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Isern v. Ninth Court of Appeals6/14/1996
Leave to file granted; writ of mandamus conditionally granted
ON PETITION FOR WRIT OF MANDAMUS
This mandamus action questions whether Rule 47(b)(1) of the Texas Rules of Appellate Procedure and section 52.002 of the Texas Civil Practice and Remedies Code conflict and, thus, preclude a trial court from allowing alternate security in appeals from personal injury judgments. We conclude that these provisions do not conflict. Therefore, the trial court did not abuse its discretion by allowing Dr. Reuben A. Isern to post alternate security in the present case. We also conclude that Isern has no adequate remedy by appeal. Accordingly, we grant leave to file and conditionally grant the writ of mandamus. TEX. R. APP. P. 122.
Isern is a defendant in a medical malpractice lawsuit. The jury rendered a verdict for the plaintiffs, the real parties in interest in this proceeding, in excess of $3.1 million. The limits of Isern's liability policy are $500,000. Accordingly, his insurance carrier, Insurance Corporation of America (ICA), will only post a $500,000 supersedeas bond. Alleging he could not post the full $3.1 million security himself, Isern filed a motion with the trial court seeking to use alternate security to supersede execution on the judgment. The trial court granted the motion and ordered Isern to post alternate security in the form of $500,000 in bonds offered by ICA. The plaintiffs appealed the trial court's order. TEX. R. APP. P. 49. The court of appeals set aside the trial court's order, holding that sections 52.002 and 52.005 of the Texas Civil Practice and Remedies Code made "certain that judgments rendered in personal injury cases require a full supersedeas bond equal to the amount of the judgment, plus interest, plus costs."S.W.2d,(quoting Laird v. King, 866 S.W.2d 110, 115 (Tex. App.--Beaumont 1993, orig. proceeding)).
In mandamus proceedings, "our focus remains on the trial court's order regardless of the court of appeals' decision on mandamus. We make an independent inquiry whether the trial court's order is so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish abuse of discretion." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). Isern asserts that the court of appeals improperly disturbed the trial court's judgment by holding that a supersedeas bond equal to the whole amount of the judgment, plus interest and costs, must be posted in personal injury actions. We agree.
The circumstances surrounding the adoption of Rule 47 and section 52.002, as well as the later amendments to Rule 47, illustrate that the rule and the statute do not conflict. In 1986, Rule 47 provided that the trial court could not allow alternate security in appeals from money judgments. TEX. R. APP. P. 47 (amended in 1986)(formerly TEX. R. CIV. P. 364). In the wake of Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed, 485 U.S. 994 (1988), the need for alternate security in appeals from money judgments became apparent. In 1988, this Court amended Rule 47 to allow alternate security in any appeal, including appeals from money judgments, provided the party seeking alternate security could prove that posting the full amount of the bond would cause irreparable harm to the judgment debtor and not posting the full bond would cause no substantial harm to the judgment creditor. TEX. R. APP. P. 47 (amended in 1988). One year later the Legislature promulgated Chapter 52 of the Texas Civil Practice and Remedies Code. Section 52.002 established a slightly different standard for alternate security than that provided in Rule 47. This section also applied to
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