ROSCOE WHITE III v. FIRST UNITED BANK TRUST COMPANY AND ELAINE EDINGER (2026)

OPINION AND ORDER ON MOTION

The summary judgment on appeal determined that Appellant, Roscoe White, III, breached a settlement agreement and, consequently, grants Appellee's, First United Bank & Trust Co. (the Bank), request to foreclose its existing lien on White's property. On the eve of the non-judicial foreclosure sale, White filed an emergency motion requesting that this Court stay the foreclosure proceedings during the pendency of this appeal. Alternatively, White requests that this Court review the sufficiency or excessiveness of the amount and type of security ordered by the trial court, and determine that White's net worth declaration and deposit of $100 in lieu of bond supersedes the trial court's order. See Tex. R. App. P. 24.4(a) (authorizing limited appellate review of a trial court's supersedeas ruling). On February 2, 2026, this Court entered an administrative stay prohibiting the Bank from proceeding with foreclosing on White's property, and requested a response from the Bank. For the reasons explained below, we now lift the administrative stay and deny the motion.

BACKGROUND

This appeal arises from litigation concerning the Bank's attempt to foreclose on a lien to satisfy a debt owed by White. The parties eventually mediated their dispute and executed a Rule 11 agreement settling the parties' claims. The Rule 11 agreement required White to execute a new loan, designate property worth $3,847,500.00 to secure the new loan, and pay outstanding expenses such as taxes and insurance. Ultimately, White did not execute the new loan by the required time. The Bank filed a motion for summary judgment for breach of the Rule 11 agreement, asserting, among other things, that the property that White designated as collateral was not sufficient. The Bank's motion requested that the trial court find White breached the Rule 11 agreement and that it be permitted to foreclose on its existing lien. White filed a cross-motion for summary judgment to enforce the Rule 11 agreement's release of claims on the original lien. The trial court granted the Bank's motion for summary judgment for breach of the Rule 11 agreement and denied White's cross-motion.

After the trial court granted the Bank's motion for summary judgment, White filed a motion for alternate security, asserting that adequate security for this case would be for the Bank to maintain the original lien, but prohibit the Bank from foreclosing. The Bank opposed White's motion for alternate security. The trial court denied White's motion, and ordered White to post or deposit $3,847,500.00 to suspend enforcement of the judgment. White did not post or deposit this amount. Instead, he later filed a declaration of net worth, purporting to show his net worth was negative $12 million, and made a $100 deposit. The Bank disputes this deposit was sufficient to supersede the judgment given that the trial court has already determined the amount of the security required.

DISCUSSION

A. Law on Supersedeas

As a general rule, a judgment debtor is entitled to supersede a judgment while pursuing an appeal. Miga v. Jensen, 299 S.W.3d 98, 100 (Tex. 2009). Texas Rule of Appellate Procedure 24.1 sets out the requirements for suspending enforcement of the judgment pending appeal in civil cases. A judgment debtor may supersede the judgment by filing an agreement with the judgment creditor for suspending enforcement of the judgment, posting a bond, making a deposit in lieu of a bond, or providing alternate security as ordered by the court. Tex. R. App. P. 24.1(a).

The amount of security required depends on the type of judgment. See id. R. 24.2(a)(1)–(3). A money judgment may be superseded by a bond, deposit, or security equal to the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment. Id. R. 24.2(a)(1). The amount, however, must not exceed the lesser of (A) 50 percent of the judgment debtor's current net worth or (B) 25 million dollars. Id. R. 24.2(a)(1)(A)–(B). To supersede a judgment for the recovery of an interest in property, the amount of security must be at least the value of the property interest's rent or revenue if real property, or the value of the property interest on the date of the judgment if personal property. Id. R. 24.2(a)(2). When the judgment is “for something other than money or an interest in property,” the trial court must set the amount and type of security the judgment debtor must post. Id. R. 24.2(a)(3). “The security must adequately protect the judgment creditor against loss or damage that the appeal might cause.” Id. The trial court may decline to permit the judgment debtor to supersede the judgment, however, if the judgment creditor posts “security ordered by the trial court in an amount and type that will secure the judgment debtor against any loss or damage caused by the relief granted” should an appellate court determine that the relief was improper. Id.

Rule 24.4 authorizes an appellate court to engage in a limited supersedeas review, including review of the sufficiency or excessiveness of the amount of security and the type of security. Id. R. 24.4(a)(1), (3). This review may be based on conditions as they existed at the time the trial court signed an order, or changes in those conditions afterward. Id. R. 24.4(b); see also G.M. Houser, Inc. v. Rogers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, order). We review a trial court's supersedeas ruling for an abuse of discretion. Drake Interiors, Inc. v. Thomas, 531 S.W.3d 325, 328 (Tex. App.—Houston [14th Dist.] 2017, order). “The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably considering all the circumstances of the case.” Senior Care Living VI, LLC v. Preston Hollow Capital, LLC, 695 S.W.3d 446, 455 (Tex. App.—Houston [1st Dist.] 2023, order). The judgment debtor bears the burden to establish the amount of security required. Drake Interiors, Inc., 531 S.W.3d at 329.

B. Analysis

The majority of White's arguments relate to the merits of the underlying appeal regarding the proper remedy for breach of the Rule 11 agreement. The filing of an appeal, however, cannot suspend enforcement of the judgment. Tex. R. App. P. 25.1(h)(1); see also In re Romero, Gonzalez & Benavides, L.L.P., 293 S.W.3d 662, 664 (Tex. App.—San Antonio 2009, orig. proceeding) (“Unless the judgment debtor files a supersedeas bond to delay the enforcement of the final judgment, the trial court has no discretion to suspend the enforcement of the final judgment pending appeal.”). At this stage, we could issue an injunction preventing foreclosure proceedings pending appeal only if White has superseded the trial court's judgment. See In re City of Cresson, 245 S.W.3d 72, 75 (Tex. App.—Fort Worth 2008, orig. proceeding) (“An appellate court may issue a writ of injunction to protect and enforce the rights of a litigant who has superseded a trial court's judgment.”). Based on the record before us, White has not complied with the trial court's order to post or deposit $3,847,500.00 to suspend enforcement of the judgment.

White alternatively requests that this Court review the sufficiency and excessiveness and the type of the security ordered by the trial court. See Tex. R. App. P. 24.4(a)(1), (3). Even though White conceded to the trial court in his motion for alternate security that the summary judgment was not a money judgment, he asserts in this motion that the judgment is essentially a money judgment. We disagree. The summary judgment on appeal does not award a specific sum of money to the Bank as compensatory damages. Rather, it finds that White breached the Rule 11 agreement by not designating sufficient property as collateral for the new loan. The summary judgment also permits the Bank to foreclose on the existing lien.¹ Therefore, we conclude the summary judgment on appeal falls under the category of an “other” judgment. See id. R. 24.2(a)(3).

The trial court was required to determine an amount that would “adequately protect the judgment creditor against loss or damage that the appeal might cause.” Id. White argues the $3,847,500.00 is an arbitrary amount and not derived from any calculation of damages or the debt owed. We disagree that amount is arbitrary, as it is derived from the Rule 11 agreement's minimum collateral value requirement—the very requirement the trial court, in its summary judgment, found that White breached. Thus, we conclude the trial court did not abuse its discretion in setting the security at that amount.

Lastly, White requests we consider the changed circumstances not before the trial court, and determine White's net worth declaration and deposit of $100 supersedes the trial court's order. We deny this request. First, as explained above, the summary judgment is an “other” judgment, and the net worth procedures apply only to money judgments. Id. R. 24.2(a)(1), (e). Second, even if the trial court could consider White's net worth declaration in determining an alternative security, White did not file his declaration of net worth until after the trial court had already ordered the amount of the security to be posted. The trial court has continuing jurisdiction to consider changed circumstances to modify the amount or type of security required to continue the suspension of a judgment's execution, see id. R. 24.3(a), and may lower the amount of the security required under 24.2(a) if, after notice and hearing, it finds posting the required amount is likely to cause the judgment debtor substantial economic harm, id. R. 24.2(b); see also Senior Care Living VI, LLC, 695 S.W.3d at 458–59 (explaining language of subsection (b) implies judgment debtor may challenge trial court's calculation of the amount of security and requires a notice and hearing). White did not utilize these available procedures in the trial court with respect to his net worth.

Our review may be based on changes in conditions after the trial court's order, see Tex. R. App. P. 24.4(b), but White does not explain how any conditions, such as his financial condition, have changed since the trial court's order. He simply asserts his net worth affidavit was not before the trial court when it ruled. Under these circumstances, this Court cannot make any findings regarding White's net worth in the first instance. See Taj v. Highlander Cmty. Servs. and Invs., LLC, No. 05–19–01172–CV, 2019 WL 6522189, at *2 (Tex. App.—Dallas Dec. 4, 2019, order) (declining to consider exhibits not presented to the trial court when appellants asserted for first time to appellate court they have no assets to leverage to cover cost of bond).

Accordingly, we lift the administrative stay, deny White's motion, and affirm the trial court's supersedeas order.

FOOTNOTES

1.   Neither White nor the Bank contend that the judgment is for an interest in real property. See Tex. R. App. P. 24.2(a)(2).

Scott K. Field Justice