in Re Agustin Zurita and AZ Restaurant Ventures, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00439-CV
In re Agustin Zurita and AZ Restaurant Ventures, LLC
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Agustin Zurita and AZ Restaurant Ventures, LLC (collectively “Zurita”) have filed
a petition requesting that this Court issue a writ of prohibition preventing the trial court from
releasing cash Zurita paid into the court’s registry to supersede the court’s judgment rendered on
June 28, 2010. We will deny the petition.
After a trial, the trial court rendered a money judgment against Zurita in favor of
SVH-1 Partners, Ltd. Zurita superseded that judgment by depositing cash into the trial court’s
registry. See Tex. R. App. P. 24.1(a)(3), (c). On appeal, this Court modified and,
as modified, affirmed the judgment.1 See Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV,
2011 WL 6118573 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem. op.). Zurita filed a petition
for review in the Texas Supreme Court. On May 11, 2012, the supreme court denied the petition
for review.
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The modification corrected the judgment to award appellate attorneys’ fees only to those
parties that pursued an unsuccessful appeal to the Texas Supreme Court.
On June 12, 2012, SVH-1 Partners filed a motion in the Travis County District Court
to enforce the judgment, asking the trial court to release the cash Zurita had previously deposited in
the court’s registry. In its motion, SVH-1 Partners noted that the time for filing a motion for
rehearing with the supreme court had passed. See Tex. R. App. P. 64.1 (motion for rehearing may
be filed with supreme court clerk within 15 days from date when court makes order disposing of
petition for review); 64.5 (court may extend time to file motion for rehearing if motion complying
with rule 10.5(b) is filed no later than 15 days after last date for filing motion for rehearing). At that
time, Zurita had filed in the supreme court neither a motion for rehearing nor a motion for extension
of time to file a motion for rehearing. Thereafter, on June 19—39 days after the supreme court’s
issuance of the order denying the petition for review—Zurita filed a motion in the supreme court
seeking an extension of time to file a motion for rehearing. As of this date, that motion has not been
acted on by the supreme court. Meanwhile, on July 5, the trial court granted SVH-1 Partners’ motion
to enforce the judgment and ordered that the cash tendered by Zurita to the clerk of the court be
remitted to counsel for SVH-1 Partners on or promptly after July 10.
In his petition for writ of prohibition, Zurita contends that because the supreme court
has not disposed of his motion for extension of time to file a motion for rehearing, “the appeal from
the underlying judgment remains pending” at the supreme court. Accordingly, he argues that the trial
court lacked jurisdiction to order the cash bond funds released to SVH-1 Partners. Zurita’s motion
for extension of time, however, was untimely. Id. At the time Zurita filed the motion for extension
of time to file a motion for rehearing, all filing deadlines had passed and the case was no longer
“pending” before the supreme court. Zurita also argues that the trial court’s order releasing the funds
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was improper because this Court has not yet issued its mandate in this case. See Tex. R. App. P
18.1(a)(2) (court of appeals must issue mandate on expiration of ten days after time has expired for
filing motion to extend time to file motion for rehearing of denial of petition for review if no timely
filed motion for rehearing or motion to extend time is pending). But issuance of a mandate
by an appellate court is not necessary to render a judgment final. Universe Life Ins. Co. v. Giles,
982 S.W.2d 488, 491 (Tex. App.—Texarkana 1998, pet. denied) (nothing in rules prohibits
trial court from enforcing appellate court’s judgment after it has been rendered but before
mandate issues).
CONCLUSION
When the trial court granted SVH-1 Partners’ motion to enforce the judgment, the
judgment was final and the cause was no longer pending before the supreme court. Therefore, the
grounds Zurita relies on in seeking the writ of prohibition do not support the relief requested. We
deny Zurita’s petition. See Tex. R. App. P. 52.8(a).
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Puryear and Goodwin
Filed: July 9, 2012
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