R.D. Tips, Inc. v. Virginia Jett ( 2015 )

ACCEPTED
03-13-00336-CV
5225335
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/11/2015 10:21:48 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-13-00336-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
AUSTIN, TEXAS 5/11/2015 10:21:48 AM
JEFFREY D. KYLE
Clerk
R.D. TIPS, INC.,
Appellant
v.
VIRGINIA JETT,
Appellee
Appeal from the 419th District Court, Travis County, Texas
Trial Court Cause No. D-1-GN-11-003799
Hon. Rhonda Hurley, Judge Presiding
APPELLANT'S RESPONSE TO APPELLEE'S
MOTION TO EXPEDITE THE MANDATE
Jonathan D. Pauerstein
State Bar No. 15637500
ROSENTHAL P AUERSTEIN
SANDOLOSKI AGATHER LLP
755 E. Mulberry, Suite 200
San Antonio, Texas 78212
Telephone: (210) 225-5000
Facsimile: (210) 354-4034
ATTORNEYS FOR APPELLANT,
R.D. TIPS, INC.
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To The Honorable Third Court of Appeals:
Appellant, R.D. Tips, Inc., in opposition to Appellee's Motion To Expedite
The Mandate, states the following:
1. Appellant has superseded the judgment below as permitted by law.
Accordingly, while this case is on appeal, Appellee has received the protection
afforded by law and Appellant is entitled to pursue the appellate process to its
conclusion. Nonetheless, Appellee seeks to expedite the issuance of the mandate
based on conclusory allegations that she needs funds due to unspecified financial
hardship.
2. Appellant has until June 12th to file a petition for review in the
Supreme Court of Texas, which it is entitled to file under Texas law.
3. The mandate can only be expedited upon a showing of good cause.
Tex. R. App. P. 18.1(c). 1 Appellee, failing to carry this burden, points to nothing
that is not true of many plaintiffs who hold money judgments that are on appeal.
While she has been unable to execute upon the superseded judgment, that is always
so when a defendant appeals an adverse money judgment and posts a supersedeas
bond to secure the plaintiff during the appellate process. And, while Appellee says
Appellee's motion is unverified and not supported by affidavit, which alone warrants its
denial. Cf Andrews v. Twin Montana, Inc., 547 S.W.2d 54, 56 (Tex. Civ. App.-Fort Worth
1977, no writ) ("the motion of appellant for extension of time for filing his brief is not verified
and ... there is no affidavit presented in support of it. Under these circumstances appellant has
not proved anything by his motion; he has merely made some unsupported allegations.").
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80592.00013
she needs the money awarded in the judgment, that too is likely to be so in similar
situations.
4. Were Appellee's conclusory claims sufficient to show good cause for
expediting the mandate and denying Appellant the right to supersede the judgment
until the appellate process is exhausted, then good cause for the same relief would
exist in most cases in which defendants appeal from money judgments. The good
cause standard demands more, but Appellee has not provided it.
5. Appellee has not alleged, let alone proven, facts demonstrating that
there IS good cause for expediting the issuance of the mandate and thereby
abrogating Appellant's right to pursue all appellate avenues for review of the
superseded judgment. Appellee thus has not sustained her burden to establish good
cause.
For the foregoing reasons, Appellee's motion should be denied.
Respectfully submitted,
J o athan D. Pauerstein
State Bar No. 15637500
ROSENTHAL PAUERSTEIN
SANDOLOSKI A GATHER LLP
755 E. Mulberry, Suite 200
San Antonio, Texas 78212
Telephone: (21 0) 225-5000
Facsimile: (21 0) 354-4034
jpauerstein@rpsalaw .com
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477601.1
80592.00013
ATTORNEYS FOR APPELLANT,
R.D. TIPS, INC.
CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this document contains 63 8 words
(counting all parts of the document). The body text is in 14 point font, and the
footnote text is in 12 point font.
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct copy of the
foregoing Appellant's Response To Motion To Expedite The Mandate was served
via United States Mail on this 11th day of May, 2015, upon the following counsel
of record:
Eric J. Taube
Taube Summers Harrison Taylor
Meinzer Brown LLP
100 Congress Avenue, 18th Floor
Austin, Texas 78701
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477601.1
80592.00013