Aaron Jordan, Michael Jordan, Heather Jordan, Gilbert Jordan, Phyllis Ann Woods and Donna Joyce Curtis v. Cynthia Kay Lyles ( 2015 )

ACCEPTED
12-13-00035-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
5/29/2015 4:48:22 PM
CATHY LUSK
CLERK
No. 12-13-00035-CV
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
5/29/2015 4:48:22 PM
In the CATHY S. LUSK
Clerk
Twelfth Court of Appeals
Aaron Jordan, et al,
Appellants,
v.
Cynthia Kay Lyles,
Appellee.
UNOPPOSED MOTION TO CORRECT OR CLARIFY
THE COURT’S JUDGMENT AND MANDATE
J. BRAD MCCAMPBELL GREG SMITH
State Bar No. 13358000 State Bar No. 18600600
CURTIS, ALEXANDER NOLAN SMITH
MCCAMPBELL & MORRIS, P.C. State Bar No. 24075632
P. O. Box 38 RAMEY & FLOCK, P.C.
Emory, TX 75440 100 E. Ferguson, Suite 500
Telephone: (903) 473-227 Tyler, TX 75702
Facsimile: (903) 473-3069 Telephone: (903) 597-3301
bmccampbell@cammpclaw.com Facsimile: (903) 597-2413
gsmith@rameyflock.com
nolans@rameyflock.com
COUNSEL FOR APPELLEE CYNTHIA KAY LYLES
TO THE HONORABLE COURT OF APPEALS:
Cynthia Lyles, appellee, requests this Court’s order correcting a clerical
error appearing in the Court’s judgment and duplicated in its mandate.
Essentially, these documents can be construed as awarding punitive damages,
even though the parties agree such damages should not be part of the recovery.
The Court should modify the judgment and mandate to clarify that punitive
damages have not been recovered.
The denial of punitive damages
was not contested below.
The jury verdict awarded $156,016 in actual damages and $50,000 in
punitive damages. CR 201, 204. Post-trial and before judgment, the appellants
agreed that this verdict would not support a punitive-damage recovery, because
the jury wasn’t unanimous in the underlying findings. 6 RR 11 (“. . . [S]o I admit
that, we’re not entitled to the punitive damages in this cause.”)
The district court did not award recovery of either actual or punitive
damages but rather entered a take-nothing judgment notwithstanding the verdict.
CR 228-29. On appeal, while the appellants sought to recover actual damages,
they consistently disclaimed any attempt to recover punitive damages:
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate Page 2
• Each time the Appellants’ Brief referenced the verdict’s punitive-damage
finding, an accompanying footnote explained that the Appellants
“conceded the exemplary damages were improper due to lack of
unanimity on the predicate questions. 6 RR at 11.” See Appellants’ Brief at
n.3, n. 55.
• The Appellants’ Brief and Reply both ended with requests to “render
judgment in conformity with the jury’s verdict (other than the exemplary
damages).” Appellants’ Br. at 25; Reply Br. at 32 (emphasis added).
Nothing else was said about punitive damages in the appeal. The recovery of
punitive damages simply was not on the table.
The appellate judgment and mandate,
by entering judgment “according to the verdict,”
raise an issue about recovery of punitive damages.
On appeal, the appellants challenged the district court’s liability
determination and they sought actual damages. This Court, agreeing with them,
found some evidence of breach of fiduciary duty and reversed. The Court’s
opinion did not address punitive damages or otherwise imply that they should be
recovered. Yet the appellate judgment and mandate state that judgment has been
rendered “in accordance with the jury’s verdict,” which, as already stated,
includes a now-immaterial finding on punitive damages.
Based on the case history, all parties now agree that exemplary damages
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
Page 3
should not be part of the appellate judgment and that instead judgment should
be rendered only on actual damages. But regardless what they agree the
judgment should do, the Appellants are of the view that the current judgment and
mandate in fact actually award them punitive damages. And they have secured a
writ of garnishment in an amount--$220,795.64--that impliedly includes the
unsustainable $50,000 in punitive damages. See attached writ of garnishment. So,
even though there is no issue as to what the judgment and mandate should award,
there are real issues as to what they in fact do award and whether this accurately
reflects the Court’s intended result.
The Court may clarify and correct
the clerical error in its judgment.
Under TRAP 19 and under the Court’s inherent authority, this Court
retains the power to correct clerical errors in its judgments and mandates and to
clarify them. The present circumstances—where the judgment says it is rendered
according to “the verdict” but the intention was instead to award merely actual
damages—support the use of this corrective power. The Court should revise its
judgment and mandate to clarify that punitive damages have in fact not been
recovered, so as to conform the judgment and mandate with the appellate issues
and the Court’s intentions.
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
Page 4
The Court may also act to ensure finality.
Since the district court’s judgment was a take-nothing judgment, and since
this Court’s judgment does not state any money-damage amount, there currently
is no judgment—of any court—identifying the amount of the Appellants’
recovery. This at least potentially raises a question as to the judgment’s finality.
See, e.g., Merchandise Mart, Inc. v. Marcus, 515 S.W.2d 663, 664 (Tex. 1974)(where
neither the appellate judgment nor the opinion stated the amount for which the
defendant was liable, the appellate judgment was interlocutory). To ensure no
problem as to finality, the Court should revise or clarify its judgment and
mandate to clearly identify that it is only the actual damage amount/finding, and
not any punitive damages, for which judgment has been reversed and rendered
and to state the damage amount--$156,016.
Certificate of Conference
Appellants’ lead counsel on appeal, Mr. Chad Baruch, states that
Appellants do not oppose the requested relief.
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
Page 5
Conclusion and Prayer
Under TRAP 19, as well as the Court’s inherent powers to clarify its
judgments (and any additionally relevant rules, statutes or common-law
doctrines), Lyles prays that the Court would correct, amend, clarify or
otherwise revise its judgment and its mandate so as to expressly state that the
Appellants have recovered only actual and not punitive damages. Lyles of
course requests all other relief this Court may deem appropriate.
Respectfully submitted,
/s/ Greg Smith
GREG SMITH
State Bar No. 18600600
NOLAN SMITH
State Bar No. 24075632
RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, TX 75702
Telephone: (903) 597-3301
Facsimile: (903) 597-2413
gsmith@rameyflock.com
nolans@rameyflock.com
J. BRAD MCCAMPBELL
State Bar No. 13358000
CURTIS, ALEXANDER,
MCCAMPBELL & MORRIS, P.C.
P. O. Box 38
Emory, TX 75440
Telephone: (903) 473-2297
Facsimile: (903) 473-3069
bmccampbell@cammpclaw.com
Counsel for Appellee,
Cynthia Kay Lyles
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
Page 6
Certificate of Service
The undersigned certifies that a copy of the above and foregoing
document was served upon counsel for Appellants in accordance with the
applicable Texas Rules of Civil Procedure on this the 29th day of May, 2015, on
the following:
Via e-filing baruchesq@aol.com
Chad Baruch
The Law Office of Chad Baruch
3201 Main Street
Rowlett, TX 75088
/s/ Greg Smith
Greg Smith
Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
Page 7
WRIT OF GARNISHMENT AFTER JUDGMENT Paper #2
ATTY
THE STATE OF TEXAS
CAUSE NO: 2015-1852-4
TO: CYNTHIA LYLES, JUDGMENT DEBTOR - 503 RIVER PARK RD., MCGREGOR, TEXAS 76657
GREETINGS:
WHEREAS, in the judgment described below the Plaintiff(s) secured a judgment in this Court against the said
Defendant(s), the Plaintiff(s) has/have applied for a Writ of Garnishment against you, Garnishee.
Judgment Court: 402 ND JUDICIAL DISTRICT
County of Judgment: WOOD COUNTY
State of Judgment: TEXAS
Judgment Rendered in Cause Number: 2011-115
Plaintiffs: AARON JORDAN, MICHAEL JORDAN, HEATHER JORDAN, GILBERT JORDAN, PHYLLIS ANN
WOODS AND DONNA JOYCE CURTIS
Garnishment Cause No.: 2015-1852-4
Judgment Debtor: CYNTHIA LYLES
Garnishee: FIRST NATIONAL BANK - CENTRAL TEXAS, A BANKING INSTITUTION
Garnishment Filing Date: MAY 15, 2015
Judgment Amount: $220,795.64 WITH POST JUDGMENT INTEREST ON SAID AMOUNT AT THE RATE
OF 5% PER ANNUM AND COST OF 'SUIT
THEREFORE, YOU -ARE HEREBY COMMANDED to file a sworn written answer on or before ten o'clock A.M.,
on the Monday next following the expiration of twenty days from the date of service hereof, then and there to
answer upon oath:
1. What, if anything, you are indebted to the said Defendant, and were, when this writ was served
upon you?
,2. What effects, if any, of the said defendant you had in your possession when this Writ was served or
you have received prior to the answer date?
3. What other persons.ff any, within your knowledge, are indebted to the said defendant, or have
effects belonging to said defendant in their possession?
YOU ARE FURTHER COMMANDED NOT to pay to the defendant any debt or to deliver to him any effects
pending further order of this court.
HEREIN FAIL NOT, but make due answer as the law directs.
ISSUED AND GIVEN UNDER MY HAND AND SEAL OF OFFICE, at Waco, McLennan County, Texas.
Issue Date: MAY 18, 2015
PAUL R. LEAKE Jon R. Gimble
P.O. BOX 1300 District Cle
FORN~y,TEXAS75126 PO Box .
Waco, c nnan Co y, T~ ~
Plaintiffs Attorney
B ,.. ?P' I ~/£ ,Deputy
ROBERTA JEWELL