ACCEPTED

03-13-00336-CV

4219443

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/19/2015 4:33:41 PM

JEFFREY D. KYLE

CLERK

469216.1 

CASE NO. 03-13-00336-CV 

IN THE COURT OF APPEALS 

THIRD COURT OF APPEALS DISTRICT 

AUSTIN, TEXAS 

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 

1 

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. 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/19/2015 4:33:41 PM JEFFREY D. KYLE Clerk
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 CorralLerma, 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. 

469216.1 

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 
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: 

469216.1 

Eric J. Taube 

Hohmann, Taube & Summers LLP 

1 00 Congress A venue, 18th Floor 

Austin, Texas 78701 

Joatilan ~~ D. Pauerstein 

5 
SUPERSEDEAS/APPEALBOND 

_,V..,.IR~G,.IN....,.,I....,A._.J~E ...... T_._T _________ _,, Plaintiff 

Vs. 

...,R"-".D=._.T"""IP'""S~ . .,IN..,..C"'"'.----------'' Defendant 

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~---- - 8 

..... S ~ - 0 ~ In and for Travis CountJ.S J5. ~ ~ 

Case or Cause No. D~l-GN-11~003799 ~ § ....... '~ .... 0 <I> 

~(,) - g, t:.!? 1- :g c: > (...) ~ 

·- f! c.:> "'t- Gl- :=o } LL. 

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' of April, 

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. 

issued by 

3351985 

in favor of (Obligee) 

on behalf of (Principal) 

SureTec Insurance Company 

Virginia Jett, Plaintiff 

R. D. Tips, Inc., Defendant 

IN CONSIDERATION OF THE PREMIUM CHARGED, it is understood and agreed that: 

effective October 7, 2013 the third paragraph: 

The third paragraph "WHEREAS, said Defendant has appealed, or is about to appeal, to the 4191

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 

AND 

"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." 

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 

Attorney of Record 

755 East Mulberrv. Suite 220 

Address 

San Antonio Texas 78212 

(21 0) 225-5000 

Phone 

R.D. Tips, Inc. 

Principal By: ____________ _ 

SureTec Insurance Company 

By: seo;: [))~ 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 of April, 

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. 

State of Texas 

County of Harris 

ss: 

.. '\)'1:\P:N"c·"' _\.q; ......... ~~ 

~~···· ·····!='()'\ J// "/.. -1 \~\ '"'I IU I -o~ 

~\ ~}~I ~\, ./. ,//'('/ ............... 

"~~tttnntf<l#. * .... ~ 

OMPANY 

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: 

COMPENSATORY DAMAGES 

PRE-JUDGMENT INTEREST 

Rate of interest 

Date interest commences: 

Date interest ends 

ATTORNEY'S FEES 

COSTS OF COURT 

SUB-TOTAL 

POST-JUDGMENT INTEREST* 

Interest(~·;-:.~ "See link): 

SUPERSEDEAS BOND AMOUNT 

ACTUAL BOND AMOUNT** 

SECTION A: CALCULAr,.:T.;;I:.;:O..:.:N~O:.:.F.....:B:;..:O~N.;.;:D;;_ _____________ __, 

D-1-GN-11-003799 PLTF: 'Virginia Jett I ~--------~V~11~/~20~1~3DEF: ~-R~.D:;..:·~T!~tp~s~·~ln~c·~------------------------------~-

Award of attorney's fees subject to bond entered below 

n"\tailed instructions in the comment 

ter rate with the % sign 

Per judgment or per applicable law 

Defaults to day prior to judgment; enter different date if required by law 

1 ;1) oo,vuu.uu llndude only if awarded as compensatory damages; otherwise, leave blank 

~ --- ~ · · · only recoverable trial costs; no appellate costs 

!::: ·1:::~·~~::~~~~: ~ · ..~ ... ;: ~ .~ . : Calculated for one year from date of judgment* 

5.00%-Defaults to minimum rate; link to tables: 

http:/lwww.occc.state.tx.us/pages/int_ratesllndex.html 

r~. l ;· :· ·.~:~~~~ -.. . 

, -·- -= ·-· .. ,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 

(3} the judgment includes unspecified future costs or damages 

_negotiable securities {must be surrendered to the Clerk) 

_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. ----