New York Party Shuttle, LLC v. John Bilello ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: New York Party Shuttle, LLC v. John Bilello
Appellate case number: 01-11-01034-CV
Trial court case number: 2008-74793
Trial court: 151st District Court of Harris County
We affirmed the judgment in this case on February 21, 2013, but did not render judgment
against the sureties on the appellant’s supersedeas bond. Appellee John Bilello has filed a
“Motion to Amend the Judgment and Mandate Pursuant to TRAP 43.5,” asking that we amend
our judgment to include the sureties.
“Generally, after the term in which we render a judgment expires, we lack plenary power
to correct or alter that judgment, except for ministerial acts consistent with the judgment.”
Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 260 (Tex. App.—Houston [1st Dist.]
2010, pet. dism’d) (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990) (orig.
proceeding); see also TEX. R. APP. P. 19.3 (“After its plenary power expires, the court cannot
vacate or modify its judgment.”). “Even after our plenary power expires, however, we retain the
ability to correct clerical errors in our judgments and opinions, issue and recall our mandates,
and enforce or suspend enforcement of our judgments.” Id. at 260–61 (TEX. R. APP. P. 19.3(a)–
(c). “When we affirm the judgment of the trial court, we must also render judgment against the
sureties on the supersedeas bond for the performance of the judgment and any costs taxed against
the appellant.” Id. at 261 (citing TEX. R. APP. P. 43.5) (emphasis added). “This is a mandatory
duty, and our failure to do so in our initial judgment does not deprive us of the power to, at any
time, even after our plenary power has expired, amend our judgment to reflect the sureties’
liability.” Id. (citing Cockburn v. Hightower, 121 Tex. 555, 52 S.W.2d 365, 366 (1932)).
“Rendering judgment against the sureties after we affirm a judgment is a ministerial act
involving no judicial discretion, and thus we may amend our judgment, after the expiration of
our plenary power, to operate against the sureties on the supersedeas bond.” Id.
Accordingly, we GRANT the appellee’s motion and amend the judgment nunc pro tunc
to render judgment against appellant’s sureties, Party Shuttle Tours, LLC and C. Thomas
Schmidt. See TEX. R. APP. P. 19.3; Whitmire, 333 S.W.3d at 260–61. The amended mandate
shall issue forthwith.
It is so ORDERED.
Judge’s signature: /s/ Rebeca Huddle
 Acting individually  Acting for the Court
Panel consists of Justices Keyes, Sharp, and Huddle.
Date: April 29, 2014