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. VIRGINIAJETT, 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 BarNo. 15637500 ROSENTHAL PAUERSTEIN 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.

## To The Honorable Third Court ofAppeals: Appellant, R.D. Tips, Inc., in opposition to Appellee's Motion To Increase Amount ofSupersedeas Bond, states the following: 1. Appellee seeks to increase the amount of Appellant's supersedeas bond because the passage oftime 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 ofa supersedeas bond is supposed to equal the amount of compensatory damages, "interest for the estimated duration of the appeal," and costs ofcourt. 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 ofpost-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 2010). 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 Under recent decisions, it generally is not necessary to include attorneys' fees in the amount superseded.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 ofthe attorneys' fees and post-judgment interest thereon. 5. This Court also has recognized that the question ofan 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 thatjuncture." 

# Shook v. Walden, 304 S.W.3d at 929-30; 

# see also Tex. R. App. P. 24.3 (providing for continuing district courtjurisdiction). 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 ofthe 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 BarNo. 15637500 ROSENTHAL PAUERSTEIN SANDOLOSKI AGATHERLLP 755 E. Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (210) 225-5000 Facsimile: (210) 354-4034 jpauerstein@rpsalaw.com ATTORNEYS FORAPPELLANT, R.D. TIPS, INC.

4

## CERTIFICATE OF SERVICE 

## The undersigned counsel hereby certifies that a true and correct copy ofthe foregoing Appellant's Response To Motion To Increase Amount Of Supersedeas Bond was served via United States Mail on this 19th day ofFebruary, 2015, to the following counsel ofrecord:

469216.1 

## Eric J. 

## Taube Hohmann, Taube & 

## Summers LLP 1

00 Congress Avenue, 18th Floor Austin, Texas 78701

# ~~ Joatilan D. Pauerstein

5

## SUPERSEDEAS/APPEALBOND**_,V..,.IR~G,.IN....,.,I....,A._.J~E** 

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KNOW ALL BY THESE PRESENTS, That we, R.D. Tips. Inc., as principal, and SureTec Insurance Company, a corporation organized under the laws ofthe State ofTexas, and duly authorized to transact business in the State ofTexas, as Surety, are held and ftnnly bound unto Virginia Jett in thejust 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 ourheirs, 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 ofthe State ofTexas, 

### in and for the County ofTravis. 

### in the**~hove** 

### entitled and numbered action in favor ofthe Plaintiff, Virginia Jett, and against the Defendant, R.D. tips. Inc. adjudging and decreeing that the Plaintiffwill 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 ofthe State ofTexas, from the above mentionedjudgment and the whole thereof, and said Defendant desires to suspend execution ofsaidjudgmentpending such appeal. NOW THEREFORE, the condition ofthis obligation is such that, iftjle above named Defendant, R.D. Tips. Inc., shall prosecute his appeal with effect and shall, ifthejudgmenti ofthe 4191h Judicial District Court be against him, perfonn suchjudgment or decree ofsaid court, and pay

### iall such damages, interest and costs as may be awarded against him, perform suchjudgment 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 inno event shall the surety's liability**~xceed** 

### the penal sum ofthis bond. Signed, sealed, and dated this 7th day ofOctober, W,l. 

### Jonathan D. Pauerstein and Esther Juanita Pelaez-Prada Attorney ofRecord 755 EastMulben:y. Suite 220 

### Address San Antonio. Texas 78212 (210) 225-5000 Phone

PLACED IN BOND BOOK NO. 9POA#:,

_ 

### __,3=3=51.:.-=9::..:8=5

__ 

# SureTec Insurance**C~mpany** LIMITED POWEROFATTORNEY Klrow AH

### Mm by 

### Tltese Presmts, That SURETEC INSURANCE COMPANY (the "CompiUly''), a corporation dllly organized and 

### existing under the laws ofthe State ofTexas, 

### 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 ofsuretyship to include waivers to 

### the conditions of contracts and consents ofsurety

### for: Priucipal: RD. Tips Inc. 

### Amount: $ 

### 3,788,745.47 

### and to bindthe Company thereby as fully Blld to 

### the same extent as ifsuch bond were signed by the President, sealed with the corporate seal 

### ofthe 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 ofthe 

### following resCilutions ofthe Board of Directors of the SureTec 

### Insurance Company: Be itResolved, 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·Factto represent and act for and on behalfofthe Company subject tothe following provisions: Anorney-in-Fact may be given full power and authority for and in the name ofand,ofbehalfofthe 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 bebinding uponthe Company as ifsignedbythePresident

### and sealed and effectedby theCmporatc Secretary. Be itResolved, thatthe signature ofany authorized officer and seal ofthe Company heretofore orhereafter affixedto any power ofattorney or any certificate relating thereto by facsimile, and any power ofattorney or certificatebeanngfacsimile signature orfacsimile seal shall be valid and binding upon the Company with respectto any bond orundertaking to which itIs attached. (Adopted at a meeting heldon 2fl' of April, 1999.) 

### In 

### Witness Whereof, SURETEC INSURANCE COMPANY has

### causedthesepresents to be 

### signedby its President. and its 

### corporate seal to be

### herlrto affixedthis 21stday 

### ofMarch, A.D. 2013.

State ofTexas ss: County ofHarris On this 21st day of 

### March. AD. 2013 beforemepersonally came John KnoxJr., to meknown. who, beingby me duly sworn, did depose and say, thathe 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 ofsaid Company; that the seal affixed to said instrument is such corporate seal; that itwas so affixed by order ofthe Board ofDirectors ofsaid Company; andthathe signed hisname thereto by like order. 

# e JACQUELYNMAI.OONADO Notary Publlo State ofTexas My Comm. Exp. 6/18/2017 

### :tf.cqueJYDMaidODllo,NotaryPubHc: My commission expires May 18,2017 " 1, M. BrentBeaty, Assistant Secretary ofSURETEC INSURANCE COMPANY, do hereby certify thatthe above andforegoing is atru.e and correctcopy ofaPower ofAttorney, executed by said Company, which is still in full force and effect; and furthermore, theresolutions ofthe BOBid ofDirectors, set outinthePower ofAttorney are in full force and effect. Given 

### under my hand 

### and the seal ofsaid 

### CompBlly at

### Houston, Texas 

### this 7th

Any Instrument !lluedIn txCMt ofthe penalty alated above IItotallyvote! and without

# ••'Ivalidity. For**~cation** oftheauthority ofthis poweryou may call (713) 812-oBOO any bullness 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-FactPOA#:

__ 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 ofthe State ofTexas, 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 ofsurety 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 ifsuchbond were signed bythe President, sealed with the corporate seal ofthe 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 ormore suitable persons as Attorney(s)-in-Fact to represent and act for and on behalfofthe Company subject to the following provisions: Attorney-in-Fact may be given full power and authority for and in the name ofand ofbehalfofthe 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 ifsigned by thePresident and sealed and effected by the Corporate Secretary. Be itResolved, that the signature ofany authorized officer and seal ofthe Company heretofore or hereafter affixed to any power ofattorney or any certificate relating thereto by facsimile, and any power ofattorney 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 thesepresents to be signedbyits President, and its corporate seal to be hereto affixed this 

### 21st day ofMarch, A.D. 

### 2013.

State ofTexas County ofHarris ss: 

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On this 21st day ofMarch, 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 ofsaid Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order ofthe Board ofDirectors ofsaid Company; andthat he signedhis name thereto by like order.



### acquelyn Maldonado, Notary Public My commission expires May 

### 18,2017 I, M. BrentBeaty, Assistant Secretary ofSURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy ofa Power ofAttorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions ofthe Board ofDirectors, set outin the Power ofAttorney 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 ofthe penalty stated above Is totally void and without any validity. For verification ofthe authority ofthis 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 Ifsupersedeas 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 viewdetat1edinstructions orexplanation, place cursoroveranyfield with 

### a red triangle in the upperright corner
CAUSE#: DATE OF JUDGMENT: COMPENSATORY DAMAGES PRE-JUDGMENT INTEREST Rate ofinterest Date interestcommences: 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 Perjudgment or per applicable law Defaults to day priorto judgment; enter different date 

### if required by law 

## 1;1) oo,vuu.uu llndude only ifawarded as compensatory damages; otherwise, leave blank**~** ---**~** · · · only recoverable trial costs; no appellate costs 

# !:::**·1:::~·~~::~~~~: ~** 

## · ..**~**

## ...;:**~ .~**  

## . :Calculated for one year from date ofjudgment* 5.00%- Defaults to minimum rate; link to tables: http:/lwww.occc.state.tx.us/pages/int_ratesllndex.html**r~.** l ;·:·**·.~:~~~~** -.. . 

# , -·--= ·-·.. ,50% ofJudgment Debtor's networth( if less than Total Bond Amount) > <

The amount ofbond must be set by the trial court if: Specify type ofbond submitted: (Letter of credit cannot be used)

_ cash, personal check, cashier's check *** (1) lessthan amount required per Rule 24.2(a)(1)(A), T.RAP. (2) thejudgmentindudes non-monetary relief (3} the judgmentincludes unspecified future costs or damages _negotiable securities {must be surrendered to the Clerk) _x_ surety: underwritten (include surety's seal + agenfs power ofattorney}

_ surety: personal (2 sureties required, oath of surety mustbe attached)
*Formulas are in conformance with Shook v. Walden, 304 S.W.3d 910. Postjudgment interest is presumed to apply to all amounts subject to supersedeas pursuantto the opinion unless thejudgment specifies otherwise. Ifno interest rate is specified, use the link to look up maximum interest rate based on ·ud mentdate. •* Iftotal 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.

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