ACCEPTED
03-13-00336-CV
4219443
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/19/2015 4:33:41 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-13-00336-CV
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS
THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 2/19/2015 4:33:41 PM JEFFREY D. KYLE
Clerk
R.D. TIPS, INC.,
Appellant
v.
VIRGINIA JETT,
Appellee
Appeal from the 419th District Court, Travis County, Texas Trial Court Cause No. D-1-GN-11-003799 Hon. Rhonda Hurley, Judge Presiding
APPELLANT'S RESPONSE TO MOTION TO INCREASE AMOUNT OF SUPERSEDEAS BOND
Jonathan D. Pauerstein State Bar No. 15637500 ROSENTHAL P AUERSTEIN SANDOLOSKI AGATHER LLP 755 E. Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (210) 225-5000 Facsimile: (210) 354-4034
ATTORNEYS FOR APPELLANT, R.D. TIPS, INC.
1
469216.1
To The Honorable Third Court of Appeals:
Appellant, R.D. Tips, Inc., in opposition to Appellee's Motion To Increase
Amount of Supersedeas Bond, states the following:
1. Appellee seeks to increase the amount of Appellant's supersedeas
bond because the passage of time has led to the accrual of interest. As Appellee
would have it, the bond that originally was sufficient in amount should be
increased to account for additional interest accrued while this case has been under
consideration by this Court.
2. The amount of a supersedeas bond is supposed to equal the amount of
compensatory damages, "interest for the estimated duration of the appeal," and
costs of court. Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a) (West 2014).
3. The supersedeas bond posted by Appellant includes post-judgment
interest for one year at a rate of 5%. See Exhibit A hereto. This Court has held
that security for one year of post-judgment interest complies with section 52.006 of
the Civil Practice & Remedies Code. Shook v. Walden, 304 S.W.3d 910, 929-30
(Tex. App.-Austin 201 0). 1
Another aspect of this decision was disapproved in In re Corral-Lerma, 2014 WL 6612872, at *2 (Tex. Nov. 21, 2014) ("Accordingly, we disapprove of Texas Standard and Shook to the extent they hold that a security amount must include interest on attorney's fees or any other category of a judgment not required to be included in the security amount.").
2
469216.1 4. Appellee does not contend that Appellant's bond was not sufficient
when it was posted. In fact, the amount of Appellant's bond includes attorneys'
fees of $85,000.00 and interest on that sum. Under recent decisions, it generally is
not necessary to include attorneys' fees in the amount superseded. In re Corral-
Lerma, 2014 WL 6612872, at *1 (Tex. Nov. 21, 2014). The amount originally
posted thus was excessive by the amount of the attorneys' fees and post-judgment
interest thereon.
5. This Court also has recognized that the question of an increase in the
bond amount is one for the district court: "If security to cover post-judgment
interest for a longer period becomes warranted as the appeal progresses, the district
court retains jurisdiction to revisit the matter at that juncture." Shook v. Walden,
304 S.W.3d at 929-30; see also Tex. R. App. P. 24.3 (providing for continuing
district court jurisdiction).
6. This Court is authorized to review a trial court's action on a request
for an increase in the amount of a bond. Tex. R. App. P. 24.4. A trial court's
ruling as to the amount of a supersedeas bond is reviewed under an abuse of
discretion standard. Fairways Offshore Exploration, Inc. v. Patterson Services,
Inc., 355 S.W.3d 296, 299 (Tex. App.-Houston [1st Dist.] 2011, no pet.).
7. Appellee does not contend that the amount originally set for the bond
was an abuse of discretion, or that it was inadequate at the time it was set. Nor
3
469216.1 does she complain of a district court's ruling on a request for an increase of the
bond amount.
8. Appellee thus does not present anything for review by this Court
under Tex. R. App. P. 24.4.
9. Moreover, particularly since the penal amount of the bond includes
$85,000 for attorneys' fees and interest thereon, which was not required to be
superseded, the amount of the bond is adequate to protect Appellee.
For the foregoing reasons, Appellee's motion should be denied.
Respectfully submitted,
J athan D. Pauerstein State Bar No. 15637500 ROSENTHAL P AUERSTEIN SANDOLOSKI AGATHER LLP 755 E. Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (21 0) 225-5000 Facsimile: (210) 354-4034 jpauerstein@rpsalaw.com
ATTORNEYS FOR APPELLANT, R.D. TIPS, INC.
4
469216.1
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct copy of the foregoing Appellant's Response To Motion To Increase Amount Of Supersedeas Bond was served via United States Mail on this 19th day of February, 2015, to the following counsel of record:
Eric J. Taube Hohmann, Taube & Summers LLP 100 Congress Avenue, 18th Floor Austin, Texas 78701
~~ Joatilan D. Pauerstein
5
469216.1
SUPERSEDEAS/APPEALBOND
Bon~ No. "'"'33...,.5;..o.l""'98""'5'--------'l~ & :2 ~ In ~e 419th Judicial District Court ::s ::3J 4, · o ofth.e State of_T._~ex~as~----
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KNOW ALL BY THESE PRESENTS, That we, R.D. Tips. Inc., as principal, and SureTec Insurance Company, a corporation organized under the laws of the State of Texas, and duly authorized to transact business in the State of Texas, as Surety, are held and ftnnly bound unto Virginia Jett in the just and full sum Three Million Seven Hundred Eighty Eight Thousand Seven Hundred Forty Five Dollars and Fortv Seven Cents ($3.788.745.47), for which sum, well and truly to be p~d, we bind ourselves, our and each of our heirs, executors, administrators, successors and assigns, jointly and severally, ftnnly be these presents.
WHEREAS, on the 11th day of February, m a judgment was ~ndered by the 4191h Judicial District Court of the State of Texas, in and for the County of Travis. in the ~hove entitled and numbered action in favor of the Plaintiff, Virginia Jett, and against the Defendant, R.D. tips. Inc. adjudging and decreeing that the Plaintiff will have and recover from said Defendant the sum stated above, with interest at the legal rate, until paid, together with the Plaintiff's costs in this action; and
WHEREAS, said Defendant has appealed, or is about to appeal, to the 419th Judicial District Court of the State of Texas, from the above mentioned judgment and the whole thereof, and said Defendant desires to suspend execution of said judgment pending such appeal.
NOW THEREFORE, the condition of this obligation is such that, iftjle above named Defendant, R.D. Tips. Inc., shall prosecute his appeal with effect and shall, if the judgmenti of the 4191h Judicial District Court be against him, perfonn such judgment or decree of said court, and pay iall such damages, interest and costs as may be awarded against him, perform such judgment or decree of said court, and pay all such damages, interest and costs as may be awarded against him on such appeal, then this obligation shall be void, otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that in no event shall the surety's liability ~xceed the penal sum of this bond.
Signed, sealed, and dated this 7th day of October, W,l.
Jonathan D. Pauerstein and Esther Juanita Pelaez-Prada Attorney of Record 755 East Mulben:y. Suite 220 Address San Antonio. Texas 78212
(210) 225-5000 Phone
PLACED IN BOND BOOK NO. 9
POA#:,_ __,3=3=51.:.-=9::..:8=5__
SureTec Insurance C~mpany LIMITED POWER OF ATTORNEY Klrow AH Mm by Tltese Presmts, That SURETEC INSURANCE COMPANY (the "CompiUly''), a corporation dllly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texa8, does by these presents make, constitute and appoint Dan Webster
its true and lawfui Attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver BllY and all bonds, recognizances, undertakings or other instruments dr contracts of suretyship to include waivers to the conditions of contracts and consents of surety for:
Priucipal: RD. Tips Inc.
Amount: $ 3,788,745.47 and to bind the Company thereby as fully Blld to the same extent as if such bond were signed by the President, sealed with the corporate seal of the CompiUly and dllly attested by its Secretary, hereby ratifying and confirming all1hat the said Attorney-in-Fact may do in the premises. Said appointment is made under and by authority of the following resCilutions of the Board of Directors of the SureTec Insurance Company:
Be it Resolved, that the President, any Vice-President. any Assistant Vice-Presiden~ any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attomey{s)·in·Fact to represent and act for and on behalf of the Company subject to the following provisions: Anorney-in-Fact may be given full power and authority for and in the name of and, of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizanllCS, contracts, agreements or indexnnil)' and ot1ter conditional or obligatory wdertaldngs and any and all notices and documents canceling or terminating the Company's liability thereunl1er, and any such instruments so executed by any such Attorney-in-Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Cmporatc Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate beanng facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it Is attached. (Adopted at a meeting held on 2fl' ofApril, 1999.)
In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President. and its corporate seal to be herlrto affixed this 21st day of March, A.D. 2013.
State ofTexas ss: County of Harris On this 21st day of March. AD. 2013 before me personally came John Knox Jr., to me known. who, being by me duly sworn, did depose and say, that he resi9es in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, tpc company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order.
e JACQUELYN MAI.OONADO Notary Publlo State of Texas
My Comm. Exp. 6/18/2017 :tf.cqueJYDMaidODllo, Notary PubHc:
My commission expires May 18,2017 "
1, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a tru.e and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the BOBid of Directors, set out in the Power of Attorney are in full force and effect.
Given under my hand and the seal of said CompBlly at Houston, Texas this 7th
Any Instrument !llued In txCMt of the penalty alated above II totally vote! and without ••'I validity.
For ~cation of the authority of this power you may call (713) 812-oBOO any bull ness city between 8:00am and 15:00 pm CST.
SURETEC INSURANCE COMPANY 1330 Post Oak Blvd., Suite 1100, Houston, TX 77056
TO BE ATTACHED TO AND FORM A PART OF SUPERSEDEAS/APPEAL BOND:
Bond No. 3351985 issued by SureTec Insurance Company in favor of (Obligee) Virginia Jett, Plaintiff on behalf of (Principal) R. D. Tips, Inc., Defendant
IN CONSIDERATION OF THE PREMIUM CHARGED, it is understood and agreed that:
effective October 7, 2013 the third paragraph:
1
The third paragraph "WHEREAS, said Defendant has appealed, or is about to appeal, to the 419 h Judicial District Court of the State of Texas, from the above mentions judgment and the whole thereof, and said Defendant desires to suspend execution of said judgment pending such appeal."
Is hereby changed to
"WHEREAS, said Defendant has appealed, or is about to appeal, to the 3'd Court of Appeals of the State of Texas, from the above mentions judgment and the whole thereof, and said Defendant desires to suspend execution of said judgment pending such appeal."
AND
effective October 7, 2013, the fourth paragraph:
"NOW THEREFORE, the condition of this obligation is such that, if the above named Defendant, R.D. Tips, Inc., shall prosecute his appeal with effect and shall, if the judgment of the 419th Judicial District Court be against him, perform such judgment or decree of said court, and pay all such damages, interest and costs as may be awarded against him, perform such judgment or decree of said court, and pay all such damages, interest and costs as may be awarded against him on such appeal, then this obligation shall be void, otherwise to remain in full force and effect".
Is hereby changed to:
"NOW THEREFORE, the condition of this obligation is such that, if the above named Defendant, R.D. Tips, Inc., shall prosecute its appeal with effect and shall, if the judgment of the 3rd Court of Appeals be against Defendant, perform such judgment or decree of said court, and pay all such damages, interest and costs as may be awarded or affirmed against Defendant on said appeal, then this obligation shall be void, otherwise to remain in full force and effect."
PROVIDED, HOWEVER, that the liability of SureTec Insurance Company, under the attached bond as changed by this Rider shall not be cumulative.
Nothing herein contained shall be held to vary, waive, alter or extend any of the terms, conditions, agreements or warranties of the above mentioned bond, other than as stated above.
Signed this 13th day of _ _. . :.N-'-'o:. .:v. : e.:. :.m.:.: b. : e:._r_ _, 2013.
Jonathan D. Pauerstein and Esther Juanita Pelaez-Prada R.D. Tips, Inc. Attorney of Record Principal 755 East Mulberrv. Suite 220 By: _ _ _ _ _ _ _ _ _ _ _ __ Address San Antonio Texas 78212 SureTec Insurance Company
(21 0) 225-5000 By: s e o ; : [))~ Phone Dan Webster, Attorney-in-Fact
POA #: _ _3=-3"--'5'-1'-=9'-=8-=5_ _
SureTec Insurance Company LIMITED POWER OF ATTORNEY Know All Men by These Presents, That SURETEC INSURANCE COMPANY (the "Company"), a corporation duly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Dan Webster
its true and lawful Attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety for:
Principal: R.D. Tips Inc.
Amount: $ 3,788,745.47 and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifYing and confrrrning all that the said Attorney-in-Fact-may do in the prerrrises. Said appointment is made under and by authority of the following resolutions of the Board of Directors of the SureTec Insurance Company:
Be it Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: Attorney-in-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney-in-Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on 20th ofApril, 1999.)
In Wimess Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President, and its corporate seal to be hereto affixed this 21st day of March, A.D. 2013.
OMPANY
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'"'I IU I -o~ State of Texas ss: ~\ ~}~I ~\, ...............
./. ,//'('/
County of Harris * . .~
"~~tttnntf<l#.
On this 21st day of March, A.D. 2013 before me personally came John Knox Jr., to me known, who, being by me duly sworn, did depose and say, that he resides in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order.
acquelyn Maldonado, Notary Public My commission expires May 18,2017
I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Board of Directors, set out in the Power of Attorney are in full force and effect.
Given under my hand and the seal of said Company at Houston, Texas this _1_3_th_
Any Instrument issued In excess of the penalty stated above Is totally void and without any validity. For verification of the authority of this power you may call (713) 812-0800 any business day between 8:00am and 5:00pm CST.
TRAVIS COUNTY DISTRICT CLERK CALCULATION AND SUBMISSION OF SUPERSEDEAS BOND FOR JUDGMENT AWARDING A RECOVERY OF MONEY If supersedeas amount agreed per T.R.A.P. 24.1 (a)(1 ), check here 0 and attach copy of Rule 11 or agreement. Complete only Sec. B below.
To view detat1ed instructions or explanation, place cursor over any field with a red triangle in the upper right corner
CAUSE#: DATE OF JUDGMENT:
SECTION A:
D-1-GN-11-003799 PLTF: 'Virginia Jett ~--------~V~11~/~20~1~3DEF: ~-R~.D:;..:·~T!~tp~s~·~ln~c·~------------------------------~-
I
CALCULAr,.:T.;;I:.;:O..:.:N~O:.:.F.....:B:;..:O~N.;.;:D;;__ _ _ _ _ _ _ _ _ _ _ _ ___,
COMPENSATORY DAMAGES Award of attorney's fees subject to bond entered below PRE-JUDGMENT INTEREST n"\tailed instructions in the comment Rate of interest ter rate with the % sign Date interest commences: Per judgment or per applicable law Date interest ends Defaults to day prior to judgment; enter different date if required by law
ATTORNEY'S FEES 1;1) oo,vuu.uu llndude only if awarded as compensatory damages; otherwise, leave blank COSTS OF COURT ~ --- ~ · · · only recoverable trial costs; no appellate costs SUB-TOTAL
POST-JUDGMENT INTEREST* !::: ·1:::~·~~::~~~~: ~ ·. ~. .;: ~ .~ . : Calculated for one year from date of judgment* Interest(~·;-:.~ "See link): 5.00%- Defaults to minimum rate; link to tables:
http:/lwww.occc.state.tx.us/pages/int_ratesllndex.html SUPERSEDEAS BOND AMOUNT r~. l ;· :· ·.~:~~~~ -.. .
ACTUAL BOND AMOUNT** , -·- -= ·-· .
> <
,50% of Judgment Debtor's net worth( if less than Total Bond Amount)
The amount of bond must be set by the trial court if: Specify type of bond submitted: (Letter of credit cannot be used) (1) less than amount required per Rule 24.2(a)(1 )(A), T.RAP. _ cash, personal check, cashier's check *** (2) the judgment indudes non-monetary relief _negotiable securities {must be surrendered to the Clerk) (3} the judgment includes unspecified future costs or damages _x_ surety: underwritten (include surety's seal + agenfs power of attorney} _ surety: personal (2 sureties required, oath of surety must be attached)
*Formulas are in conformance with Shook v. Walden, 304 S.W.3d 910. Post judgment interest is presumed to apply to all amounts subject to supersedeas pursuant to the opinion unless the judgment specifies otherwise. If no interest rate is specified, use the link to look up maximum interest rate based on ·ud ment date. •* If total exceeds amount provided in Sec. 52.006(b) Civ. Pract. & Rem. Code; (Rule 24.2(a)(1 }(A}, T.R.A.P}, include Judgment Debtor's Affidavit with bond as r uired r T.R.AP. Rule 24.2 c 1 :_**.Ic:>l'ta\l'e cash b9ndsJnv~sted, an order QUrsuant to Loc. Govt. Code 117.053 (c) is required. ----