period ended June 30, 2014, which was introduced into evidence at the hearing. The

filing identifies Halsey as the company’s President, Chief Executive Officer, and Chief Financial

Officer. It reflects that as of June 30, 2014, TexStar owed Halsey $311,130. This amount is not

reflected on Halsey’s balance sheet. Halsey testified that the SEC filing was inaccurate. He

testified that TexStar Oil Company, Limited was owned by the Halsey Family Trust, not by

Halsey individually as reflected on the SEC filing. The SEC filing also incorrectly reflects

Halsey as the owner of Bon Amour Asia, L.L.C.; his ownership is only indirect through a trust.

       Halsey and Jeffrey McPhaul, an attorney for four entities of which Halsey is the

principal, testified about transfers of stock by Halsey to “Chinese or foreign nationals . . . to

facilitate business interests in Asia.” Halsey testified that in 2013, he transferred 18 to 20 million

shares of TexStar Oil stock in exchange for “a revenue share agreement with a Southeast Asia

network marketing company” known as “Insider 21.” Halsey was to receive 20% of the profits

from Insider 21. In 2013, he received distributions from Insider 21 “between one and two

million gross,” but because of capital calls, “99 percent of it went back to that Insider 21 entity”

so he had no “net money.”         There was no accounting made for the transaction, and no

documentation regarding it was produced or introduced into evidence.

       Halsey testified that two other TexStar entities were not listed separately on his balance

sheet because they are owned by the Halsey Family Trust. He conceded he had produced no

documents relating to these entities. He testified that he individually owns 5 million preferred

voting right shares and “maybe 30,000 common shares” of TexStar Oil Corporation. Halsey

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conceded that he had not provided documents relating to the family trust, Bon Amour, or the

TexStar entities when requested in discovery.        He also conceded that he had provided no

documents regarding other partnership interests listed on his balance sheet.

       Halsey sought to explain evidence, apparently offered during the jury trial, regarding a

lake house and luxury automobiles. He explained that he used cash from TexStar Oil to pay for

a Ferrari automobile to be used for “marketing purposes.” He drove the Ferrari and other luxury

cars as part of a business venture with a friend. The venture was terminated in early 2014.

Halsey testified that he had “use of the lake house” but did not own it. The lake house, acquired

in 2011 and valued by Halsey at $780,000, is owned by a “foreign partnership” called JHP

Ventures, in which Halsey has a 50% ownership. Halsey testified that JHP Ventures sold a lot in

University Park in 2014 for $1.7 million, but has a negative net worth because of balances due

on outstanding loans. Halsey testified that he used the $1.7 million proceeds from the sale of the

University Park property “to float Bon Amour International and Bellatora Skin Care.” He also

testified that he used the proceeds for his 2014 living expenses. There is no documentation to

support either disposition of the funds. Halsey admitted he had “enough disposable income” to

make political contributions in late 2014.

       Halsey testified that he provides his wife Kristen Halsey with an allowance of $15,000

per month. She does not keep a check ledger and does not receive any of the statements for the

credit cards and bank accounts she uses. On cross-examination, Halsey was questioned about a

credit application his wife made to lease a car in 2014. The application showed that Halsey’s

wife was a partner in Bon Amour International, working full-time as an executive or manager,

with an income of $15,000 per month. Halsey conceded that this information was false; $15,000

is “the amount that I give her as a budget monthly,” and that his wife is not a partner in Bon

Amour. The form also incorrectly states that Halsey’s wife “owns home outright”; Halsey

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testified that he told Sewell his wife had no mortgage expense with their home because she “is

not responsible for a mortgage.” An employee of Sewell Buick GMC also testified, confirming

Halsey and his wife submitted the information that Halsey now claims is incorrect.

       Steven Stanford, a certified public accountant, testified on Halsey’s behalf. He explained

that the Financial Accounting Standards Board (FASB) was created by the federal Securities and

Exchange Commission and has codified certain accounting standards. He identified FASB 274,

which summarizes GAAP for personal financial statements. He testified that a personal financial

statement prepared in accordance with FASB 274 would also be in accordance with GAAP.

Stanford did not prepare Halsey’s financial statement. He “didn’t prepare the numbers”; he

“looked at the layout.” He testified that the values on Halsey’s financial statement for assets

would comply with GAAP “[i]f they are the estimated current values,” and Halsey had testified

that they were. Stanford offered his opinion that Halsey’s financial statement was prepared in

accordance with FASB 274 and with GAAP.

       On cross-examination, Stanford conceded that to verify the numbers on Halsey’s balance

sheet he looked only “at what [Halsey] provided,” which was limited to “some property tax

values.” Stanford may have seen mortgage statements, but did not recall seeing any loan

agreements or guaranties, or any statements of inventory, profit and loss, or income for any of

Halsey’s businesses. He did not do any analysis of whether the assets identified on Halsey’s first

financial statement were properly excluded from the second financial statement because he did

not see the first statement. He did not know what assets Halsey might own other than those

listed on the second financial statement. He also conceded that FASB 274, dealing with personal

financial statements, was not applicable to business partnerships. He could not testify that

Halsey’s partnership interests were properly valued under GAAP, because he did not know. He




                                               –6–
conceded that it “doesn’t make sense” that Halsey can pay expenses including the $15,000

monthly amount to his wife if Halsey’s financial statement is accurate.

       Bryan Rice, a certified public accountant, testified on the Hales’ behalf. He testified that

“there is absolutely no basis for a conclusion” that the balance sheet attached to Halsey’s

statement of net worth “was presented or prepared in accordance with generally accepted

accounting principles.” In order to opine whether a financial statement is in accordance with

GAAP, an accountant must conduct a review or an audit. There must be “an audit report along

with footnote financial disclosures about all of the items presented on the financials.” Rice

reviewed Halsey’s balance sheet and found “numerous errors” that “would, at the very least,

indicate it’s not reliable.” The balance sheet (1) fails to show “whose balance sheet it is,”

(2) lists as accounts payable amounts owed to attorneys by Halsey individually, while the

supporting documentation shows the amounts are the obligations of certain closely-held business

entities; (3) lists the liabilities of Bon Amour International, but not the cash balances shown on

its bank statement; (4) uses the “alleged book value” for the business entities listed, without

following any of the proper procedures for appraising the businesses; (5) does not value Halsey’s

partnership interests in accordance with FASB 274; (6) does not show that an investigation to

determine the existence of all assets and liabilities has been done by an accountant certifying the

statement to be in accordance with GAAP; (7) reflects, without supporting documentation, a $6.4

million decrease in the value of one of the partnership entities in a five-month period; (8) treats a

contingent liability on a personal guaranty as “fully ripened” even though Halsey has not

admitted liability, and also double-counts the obligation by including it as an obligation of both

Halsey and one of his business entities; (9) omits stating a value for Halsey’s 20 percent profits

participation in the business venture in China; and (10) fails to disclose the payment exceeding

$1 million Halsey received from the venture in China, which was material to Halsey’s net worth.

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In sum, Rice offered the opinion that Halsey’s balance sheet was not prepared in accordance with

GAAP or FASB 274: “It’s not proper, it’s filled with errors and it, to my mind, has absolutely

no credibility.”

       The trial court agreed with Rice, stating in its findings that Halsey’s credibility first came

into question during the trial, when he testified that he was not an expert in home building, but

did not tell the Hales because “[t]hey didn’t ask me if I was an expert in home building”; denied

he lived in University Park; and did not disclose property owned by a business in which he had

an 80% interest. The court further found that during the hearing regarding his net worth, Halsey

was “evasive and deceitful,” and cited specific examples, including the errors in the SEC filing,

Halsey’s inability to recall whether he received $1 million or $2 million in proceeds from his

Asia venture, and his failure to account for the property he admitted he sold immediately after

the jury’s verdict. The trial court also recited that although Halsey hired a CPA to testify on his

behalf at the net worth hearing, he failed to provide the CPA with any loans, loan agreements, or

profit and loss information as to any of his businesses. The CPA never determined Halsey’s

income. In addition, the CPA admitted that the expenses to which Halsey testified “did not

reconcile with his filed net worth affidavit.”

       The trial court also cited the evidence regarding the automobile lease to Kristen Halsey.

Although the loan was approved based on information that Kristen Halsey earned $15,000 per

month as a partner in one of Halsey’s business ventures, Halsey testified (1) his wife was not a

partner in the business; (2) the $15,000 per month was her allowance from him, although he

could not account for it; and (3) the business venture listed as Kristen Halsey’s employer has a

negative net worth.

       The trial court cited Rice’s testimony of “numerous errors” in Halsey’s balance sheet.

The court’s findings cite (1) the listing of attorney’s fees as owed by Halsey individually when

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they were actually owed by various business entities; (2) the listing of liabilities of Halsey’s

business entities, but not their cash in the bank; (3) the lack of any appraisals of any of Halsey’s

business entities; (4) the unexplained $6.4 million fluctuation in the value of one of the entities;

(5) the failure to reflect the $311,000 owed to Halsey by TexStar Oil; and (5) the failure to

disclose his rights to future performance.

       The trial court concluded, “Defendant has the burden to establish his net worth. After

reviewing the testimony and exhibits admitted, Defendant did not present credible evidence to

determine his net worth.” Therefore, the trial court ordered that the supersedeas bond “shall be

set at the judgment amount of $4,199,485.50.”

       Halsey requests that we vacate the trial court’s findings and issue an order suspending

enforcement of the judgment during appeal. Halsey argues that because he presented the only

evidence regarding his net worth, the trial court was required to accept it and find that his net

worth was negative $14.6 million. He points to Stanford’s testimony that his financial statement

was prepared in accordance with GAAP and FASB 274, and argues that he was not required to

provide appraisals of his businesses to establish his net worth. He argues that the trial court

considered factors irrelevant to net worth, such as his payments to his wife. He contends that he

timely responded to post-judgment discovery, and the Hales did not move to compel any further

documentation from him. He argues that his net worth would remain negative even if corrected

for amounts the trial court found were erroneously omitted from the calculation.

       Although we agree with Halsey that an affidavit meeting the requirements of rule

24.2(c)(1) is prima facie evidence of the debtor’s net worth for the purpose of establishing the

amount of the supersedeas bond, the rule also expressly provides that a judgment creditor may

file a contest to the debtor’s claimed net worth. See TEX. R. APP. P. 24.2(c)(2). And in order to

constitute prima facie evidence, the affidavit must state “complete, detailed information

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concerning the debtor’s assets and liabilities from which net worth can be ascertained.” TEX. R.

APP. P. 24.2(c)(1). The record reflects, and the trial court found, that Halsey failed to offer

complete and detailed information regarding his assets and liabilities from which his net worth

could be determined. Therefore, Halsey failed to meet his burden of proof. See TEX. R. APP. P.

24.2(c)(3) (debtor bears burden of proving net worth).

       The Hales concede that rule 24.2(c)(3) requires the trial court to “issue an order that

states the debtor’s net worth and states with particularity the basis for that determination.” See

TEX. R. APP. P. 24.2(c)(3). They argue, however, that where the debtor fails to meet its burden

of proof, the trial court may set the amount of the bond in accordance with section 52.006(a) and

rule 24.2(a)(1), as the trial court did here. See TEX. CIV. PRAC. & REM. CODE ANN. § 52.006(a);

TEX. R. APP. P. 24.2(a)(1). The Hales cite Newsome v. North Texas Neuroscience Center, P.A. in

support of their argument. No. 08-09-00025-CV, 2009 WL 3738504 (Tex. App.—El Paso Nov.

9, 2009, no pet.) (mem. op. on motion). In Newsome, as here, the judgment debtor failed to offer

credible evidence of her net worth. Id., 2009 WL 3738504, at *4. The court explained that

although rule 24.2(c)(3) “plainly requires” a trial court to make a net worth determination, “the

same rule places the burden on Dr. Newsome to prove her net worth with credible evidence.” Id.

at *5. A trial court “has discretion to consider whether the assets and liabilities listed by a party

are accurate in light of all the evidence.” Id. In light of all of the evidence in the record, “[i]t

was reasonable for the trial court to question Dr. Newsome’s credibility regarding her claimed

total assets.” Id. The court concluded, “Dr. Newsome has failed to establish that there is no

evidence supporting the trial court’s determination that a net worth finding could not be made,”

or that the determination was against the great weight and preponderance of the evidence. Id.

Therefore, the trial court did not abuse its discretion in setting the bond “in accordance with Rule

24.2(a)(1) and Section 52.006(a).” Id.

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       As in Newsome, the trial court’s order specifically recites the reasons for finding the

debtor was not credible. See id. And as in Newsome, it was reasonable for the trial court to

question Halsey’s credibility “given the other evidence available for the court’s consideration”

that we have discussed above. See id. The trial court’s order “states with particularity the factual

basis” for its determination, as required by rule 24.2(c)(3). See In re Smith, 192 S.W.3d 564, 568

(Tex. 2006) (trial court must state with particularity the factual basis for its determination of net

worth so that appellate court may “ascertain the basis for that determination”). The evidence

supports the trial court’s ruling. Halsey has failed to establish that there is no evidence to

support the trial court’s ruling, or that the ruling was against the great weight and preponderance

of the evidence. See Newsome, 2009 WL 3738504, at *5. The trial court did not abuse its

discretion in setting the amount of the bond in accordance with section 52.006(a) and rule

24.2(a)(1). We affirm the trial court’s order.




141137F.P05
                                                    /Carolyn Wright/
                                                    CAROLYN WRIGHT
                                                    CHIEF JUSTICE




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