TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00190-CV

Appellants, John Reed Kleas and Lelah Mae Broussard Kleas d/b/a Allegra

Management; Allegra Development, L.P.; and Allegra Management, L.L.C. //

Cross-Appellant, BMC West Corporation d/b/a Stripling-Blake Lumber Company

v.

Appellees, BMC West Corporation d/b/a Stripling-Blake Lumber Company

and Edward Mancias// Cross-Appellees, John Reed Kleas and Lelah Mae

Broussard Kleas d/b/a Allegra Management; Allegra Development, L.P.;

and Allegra Management L.L.C.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. GN202575, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

PER CURIAM

Appellee BMC West Corporation d/b/a Stripling-Blake Lumber Company has filed a motion requesting this Court to correct its revised judgment rendered on January 23, 2009, to also reflect that judgment is rendered against the appellants Lelah Mae Broussard Kleas d/b/a Allegra Management; Allegra Development, L.P.; and Allegra Management, L.L.C. We deny appellee's motion and issue this supplemental order to clarify the reasons for this ruling.

In this Court's revised judgment issued on January 23, 2009, the Court affirmed the judgment of the trial court in all things. The trial court rendered judgment against appellants. By affirming the trial court's judgment in all things, this Court has in effect rendered judgment against the appellants. Likewise, pursuant to Texas Rule of Appellate Procedure 43.5, this Court's revised judgment of January 23, 2009, renders judgment against the surety SureTec Insurance Company on the appellants' supersedeas bond No. 3331551 and supplemental bond No. 1. See Tex. R. App. 43.5.

Rule 43.5 provides:

When a court of appeals affirms the trial court judgment, or modifies that judgment and renders judgment against the appellant, the court of appeals must render judgment against the sureties on the appellant's supersedeas bond, if any, for the performance of the judgment and for any costs taxed against the appellant.

Id. (emphasis added). Appellee misconstrues the italicized portion of rule 43.5 to mean that this Court must "render judgment against the appellant." But that is not what the rule requires. Properly read, the plain language of the rule requires two things: (1) that this Court either "affirm[ ] the trial court judgment," which was done in this case, or modify that judgment and render judgment against the appellant; and (2) render judgment against the surety.

Because this Court's revised judgment affirmed the trial court's judgment in all things and rendered judgment against the surety on appellants supersedeas bond and supplemental bond, this Court's revised judgment satisfies the requirements of rule 43.5. See id. We therefore deny appellee's motion to correct the judgment.

It is so ordered February 20, 2009.

Before Chief Justice Law, Justices Patterson and Pemberton

Chief Justice Law not participating