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

Opinion

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

-1- 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.

-2- 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

-3- 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

-4- court below. They also request any other appropriate relief consistent with the

relief sought in this motion.

-5- 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.

-6- 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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