ACCEPTED 03-13-00336-CV 5225335 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/11/2015 10:21:48 AM JEFFREY D. KYLE

CLERK

477601.1 80592.00013 

### CASE NO. 03-13-00336-CV IN THE COURT OFAPPEALS THIRD COURT OFAPPEALS DISTRICT AUSTIN, TEXAS
R.D. TIPS, INC., Appellant


### v. VIRGINIAJETT, Appellee Appeal from the 419th District Court,Travis County,Texas Trial Court CauseNo. D-1-GN-11-003799 Hon. Rhonda Hurley,Judge Presiding
APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO EXPEDITE THEMANDATE

1 JonathanD. 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 ATTORNEYS FORAPPELLANT, R.D. TIPS, INC.To The Honorable Third Court ofAppeals: Appellant, R.D. Tips, Inc., in opposition to Appellee's Motion To Expedite The Mandate, states the following: 1. Appellant has superseded the judgment below as permitted by law. Accordingly, while this case is on appeal, Appellee has received the protection afforded by law and Appellant is entitled to pursue the appellate process to its conclusion. Nonetheless, Appellee seeks to expedite the issuance ofthe mandate based on conclusory allegations that she needs funds due to unspecified financial hardship. 2. Appellant has until June 12th to file a petition for review in the Supreme Court ofTexas, which it is entitledto file under Texas law. 3. The mandate can only be expedited upon a showing of good cause. Tex. R. App. P. 18.1(c). 1 Appellee, failing to carry this burden, points to nothing that is not true ofmany plaintiffs who hold moneyjudgments that are on appeal. While she has been unable to execute uponthe supersededjudgment, that is always
so when a defendant appeals an adverse moneyjudgment and posts a supersedeas bond to secure the plaintiffduring the appellate process. And, while Appellee says
Appellee's motion is unverified and not supported by affidavit, which alone warrants its denial. CfAndrews v. Twin Montana, Inc., 547 S.W.2d 54, 56 (Tex. Civ. App.-Fort Worth 1977, no writ) ("the motion ofappellant for extension oftime for filing his briefis not verified and
... there is no affidavit presented in support ofit. Under these circumstances appellant has not proved anything by his motion; he has merely made some unsupported allegations.").

477601.1 80592.00013 2she needs the money awarded in thejudgment, that too is likely to be so in similar situations. 4. Were Appellee's conclusory claims sufficient to show good cause for expediting the mandate and denying Appellant the right to supersede thejudgment until the appellate process is exhausted, then good cause for the same reliefwould exist in most cases in which defendants appeal from moneyjudgments. The good
cause standard demands more, but Appellee has notprovided it. 5. Appellee has not alleged, let alone proven, facts demonstrating that there IS good cause for expediting the issuance of the mandate and thereby abrogating Appellant's right to pursue all appellate avenues for review of the supersededjudgment. Appellee thus has not sustainedherburden to establish good
cause.Forthe foregoing reasons, Appellee's motion shouldbe denied.

477601.1 80592.00013 Respectfully submitted,

J o athan D. Pauerstein State BarNo. 15637500 ROSENTHAL P AUERSTEIN SANDOLOSKIAGATHERLLP 755 E. Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (210) 225-5000 Facsimile: (210) 354-4034 jpauerstein@rpsalaw.com 3

### ATTORNEYS FORAPPELLANT, R.D. TIPS, INC. CERTIFICATE OF COMPLIANCE 

### The undersigned counsel certifies that this document contains 638 words (counting all parts of the document). The body text is in 14 point font, and the footnote text is in 12 point font.

CERTIFICATE OF SERVICE 

### The undersigned counsel hereby certifies that a true and correct copy ofthe foregoing Appellant's Response To Motion To Expedite The Mandate was served via United States Mail on this 11th day ofMay, 2015, upon the following counsel ofrecord:

477601.1 80592.00013 

### Eric J. Taube Taube Summers Harrison Taylor MeinzerBrownLLP 100 Congress Avenue, 18thFloor Austin, Texas 78701

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