NO. 04-14-00494-CV 

IN THE FOURTH COURT OF APPEALS 

SAN ANTONIO, TEXAS 

United Parcel Service, Inc. and Roland Leal,

Appellants/Cross-Appellees,

v. 

Robert Scott Rankin, Individually, Rachelle Rankin, Individually and As Next 

Friend for Avery Rankin, a Minor, As Next Friend for Kara Rankin, a Minor 

and As Next Friend for Samuel Rankin, a Minor 

Appellees/Cross-Appellants.

On Appeal from the 224th Judicial District Court, Bexar County, Texas 

Honorable Cathy Stryker, Presiding Judge 

Trial Court Cause No. 2011-CI-07922

OPPOSITION TO CROSS-APPELLANTS’ MOTION FOR LEAVE TO 

FILE REPLY TO CROSS-APPELLEES’ REPLY TO NEW ARGUMENT IN 

CROSS-APPELLANTS’ REPLY BRIEF THAT RULE 167.4(a) IS INVALID 

__________________________________________________________________ 

In their conference, counsel for Cross-Appellees, United Parcel Service, Inc. 

and Roland Leal, indicated to counsel for Cross-Appellants that Cross-Appellees 

would not oppose Cross-Appellants filing a Reply to Cross-Appellees’ Reply to 

New Argument in Cross-Appellants’ Reply Brief that Rule 167.4(A) Is Invalid, if 

such reply was limited to responding only to arguments made in Cross-Appellees’ 

Reply. 

However, Cross-Appellants’ Reply, which was submitted for filing on April 

17, 2015, is not so limited, but raises new arguments attacking the trial court’s 

judgment that were never raised in the trial court or in Cross-Appellants’ Brief, and 

accordingly have been waived. Cross-Appellees therefore oppose and request that 

the Court deny Cross-Appellants’ motion for leave to file their Reply. 

ACCEPTED

04-014-00494-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/20/2015 2:00:08 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 4/20/2015 2:00:08 PM KEITH E. HOTTLE Clerk
2 

Tex. Civ. Prac. & Rem. Code § 42.001(5) provides: “Litigation costs means 

money actually spent and obligations actually incurred that are directly related to 

the action in which a settlement offer is made.” (emphasis added). 

Tex. R. Civ. P. 167.4(a) provides: “. . . the court must award the offeror 

litigation costs against the offeree from the time the offer was rejected to the time 

of judgment.” (emphasis added). 

Here, the trial court correctly interpreted section 42.001(5) and Rule 

167.4(a) to only allow the award of attorney’s fees that had actually been spent or 

incurred as of the time of the trial court’s judgment and therefore properly denied 

Cross-Appellants’ request for an award of attorneys’ fees for a potential appeal 

because such fees had not been incurred and did not meet this requirement. 

In their Reply at 4-6, Cross-Appellants argue for the first time that the trial 

court’s interpretation of section 42.001(5) and Rule 167.4(a) is erroneous because 

it allegedly results in Chapter 42 and Rule 167 violating the equal protection 

provisions of the Texas and United States Constitutions and the Texas Open Courts 

provisions. These arguments have been waived and need not be considered by this 

Court because they were never raised in the trial court or in Cross-Appellants’ 

Brief. “Failure to object at trial that a statute is unconstitutional waives the 

complaint on appeal.” Garza v. State, 04-10-00269-CR, 2011 WL 61724, at *5 

(Tex. App.—San Antonio Jan. 5, 2011, pet. ref’d) (citing Sony v. State, 307 

S.W.3d 348, 352 (Tex. App.—San Antonio 2009, no pet.)); Karenev v. State, 281 

S.W.3d 428, 434 (Tex. Crim. App. 2009). Likewise, a litigant must raise an opencourts challenge in the trial court. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 

222 (Tex. 2002) (citing S.V. v. R.V., 933 S.W.2d 1, 25 (Tex. 1996) and City of San 

Antonio v. Schautteet, 706 S.W.2d 103, 104-105 (Tex. 1986)). Moreover, the rules 

of appellate procedure do not allow an appellant to raise an issue in a reply brief 

which was not included in his original brief. Aon Risk Services Sw., Inc. v. C.L. 
3 

Thomas, Inc., 13-13-00205-CV, 2014 WL 7233379, at *4 n.9 (Tex. App.—Corpus 

Christi Dec. 19, 2014, no. pet. h.) (citing Tex. R. App. P. 38.3; Dallas Cnty. v. 

Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006, pet. denied). A court of 

appeals will not consider arguments that are not raised in the appellant’s original 

brief. See Ledbetter v. Soliven, 2-02-060-CV, 2003 WL 151968, at *3 (Tex. 

App.—Fort Worth Jan. 23, 2003, pet. denied). 

Additionally, Cross-Appellees’ Reply at 3 and 5-7 argues that the trial 

court’s interpretation that “the time of judgment” as used in Rule 167.4(a), means 

the trial court’s judgment, not appellate court’s judgment, is erroneous because it 

allegedly conflicts with and abridges substantive rights granted by Chapter 42. 

Again, this argument has been waived and need not be considered by this Court 

because it was never raised in the trial court or in Cross-Appellants’ Brief. The 

failure to raise an issue in the trial court waives the issue on appeal. Tex. R. App. 

P. 33.1; Vejara v. Levior Intern., LLC, 04-11-00595-CV, 2012 WL 5354681, at *7 

(Tex. App.—San Antonio Oct. 31, 2012, pet. denied) (“A party to a lawsuit waives 

the right to raise even a constitutional claim on appeal if that claim is not presented 

to the trial court.”). 

Conclusion and Prayer

Therefore, Cross-Appellees request that the Court deny Cross-Appellants’ 

motion for leave to file their Reply and not consider the arguments presented 

therein because such Reply is not limited to responding only to arguments raised in 

Cross-Appellees’ Reply, but consists entirely of new arguments challenging the 

validity and constitutionality of Chapter 42 and Rule 167 under the trial court’s 

interpretation of these provisions, that were never raised in the trial court or in 

Cross-Appellants’ Brief, and therefore were waived. 
4 

Respectfully submitted, 

KING & SPALDING LLP 

By: /s/ H. Victor Thomas 

H. Victor Thomas 

Texas Bar No. 19851500 

1100 Louisiana, Suite 4000 

Houston, Texas 77002 

Telephone: (713) 751-3200 

Facsimile: (713) 751-3290 

W. Randall Bassett 

Georgia Bar No. 41525 

King & Spalding LLP 

1180 Peachtree Street, N.E. 

Atlanta, Georgia 30309 

Telephone: (404) 572-4600 

Facsimile: (404) 572-5100 

CERTIFICATE OF SERVICE 

 I certify that on April 20, 2015, I used the Court’s electronic case filing 

system to file this Opposition and to serve it on counsel for appellees as follows: 

Doug Perrin 

Mark Perrin 

The Perrin Law Firm 

325 N. Saint Paul St., Suite 600 

Dallas, TX 75201-3828 

Peter D. Marketos 

Reese Gordon Marketos LLP 

750 N. Saint Paul St., Suite 610 

Dallas, Texas 75201 

/s/ H. Victor Thomas 

H. Victor Thomas