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National Convenience Stores, Inc. v. Martinez , 1989 Tex. App. LEXIS 114 ( 1989 )


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  • 763 S.W.2d 960 (1989)

    NATIONAL CONVENIENCE STORES, INC., Appellant,
    v.
    Albert MARTINEZ and Wife, Elaine Martinez, Appellees.

    No. 01-88-00838-CV.

    Court of Appeals of Texas, Houston (1st Dist.).

    January 26, 1989.

    Steve Grosman, Houston, for appellant.

    Lloyd M. Lunsford, Houston, for appellees.

    Before EVANS, C.J., and DUGGAN and O'CONNOR, JJ.

    ORDER

    PER CURIAM.

    Appellees ask this Court to increase the supersedeas bond. They assert the posted supersedeas bond is insufficient for failure to include post-judgment interest. We agree and increase the supersedeas bond to include post-judgment interest for 18 months at the rate of 10 percent.

    Tex.R.App.P. 47(b) requires a supersedeas bond to be at least in an amount of the judgment, interest and costs. A supersedeas bond that does not include interest is "patently ineffective." Cooper v. Bowser, 583 S.W.2d 805, 807 (Tex.Civ.App.— San Antonio 1979, no writ). The supersedeas bond filed by appellant is for $214,448.98, which is sufficient to cover only the amount of the judgment and prejudgment interest. Therefore, the bond does not comply with the requisites of Rule 47.

    A supersedeas bond can be written either for a sum certain (including an estimate of the post-judgment interest that will accrue pending appeal), or written generally to cover the amount of interest that will become due, specifying only the rate of interest and the date from which it begins to accrue. Kennesaw Life & Accident Ins. v. Streetman, 644 S.W.2d 915, 917 (Tex. App.—Austin 1983, writ ref'd n.r.e.).

    Accordingly, appellant is directed to file an amended supersedeas bond, with the amount of the bond described as $214,448.98, plus post-judgment interest accruing at the rate of 10 percent per annum from the date of judgment, May 16, 1988, for 18 months, and in other respects complying with Rule 47. Should appellant fail to post the amended supersedeas bond within 20 days after the date of this order, this Court will permit the trial court to issue execution on the judgment. Tex.R. App.P. 49(c).

    It is so ordered.