Texas = Judiciary Online

M E M O R A N D U M O P I N I O=20 N

Michael Whitmire = appeals a=20 judgment in favor of Greenridge Place Apartments (Greenridge) in = this=20 forcible entry and detainer case, awarding Greenridge possession, = $850 in=20 unpaid rent, and $850 in attorney=92s fees. Whitmire contends that = (1)=20 Greenridge failed to present sufficient evidence that it = personally served=20 him, (2) the county court erred in denying his motion for a = directed=20 verdict as to the existence of a valid lease and damages, (3) = Greenridge=20 failed to present sufficient evidence to support the county = court=92s award=20 of attorney=92s fees, and (4) the county court abused its = discretion in=20 setting the supersedeas bond and in = modifying=20 the bond after the expiration of the court=92s plenary = power. We conclude that (1) = Whitmire=92s=20 appearance waives any complaint regarding defects in service, (2) = the=20 evidence is legally sufficient to support the both county = court=92s finding=20 that a landlord-tenant relationship existed between Greenridge and = Whitmire and its award=20 of damages to Greenridge for unpaid rent, (3) the evidence is=20 legally and factually = sufficient=20 to support the attorney=92s fees award, and (4) under Texas = Property Code=20 24.007, the county=20 court did not abuse its discretion in setting or modifying the = supersedeas=20 bond. = We=20 therefore affirm. =20

Background

=20 Greenridge is a residential apartment complex in west = Houston. Greenridge leased an = apartment to=20 Whitmire from July 1, 2005 until March 31, 2006. On March 28, 2006, = Whitmire and=20 Greenridge renewed the lease for the term of April 1, 2006 until = January=20 31, 2007. According = to both=20 leases, Whitmire was obligated to pay rent of $850 on the first = day of=20 each month.

=20 Whitmire failed to pay rent for April 2006, so Greenridge = notified=20 Whitmire that he must vacate his apartment. When Whitmire failed to = comply,=20 Greenridge filed a forcible entry and detainer action in a = Harris County Justice of the = Peace=20 Court and obtained a default = judgment. See Tex. Prop. Code Ann. = =A7 24.004=20 (Vernon 2000) (=93A justice court in = the precinct=20 in which the real property is located has jurisdiction in eviction = suits. Eviction = suits include=20 forcible entry and detainer and forcible detainer = suits.=94). Whitmire appealed, = seeking a trial=20 de novo in County = Civil=20 Court at Law No. 4. See Tex. R. Civ. P. 574b, = 749. After a bench trial, the = county=20 court entered a judgment in favor of Greenridge. The court awarded = Greenridge=20 possession of the leased premises, $850 in damages for back rent, = and $850=20 in attorney=92s fees. = The court=20 also set Whitmire=92s supersedeas bond at $10,000. Whitmire has = remained in=20 possession of the apartment during the pendency of these=20 proceedings.

Legal and Factual=20 Sufficiency

A. Standard of=20 Review

In=20 an appeal from a bench trial, a trial court=92s findings of fact = have the=20 same weight as a jury=92s verdict. =20 Amador v. Berrospe, 961 S.W.2d 205, 207 = (Tex.=20 App.=97Houston [1st Dist.] 1996, writ denied). If a reporter=92s record = exists, the=20 trial court=92s findings of fact are binding only if supported by = the=20 evidence. = Id. If the findings are = challenged, we=20 review the sufficiency of the evidence supporting the findings by = applying=20 the same standards that we use in reviewing the legal or factual=20 sufficiency of the evidence supporting jury findings. Catalina v. = Blasdel, 881 S.W.2d 295, 297 = (Tex.=20 1994). We=20 review de novo a trial court=92s conclusions of law and uphold = them on=20 appeal if the judgment can be sustained on any legal theory = supported by=20 the evidence. = BMC Software=20 Belg. v. Marchand, 83=20 S.W.3d 789, 794 (Tex. 2002); In re=20 Moers, 104 S.W.3d 609, 611 = (Tex. = App.=97Houston [1st = Dist.]=20 2003, no pet.).

The=20 test for legal sufficiency is =93whether the evidence at trial = would enable=20 reasonable and fair-minded people to reach the verdict under = review.=94 City of = Keller v.=20 Wilson, 168 S.W.3d 802, 827 = (Tex. = 2005). In making this = determination, we=20 credit favorable evidence if a reasonable fact-finder could, and = disregard=20 contrary evidence unless a reasonable fact-finder could not. Id. = So long as the evidence = falls=20 within the zone of reasonable disagreement, we may not substitute = our=20 judgment for that of the fact-finder. Id. at = 822. The fact-finder is the = sole judge=20 of the credibility of the witnesses and the weight to give their=20 testimony. = Id. at = 819. Although we consider the = evidence=20 in a light most favorable to the challenged findings, indulging = every=20 reasonable inference that supports them, we may not disregard = evidence=20 that allows only one inference. =20 Id. at = 822.

In=20 reviewing a factual sufficiency challenge, we consider and weigh = all of=20 the evidence and set aside the finding only if the evidence is so = weak as=20 to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 = (Tex.=20 1986). In reviewing a factual = sufficiency=20 point, we consider all the evidence supporting and contradicting = the=20 finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 = S.W.2d 442,=20 445 (Tex. 1989). = The=20 fact-finder is the sole judge of the credibility of the witnesses = and the=20 weight to give their testimony, and may choose to believe one = witness and=20 disbelieve another. City of Keller, 168 S.W.3d at = 819; Golden=20 Eagle Archery, Inc. v. Jackson,=20 116 S.W.3d 757, 761 (Tex.=20 2003).

B. Forcible Entry and=20 Detainer

=93An = action for=20 forcible detainer is intended = to be a=20 speedy, simple, and inexpensive means to obtain immediate = possession of=20 property.=94 = Marshall v. Hous. Auth. of City of=20 San=20 Antonio, 198 S.W.3d 782, = 787=20 (Tex. = 2006). =93A person commits a = forcible entry=20 and detainer if the person enters the real property of another = without=20 legal authority or by force and refuses to surrender possession on = demand.=94 Tex. Prop. Code Ann. = =A7 24.001(a)=20 (Vernon 2000). =

A=20 person who refuses to surrender possession of real property on = demand=20 commits a forcible detainer if the = person:

(1) is a tenant or a = subtenant=20 wilfully and without force holding over after the termination of = the=20 tenant=92s right of possession;

(2) is a tenant at will or = by=20 sufferance, including an occupant at the time of foreclosure of a = lien=20 superior to the tenant=92s lease; or

(3) is a tenant of a = person who=20 acquired possession by forcible entry.

Tex.=20 Prop. Code Ann.=20 =A7 24.002(a) (Vernon 2000). =20 The only issue decided in a forcible detainer action is = which party=20 has the right to immediate possession of the property. =20 Tex. R. Civ. P. 746; Dass, Inc. v. = Smith, 206=20 S.W.3d 197, 200 (Tex. App.=97Dallas 2006, = no pet.); Rice v. Pinney, 51 = S.W.3d=20 705, 709 (Tex. = App.=97Dallas 2001,=20 no pet.). A forcible detainer = action is=20 dependent on proof of a landlord-tenant relationship. Rice, 51 S.W.3d at 712; = Haith v.=20 Drake, 596 = S.W.2d=20 194, 196 (Tex. Civ. App.=97Houston [1st Dist.] 1980, writ ref=92d=20 n.r.e.). = =93To=20 prevail in a forcible detainer action, a plaintiff is not required = to=20 prove title, but is only required to show sufficient evidence of = ownership=20 to demonstrate a superior right to immediate possession.=94 = Rice,=20 51 S.W.3d at 709; Goggins v. Leo, = 849 S.W.2d=20 373, 377 (Tex. App.=97Houston [14th Dist.] 1993, no writ).

A suit = for rent=20 may be joined with an action for forcible detainer, as long as the = claim=20 for rent falls within the justice court=92s jurisdiction. Tex. R. Civ. P. = 738. Additionally, in a trial = de novo=20 on appeal to the county court, =93the appellant or appellee shall = be=20 permitted to plead, prove and recover his damages, if any, = suffered for=20 withholding or defending possession of the premises during the = pendency of=20 the appeal,=94 although only the party prevailing in the county = court may=20 recover these damages. = Tex. R. Civ. P. 752; Hong Kong Dev., Inc. v.=20 Nguyen, 229 S.W.3d 415, 434 (Tex. App.=97Houston [1st = Dist.]=20 2007, no pet. h.). =93Such damages include, but are not limited = to, loss of=20 rents during the appeal=92s pendency and reasonable attorney=92s = fees in the=20 justice and county courts . . . .=94 Id.; see also Tex. R. Civ. P.=20 752.

C. Personal=20 Service

=20 In his first issue, Whitmire contends that Greenridge = failed to=20 present sufficient evidence that it personally served him a = citation to=20 appear. Greenridge = responds=20 that Whitmire waived any defect in service by appealing the = default=20 judgment of the justice court in the county = court.

=20 =93[P]erfection of an appeal=20 to county court from a justice court for trial de novo vacates and = annuls=20 the judgment of the justice court.=94 = Villalon v. Bank = One, 176=20 S.W.3d 66, 69=9670 (Tex. App.=97Houston [1st = Dist.]=20 2004, pet. denied); see = also=20 Tex. R. Civ. = P.=20 574b; In re=20 Garza, 990 S.W.2d 372, 374 = (Tex.=20 App.=97Corpus Christi 1999, orig. proceeding); Richard v. Taylor, = 886=20 S.W.2d 848, 851 (Tex. App.=97Beaumont 1994, writ denied). Additionally, a = defendant waives=20 any defect in service by filing an answer. See Tex. R. Civ. P. 121 = (=93An answer=20 shall constitute an appearance of the defendant so as to dispense = with the=20 necessity for the issuance or service of citation upon = him.=94); Burrow=20 v. Arce,=20 997 S.W.2d 229, 246 (Tex. 1999) (=93The filing of an = answer=20 dispenses with the necessity of service of citation.=94);=20 Dawson-Austin v. Austin, 968 S.W.2d 319, 322 = (Tex.=20 1998); In re $475,001.16, = 96 S.W.3d=20 625, 628=9629 (Tex. App.=97Houston [1st Dist.] 2002, no = pet.).

=20 Here, Whitmire appealed the default judgment of the justice = court=20 and answered Greenridge=92s petition in the county court. Whitmire=92s appeal and = answer to=20 Greenridge=92s petition constitutes an appearance, and he = therefore waived=20 any complaint regarding defects in service of process. See Tex. R. Civ.=20 P. 121;=20 Burrow,=20 997 S.W.2d at 246; Dawson-Austin, 968 S.W.2d at=20 322; In re $475,001.16, = 96 S.W.3d=20 at 628=9629. =20

D. Directed=20 Verdict

In his second issue, = Whitmire=20 contends the county court erred in denying his motion for a = directed=20 verdict. Whitmire, = however,=20 waived his motion for directed verdict by introducing his own = evidence=20 after Greenridge rested, and in failing to reurge the motion at = the close=20 of all of the evidence. = See Cliffs=20 Drilling Co. v. Burrows,=20 930 S.W.2d 709, 712 (Tex. App.=97Houston [1st Dist.] 1996, no=20 writ); = Bryan=20 v. Dockery,=20 788 S.W.2d 447, 449 (Tex. App.=97Houston [1st Dist.] 1990, no = writ). We address this issue as = a=20 challenge to the legal sufficiency of the evidence because an = appellant is=20 not required to preserve a legal sufficiency challenge after a = bench=20 trial. See Tex. R. App. P. = 33.1(d)(=93In a=20 nonjury case, a complaint regarding the legal or factual = sufficiency of=20 the evidence . . . may be made for the first time on appeal in the = complaining party=92s brief.=94); Monk=20 v. Pomberg, No.=20 01-05-00429-CV,=20 2007 WL 926491, at *8 (Tex.=20 App.=97Houston [1st Dist.] Mar. 29, 2007, no pet.); see = also=20 City of Keller,=20 168 S.W.3d at 823, 827 (holding that a challenge on = appeal=20 to denial of motion for directed verdict is challenge to legal = sufficiency=20 of evidence). =20

1. Landlord-Tenant=20 Relationship

Whitmire first = contends that=20 the evidence is legally insufficient to support the county = court=92s finding=20 that a landlord-tenant relationship existed between Whitmire and=20 Greenridge because Greenridge did not admit the April 2006 lease = into=20 evidence before resting its case. =20 We consider, however, all of = the=20 evidence offered at trial to determine whether the evidence is = legally=20 sufficient. See Natural Gas Clearinghouse v. = Midgard=20 Energy Co., 113 S.W.3d 400, 411=9612 (Tex. = App.=97Amarillo 2003,=20 pet. denied).

Greenridge admitted = the April=20 2006 lease into evidence during its rebuttal case. Whitmire and a = representative of=20 Greenridge signed the lease. =20 The lease required Whitmire to make a rental payment of = $850 on=20 April 1, 2006. The = evidence=20 is therefore legally sufficient to support the county court=92s = finding that=20 a landlord-tenant relationship existed between Greenridge and=20 Whitmire. See City of = Keller, 168 S.W.3d at 827; = see also Tex. Prop. Code Ann. = =A7=20 24.002(a)(1).

=20 2. Damages for Unpaid=20 Rent

=20 Whitmire also contends that the evidence is legally = insufficient to=20 support the county court=92s award of $850 in damages to = Greenridge for=20 unpaid rent. At = trial,=20 Greenridge admitted the April 2006 lease, which required Whitmire = to make=20 a rent payment of $850 on April 1, 2006. Christy Wagner, a = representative=20 of Greenridge, testified that Whitmire failed to pay rent for = April=20 2006. Whitmire = testified that=20 he did not tender the April 1, 2006 rent payment until April = 24. In accordance with the = lease,=20 Greenridge rejected the payment and demanded that Whitmire vacate = his=20 apartment. We hold = that the=20 evidence presented would enable a reasonable=20 and fair-minded trial judge to find that Whitmire owed Greenridge = $850 in=20 rent for April 2006. = See City of = Keller, 168 S.W.3d at = 827. The evidence is = therefore legally=20 sufficient to support the county court=92s award of $850 in = damages to=20 Greenridge for unpaid rent. =20 See=20 id.

E. Attorney=92s=20 Fees

=20 In his third issue, Whitmire contends that the evidence is = legally=20 and factually insufficient to support the county court=92s award = of $850 in=20 attorney=92s fees to Greenridge. =20 See=20 Bocquet v. Herring,=20 972 S.W.2d 19, 20 (Tex. 1998); Stewart = Title Guar.=20 Co. v. Sterling, 822 S.W.2d 1, 12=20 (Tex.=20 1991).

=20 Texas Property Code section 24.006 authorizes a landlord = who=20 prevails in a forcible detainer action to recover reasonable = attorney=92s=20 fees from the tenant. = Tex. Prop. Code Ann. = =A7 24.006(b)=20 (Vernon 2000) (=93If the landlord = provides the=20 tenant notice under Subsection (a) or if a written lease entitles = the=20 landlord to recover attorney=92s fees, a prevailing landlord is = entitled to=20 recover reasonable attorney=92s fees from the = tenant.=94);[1]=20 see also Tex. R. Civ. P. = 752. We review an award of = attorney=92s=20 fees under an abuse of discretion standard. See Bocquet,=20 972 S.W.2d at 21. =20 A trial court abuses its discretion in = awarding=20 attorney=92s fees if it acts arbitrarily,=20 unreasonably, or without regard to guiding legal principles, or if = its=20 decision is not supported by legally or factually sufficient=20 evidence. Id.; Charette v. = Fitzgerald, 213=20 S.W.3d 505, 512 (Tex. App.=97Houston [14th Dist.] 2006, no pet.); = see also Volume Millwork, Inc. v. W. = Houston=20 Airport Corp., 218 S.W.3d 722, 735 (Tex. App.=97Houston = [1st=20 Dist.] 2006, pet. denied) (=93The reasonableness of an = attorney=92s fee award=20 generally presents a question of fact.=94). =

An award of = attorney=92s fees=20 must be supported by evidence that the fees were both reasonable = and=20 necessary. See Bocquet,=20 972 S.W.2d at 21; Sterling, 822 S.W.2d at 10. Factors a trial court = considers in=20 determining the reasonableness of attorney=92s fees = include: (1) the time and labor required, the = novelty and=20 difficulty of the questions involved, and the skill required to = perform=20 the legal service properly; (2) the likelihood that the acceptance = of the=20 particular employment will preclude other employment by the = lawyer; (3)=20 the fee customarily charged in the locality for similar legal = services;=20 (4) the amount involved and the results obtained; (5) the time = limitations=20 imposed by the client or by the circumstances; (6) the nature and = length=20 of the professional relationship with the client; (7) the = experience,=20 reputation, and ability of the lawyer or lawyers performing the = services;=20 and (8) whether the fee is fixed or contingent upon results = obtained or=20 uncertainty of collection before the legal services have been=20 rendered. See Hoover Slovacek LLP v.=20 Walton, 206 S.W.3d 557, 561 n.7 (Tex. 2006); Arthur Andersen & Co. v. = Perry=20 Equip. Corp., 945 S.W.2d 812, 818 (Tex. = 1997). =

=20 Greenridge=92s attorney, Magnus Rayos, testified that he = has been=20 practicing law since 2005 and is familiar with reasonable and = necessary=20 attorney=92s fees pertaining to forcible detainer actions in = Harris County,=20 Texas. Rayos = testified that=20 in this case, attorney=92s fees of $850 were reasonable and = necessary based=20 upon his work in preparing testimony and attending trial. =20 Rayos=92s testimony = was=20 undisputed, and Whitmire declined to cross-examine Rayos. See=20 Ragsdale v. Progressive Voters=20 League, 801 S.W.2d = 880, 882=20 (Tex. 1990);=20 Lofton=20 v. Texas Brine=20 Corp., = 777 S.W.2d 384, 386 (Tex. 1989). We = hold that=20 the evidence Greenridge presented on attorney=92s fees would = enable reasonable=20 and fair-minded people to find that attorney=92s fees of $850 were = reasonable and necessary. = See City of = Keller, 168 S.W.3d at = 827. We also hold that the = evidence=20 supporting the county court=92s award of attorney=92s fees was not = so weak as=20 to make the court=92s finding clearly wrong and manifestly = unjust. See Cain, 709 S.W.2d at=20 176. Greenridge therefore = presented=20 legally and factually sufficient evidence to support the county = court=92s=20 award of attorney=92s fees. =20 See=20 City of Keller,=20 168 S.W.3d at 827; Cain, 709 S.W.2d at=20 176; see = also Ragsdale, 801 = S.W.2d at 882=20 (holding that evidence was sufficient to support trial court=92s = award of=20 attorney=92s fees); Volume Millwork, = Inc., 218=20 S.W.3d at 735=9636 (same).

Supersedeas=20 Bond

In his fourth issue, = Whitmire=20 contends the county court abused its discretion =

in setting the = supersedeas bond=20 at $10,000.[2]

A. Excessive=20 Bond

Whitmire first = contends that=20 the $10,000 supersedeas bond is unreasonably high. Greenridge responds that = the=20 amount of the supersedeas bond is proper because the Texas = Property Code=20 expressly permits a trial court to consider the value of rent = likely to=20 accrue during the appeal of a forcible detainer case in setting = the amount=20 of a supersedeas bond. = See Tex. Prop. Code Ann. = =A7 24.007=20 (Vernon 2000). We = note that=20 Whitmire has remained in possession of the property since the = judgment was=20 signed on July 13, 2006.

We review the trial = court=92s=20 rulings concerning the amount and type of bond required and the=20 sufficiency of the sureties under an abuse of discretion = standard. See Tex. R. App. P. 24.4; = Miller=20 v. Kennedy & Minshew, Prof=92l Corp.,=20 80 S.W.3d 161, 165 (Tex. = App.=97Fort Worth=20 2002, no pet.). The test for whether a = trial court=20

abused=20 its discretion is whether the court acted arbitrarily or unreasonably in light of all = the=20 circumstances of the case. = McDaniel v. Yarbrough, 898 S.W.2d 251,=20

253=20 (Tex. 1995); = Lewis v.=20 W. Waste Indus., 950=20 S.W.2d 407, 410 (Tex. = App.=97Houston [1st Dist.] 1997, no writ).

Texas=20 Property Code section 24.007 = provides:

A=20 judgment of a county court may not under any circumstances be = stayed=20 pending appeal unless, within 10 days of the signing of the = judgment, the=20 appellant files a supersedeas bond in an amount set by the county=20 court. In setting = the=20 supersedeas bond the county court shall provide protection for the = appellee to the same extent as in any other appeal, taking into=20 consideration the value of rents likely to accrue during appeal, = damages=20 which may occur as a result of the stay during appeal, and other = damages=20 or amounts as the court may deem = appropriate.

Tex.=20 Prop. Code Ann. =A7=20 24.007. =20 Texas Rule of Appellate Procedure 24.2 provides:=20

When the judgment is for = the=20 recovery of an interest in real or personal property, the trial = court will=20 determine the type of security that the judgment debtor must = post. The amount of that = security must=20 be at least:

(A) the value of the = property=20 interest=92s rent or revenue, if the property interest is real; or =

(B) the value of the = property=20 interest on the date when the court rendered judgment, if the = property=20 interest is personal.

Tex.=20 R. App. P.=20 24.2(a)(2). =20

=20 The record contains evidence that Whitmire intended to = occupy the=20 apartment during the appeal of this case and no evidence that = Whitmire has=20 vacated the apartment. = Both=20 leases admitted at trial require Whitmire to pay rent of $850 per = month=20 for the apartment. = The Texas=20 Property Code and the Rules of Appellate Procedure both required = the=20 county court to consider the value=20 of rents likely to accrue during the appeal in setting the amount = of the=20 supersedeas bond. = See = Tex.=20 Prop. Code Ann. =A7=20 24.007; Tex.=20 R. App. P.=20 24.2(a)(2). = Whitmire did not=20 seek to reduce the bond based on his net worth, or produce = evidence of his=20 net worth in connection with seeking a reduction in the bond. Accordingly, we find = that the=20 county court acted within its discretion in setting the = supersedeas bond=20 at $10,000.[3] See McCartney=20 v. Cal. Mortgage = Serv., 951=20 S.W.2d 549, 550 (Tex.=20 App.=97El Paso 1997, no pet.) (holding that trial court did not = abuse its=20 discretion in setting supersedeas bond at $19,000 considering = value of=20 rents accrued during = appeal).

B. County Court=92s=20 Registry

=20 Whitmire also contends that the county court abused its = discretion=20 in setting the supersedeas bond = at $10,000=20 because the court=92s registry contained over $4000 cash paid by = Whitmire in=20 accordance with Texas Rule of Civil Procedure 749b. See Tex. R. Civ. P. = 749b. Greenridge responds that = the trial=20 count properly disregarded the cash in its registry in setting the = amount=20 of the supersedeas bond because the cash in the registry was for = past=20 rents that had already accrued by the time the court set the = supersedeas=20 bond.

In=20 a forcible detainer case, either party may appeal the justice = court=92s=20 judgment to the county court by filing an appeal bond or a = pauper=92s=20 affidavit. Tex. R. Civ. P. 749, = 749a. In a nonpayment of rent = forcible=20 detainer case, a tenant who has appealed by filing a pauper=92s = affidavit=20 pursuant to Rule 749a is entitled to remain in possession of the = premises=20 during the pendency of = the=20 appeal to the county court if the tenant follows the = procedures set=20 out in Rule 749b. = Tex. R. Civ. P. = 749b. According to Rule 749b, = the tenant=20 must first pay one rental period=92s rent into the justice = court=92s registry=20 within five days of filing the pauper=92s affidavit. Tex. R. Civ. P. = 749b(1). Second, during the = appellate=20 process, as the rent becomes due under the rental agreement, the = tenant=20 must pay the rent into the county court=92s registry within five = days of the=20 date rent is due under the terms of the rental agreement. Tex. R. Civ. P. = 749b(2). If the tenant fails to = timely pay=20 the rent into the county court=92s registry, the landlord may file = a notice=20 of default in the county court. =20 Tex. R. Civ. P. 749b(3). If the landlord shows = that the=20 tenant defaulted under the rule, the court must issue a writ of restitution. Id.<= /o:p>

The = procedures=20 set forth in Rule 749b are designed to protect a landlord during = the=20 pendency of a forcible detainer appeal from the justice court to = the=20 county court. See Tex. R. Civ. P. 749, = 749a,=20 749b;=20 Kennedy=20 v. Highland Hills Apartments, 905=20 S.W.2d 325, 327 (Tex.=20 App.=97Dallas 1995, no writ); Triple=20 T Inns of Tex., Inc. v. Roberts, 800=20 S.W.2d 681, 682=9683 (Tex.=20 App.=97Amarillo 1990, writ denied). =20 In contrast, Texas Property Code section 24.007 protects a = landlord=20 during the pendency of a forcible detainer appeal = from the=20 county court to the court of appeals. See Tex.=20 Prop. Code Ann. =A7=20 24.007. =20

The county court, = therefore,=20 did not abuse its discretion in not deducting the cash paid by = Whitmire=20 into its registry in setting the amount of the supersedeas bond = because=20 the cash in the registry was for past rents that had accrued at = the time=20 the court set the supersedeas bond. =20 See id.; Tex. R. Civ. P. 749, = 749a,=20 749b.

Plenary = Power

In=20 his fifth issue, Whitmire contends that the county court erred in=20 increasing the supersedeas bond to $15,000 after the expiration of = its=20 plenary power. See Tex. R. Civ. P. = 329b(c)=96(g). Texas Rule of Appellate = Procedure=20 24.3(a), however, expressly provides that = =93[e]ven = after the=20 trial court=92s plenary power expires, the trial court has = continuing=20 jurisdiction to do the following: (1) order the amount and type of = security and decide the sufficiency of sureties; and (2) if = circumstances=20 change, modify the amount or type of security required to continue = the=20 suspension of a judgment=92s execution.=94 Tex. R. App. P. = 24.3(a). Greenridge requested the = trial=20 court to increase the supersedeas bond to $15,000 because the = appellate=20 process was taking longer than anticipated and Whitmire remained = in=20 possession of the apartment. =20 The county court therefore had the authority to modify the = amount=20 of the supersedeas bond after the expiration of its plenary = power. See id.; see also Miller,=20 80 S.W.3d at 164;=20 Hamilton=20 v. Hi-Plains Truck Brokers, Inc.,=20 23=20 S.W.3d 442, 443 (Tex.=20 App.=97Amarillo 2000, no pet.).[4]

Conclusion

=20 We hold that (1) Whitmire waived any complaint regarding = defects in=20 service, (2) the evidence is legally sufficient to support both = the county=20 court=92s finding that a landlord-tenant relationship existed = between=20 Greenridge and Whitmire and its award of damages to Greenridge for = unpaid=20 rent, (3) the=20 evidence is legally and factually sufficient to support the award = of=20 attorney=92s fees, and = (4) the=20 county=20 court did not abuse its discretion in setting and modifying the=20

supersedeas=20 bond. We therefore affirm the = judgment=20 of the trial court. =20

&nbs= p; = ; = =20 =20 &nbs= p; =20 Jane=20 Bland

&nbs= p; = ; = =20 =20 &nbs= p; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.