Rent-A-Center, Inc. v. Glenn Hegar, in His Capacity as Comptroller of Public Accounts of the State of Texas And Ken Paxton, in His Capacity as Attorney General of the State of Texas

ACCEPTED
03-13-00101-CV
6038669
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/13/2015 1:51:14 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00101-CV
FILED IN
In the Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
for the Third Judicial District 7/13/2015 1:51:14 PM
JEFFREY D. KYLE
Austin, Texas Clerk
RENT-A-CENTER, INC.,
Appellant,
v.
GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS; AND
KEN PAXTON, ATTORNEY GENERAL,
Appellees.
On Appeal from the
250th Judicial District Court of Travis County, Texas
APPELLEES’ RESPONSE IN OPPOSITION TO
APPELLANT’S MOTION FOR REHEARING
KEN PAXTON SCOTT A. KELLER
Attorney General of Texas Solicitor General
CHARLES E. ROY MATTHEW H. FREDERICK
First Assistant Attorney Deputy Solicitor General
General State Bar No. 24040931
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-6407
Fax: (512) 474-2697
Matthew.Frederick
@texasattorneygeneral.gov
COUNSEL FOR APPELLEES
ISSUE PRESENTED
Whether the Court of Appeals should decide, in the first instance, a
question that the district court did not reach, rather than remand and
allow the district court to make appropriate findings of fact and
conclusions of law.
ARGUMENT AND AUTHORITIES
Rent-A-Center’s motion for rehearing should be denied because
remand is necessary for further proceedings. The motion for rehearing
rests on an incomplete statement of Texas Rule of Appellate Procedure
43.3, which provides:
When reversing a trial court’s judgment, the court must
render the judgment that the trial court should have
rendered, except when:
(a) a remand is necessary for further proceedings; or
(b) the interests of justice require a remand for another
trial.
TEX. R. APP. P. 43.3. Rent-A-Center argues that the Court should rule, in
the first instance, on the cost-of-goods-sold issue because it “must render
the judgment that the trial court should have rendered.” Mot. for Reh’g.
3. But Rent-A-Center omits the qualifying clause, “except when . . . a
remand is necessary for further proceedings.” TEX. R. APP. P. 43.3.
In this case, remand is necessary because the trial court did not rule
on Rent-A-Center’s claim regarding its cost of goods sold. The district
court concluded, in light of its ruling on the retail-trade issue, that “the
issue regarding cost of goods sold is moot.” CR 114. Accordingly, the trial
court did not determine the cost of goods sold by Rent-A-Center in 2007,
nor did it determine whether that figure must be reduced to account for
depreciation claimed by Rent-A-Center.
“[A] court of appeals can reverse the trial court’s judgment only
when the trial court is in error.” Chrismon v. Brown, 246 S.W.3d 102, 116
(Tex. App.—Houston [14th Dist.] 2007, no pet.). Because the trial court
entered no judgment on the cost-of-goods-sold issue, there is no error to
address. The trial court’s only error, as determined by this Court,
concerned the question whether Rent-A-Center was engaged primarily in
retail trade. Because the trial court’s ruling on that issue prevented it
from reaching the cost-of-goods-sold issue, the appropriate remedy is to
remand so that the trial court may address that question in the first
instance.
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PRAYER
Appellees respectfully request that the Court deny Rent-A-Center’s
motion for rehearing and remand for further proceedings.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
SCOTT A. KELLER
Solicitor General
/s/ Matthew H. Frederick
MATTHEW H. FREDERICK
Deputy Solicitor General
State Bar No. 24040931
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-6407
Fax: (512) 474-2697
Matthew.Frederick
@texasattorneygeneral.gov
COUNSEL FOR APPELLEES
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CERTIFICATE OF SERVICE
On July 13, 2015, this Appellees’ Motion for Rehearing was served
via CaseFileXpress on:
Farley P. Katz
Forrest M. Seger III
STRASBURGER PRICE OPPENHEIMER BLEND
300 Convent Street, Suite 900
San Antonio, Texas 78204
Daniel L. Butcher
P. Michael Jung
STRASBURGER PRICE
901 Main Street, Suite 4300
Dallas, Texas 75202
Robert M. O’Boyle
Clinton A. Rosenthal
STRASBURGER & PRICE, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
COUNSEL FOR APPELLANT
/s/ Matthew H. Frederick
MATTHEW H. FREDERICK
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CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this
brief contains 380 words, excluding the portions of the brief exempted by
Rule 9.4(i)(1).
/s/ Matthew H. Frederick
MATTHEW H. FREDERICK
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