Kennesaw Life and Acc. Ins. Co. v. Streetman

Citation644 S.W.2d 915
Decision Date18 January 1983
Docket NumberNo. 13382,13382
PartiesKENNESAW LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Coy W. STREETMAN, Jr., Appellee.
CourtCourt of Appeals of Texas

Frank Douglass, Tom W. Reavley, Scott, Douglass & Keeton, Austin, for appellant.

Rogan B. Giles, Stubbeman, McRae, Sealy, Laughlin & Browder, M. David Bryant, Jr., Hughes & Hill, Austin, for appellee.

Before PHILLIPS, C.J., and SHANNON and POWERS, JJ.

PER CURIAM.

Appellant Kennesaw Life & Accident Insurance Co. appeals from a judgment entered against it on July 30, 1980 in the sum of $649,400.00 "plus interest on such sum at the legal rate from the date hereof until paid."

Appellant timely filed a supersedeas bond which recites in part:

We, Kennesaw Life and Accident Insurance Company, and Insurance Company of North America of Philadelphia, Pennsylvania, as surety, acknowledge ourselves bound to pay Coy W. Streetman, Jr. appellee, the sum of $707,846, said sum being at least the amount of the judgment, interest, and costs, conditioned that appellant shall prosecute the appeal with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against it, appellant shall perform the judgment, sentence or decree, and pay all such damages as the Court may award against it.

The principal amount of the bond, $707,846.00, was most probably calculated by adding to the amount of the judgment, $649,400.00, the amount of one year of post-judgment interest on such amount at 9% per annum, the rate specified by Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Supp.1982), or $58,446.00.

Appellee Coy W. Streetman has filed a motion requesting this Court to order appellant to file an amended supersedeas bond, with the amount increased by $175,000.00, from $707,846.00 to $882,846.00 pursuant to Tex.R.Civ.P.Ann. 365 (1967). Appellant opposes the motion on the ground that the amount of increase requested is excessive, because $175,000.00 of additional post-judgment interest would not accrue until August 1984, and appellant suggests this case will surely be disposed of before then. We will grant the motion and order appellant to file an amended bond with terms as specified below.

Rule 365 provides:

The sufficiency of a cost or supersedeas bond shall be reviewable by the appellate court and said court may require additional bond or security in case of the insufficiency of the amount of said bond or the sureties thereon, whether arising from the fixing of an inadequate amount in the trial court or from any subsequent condition which may arise affecting the sufficiency of said bond. The court in which the appeal is pending shall, upon proper showing of such insufficiency, require the giving of an additional bond ... [emphasis added].

The amount of the supersedeas bond filed by appellant has become insufficient by virtue of the subsequent condition that the amount of the bond includes an amount corresponding to only one year of post-judgment interest on the amount of the judgment, but more than two years and four months have passed since the date of the judgment. Texas R.Civ.P.Ann. 364 (1967) provides that "[a]n appellant desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond ... in at least the amount of the judgment, interest, and costs ...." In Cooper v. Bowser, 583 S.W.2d 805 (Tex.Civ.App.1979, no writ), the Court ordered the appellant to file an amended supersedeas bond because the bond initially filed covered only the amount of the money judgment and the cost bond, and did not include any amount corresponding to the amount of post-judgment interest expected to accrue during the pendency of the appeal. The Court wr...

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5 cases
  • Pennzoil Company v. Texaco, Inc, 85-1798
    • United States
    • United States Supreme Court
    • April 6, 1987
    ...noting that Rule 364 requires appellants to post bond in the full amount of the judgment. E.g., Kennesaw Life and Accident Insurance Co. v. Streetman, 644 S.W.2d 915, 916-917 (Tex.App.1983) (writ refused n.r.e.). But these cases do not involve claims that the requirements of Rule 364 violat......
  • Tex. Standard Oil & Gas v. Frankel Offshore Energy Inc.
    • United States
    • Court of Appeals of Texas
    • July 7, 2011
    ...creditor requires the inclusion of post-judgment interest. Id. at 1083–84 (citing Kennesaw Life & Accident Ins. Co. v. Streetman, 644 S.W.2d 915, 917 (Tex.App.-Austin 1983, writ ref'd n.r.e.); Cooper v. Bowser, 583 S.W.2d 805, 807 (Tex.Civ.App.-San Antonio 1979, no writ) (“A supersedeas bon......
  • Southwestern States General Corp. v. McKenzie, 05-83-00698-CV
    • United States
    • Court of Appeals of Texas
    • September 22, 1983
    ...1983, no writ), and fails to adequately provide for post judgment interest as required by such cases as Kennesaw Life and Accident Ins. Co. v. Streetman, 644 S.W.2d 915 (Tex.App.--Austin 1983, no writ). Again, we disagree, finding that the trial court's order effectively incorporates all th......
  • Fortune v. McElhenney
    • United States
    • Court of Appeals of Texas
    • February 9, 1983
    ...... of $100,000.00, which recites that "American & Foreign Ins. Co." is the surety, but the bond is signed by Kirk ... Kennesaw Life and Accident Insurance Company v. Streetman, 644 ......
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER 8 Staying Execution and Superseding the Judgment
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...(Tex. App.—Houston [14th Dist.] 2005, no pet.).[64] Tex. R. App. P. 24.2(a)(1).[65] See Kennesaw Life & Accident Ins. Co. v. Streetman, 644 S.W.2d 915, 916–17 (Tex. App.—Austin 1983, writ ref'd n.r.e.).[66] Tex. R. App. P. 24.2(a)(2).[67] Tex. R. App. P. 24.2(a)(2)(A).[68] Culbertson v. Bro......

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