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

Opinion

ACCEPTED

03-13-00336-CV

5225335

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/11/2015 10:21:48 AM

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 5/11/2015 10:21:48 AM 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 APPELLEE'S MOTION TO EXPEDITE THE MANDATE

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.

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To The Honorable Third Court of Appeals:

Appellant, R.D. Tips, Inc., in opposition to Appellee's Motion To Expedite

The Mandate, states the following:

1. Appellant has superseded the judgment below as permitted by law.

Accordingly, while this case is on appeal, Appellee has received the protection

afforded by law and Appellant is entitled to pursue the appellate process to its

conclusion. Nonetheless, Appellee seeks to expedite the issuance of the mandate

based on conclusory allegations that she needs funds due to unspecified financial

hardship.

2. Appellant has until June 12th to file a petition for review in the

Supreme Court of Texas, which it is entitled to file under Texas law.

3. The mandate can only be expedited upon a showing of good cause.

Tex. R. App. P. 18.1(c). 1 Appellee, failing to carry this burden, points to nothing

that is not true of many plaintiffs who hold money judgments that are on appeal.

While she has been unable to execute upon the superseded judgment, that is always

so when a defendant appeals an adverse money judgment and posts a supersedeas

bond to secure the plaintiff during the appellate process. And, while Appellee says

Appellee's motion is unverified and not supported by affidavit, which alone warrants its denial. Cf Andrews v. Twin Montana, Inc., 547 S.W.2d 54, 56 (Tex. Civ. App.-Fort Worth 1977, no writ) ("the motion of appellant for extension of time for filing his brief is not verified and ... there is no affidavit presented in support of it. Under these circumstances appellant has not proved anything by his motion; he has merely made some unsupported allegations.").

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she needs the money awarded in the judgment, that too is likely to be so in similar

situations.

4. Were Appellee's conclusory claims sufficient to show good cause for

expediting the mandate and denying Appellant the right to supersede the judgment

until the appellate process is exhausted, then good cause for the same relief would

exist in most cases in which defendants appeal from money judgments. The good

cause standard demands more, but Appellee has not provided it.

5. Appellee has not alleged, let alone proven, facts demonstrating that

there IS good cause for expediting the issuance of the mandate and thereby

abrogating Appellant's right to pursue all appellate avenues for review of the

superseded judgment. Appellee thus has not sustained her burden to establish good

cause.

For the foregoing reasons, Appellee's motion should be denied.

Respectfully submitted,

J o athan D. Pauerstein State Bar No. 15637500 ROSENTHAL PAUERSTEIN SANDOLOSKI A GATHER LLP 755 E. Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (21 0) 225-5000 Facsimile: (21 0) 354-4034 jpauerstein@rpsalaw .com

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ATTORNEYS FOR APPELLANT, R.D. TIPS, INC.

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this document contains 63 8 words (counting all parts of the document). The body text is in 14 point font, and the footnote text is in 12 point font.

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a true and correct copy of the foregoing Appellant's Response To Motion To Expedite The Mandate was served via United States Mail on this 11th day of May, 2015, upon the following counsel of record:

Eric J. Taube Taube Summers Harrison Taylor Meinzer Brown LLP 100 Congress Avenue, 18th Floor Austin, Texas 78701