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Eagle Rock Timber, Inc. v. Rock Hard Rental, LLC and Solid Rock Crushing, LLC ( 2024 )


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  •                               Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-21-00372-CV
    EAGLE ROCK TIMBER, INC.,
    Appellant
    v.
    ROCK HARD RENTAL, LLC and Solid Rock Crushing, LLC,
    Appellees
    From the 198th Judicial District Court, Kerr County, Texas
    Trial Court No. 18992B
    Honorable M. Rex Emerson, Judge Presiding
    PER CURIAM
    Sitting:          Patricia O. Alvarez, Justice
    Luz Elena D. Chapa, Justice
    Lori I. Valenzuela, Justice
    Delivered and Filed: June 20, 2024
    MOTION TO AMEND JUDGMENT GRANTED; AFFIRMED
    On March 15, 2023, this court issued an opinion and judgment affirming the judgment of
    the trial court. On August 21, 2023, appellant filed a petition for review in the Supreme Court of
    Texas. On January 26, 2024, the Supreme Court of Texas denied appellant’s petition for review.
    On April 8, 2024, this court issued its mandate. On April 15, 2024, appellees filed a motion to
    amend judgment. The motion recites that appellant obtained a supersedeas bond in the amount of
    $998,479.31 with U.S. Specialty Insurance Company, who serves as surety for purposes of the
    bond and is bound to pay appellees.
    04-21-00372-CV
    Upon review of the motion, this court determined the supersedeas bond was not included
    in the original appellate record. On April 17, 2024, at this court’s request, the trial court clerk filed
    a supplemental record containing the supersedeas bond. Neither appellant nor U.S. Specialty
    Insurance Company filed a response to the motion. See TEX. R. APP. P. 10.3(a) (absent exceptions
    inapplicable here, “[a] court should not hear or determine a motion until 10 days after the motion
    was filed.”).
    Texas Rule of Appellate Procedure 43.5 requires courts of appeals affirming a judgment to
    render judgment against the sureties on an appellant’s supersedeas bond, if any, for the
    performance of the judgment and for any costs taxed against the appellant. TEX. R. APP. P. 43.5.
    Because the record before this court did not then contain a copy of the supersedeas bond, our
    original judgment and mandate did not render judgment against the surety. However, this court’s
    rendition of judgment against the surety remains a ministerial act involving no judicial discretion;
    therefore, we may amend our judgment after the expiration of our plenary power to operate against
    the surety. See Whitmire v. Greenridge Place Apartments, 
    333 S.W.3d 255
    , 261 (Tex. App.—
    Houston [1st Dist.] 2010, pet. dism’d) (“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.”).
    We accordingly recall our mandate, see TEX. R. APP. P. 18.7, 19.3(a)–(b); grant the motion
    to amend judgment; and amend our judgment to additionally render judgment in favor of appellees
    against the surety up to but not in excess of the supersedeas bond amount of $998,479.31, see
    Whitmire, 
    333 S.W.3d at 261
    , TEX. R. APP. P. 43.5.
    PER CURIAM
    -2-
    

Document Info

Docket Number: 04-21-00372-CV

Filed Date: 6/20/2024

Precedential Status: Precedential

Modified Date: 6/25/2024