The opinion
ACCEPTED
03-13-00336-CV
5132381
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/4/2015 10:16:48 AM
JEFFREY D. KYLE
CLERK
NO. 03-13-00336-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE
5/4/2015 10:16:48 AM
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 FOR JUDGMENT AGAINST SURETY
Eric J. Taube
State Bar No. 19679350
etaube@taubesummers.com
Taube Summers Harrison Taylor Meinzer Brown LLP
100 Congress Avenue, Suite 1800
Austin, Texas 78701
Telephone: (512) 472-5997
Telecopier: (512) 472-5248
COUNSEL FOR APPELLEE VIRGINIA JETT
Page i
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure, Appellee Virginia Jett (“Ms.
Jett”) files this Motion for Judgment Against Surety, and respectfully shows the
court as follows:
Background
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”).
2. On October 7, 2013, Tips suspended the Judgment by posting a
supersedeas bond in the amount of $3,788,745.47. The surety of such bond was
named as SureTec Insurance Company, a company organized under the laws of the
State of Texas.
3. This Court unanimously affirmed the Judgment on April 9, 2015. The
Court denied Tips’ Motion for Rehearing on April 29, 2015.
4. On April 30, 2015, Ms. Jett filed a Motion to Expedite the Mandate,
which is pending before this Court.
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5. Now, Ms. Jett requests that this Court grant her judgment against
Tips’ surety, both for the original Judgment amount and for the costs that have
been awarded her.
Argument and Authorities
6. Under Texas Rule of Appellate Procedure 43.5, “When a court of
appeals affirms the trial court judgment . . . the court of appeals must render
judgment against the sureties on the appellant's supersedeas bond, if any, for the
performance of the judgment and for any costs taxed against the appellant.”
7. The Court affirmed the trial court judgment in this case. The Court’s
April 9, 2015 judgment does not appear to include the requested judgment against
the sureties.
8. In accordance with paragraph 44 of the Court’s “Practice Before the
Court” instructions,1 Ms. Jett prayed in her brief for rendition of judgment against
the surety on Appellant’s supersedeas bond. In particular, in her brief filed on
November 21, 2013, Appellee stated as follows: “Ms. Jett further requests that this
Court render judgment for her against the sureties on Appellant R.D. Tips, Inc.'s
supersedeas bond.” Response Br. of Appellee Virginia Jett, at 43 (Section VI:
Conclusion and Prayer).
1
See Texas Judicial Branch, Third Court of Appeals, “Practice Before the Court,”
http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx#supersedeas-bond.
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9. Now, believing the relief requested is warranted under the Texas
Rules of Appellate Procedure and this Court’s practice guidelines, Ms. Jett
reiterates her request that this Court grant her judgment against the surety for the
amount of the judgment against Tips and for the costs that have been awarded her.
PRAYER FOR RELIEF
For the reasons stated above, Appellee Virginia Jett respectfully requests
that this Court (i) grant judgment against the surety for the performance of the
district court Judgment and for the costs that have been awarded her, and (ii) grant
her all other relief to which the Court deems her justly entitled.
Page 4
Respectfully submitted,
TAUBE SUMMERS HARRISON TAYLOR MEINZER BROWN LLP
By: /s/ Eric J. Taube
Eric J. Taube
State Bar No. 19679350
etaube@taubesummers.com
Douglas A. Fohn
State Bar No. 24036578
dfohn@taubesummers.com
Christopher G. Bradley
State Bar No. 24069407
cbradley@taubesummers.com
Andrew Preston Vickers
State Bar No. 24084021
avickers@taubesummers.com
100 Congress Avenue, Suite 1800
Austin, Texas 78701
Telephone: (512) 472-5997
Telecopier: (512) 472-5248
ATTORNEYS FOR APPELLEE VIRGINIA JETT
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TEX. R. APP. P. 9.4(I)(3) CERTIFICATION
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Motion contains
774 words. This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text. In making this certificate of compliance, I am
relying on the word count provided by the software used to prepare the document.
/s/ Eric J. Taube
Eric J. Taube
CERTIFICATE OF CONFERENCE
Counsel for Ms. Jett attempted to confer with opposing counsel concerning
the matters raised in this motion on May 1, 2015, but was unable to do so.
/s/ Eric J. Taube
Eric J. Taube
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 May 4, 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
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