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Whitmire v. Greenridge Place Apartments

Because Texas Rule of Appellate Procedure 43.5 requires that the court render judgment against the sureties on the supersedeas bond, this is a mandatory, ministerial act necessary to enforce its judgment; thus, the court can render judgment against the sureties even after its plenary power has otherwise expired. Houston's 1st Court of Appeals, No. 01-09-00291-CV, 02-18-2010

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OPINION

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 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 trial court lacked the power to void the $25,000 supersedeas bond and release the Whitmire sureties from liability; 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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