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Whitmire v. Greenridge Place Apartments

In his first issue, appellant contends that Houston's 1st Court of Appeals amended judgment and the trial court's supplement to the amended judgment are void because both courts lacked plenary power to amend the respective judgments. The 1st Court's held that the trial court did not err by following the 1st Court's mandate and rendering judgment against appellant's sureties in the amount of their supersedeas bond obligation. Houston's 1st Court of Appeals, No. 01-09-00291-CV, 08-23-2010

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OPINION ON REHEARING

In this continuing dispute over unpaid rent, the trial court rendered judgment in favor of Greenridge Place Apartments against Michael Whitmire and sureties R.O. and Elsie Whitmire, jointly and severally, for $25,000, the amount of the supersedeas bond posted by the Whitmires, after we affirmed the trial court’s underlying judgment. On appeal, the Whitmires contend that (1) this court and the trial court lacked plenary power to amend our respective judgments to hold the Whitmire sureties liable; (2) both courts erred by amending our judgments and mandate to include the sureties because Whitmire’s payment of the original judgment amount mooted the controversy; (3) both courts erred by holding the Whitmire sureties liable because their supersedeas obligation is void; and (4) Greenridge Place presented legally and factually insufficient evidence to support holding the Whitmire sureties liable for $25,000. We withdraw our opinion and judgment dated February 18, 2010 and issue this opinion in its stead to address an argument the Whitmires advance in their motion for rehearing.*fn1 Our disposition of the case is unchanged. We conclude that (1) our court and the trial court had jurisdiction to amend our judgments; (2) the controversy is not moot because Whitmire did not pay the rent that accrued during the previous appeal; (3) the sureties remain liable on the $25,000 supersedeas bond because the bond, although ruled insufficient to continue protecting Greenridge Place by the trial court, accomplished its purpose of suspending execution of the judgment; and (4) legally and factually sufficient evidence exists to hold the sureties liable up to the amount of the supersedeas bond. We therefore affirm.

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