Prior Cash Deposit Fulfills the Purpose of a Supersedeas Bond

Harris v. Covey

Dallas Court of Appeals, No. 05-24-01291-CV

Justices Goldstein (opinion available here), Garcia, and Clinton

Kelli Hinson

After a justice court rendered judgment against Harris in a breach-of-contract suit, Harris appealed to the county court and deposited $7,838.93 in lieu of a bond pursuant to TRCP 506.1. Under that rule, “a judgment debtor may appeal by depositing cash in lieu of an appeal bond that is ‘payable to the appellee’ and is ‘conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal.’” Following a trial de novo, the county court also rendered judgment against Harris, awarding Covey $3,919.46 in damages, $14,000 in attorney’s fees, interest, and costs of court. Harris appealed again but did not file a supersedeas bond to suspend enforcement of the judgment.

Attempting to stave off post-judgment discovery, Harris filed a motion to stay in the appellate court. Covey objected, arguing Harris had failed to supersede the judgment. Under TRAP 24, a judgment debtor may supersede a money judgment by depositing with the trial court clerk cash in lieu of bond in an amount equal to the sum of compensatory damages and costs awarded as well as interest for the estimated duration of the appeal. Attorneys’ fee awards do not need to be superseded. 

Harris argued that, even though she had not literally superseded the judgment, “the purpose of a supersedeas bond has been fulfilled” by the cash she deposited to appeal from justice court to county court. The Dallas Court of Appeals agreed, concluding that the cash deposit rule, TRCP 506.1, and the supersedeas rule, TRAP 24, served the same purpose of ensuring the judgment creditor is paid if the appeal is resolved in the judgment creditor’s favor. It therefore granted Harris’s motion to stay. 

Summary Judgment Evidence Need Not Be Attached to Summary Judgment Response

State v. $3,774.28 U.S. Currency

Supreme Court of Texas, Nos. 24-0258 (May 16, 2025)

Opinion by Justice Lehrmann (linked here)

Ken Carroll

The Supreme Court of Texas holds that a party opposing a no-evidence motion for summary judgment need not actually attach to its MSJ response controverting evidence that is already contained in the record, as long as the response specifically points out and discusses that evidence. 

In a civil-forfeiture action growing out of alleged opioid trafficking, the owners of the funds at issue filed a no-evidence summary judgment motion against the State. The State submitted a short response that attached no controverting evidence but that referenced and discussed a 44-page affidavit that had been filed with the Notice of Seizure and Intended Forfeiture that commenced the case. The trial court granted summary judgment, saying it “could not consider the affidavit as summary judgment evidence because it understood the rules to require that the nonmovant attach its evidence to the initial response for the trial court’s consideration.” The court of appeals agreed. 

The Supreme Court did not. The Court noted that TRCP 166a(i) “requires a nonmovant to ‘produce’ evidence, not ‘attach’ it,” in responding to a no-evidence MSJ. Further, the comment to that rule“ explains that the nonmovant ‘need only point out’ the evidence that raises a fact issue.” The Supreme Court therefore held that “a response to a no-evidence motion for summary judgment that discusses and calls the court’s attention to evidence already in the court’s record ‘points out’ and thus ‘produces’ that evidence,” as required by Rule 166a(i), and that a trial court abuses its discretion by not considering such evidence. Because the State’s response sufficiently “pointed out” the controverting affidavit that was already in the trial court’s file, the Court reversed and vacated the summary judgment.

SCOTx: A Motion for Sanctions Is Not a “Legal Action” Subject to the TCPA

Ferchichi v. Whataburger Restaurants LLC

Supreme Court of Texas, Nos. 23-0568 & 23-0993 (May 9, 2025) 

Opinion by Justice Lehrmann (linked here)

Ken Carroll

Resolving a disagreement among the State’s courts of appeals, the Supreme Court of Texas holds that “a motion to compel and for sanctions does not present a substantive underlying claim for relief and therefore is not a ‘legal action’ subject to dismissal under the TCPA.” 

Under the TCPA, a party may move to dismiss a “legal action” that “is based on or is in response to” a TCPA-protected right or that “arises from” certain protected communications or conduct. TCPRC § 27.003(a). “The TCPA defines ‘legal action’ as ‘a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.’” Id. § 27.001(6). 

The Supreme Court acknowledged that the catch-all phrase at the end of § 27.001(6)—“any other judicial pleading or filing that requests legal, declaratory, or equitable relief”—is  “undeniably broad.” “But,” the Court said, “broad is not limitless.”

Applying the doctrine of ejusdem generis—i.e., that “when ‘more specific items are followed by a catchall “other,” ... the latter must be limited to things like the former’”—the Court concluded that “the catch-all phrase … should be limited to filings that are ‘like’” the specific items listed in the statute—“a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.” It  explained that the specifically enumerated filings “are connected by their function of commencing (or materially amending) a proceeding on a substantive legal claim—e.g., negligence, fraud, or deceptive trade practices—against another party.” By contrast, the Court said, motions to compel and for sanctions “are not remotely ‘like’ a ‘lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.’ Rather, they are ‘based on conduct ancillary to the substantive claims in the case’ and cannot stand on their own.” The fact that motions for sanctions seek monetary relief does not alter that analysis. Consequently, the Supreme Court held, a “motion to compel and for sanctions … is not a ‘legal action’ subject to dismissal under the TCPA.”