Summary
holding that the issue of possession was rendered moot because tenant vacated apartment, but considering issues unrelated to possession
Summary of this case from Marshall v. Housing Auth. City San AntonioOpinion
No. 05-03-00245-CV.
Opinion Filed: February 18, 2004.
On Appeal from the County Court at Law No. 1 Dallas County, Texas, Trial Court Cause No. 02-13680-A.
Affirm as Modified.
Before Justices MORRIS, WRIGHT, and RICHTER.
MEMORANDUM OPINION
This appeal concerns a forcible detainer action for non-payment of rent. The Gates of Normandie brought a sworn complaint for forcible detainer in justice court. The justice court rendered a judgment awarding appellee possession of the dwelling and ordering Robert Patrick Baxter, Sr. to pay past due rent. Baxter filed an appeal in the county court. After a trial de novo, the county court rendered a judgment in favor of appellee for possession of the apartment, past due rent and other charges under the lease, attorney's fees, and costs. Baxter appealed to this Court.
In his first issue, Baxter complains the county court erred by refusing to consider evidence of a tender of payment. According to Baxter, the county court should have considered his tender of payment, dismissed the forcible detainer conditioned upon Baxter paying the full amount due, and granted Baxter the right of possession. On September 18, 2003, appellee filed an unopposed motion to dismiss and render judgment. In the motion, appellee asserts the issue of possession has been rendered moot because Baxter vacated possession of the apartment and is no longer residing at the Gates of Normandie. Thus, appellee maintains that the portion of Baxter's appeal concerning the issue of possession of the apartment is moot. We agree and dismiss Baxter's first issue.
In his second issue, Baxter contends the county court erred in its calculation of damages. According to Baxter, the trial court should not have assessed (1) past due rent for December 18 through December 31, 2002; (2) late fees for November and December; or (3) the $450 rental concession. In its September 18th motion, appellee has agreed to reduce the judgment by those amounts. Therefore, pursuant to appellee's request, we modify the county court's judgment to reduce the judgment by $1,451.29. Having done so, we need not address the merits of Baxter's second issue.
Finally, appellee requests this Court to render judgment against the individual sureties Julie E. Abbey and Kirby Albright for the amount of rent that accrued from January through August 2003, while the case was pending in this Court. Abbey and Albright are the individual sureties on the supersedeas bond filed in the amount of $36,764.80. See Tex. Prop. Code Ann. § 24.007 (Vernon 2000) (providing that in setting the amount of the supersedeas bond, county court may consider the value of rents likely to accrue during appeal). 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). Such a bond is not an unconditional agreement to pay; but it imposes only a contingent or conditional liability. Id. A court may not summarily ascertain the amount of monetary damages occasioned by delay on appeal. Id. Rather, the judgment holder must show the extent of his damage or loss. State v. Watts, 197 S.W.2d 197, 199 (Tex.Civ.App.-Austin 1946, writ ref'd). When, as here, the supersedeas covers such items as rentals which accrued while the case is on appeal, the damages cannot be determined in an appellate court but must be determined by proof of facts transpiring after judgment and during the pendency of the appeal. Id. 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 Muniz, 797 S.W.2d at 150. Therefore, we deny that portion of appellee's motion requesting we render judgment for rents accruing during the pendency of the appeal.
We modify the county court's judgment to reduce the judgement by $1,451.29. We affirm the county court's judgment as modified.