New York Party Shuttle, LLC v. John Bilello

Opinion

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