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

ACCEPTED 03-13-00336-CV 5132381 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/4/2015 10:16:48 AM JEFFREY D. KYLE CLERK NO. 03-13-00336-CV FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE 5/4/2015 10:16:48 AM THIRD DISTRICT OF TEXAS JEFFREY D. KYLE AT AUSTIN Clerk R.D. TIPS, INC., Appellant, v. VIRGINIA JETT, Appellee Appeal from the 98th Judicial District Court Travis County, Texas The Honorable Rhonda Hurley, Presiding MOTION FOR JUDGMENT AGAINST SURETY Eric J. Taube State Bar No. 19679350 etaube@taubesummers.com Taube Summers Harrison Taylor Meinzer Brown LLP 100 Congress Avenue, Suite 1800 Austin, Texas 78701 Telephone: (512) 472-5997 Telecopier: (512) 472-5248 COUNSEL FOR APPELLEE VIRGINIA JETT Page i TO THE HONORABLE COURT OF APPEALS: Pursuant to Texas Rule of Appellate Procedure, Appellee Virginia Jett (“Ms. Jett”) files this Motion for Judgment Against Surety, and respectfully shows the court as follows: Background 1. On February 11, 2013, the 419th District Court of Travis County, Texas, rendered judgment in favor of Ms. Jett and against Appellant R.D. Tips (“Tips”) in the amount of $3,354,314.06 in actual damages; $85,000 in attorney’s fees; $260 in court costs; and post-judgment interest at the rate of 5% (the “Judgment”). 2. On October 7, 2013, Tips suspended the Judgment by posting a supersedeas bond in the amount of $3,788,745.47. The surety of such bond was named as SureTec Insurance Company, a company organized under the laws of the State of Texas. 3. This Court unanimously affirmed the Judgment on April 9, 2015. The Court denied Tips’ Motion for Rehearing on April 29, 2015. 4. On April 30, 2015, Ms. Jett filed a Motion to Expedite the Mandate, which is pending before this Court. Page 2 5. Now, Ms. Jett requests that this Court grant her judgment against Tips’ surety, both for the original Judgment amount and for the costs that have been awarded her. Argument and Authorities 6. Under Texas Rule of Appellate Procedure 43.5, “When a court of appeals affirms the trial court judgment . . . 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.” 7. The Court affirmed the trial court judgment in this case. The Court’s April 9, 2015 judgment does not appear to include the requested judgment against the sureties. 8. In accordance with paragraph 44 of the Court’s “Practice Before the Court” instructions,1 Ms. Jett prayed in her brief for rendition of judgment against the surety on Appellant’s supersedeas bond. In particular, in her brief filed on November 21, 2013, Appellee stated as follows: “Ms. Jett further requests that this Court render judgment for her against the sureties on Appellant R.D. Tips, Inc.'s supersedeas bond.” Response Br. of Appellee Virginia Jett, at 43 (Section VI: Conclusion and Prayer). 1 See Texas Judicial Branch, Third Court of Appeals, “Practice Before the Court,” http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx#supersedeas-bond. Page 3 9. Now, believing the relief requested is warranted under the Texas Rules of Appellate Procedure and this Court’s practice guidelines, Ms. Jett reiterates her request that this Court grant her judgment against the surety for the amount of the judgment against Tips and for the costs that have been awarded her. PRAYER FOR RELIEF For the reasons stated above, Appellee Virginia Jett respectfully requests that this Court (i) grant judgment against the surety for the performance of the district court Judgment and for the costs that have been awarded her, and (ii) grant her all other relief to which the Court deems her justly entitled. Page 4 Respectfully submitted, TAUBE SUMMERS HARRISON TAYLOR MEINZER BROWN LLP By: /s/ Eric J. Taube Eric J. Taube State Bar No. 19679350 etaube@taubesummers.com Douglas A. Fohn State Bar No. 24036578 dfohn@taubesummers.com Christopher G. Bradley State Bar No. 24069407 cbradley@taubesummers.com Andrew Preston Vickers State Bar No. 24084021 avickers@taubesummers.com 100 Congress Avenue, Suite 1800 Austin, Texas 78701 Telephone: (512) 472-5997 Telecopier: (512) 472-5248 ATTORNEYS FOR APPELLEE VIRGINIA JETT Page 5 TEX. R. APP. P. 9.4(I)(3) CERTIFICATION Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Motion contains 774 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document. /s/ Eric J. Taube Eric J. Taube CERTIFICATE OF CONFERENCE Counsel for Ms. Jett attempted to confer with opposing counsel concerning the matters raised in this motion on May 1, 2015, but was unable to do so. /s/ Eric J. Taube Eric J. Taube CERTIFICATE OF SERVICE The undersigned counsel certifies that this document was served via telecopy on Appellant R.D. Tips, Inc.’s counsel in accordance with TEX. R. CIV. P. 21a on May 4, 2015. Jonathan D. Pauerstein ROSENTHAL PAUERSTEIN SANDOLOSKI AGATHER LLP 755 East Mulberry, Suite 200 San Antonio, Texas 78212 (210) 354-4034 (Fax) /s/ Eric J. Taube Eric J. Taube Page 6