                                                                                        ACCEPTED
                                                                                   03-13-00336-CV
                                                                                          4219443
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              2/19/2015 4:33:41 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK

                          CASE NO. 03-13-00336-CV

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

                               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



                                            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.



                                        1
469216.1
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 Corral-

Lerma, 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.

                                      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
469216.1
                        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:

                         Eric J. Taube
                         Hohmann, Taube & Summers LLP
                         100 Congress Avenue, 18th Floor
                         Austin, Texas 78701




                                ~~
                               Joatilan D. Pauerstein




                                         5
469216.1
                                              SUPERSEDEAS/APPEALBOND
                                                                                     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~----
                                                                                                   -                         .....8S -~       ~
                                                                                                                                              0
                                                                                     In and for Travis            CountJ.S J5. ~     ~
                                                                                     Case or Cause No. D~l-GN-11~003799 ~ § ....... '~
                                                                                                                             .... 0           <I>
                                                                                                                              ~(,)    -       g,
         _,V..,.IR~G,.IN....,.,I....,A._.J~E......
                                             T_._T_ _ _ _ _ _ _ _ __,,   Plaintiff                                           t:.!?
                                                                                                                              c: >
                                                                                                                                      1-
                                                                                                                                      (...)
                                                                                                                                              :g
                                                                                                                                              ~
                                                                                                                             ·- f!    c.:>
         Vs.                                                                         }                                       "'t-
                                                                                                                             Gl-
                                                                                                                             :=o
                                                                                                                             LL.

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

         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' ofApril,
         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.                                  3351985
issued by                                 SureTec Insurance Company
in favor of (Obligee)                     Virginia Jett, Plaintiff
on behalf of (Principal)                  R. D. Tips, Inc., Defendant

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

effective October 7, 2013 the third paragraph:
                                                                                                                          1
                  The third paragraph "WHEREAS, said Defendant has appealed, or is about to appeal, to the 419 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

                  "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."

AND

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                                      R.D. Tips, Inc.
Attorney of Record                                                                          Principal
755 East Mulberrv. Suite 220                                                              By: _ _ _ _ _ _ _ _ _ _ _ __
Address
San Antonio Texas 78212                                                                     SureTec Insurance Company

(21 0) 225-5000                                                                           By: s e o ; :       [))~
Phone                                                                                     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 ofApril,
          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.
                                                                                                                             OMPANY
                                                         ..'\)'1:\P:N"c·"'
                                                        _\.q; ......... ~~
                                                       ~~····
                                                      J// "/. -1·····!='()'\
                                                                    \~\
                                                     '"'I IU                    I -o~
State of Texas                ss:                    ~\                   ~}~I
                                                      ~\, ...............
                                                             ./.          ,//'('/
County of Harris
                                                                    * . .~
                                                               "~~tttnntf<l#.
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:
                                                          SECTION A:
                                                    D-1-GN-11-003799                     PLTF: 'Virginia Jett
                                         ~--------~V~11~/~20~1~3DEF: ~-R~.D:;..:·~T!~tp~s~·~ln~c·~------------------------------~-
                                                                                                                                                                            I
                                                                                       CALCULAr,.:T.;;I:.;:O..:.:N~O:.:.F.....:B:;..:O~N.;.;:D;;__ _ _ _ _ _ _ _ _ _ _ _ ___,




COMPENSATORY DAMAGES                                                                     Award of attorney's fees subject to bond entered below
PRE-JUDGMENT INTEREST                                                                    n"\tailed instructions in the comment
Rate of interest                                                                            ter rate with the % sign
Date interest commences:                                                                 Per judgment or per applicable law
Date interest ends                                                                       Defaults to day prior to judgment; enter different date if required by law

ATTORNEY'S FEES                          1;1)                               oo,vuu.uu llndude only if awarded as compensatory damages; otherwise, leave blank
COSTS OF COURT                               ~                                 --- ~ · · · only recoverable trial costs; no appellate costs
SUB-TOTAL

POST-JUDGMENT INTEREST*                  !::: ·1:::~·~~::~~~~: ~ ·. ~. .;: ~ .~ . : Calculated for one year from date of judgment*
Interest(~·;-:.~ "See link):                                                      5.00%- Defaults to minimum rate; link to tables:
                                                                                         http:/lwww.occc.state.tx.us/pages/int_ratesllndex.html
SUPERSEDEAS BOND AMOUNT                  r~.     l ;· :·   ·.~:~~~~   -..     .

ACTUAL BOND AMOUNT**                     ,                       -·- -= ·-· .
                                                                 >                <
                                                                                        ,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                  _negotiable securities {must be surrendered to the Clerk)
 (3} the judgment includes unspecified future costs or damages _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.                      ----
