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

Opinion

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.

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