LEASE LAW TERMINOLOGY: commercial lease | residential lease dispute | terms of lease agreement | amendments
| renewal | breach of contract | breaching lease | lessor | lessee | tenants | landlords | lock out | eviction | forcible entry
and detainer | right to possession | writ of possession | notice of termination | tenant at suffrage | holdover tenant | title
to property | compliance |
estoppel | mitigation of damages | rescission | DTPA | notice | misrepresentation |
nondisclosure | default | noncompliance | non-payment of rent | tenant's failure to pay | landlord's failure to make
repairs |
attorneys fees award in eviction case |

Recent Lease Law Opinions from the Houston Courts of Appeals

Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks)
(
breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense,
trial by consent in summary judgment context, partial summary judgment on liability only,
proving amount of damages, attorney's fees)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks    
Before Justices Jennings, Hanks and Bland  
01-09-00454-CV  Francisca Rosales and Jose Ontiveros v. Kimberly Williams   
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey   

Simmons v. Hollyview Apartments (Tex.App.- Houston [1st Dist.] Sep. 24, 2009)
(
eviction appeal, attorneys fees in forcible entry and detainer case)  
AFFIRM TC JUDGMENT: Opinion by
Justice Terry Jennings  
Before Justices Jennings, Higley and Sharp   
01-08-00231-CV  Gregory Simmons v. Hollyview Apartments   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Cook v. Missionary Village Apartments (Tex.App.- Houston [ 1st Dist.] Dec. 19, 2008)(Nuchia)
(eviction appeal, federally subsidized housing)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Nuchia  
Before Justices Nuchia, Alcala and Hanks
01-07-00279-CV  Damini Cook v. Missionary Village Apartments
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
Hon. Jack Cagle   

Gellien v. Federal Home Loan Mortgage Corp (Tex.App.- Houston [1st Dist.] Oct. 23, 2008)(Radack)
(
foreclosure, eviction, forcible entry and detainer, FE&D, order of possession appeal)
DISMISS APPEAL: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00075-CV Joseph and Adrienne Gallien v. Federal Home Loan Mortgage Corporation
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Gary Michael Block

Hines v. JPMorgan Chase Bank NA (Tex.App.- Houston [14th Dist.] Oct. 9, 2008)(per curiam)
(appeal from commercial eviction possession order not authorized,
DWOJ)
DISMISSED: Per Curiam  
Before Justices Brock Yates, Seymore and Boyce
14-08-00707-CV Bernice H. Hines, d/b/a Krestmont Kiddie College v. JPMorgan Chase Bank, N.A.,,
Et Al.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court
Judge:  Roberta Anne Lloyd

Luccia v. Ross (Tex.App.- Houston [1st Dist.] Sep. 4, 2008)(Alcala)
(lease law,
real estate sale purchase option for property, specific performance)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Alcala
Before Justices Taft, Keyes and Alcala
01-07-00080-CV  Paul Luccia, Individually and d/b/a Cabot & Rowe v. Kathryn L. Ross
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Kent C. Sullivan

Salymeh v. Plaza Centro, LLC (Tex. App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore)
(lease law, landlord-tenant,
forcible detainer, right of possession, lost rents not proven)
AFFIRMED: Opinion by
Justice Seymore  
Before Justices Fowler, Seymore and Guzman
14-06-01101-CV  Mohammad Salymeh d/b/a Muebleria Y Bazar Tierrablanca v. Plaza Centro,
LLCAppeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Judge Gary Michael Block

O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(lease law, Theft Liability Act
claim,
amendment of pleadings prior to hearing, tortious interference, defense of privilege, denial of
motion for continuance,
admissions exclusion of summary judgment evidence)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler  
Before Justices Fowler, Frost and Seymore
14-06-00657-CV Jon Richard O'Kane v. Jeff Coleman, Individually and Enterprise Rent-A-Car
Company of Texas, Inc.
Appeal from 10th District Court of Galveston County
Trial Court Judge: David Edward Garner

Ebrahim v. Middlebury Properties, II (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Nuchia)
(lease law, property code, mobile home park,
Fair Housing Act, preservation of error, TC record)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
01-06-01175-CV Lisha Ebrahim v. Middlebury Properties, II, L.P.
Appeal from 55th District Court of Harris County
Trial Court Judge:
Hon. Jeffrey Brown  

Lovall v. Yen (Tex.App.- Houston [14th Dist.] Feb. 12, 2008)(lease law, eviction, lease, unpaid rent,
bond,
supersedeas, registry of the court)
DISMISSED: Opinion by Chief Justice Hedges
14-07-00770-CV Lizzie Lovall v. Judy Yen
Appeal from County Civil Court at Law No 3 of Harris County (
Judge Hon. Lynn Bradshaw-Hull)

7979 Airport Garage, LLC v. Dollar Rent a Car Systems (Tex.App.- Houston [14th Dist.] Apr. 27,
2007)(Guzman)(
lease case, repairs, contractual attorneys fees, fee segregation, counterclaim)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Guzman
14-05-00484-CV        7979 Airport Garage, LLC v. Dollar Rent a Car Systems, Inc.
Appeal from 80th District Court of Harris County (
Judge Kent Sullivan)

Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible
detainer)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
01-06-00963-CV Michael Whitmire v. Greenridge Place Apartments
Appeal from Co Civil Ct at Law No 4 of Harris County (
Hon. Roberta A. Lloyd)

Armstrong v. Harris (Tex.App.- Houston [14th Dist.] Oct. 2, 2007)(Yates)(forcible detainer)
AFFIRMED: Opinion by Justice Brock Yates
14-06-00491-CV Robert Lee Armstrong, Jr. v. Eddie Mae Harris
Appeal from County Court at Law No 1 of Galveston County (Hon. Mary Nell Crapitto)

Page v. Hulse (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)(breach of lease)
AFFIRMED: Opinion by Justice Brock Yates
14-06-00731-CV Temple B. Page v. Maureen Lorraine Hulse
Appeal from 125th District Court of Harris County (
Judge John A. Coselli)

Mojtahedi v. BHV Realty (Tex.App.- Houston [14th Dist.] Mar. 15, 2007)(Justice Frost)
(lease law, eviction)
This appeal arises out of a landlord/tenant dispute. When the tenant failed to pay rent, the landlord filed a forcible-
entry-and-detainer action and obtained a judgment and writ of possession.  Upon execution of the writ of possession,
the locks at the leased premised were changed, and a constable seized the tenant's personal belongings, which
were removed and taken to a storage facility.  The tenant later sued the landlord alleging wrongful eviction,
conversion, and intentional infliction of emotional distress.  The trial court granted summary judgment in favor of the
landlord. We affirm.

================
LEASE LAW, EVICTION, FORCIBLE DETAINER CASE OPINIONS (OR EXCERPTS)

Mojtahedi v. BHV Realty (Tex.App.- Houston [14th Dist.] Mar. 15, 2007)(Justice Frost) (lease law, eviction)
This appeal arises out of a landlord/tenant dispute. When the tenant failed to pay rent, the landlord filed a forcible-
entry-and-detainer action and obtained a judgment and writ of possession.  Upon execution of the writ of possession,
the locks at the leased premised were changed, and a constable seized the tenant's personal belongings, which
were removed and taken to a storage facility.  The tenant later sued the landlord alleging wrongful eviction,
conversion, and intentional infliction of emotional distress.  The trial court granted summary judgment in favor of the
landlord. We affirm.

Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible detainer)

M E M O R A N D U M  O P I N I O N

Michael Whitmire appeals a judgment in favor of Greenridge Place Apartments (Greenridge) in this forcible entry and
detainer case, awarding Greenridge possession, $850 in unpaid rent, and $850 in attorney’s fees.  Whitmire
contends that (1) Greenridge failed to present sufficient evidence that it personally served him, (2) the county court
erred in denying his motion for a directed verdict as to the existence of a valid lease and damages, (3) Greenridge
failed to present sufficient evidence to support the county court’s award of attorney’s fees, and (4) the county court
abused its discretion in setting the supersedeas bond and in modifying the bond after the expiration of the court’s
plenary power.  We conclude that (1) Whitmire’s appearance waives any complaint regarding defects in service, (2)
the evidence is legally sufficient to support the both county court’s finding that a landlord-tenant relationship existed
between Greenridge and Whitmire and its award of damages to Greenridge for unpaid rent, (3) the evidence is legally
and factually sufficient to support the attorney’s fees award, and (4) under Texas Property Code 24.007, the county
court did not abuse its discretion in setting or modifying the supersedeas bond.  We therefore affirm.  

Background

Greenridge is a residential apartment complex in west Houston.  Greenridge leased an apartment to Whitmire from
July 1, 2005 until March 31, 2006.  On March 28, 2006, Whitmire and Greenridge renewed the lease for the term of
April 1, 2006 until January 31, 2007.  According to both leases, Whitmire was obligated to pay rent of $850 on the first
day of each month.

Whitmire failed to pay rent for April 2006, so Greenridge notified Whitmire that he must vacate his apartment.  When
Whitmire failed to comply, Greenridge filed a forcible entry and detainer action in a Harris County Justice of the Peace
Court and obtained a default judgment.  See Tex. Prop. Code Ann. § 24.004 (Vernon 2000) (“A justice court in the
precinct in which the real property is located has jurisdiction in eviction suits.  Eviction suits include forcible entry and
detainer and forcible detainer suits.”).  Whitmire appealed, seeking a trial de novo in County Civil Court at Law No. 4.  
See Tex. R. Civ. P. 574b, 749.  After a bench trial, the county court entered a judgment in favor of Greenridge.  The
court awarded Greenridge possession of the leased premises, $850 in damages for back rent, and $850 in attorney’
s fees.  The court also set Whitmire’s supersedeas bond at $10,000.   Whitmire has remained in possession of the
apartment during the pendency of these proceedings.

Legal and Factual Sufficiency
* * *
B.  Forcible Entry and Detainer

“An action for forcible detainer is intended to be a speedy, simple, and inexpensive means to obtain immediate
possession of property.”  Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006).  “A person
commits a forcible entry and detainer if the person enters the real property of another without legal authority or by
force and refuses to surrender possession on demand.”  Tex. Prop. Code Ann. § 24.001(a) (Vernon 2000).  

A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person:

(1) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant’s right of
possession;

(2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s
lease; or

(3) is a tenant of a person who acquired possession by forcible entry.

Tex. Prop. Code Ann. § 24.002(a) (Vernon 2000).  The only issue decided in a forcible detainer action is which party
has the right to immediate possession of the property.  Tex. R. Civ. P. 746; Dass, Inc. v. Smith, 206 S.W.3d 197, 200
(Tex. App.—Dallas 2006, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.).  A forcible
detainer action is dependent on proof of a landlord-tenant relationship.  Rice, 51 S.W.3d at 712; Haith v. Drake, 596 S.
W.2d 194, 196 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.).  “To prevail in a forcible detainer action, a
plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a
superior right to immediate possession.”  Rice, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—
Houston [14th Dist.] 1993, no writ).  

A suit for rent may be joined with an action for forcible detainer, as long as the claim for rent falls within the justice
court’s jurisdiction.  Tex. R. Civ. P. 738.  Additionally, in a trial de novo on appeal to the county court, “the appellant or
appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending
possession of the premises during the pendency of the appeal,” although only the party prevailing in the county court
may recover these damages.  Tex. R. Civ. P. 752; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—
Houston [1st Dist.] 2007, no pet. h.). “Such damages include, but are not limited to, loss of rents during the appeal’s
pendency and reasonable attorney’s fees in the justice and county courts . . . .”  Id.; see also Tex. R. Civ. P. 752.

C.  Personal Service

In his first issue, Whitmire contends that Greenridge failed to present sufficient evidence that it personally served him
a citation to appear.  Greenridge responds that Whitmire waived any defect in service by appealing the default
judgment of the justice court in the county court.

“[P]erfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment of the
justice court.”  Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see also
Tex. R. Civ. P. 574b; In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999, orig. proceeding); Richard v.
Taylor, 886 S.W.2d 848, 851 (Tex. App.—Beaumont 1994, writ denied).  Additionally, a defendant waives any defect in
service by filing an answer.  See Tex. R. Civ. P. 121 (“An answer shall constitute an appearance of the defendant so
as to dispense with the necessity for the issuance or service of citation upon him.”); Burrow v. Arce, 997 S.W.2d 229,
246 (Tex. 1999) (“The filing of an answer dispenses with the necessity of service of citation.”); Dawson-Austin v.
Austin, 968 S.W.2d 319, 322 (Tex. 1998); In re $475,001.16, 96 S.W.3d 625, 628–29 (Tex. App.—Houston [1st Dist.]
2002, no pet.).  

Here, Whitmire appealed the default judgment of the justice court and answered Greenridge’s petition in the county
court.  Whitmire’s appeal and answer to Greenridge’s petition constitutes an appearance, and he therefore waived
any complaint regarding defects in service of process.  See Tex. R. Civ. P. 121; Burrow, 997 S.W.2d at 246; Dawson-
Austin, 968 S.W.2d at 322; In re $475,001.16, 96 S.W.3d at 628–29.  

D.  

1.  Landlord-Tenant Relationship

Whitmire first contends that the evidence is legally insufficient to support the county court’s finding that a landlord-
tenant relationship existed between Whitmire and Greenridge because Greenridge did not admit the April 2006 lease
into evidence before resting its case.  We consider, however, all of the evidence offered at trial to determine whether
the evidence is legally sufficient.  See Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 411–12
(Tex. App.—Amarillo 2003, pet. denied).

Greenridge admitted the April 2006 lease into evidence during its rebuttal case.  Whitmire and a representative of
Greenridge signed the lease.  The lease required Whitmire to make a rental payment of $850 on April 1, 2006.  The
evidence is therefore legally sufficient to support the county court’s finding that a landlord-tenant relationship existed
between Greenridge and Whitmire.  See City of Keller, 168 S.W.3d at 827; see also Tex. Prop. Code Ann. § 24.002(a)
(1).

2.  Damages for Unpaid Rent

Whitmire also contends that the evidence is legally insufficient to support the county court’s award of $850 in
damages to Greenridge for unpaid rent.  At trial, Greenridge admitted the April 2006 lease, which required Whitmire to
make a rent payment of $850 on April 1, 2006.  Christy Wagner, a representative of Greenridge, testified that Whitmire
failed to pay rent for April 2006.  Whitmire testified that he did not tender the April 1, 2006 rent payment until April 24.  
In accordance with the lease, Greenridge rejected the payment and demanded that Whitmire vacate his apartment.  
We hold that the evidence presented would enable a reasonable and fair-minded trial judge to find that Whitmire
owed Greenridge $850 in rent for April 2006.  See City of Keller, 168 S.W.3d at 827.  The evidence is therefore legally
sufficient to support the county court’s award of $850 in damages to Greenridge for unpaid rent.  See id.

E.  Attorney’s Fees

In his third issue, Whitmire contends that the evidence is legally and factually insufficient to support the county court’s
award of $850 in attorney’s fees to Greenridge.   See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Stewart Title
Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991).

Texas Property Code section 24.006 authorizes a landlord who prevails in a forcible detainer action to recover
reasonable attorney’s fees from the tenant.  Tex. Prop. Code Ann. § 24.006(b) (Vernon 2000) (“If the landlord provides
the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing
landlord is entitled to recover reasonable attorney’s fees from the tenant.”);[1] see also Tex. R. Civ. P. 752.  We review
an award of attorney’s fees under an abuse of discretion standard.  See Bocquet, 972 S.W.2d at 21.  A trial court
abuses its discretion in awarding attorney’s fees if it acts arbitrarily, unreasonably, or without regard to guiding legal
principles, or if its decision is not supported by legally or factually sufficient evidence.  Id.; Charette v. Fitzgerald, 213 S.
W.3d 505, 512 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Volume Millwork, Inc. v. W. Houston Airport
Corp., 218 S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“The reasonableness of an attorney’s
fee award generally presents a question of fact.”).  

An award of attorney’s fees must be supported by evidence that the fees were both reasonable and necessary.  See
Bocquet, 972 S.W.2d at 21; Sterling, 822 S.W.2d at 10.  Factors a trial court considers in determining the
reasonableness of attorney’s fees include: (1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for
similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client
or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent
upon results obtained or uncertainty of collection before the legal services have been rendered.  See Hoover Slovacek
LLP v. Walton, 206 S.W.3d 557, 561 n.7 (Tex. 2006); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997).  

Greenridge’s attorney, Magnus Rayos, testified that he has been practicing law since 2005 and is familiar with
reasonable and necessary attorney’s fees pertaining to forcible detainer actions in Harris County, Texas.  Rayos
testified that in this case, attorney’s fees of $850 were reasonable and necessary based upon his work in preparing
testimony and attending trial.  Rayos’s testimony was undisputed, and Whitmire declined to cross-examine Rayos.  
See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990); Lofton v. Texas Brine Corp., 777 S.W.
2d 384, 386 (Tex. 1989).  We hold that the evidence Greenridge presented on attorney’s fees would enable
reasonable and fair-minded people to find that attorney’s fees of $850 were reasonable and necessary.  See City of
Keller, 168 S.W.3d at 827.  We also hold that the evidence supporting the county court’s award of attorney’s fees was
not so weak as to make the court’s finding clearly wrong and manifestly unjust.  See Cain, 709 S.W.2d at 176.  
Greenridge therefore presented legally and factually sufficient evidence to support the county court’s award of attorney’
s fees.  See City of Keller, 168 S.W.3d at 827; Cain, 709 S.W.2d at 176; see also Ragsdale, 801 S.W.2d at 882
(holding that evidence was sufficient to support trial court’s award of attorney’s fees); Volume Millwork, Inc., 218 S.W.
3d at 735–36 (same).

Supersedeas Bond

In his fourth issue, Whitmire contends the county court abused its discretion in setting the supersedeas bond at
$10,000.[2]  

A.  Excessive Bond

Whitmire first contends that the $10,000 supersedeas bond is unreasonably high.  Greenridge responds that the
amount of the supersedeas bond is proper because the Texas Property Code expressly permits a trial court to
consider the value of rent likely to accrue during the appeal of a forcible detainer case in setting the amount of a
supersedeas bond.  See Tex. Prop. Code Ann. § 24.007 (Vernon 2000).  We note that Whitmire has remained in
possession of the property since the judgment was signed on July 13, 2006.

We review the trial court’s rulings concerning the amount and type of bond required and the sufficiency of the sureties
under an abuse of discretion standard.  See Tex. R. App. P. 24.4; Miller v. Kennedy & Minshew, Prof’l Corp., 80 S.W.3d
161, 165 (Tex. App.—Fort Worth 2002, no pet.).  The test for whether a trial court abused its discretion is whether the
court acted arbitrarily or unreasonably in light of all the circumstances of the case.  McDaniel v. Yarbrough, 898 S.W.
2d 251,

253 (Tex. 1995); Lewis v. W. Waste Indus., 950 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Texas Property Code section 24.007 provides:

A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of
the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court.  In setting
the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other
appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a
result of the stay during appeal, and other damages or amounts as the court may deem appropriate.

Tex. Prop. Code Ann. § 24.007.  Texas Rule of Appellate Procedure 24.2 provides:

When the judgment is for the recovery of an interest in real or personal property, the trial court will determine the type
of security that the judgment debtor must post.  The amount of that security must be at least:

(A) the value of the property interest’s rent or revenue, if the property interest is real; or

(B) the value of the property interest on the date when the court rendered judgment, if the property interest is personal.

Tex. R. App. P. 24.2(a)(2).  

The record contains evidence that Whitmire intended to occupy the apartment during the appeal of this case and no
evidence that Whitmire has vacated the apartment.  Both leases admitted at trial require Whitmire to pay rent of $850
per month for the apartment.  The Texas Property Code and the Rules of Appellate Procedure both required the
county court to consider the value of rents likely to accrue during the appeal in setting the amount of the supersedeas
bond.  See Tex. Prop. Code Ann. § 24.007; Tex. R. App. P. 24.2(a)(2).  Whitmire did not seek to reduce the bond based
on his net worth, or produce evidence of his net worth in connection with seeking a reduction in the bond.  
Accordingly, we find that the county court acted within its discretion in setting the supersedeas bond at $10,000.[3]  
See McCartney v. Cal. Mortgage Serv., 951 S.W.2d 549, 550 (Tex. App.—El Paso 1997, no pet.) (holding that trial court
did not abuse its discretion in setting supersedeas bond at $19,000 considering value of rents accrued during
appeal).

B.  County Court’s Registry

Whitmire also contends that the county court abused its discretion in setting the supersedeas bond at $10,000
because the court’s registry contained over $4000 cash paid by Whitmire in accordance with Texas Rule of Civil
Procedure 749b.  See Tex. R. Civ. P. 749b.  Greenridge responds that the trial count properly disregarded the cash in
its registry in setting the amount of the supersedeas bond because the cash in the registry was for past rents that
had already accrued by the time the court set the supersedeas bond.

In a forcible detainer case, either party may appeal the justice court’s judgment to the county court by filing an appeal
bond or a pauper’s affidavit.  Tex. R. Civ. P. 749, 749a.  In a nonpayment of rent forcible detainer case, a tenant who
has appealed by filing a pauper’s affidavit pursuant to Rule 749a is entitled to remain in possession of the premises
during the pendency of the appeal to the county court if the tenant follows the procedures set out in Rule 749b.  Tex. R.
Civ. P. 749b.  According to Rule 749b, the tenant must first pay one rental period’s rent into the justice court’s registry
within five days of filing the pauper’s affidavit.  Tex. R. Civ. P. 749b(1).  Second, during the appellate process, as the
rent becomes due under the rental agreement, the tenant must pay the rent into the county court’s registry within five
days of the date rent is due under the terms of the rental agreement.  Tex. R. Civ. P. 749b(2).  If the tenant fails to
timely pay the rent into the county court’s registry, the landlord may file a notice of default in the county court.  Tex. R.
Civ. P. 749b(3).  If the landlord shows that the tenant defaulted under the rule, the court must issue a writ of
restitution.  Id.

The procedures set forth in Rule 749b are designed to protect a landlord during the pendency of a forcible detainer
appeal from the justice court to the county court.  See Tex. R. Civ. P. 749, 749a, 749b; Kennedy v. Highland Hills
Apartments, 905 S.W.2d 325, 327 (Tex. App.—Dallas 1995, no writ); Triple T Inns of Tex., Inc. v. Roberts, 800 S.W.2d
681, 682–83 (Tex. App.—Amarillo 1990, writ denied).  In contrast, Texas Property Code section 24.007 protects a
landlord during the pendency of a forcible detainer appeal from the county court to the court of appeals.  See Tex.
Prop. Code Ann. § 24.007.  

The county court, therefore, did not abuse its discretion in not deducting the cash paid by Whitmire into its registry in
setting the amount of the supersedeas bond because the cash in the registry was for past rents that had accrued at
the time the court set the supersedeas bond.  See id.; Tex. R. Civ. P. 749, 749a, 749b.  

Plenary Power

In his fifth issue, Whitmire contends that the county court erred in increasing the supersedeas bond to $15,000 after
the expiration of its plenary power.  See Tex. R. Civ. P. 329b(c)–(g).  Texas Rule of Appellate Procedure 24.3(a),
however, expressly provides that “[e]ven after the trial court’s plenary power expires, the trial court has continuing
jurisdiction to do the following: (1) order the amount and type of security and decide the sufficiency of sureties; and (2)
if circumstances change, modify the amount or type of security required to continue the suspension of a judgment’s
execution.”  Tex. R. App. P. 24.3(a).  Greenridge requested the trial court to increase the supersedeas bond to
$15,000 because the appellate process was taking longer than anticipated and Whitmire remained in possession of
the apartment.  The county court therefore had the authority to modify the amount of the supersedeas bond after the
expiration of its plenary power.  See id.; see also Miller, 80 S.W.3d at 164; Hamilton v. Hi-Plains Truck Brokers, Inc., 23
S.W.3d 442, 443 (Tex. App.—Amarillo 2000, no pet.).[4]  

Conclusion

We hold that (1) Whitmire waived any complaint regarding defects in service, (2) the evidence is legally sufficient to
support both the county court’s finding that a landlord-tenant relationship existed between Greenridge and Whitmire
and its award of damages to Greenridge for unpaid rent, (3) the evidence is legally and factually sufficient to support
the award of attorney’s fees, and (4) the county court did not abuse its discretion in setting and modifying the
supersedeas bond.  We therefore affirm the judgment of the trial court.  

                Jane Bland

                Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

--------------------------------------------------------------------------------

[1] In this case, Greenridge provided Whitmire with the statutory notice prescribed in Texas Property Code section
24.006(a), and the lease contract provides for the recovery of attorney’s fees in the event of a breach.  See Tex. Prop.
Code Ann. § 24.006(a)–(b) (Vernon 2000).

[2] The proper method to seek review of a trial court’s determination of the amount of a supersedeas bond is to file a
motion in the court of appeals under Texas Rule of Appellate Procedure 24.4(a).  See Tex. R. App. P. 24.4(a); City of
Fort Worth v. Johnson, 71 S.W.3d 470, 471 (Tex. App.—Waco 2002, no pet.).  We therefore construe Whitmire’s
appeal of the county court’s determination of the amount of the supersedeas bond as a Rule 24.4 motion.  See
Johnson, 71 S.W.3d at 471 (“For the purposes of review . . . we consider Johnson’s notice of appeal and brief as a
motion under Rule 24.”); see also Tex. R. App. P. 38.9 (requiring briefing rules to be construed liberally); Tex. Mexican
Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (“Courts should liberally construe briefing rules.”); Anderson v.
Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (“Courts are to construe rules on briefing liberally.”).

[3] A supersedeas bond is intended to indemnify the judgment creditor from losses caused by delay of appeal.  Muniz
v. Vasquez, 797 S.W.2d 147, 150 (Tex. App.—Houston [14th Dist.] 1990, no writ); see also Tex. R. App. P. 24.1(e)
(“The trial court may make any order necessary to adequately protect the judgment creditor against loss or damage
that the appeal might cause.”).  When, as here, the supersedeas bond covers items such as rentals, which accrue
while the case is on appeal, the damages cannot be determined in an appellate court.  See Baxter v. Gates of
Normandie, No. 05-03-00245-CV, 2004 WL 303594, at *1 (Tex. App.—Dallas Feb. 18, 2004, no pet.) (mem. op.); State
v. Watts, 197 S.W.2d 197, 199 (Tex. Civ. App.—Austin 1946, writ ref’d).  In such a case, access to the supersedeas
bond may be achieved by bringing a common-law action against the sureties as with any other contract.  See Baxter,
2004 WL 303594, at *1; Muniz, 797 S.W.2d at 150.

[4] We note that the trial court signed its judgment on July 13, 2006.  Therefore, roughly $11,900 in rents have accrued
since the date of the judgment.

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