Opinion Issued October 4, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00963-CV
MICHAEL WHITMIRE, Appellant
V.
On Appeal from County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 864701
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
A. Standard of Review
In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, writ denied). If a reporter’s record exists, the trial court’s findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony, and may choose to believe one witness and disbelieve another. City of Keller, 168 S.W.3d at 819; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
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. Directed Verdict
In his second issue, Whitmire contends the county court erred in denying his motion for a directed verdict. Whitmire, however, waived his motion for directed verdict by introducing his own evidence after Greenridge rested, and in failing to reurge the motion at the close of all of the evidence. See Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.—Houston [1st Dist.] 1996, no writ); Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex. App.—Houston [1st Dist.] 1990, no writ). We address this issue as a challenge to the legal sufficiency of the evidence because an appellant is not required to preserve a legal sufficiency challenge after a bench trial. See Tex. R. App. P. 33.1(d)(“In a nonjury case, a complaint regarding the legal or factual sufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.”); Monk v. Pomberg, No. 01-05-00429-CV, 2007 WL 926491, at *8 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.); see also City of Keller, 168 S.W.3d at 823, 827 (holding that a challenge on appeal to denial of motion for directed verdict is challenge to legal sufficiency of evidence).
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.