Kings High Ranch, L.L.C. v. Ultimate Kobe Beef, L.L.C., Allison Mae Godwin and Bruce R. Hemmingsen ( 2015 )

ACCEPTED
14-15-00514-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 2:49:09 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00514-CV
In The FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
Fourteenth Court of Appeals 7/6/2015 2:49:09 PM
CHRISTOPHER A. PRINE
Clerk
Kings High Ranch, L.L.C. §
§
Appellant, §
V. §
§
Ultimate Kobe Beef, L.L.C., §
Allison Mae Godwin and §
Bruce R. Hemmingsen §
§
Appellees. §
Joint Motion to Set Aside the Judgment and Remand
Pursuant to Settlement
To The Honorable Fourteenth Court of Appeals:
Appellant Kings High Ranch, L.L.C., joined by appellees/cross-appellants
Ultimate Kobe Beef, L.L.C., Allison Mae Godwin and Bruce R. Hemmingsen,
move for an order of the Court setting aside those portions of the trial court
judgment against Kings High Ranch, L.L.C. and against Ultimate Kobe Beef,
L.L.C., Allison Mae Godwin and Bruce R. Hemmingsen and remanding to the trial
court for entry of an Agreed Final Judgment, consistent with a settlement
agreement between these parties. Movants also request that the mandate issue
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immediately so that they may conclude settlement of the cause, after remand, in
the trial court.
1. This is an appeal from a verdict following a bench trial and the issuance of
findings of fact and conclusions of law. Judgment was entered on October 3, 2014.
CR 520-27. Judgment was entered
against Kings High Ranch, L.L.C. and in favor of Allison Mae
Godwin and Bruce R. Hemmingsen on certain contract and tort claims
prosecuted by Kings High Ranch, L.L.C. (take nothing) CR 450;
against Kings High Ranch, L.L.C. and in favor of Ultimate Kobe
Beef, L.L.C. on certain Declaratory Judgment Act and tort claims
prosecuted by Kings High Ranch, L.L.C. (take nothing) CR 451;
in favor of Kings High Ranch, L.L.C. and against Ultimate Kobe
Beef, L.L.C. on a breach of fiduciary duty and breach of contract
claims prosecuted by Kings High Ranch, L.L.C. (awarding damages)
CR 451, 452;
in favor of Ultimate Kobe Beef, L.L.C. and against Kings High
Ranch, L.L.C., on claims under the Declaratory Judgment Act
(entering declarations in favor of Ultimate Kobe Beef, L.L.C.) CR 455;
in favor of Kings High Ranch, L.L.C. and against Ultimate Kobe
Beef, L.L.C. on counterclaims prosecuted by Ultimate Kobe Beef,
L.L.C. (take nothing) CR 456.
Ultimate Kobe Beef, L.L.C., Allison Mae Godwin, and Bruce R. Hemmingsen were
also awarded attorney’s fees against Kings High Ranch, L.L.C. CR 453-55.
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2. Judgment was also entered for and against Bill and Elizabeth Fisher, who
were the other parties to the judgment and the appeal. (Defendant Champion
Genetics, Inc. did not participate at trial and was not granted any relief in the
judgment).
3. Kings High Ranch, L.L.C. requested entry of findings of fact and conclusions
of law, thus extending the time to perfect an appeal from the final judgment. CR
469-70.
4. Kings High Ranch, L.L.C. thereafter gave notice of appeal from the final
judgment. CR 501-02. Ultimate Kobe Beef, L.L.C., Allison Mae Godwin, and
Bruce R. Hemmingsen filed their own notice of appeal. CR 516-19. Bill and
Elizabeth Fisher also filed a notice of appeal. The appeal was docketed as cause no.
14-14-01014-CV.
5. The Court ordered the parties to mediation. The parties were initially unable
to resolve the appeal in mediation. After continued discussions between Bill and
Elizabeth Fisher, Ultimate Kobe Beef, L.L.C., Allison Mae Godwin, and Bruce R.
Hemmingsen, however, those parties resolved their claims and entered into a
settlement agreement. They then filed a motion to sever the appeal and to remand
the judgment involving them, which this Court granted in cause no. 14-14-01014-
CV, now styled Bill and Elizabeth Fisher d/b/a Saranac Oaks Ranch v. Ultimate Kobe
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Beef, L.L.C., Champion Genetics, Inc., Allison Mae Godwin, and Bruce R.
Hemmingsen. The order of severance was entered June 18, and the order and
judgment reversing the trial court judgment for those parties was entered June 30.
By the order of severance, the balance of the appeal was severed into this cause, 14-
15-00514-CV; Kings High Ranch, L.L.C. v. Ultimate Kobe Beef, L.L.C., Allison Mae
Godwin, and Bruce R. Hemmingsen.
6. Kings High Ranch, L.L.C., Ultimate Kobe Beef, L.L.C., Allison Mae
Godwin, and Bruce R. Hemmingsen, the parties to this severed cause, have now
resolved their claims by way of settlement. In order to effectuate the settlement
agreement, they jointly request that this Court set aside the provisions of the trial
court judgment against them and in favor of the other, without regard to the merits,
and remand those severable portions of the final judgment to the trial court for
entry of an Agreed Final Judgment, consistent with the settlement agreement
among them. See Tex. R. App. P. 42.1(a)(2)(B).
7. The parties request that the order and judgment of this Court reflect that
these movants each bear his, her, or its own taxable costs of court reflected in this
Court’s Bill of Costs.
8. Finally, the parties also request the Clerk of Court issue the mandate
immediately so they may complete the terms of their settlement agreement in the
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court below. They also request any other appropriate relief consistent with the
relief sought in this motion.
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Respectfully submitted,
Mills Shirley L.L.P.
By: /s/ George W. Vie III
George W. Vie III
State Bar No. 20579310
2228 Mechanic Street, Suite 400
Galveston, Texas 77550
(713) 571-4232
Fax (713) 893-6095
gvie@millsshirley.com
Attorneys for Appellees
Greer, Herz & Adams, L.L.P.
By: /s/ Angie Olalde
Andrew J. Mytelka
State Bar No. 14767700
amytelka@greerherz.com
Stephen G. Schulz
State Bar No. 17848300
sschulz@greerherz.com
Angie Olalde
State Bar No. 24049015
aolalde@greerherz.com
2525 South Shore Blvd., Suite 203
League City, TX 77573
(409) 797-3200 (Telephone)
(866) 880-1519 (Facsimile)
Attorneys for Appellant
Kings High Ranch, L.L.C.
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CERTIFICATE OF SERVICE
As required by Tex. R. App. P. 6.3 and 9.5(b), (d), (e), I certify that I have
served this document on all other parties – which are listed below – on July 6, 2015,
as follows:
Angela Olalde
Greer Herz & Adams, LLP
2525 South Shore Blvd., Suite 203
League City, Texas 77573
aolalde@greerherz.com
Attorneys representing appellant Kings High Ranch, L.L.C.
By: □ personal delivery
X e-service
□ commercial delivery service
□ fax
/s/ George W. Vie III
George W. Vie III
4834-3788-3429, v. 1
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