### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00439- CV
In re Agustin Zurita and AZ Re staurant Venture s, LLC

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N Ag ustin Z urita and AZ Restaura nt Venture s, L L C (collec tively “Z urita”) have filed
a petition reque st ing that this Court issue a writ of prohibition preve nting the trial court from rele asing cash Z uri t a p aid into the court’s reg istry to superse de the court’s judgme nt rende red on J une 28, 2010. We will deny the petition. After a trial, the trial cou rt rende red a money judgme nt ag ainst Z urita in favor of S VH -1 Partners, L td. Z urita superse ded that judgme nt by depositing cash into the trial cou rt ’s reg istry
. See Tex. R. App
. P
. 2 4 .1(a) (3), (c)
. On appea l, this Court modified and,
as modified, aff

irmed the judgme nt. See Zurit a v. SVH-1 Partners, Ltd. , No. 03-10-00650-CV, 1 2011 WL 6118573 (Tex. App.—Austin Dec
. 8, 2011, pet. denied) (mem. op.). Z urita filed a petition for review in the Tex as S upreme Court. On M ay 11 , 2 0 1 2 , t h e supreme court denied the petit ion for r eview.

The modification corr ecte d the judgme nt to awa rd appellate attorney s’ fee s only to those 1 parties that pur sued an unsuc cessf ul appea l to the Texas Supreme Court.On J une 12, 2012, SVH-1 Partners filed a motion in the Travis County District Court

to enfor ce the judgme nt, asking the trial court to rele ase the cash Z urita had previously deposited in the court’s reg istry
. I n its motion, SVH-1 Partners noted that the time for filing a motion fo r rehe aring with the supreme court had passed. See Tex. R. App. P. 64.1 (motion f or rehe aring may be filed with supreme court cler k withi n 1 5 d ay s from date when court makes order disposing of petition f or revie w); 64.5 (cour

t ma y extend time to f

ile motion for rehe aring if motion c omply ing with rule 10.5(b) is filed no later than 15 day s afte r last date for filing motion for rehe aring ). At that time, Z urita had filed in the supreme court neither a motion for rehe aring nor a motion for extension of time to file a motion for rehe ari n g . There afte r, on J une 19—39 day s afte r the supreme court’s issuance of the o rd er d en y i n g the petition for revie w—Z urita filed a motion in the supreme court seeking an extension of time to file a motion for rehe aring
. As of this date, that motion has not been acte d on by the supreme court. Meanw hile, on J uly 5, the trial court g rante d SVH-1 Partners’ motion to enfor ce the judgme nt and order ed that the cash tender ed by Z urita to the cler k of the court be remitted to counsel f

or SVH-1 Par

tners on or pr omptly

afte r Jul y 10. I n his petition for writ of prohibition, Z urita contends that beca use the supreme court has not disposed of his motion for extension of time to file a motion for rehe aring , “the appea l from the underly ing judgme nt rema ins pending ” at the supreme court. Acc ord ing ly , he arg ues that the trial court lacke d jurisdiction to order the cash bond funds rele ased to SVH-1 Partners. Z urita’s motion for extension of time, howeve r, was untimely
. Id. At the time Z urita filed the motion for extension of time to file a motion for rehe aring , all filin g d ea d l i n es had passed and the case was no longe r “pending ” befor e the supreme court. Z urita also arg ues that the trial court’s order rele asing the funds

2was i m p ro p er b ec ause this Court has not y et issued its mandate in this case . See Tex. R. App. P

18.1(a) (2) (cour

t of appea ls must issue mandate on expiration of ten day s afte r time has expired for filing motion to extend time to file motion for rehe aring of denial of petition for revie w if no timely filed motion for rehe aring or motion to extend time is pendin g). But issuance of a mandate by an appellate court is not nece ssary to rende r a judgme nt final. Universe Life Ins. Co

. v. Gi les , 982 S.W .2d 488, 4 91 (Tex. App.—Texarkana 1998, pet. denied) (nothing in rules prohibits trial court from enfor cing appellate cour t ’s judgme nt afte r it has been rende red but befor e mandate issues)
. CONCLUSION

When th e trial court g rante d SVH-1 Partners’ motion to enfor ce the judgme nt, the judgme nt w as final and the cause was no longe r pending befor e the supreme court. There fore , the g rounds Z urita re lies on in seeking the writ of pr ohibition do not support the relief reque sted. We deny Z urita’s pe tition. See Tex. R. App. P . 52.8(a)
.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Goodwin Filed: Jul y

9, 2012

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