R.D. Tips, Inc. v. Virginia Jett

Opinion

ACCEPTED

03-13-00336-CV

4074401

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/9/2015 2:17:04 PM

JEFFREY D. KYLE

CLERK

NO. 03-13-00336-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS

FOR THE

2/9/2015 2:17:04 PM

THIRD DISTRICT OF TEXAS JEFFREY D. KYLE AT AUSTIN Clerk

R.D. TIPS, INC.,

Appellant,

v.

VIRGINIA JETT,

Appellee

Appeal from the 98th Judicial District Court Travis County, Texas

The Honorable Rhonda Hurley, Presiding

MOTION TO INCREASE AMOUNT OF SUPERSEDEAS BOND

Eric J. Taube

State Bar No. 19679350

erict@hts-law.com

Congress Avenue, 18th Floor Austin, Texas 78701

(512) 472-5997

(512) 472-5248 (Fax)

COUNSEL FOR APPELLEE

VIRGINIA JETT

8101-2\00474067.000 Page i

TO THE HONORABLE COURT OF APPEALS:

Pursuant to Texas Rule of Appellate Procedure 24.4, Appellee Virginia Jett (“Ms. Jett”) files this Motion to Increase Amount of Supersedeas Bond, and respectfully shows the court as follows:

1. On February 11, 2013, the 419th District Court of Travis County, Texas, rendered judgment in favor of Ms. Jett and against Appellant R.D. Tips (“Tips”) in the amount of $3,354,314.06 in actual damages; $85,000 in attorney’s fees; $260 in court costs; and post-judgment interest at the rate of 5% (the “Judgment”). In sum, as the record reflects, the “Supersedeas Bond Amount” required was $3,611,552.76. See Clerk’s Record (“C.R.”), pp. 445-46.

2. On May 15, 2013, Tips filed its notice of appeal. C.R., p. 462.

Subsequently, on October 7, 2013, Tips suspended the judgment in this cause of action by posting a supersedeas bond in the amount of $3,788,745.47 (the “Bond”) with the trial court clerk. Supp. C.R., pp. 3-7.

3. Briefing before this Court was completed in November 2013, and the case was calendared for decision without oral argument on December 23, 2013. The Court’s docket does not reflect that the Court has taken any further action in this matter since that date.

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4. While the Bond was of sufficient amount when filed, it is no longer sufficient, due to the continuing accumulation of interest. It will become insufficient to cover the amount of the Judgment as of the month of February 2015.

5. Under Texas Rule of Appellate Procedure 24.4(b), this Court has authority to review the trial court’s ruling concerning the sufficiency of the amount of security, including based on conditions that change subsequent to the trial court’s ruling.

6. Here, conditions have changed due to the accumulation of interest, and as such, the amount of the bond is now plainly insufficient. Given the further time likely to elapse before this appeal is fully and finally concluded and she is able to collect on her nearly two-year-old judgment, Ms. Jett requests that the amount of the Bond be ordered to increase by an amount sufficient to cover at least nine additional months of accumulated interest.

7. Accordingly, Ms. Jett requests that this Court hear this motion “at the earliest practicable time,” as per Texas Rule of Appellate Procedure 24.4(d), and that the Court grant her the relief requested in the form of an increased bond amount.

PRAYER FOR RELIEF

For the reasons stated above, Appellee Virginia Jett respectfully requests

that Tips be ordered to post a bond sufficient to cover the Judgment, including the

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actual and anticipated accumulations of interest; and that, if Tips fails to do so, Ms. Jett be permitted to pursue appropriate remedies to collect on her nearly two-year- old Judgment. She also respectfully requests all other relief to which the Court deems her justly entitled.

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Respectfully submitted,

HOHMANN, TAUBE & SUMMERS, L.L.P.

By: /s/ Eric J. Taube

Eric J. Taube

State Bar No. 19679350

erict@hts-law.com

Congress Avenue, 18th Floor Austin, Texas 78701

(512) 472-5997

(512) 472-5248 (Fax)

COUNSEL FOR APPELLEE

VIRGINIA JETT

CERTIFICATE OF CONFERENCE

Counsel for Ms. Jett conferred with opposing counsel concerning the matters raised in this motion on February 5, 2015. The parties could not agree as to the disposition of this matter; therefore, opposing counsel opposes the filing of this motion.

/s/ Eric J. Taube

Eric J. Taube

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CERTIFICATE OF SERVICE

The undersigned counsel certifies that this document was served via telecopy on Appellant R.D. Tips, Inc.’s counsel in accordance with TEX. R. CIV. P. 21a on February 9, 2015.

Jonathan D. Pauerstein ROSENTHAL PAUERSTEIN SANDOLOSKI AGATHER LLP 755 East Mulberry, Suite 200 San Antonio, Texas 78212 (210) 354-4034 (Fax)

/s/ Eric J. Taube

Eric J. Taube