                                                                   FILED
                                                                   15-0215
                                                                   4/29/2015 4:16:51 PM
                                                                   tex-5089126
                                                                   SUPREME COURT OF TEXAS
                                                                   BLAKE A. HAWTHORNE, CLERK

                             No. 15-0215
        _______________________________________

                             IN THE
                     SUPREME COURT OF TEXAS
        _______________________________________

                           CITY OF AUSTIN,
                                         Petitioner,

                                    vs.

                HARRY M. WHITTINGTON, ET AL.,
                                   Respondents.
        _______________________________________

                    ON PETITION FOR REVIEW FROM THE
                    THIRD COURT OF APPEALS AT AUSTIN
         ______________________________________

           REPLY TO RESPONSE TO PETITION FOR REVIEW
        _______________________________________

Anne L. Morgan, Interim City Attorney     Renea Hicks
State Bar No. 14432400                    Law Office of Max Renea Hicks
Meghan Riley, Div’n Chief-Litigation      State Bar No. 09580400
State Bar No. 24049373                    101 West 6th Street, Suite 504
CITY OF AUSTIN                            Austin, Texas 78701-2934
P. O. Box 1088                            (512) 480-8231
Austin, Texas 78767-1088                  (512) 480-9105 fax
(512) 974-2268                            rhicks@renea-hicks.com
(512) 974-6490 fax


         ATTORNEYS FOR PETITIONER CITY OF AUSTIN
                                          TABLE OF CONTENTS


Index of Authorities ........................................................................................ii

I. By statute, accrual of post-judgment interest is triggered only by a “money
   judgment,” and the only money judgment in this case in 2013, not 2007. ....1

   A. The plain words of Section 304.005(a) establish the 2013 judgment as
      the trigger for accrual of post-judgment interest. ....................................1

   B. The response’s isolated quotes from this Court’s opinions on other
      issues actually supports the City’s argument about when post-judgment
      interest accrues. ......................................................................................3

   C. The City had no reason, no opportunity, and no authority to tender
      additional funds to the Whittingtons in 2007. .........................................4

   D. The response fails to distinguish Long’s core holding that there is only
     one final money judgment under Section 304.005(a). .............................5

   E. The response’s other arguments on post-judgment interest are
      unavailing. ..............................................................................................6

II. The City should have been credited with the interest that had
    accumulated on its deposited funds during the period the Whittingtons
    rejected the funds. ......................................................................................8

   A. Shambry’s holding is not about prejudgment interest under
      Section 304.201. .....................................................................................8

   B. Shambry is not countermanded by other authority cited in the response. 10

Conclusion ......................................................................................................11

Certificate of Compliance ...............................................................................12

Certificate of Service.......................................................................................13


                                                       i
                                        INDEX OF AUTHORITIES

Cases
American Paper Stock Co. v. Howard, 528 S.W.2d 576 (Tex. 1975) ...................5

Arete Partners, L.P. v. Gunnerman, 643 F.3d 410 (5th Cir. 2011) .......................11

Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848 (Tex. 1980)..........................3

Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785 (Tex. 1988) ...........3

City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308 (1955) ......................3

DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008) .........................................3

Housing Authority of City of Dallas v. Shambry, 252 S.W.2d 963 (Tex.Civ.
 App.—Austin 1952, writ ref’d n.r.e.) ............................................................9

Long v. Castle Texas Production L.P., 426 S.W.3d 373 (Tex. 2014) ...................5, 6

Mt. San Jacinto Community College Dist. v. Superior Court, 151 P.3d
 1166 (Cal. 2007) ............................................................................................7

Phillips v. Bramlett, 407 S.W.3d 229 (Tex. 2013) .............................................6

Shambry v. Housing Authority of City of Dallas, 152 Tex. 122, 255 S.W.2d
 184 (1953) ......................................................................................................8, 9, 10

Sellers v. Harris County, 483 S.W.2d 242 (Tex. 1972) ......................................10

Southern County Mutual Ins. Co. v. First Bank and Trust of Groves,
 750 S.W.2d 170 (Tex. 1988) ..........................................................................3

State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941)............................................7

State Farm Life Ins. Co. v. Martinez, 216 S.W.3d 799 (Tex. 2007)....................10

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980)...................10, 11

                                                      ii
Constitution and statutes
Tex. Const. Art. III, § 52(a) ............................................................................5

Tex. Fin. Code § 304.005(a) ...........................................................................1, 2, 5,

Tex. Fin. Code § 304.201................................................................................8, 9, 10




                                                   iii
I. BY STATUTE, ACCRUAL OF POST-JUDGMENT INTEREST IS TRIGGERED ONLY BY A
   “MONEY JUDGMENT,” AND THE ONLY MONEY JUDGMENT IN THIS CASE WAS IN
   2013, NOT 2007.

A. The plain words of Section 304.005(a) establish the 2013 judgment as
   the trigger for accrual of post-judgment interest.

     The response does not address the crux of the postjudgment interest is-

sue. This issue centers on a statute, Section 304.005(a) of the Finance Code.

By its terms it asks whether the overturned 2007 judgment or the 2013 re-

mand judgment is the trigger for accruing and calculating interest. The re-

sponse does not discuss or even cite the statute. Yet, the statute’s text1 tells

the Court nearly everything it needs to determine that the appeals court gave

the wrong answer—and, accordingly, this reply starts with a discussion of

the words of the statute.

     Section 304.005(a) first specifies the type of judgment on which any

postjudgment interest is to accrue. It is not just any judgment; it is, by the

statute’s terms, a singular event: “a money judgment.” Next, the statute

identifies the period during which interest runs on the money judgment. The

period begins when “the judgment” is rendered. The phrase “the judg-

ment” refers directly to the “money judgment.” The period of interest ac-


1
  Omitting the cross-reference to subsection (b), which is not pertinent here, subsection (a) of Section
304.005 states: “[P]ostjudgment interest on a money judgment in a court in this state accrues during the
period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied.”


                                                   1
cumulation ends when “the judgment”—again, referring back to the key

“money judgment” term— is satisfied. Everything turns on “a money

judgment.”

   There is only one such judgment in this case. The only “money judg-

ment” that Section 304.005(a) could possibly be referencing is the 2013

judgment. Until then, the City did not have title to the condemned property,

and the Whittingtons did not have a money judgment awarding them com-

pensation for the property. Compare 2013 judgment (App. B of City Pet. at 2-

3 (vesting title), 3 (awarding compensation)) with 2007 judgment (App. E of

City Pet. at 5 (denying City right to take and right of possession and not

awarding compensation)).

   Not only did the 2007 judgment not award a money judgment (the sine

qua non for triggering accrual under Section 304.005(a)), it could not have

done so and simultaneously give the Whittingtons the principal relief they

were seeking: judicial denial of the right to take. Denying the right to take

and awarding compensation for the taking are incompatible remedies and, if

(as it did) the 2007 judgment denied the right to take, it could not (and did




                                     2
not) also have made an alternative award of monetary compensation. See

City Pet. at 13-14.2

B. The response’s isolated quotes from this Court’s opinions on other is-
   sues actually support the City’s argument about when post-judgment
   interest accrues.

    This is a legally insurmountable problem for the Whittingtons’ argument

and their understandable response is to simply ignore the case law it rests on.

They say nothing directly about the issue, but, instead, quote opinion snip-

pets that do not deal with the post-judgment interest issue and, on examina-

tion, actually support the City’s argument. Whittington Resp. at 3-4.3 The

DiGiuseppe quote says that a party is not required to turn to one of its alter-

native issues “until” it loses on appeal. The Boyce Iron Works quote is to the

same effect, saying that a party may return to one of its alternative issues

“if” it loses on appeal. And the theme continues with the Bocanegra quote,

which says that, if a party first pursues an unfounded remedy and loses, it

“then” can pursue another one. None of these quotes suggests that the party

losing the first time through the appeals process (such as the Whittingtons)

2
 Citing City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308, 312 (1955), and Southern
County Mutual Ins. Co. v. First Bank and Trust of Groves, 750 S.W.2d 170, 173-74 (Tex.
1988)
3
  Quoting DiGiuseppe v. Lawler, 269 S.W.3d 588, 603 (Tex. 2008); Boyce Iron Works, Inc.
v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988); and Bocanegra v. Aetna Life Ins. Co.,
605 S.W.2d 848, 852 (Tex. 1980)


                                             3
is to be allowed to retroactively start over and make its opponent pay the cost

of its failure the first time up the appellate ladder. The key chosen words—

“until,” “if,” “then”—all suggest that the start-up period for the new

phase, pressing the new theory, begins after the first-round failure. That

would mean that they couldn’t return to 2007 as though the six years devot-

ed to a losing theory never happened.

C. The City had no reason, no opportunity, and no authority to tender
   additional funds to the Whittingtons in 2007.

   The response also engages in another diversion—and an erroneous one

at that. The City’s problem, say the Whittingtons, is that in 2007 it “chose

not to deposit” the additional amount in the jury verdict on compensation

into the court registry “during the appeal of this case.” Whittington Resp. at

2 (emphasis added); see also id. at 4 (last bullet point). Even were it correct,

this point is immaterial to the post-judgment accrual date under Section

304.005(a). But the argument is also flawed on the point it tries to make.

   Obscured by the argument’s phrasing is a critical unconfronted fact. The

2007 judgment does not contain the higher compensation award the Whit-

tingtons claim the City “chose” not to protectively deposit. The additional

money was in a jury verdict, but, at the Whittingtons’ request, the trial court

declined to reduce the jury’s compensation award to judgment. It has long


                                        4
been the rule that a jury verdict does not trigger the running of post-

judgment interest; only a money judgment does. See, e.g., American Paper Stock

Co. v. Howard, 528 S.W.2d 576, 577 (Tex. 1975). The same rule holds true

today under Section 304.005(a). It ties the accrual of interest to a money

judgment, not to a jury verdict.

    Nothing in governing law suggested a need or requirement for the City in

2007 to make an anticipatory tender of money to the Whittingtons that the

Whittingtons positively didn’t want and that the trial court acquiesced in not

awarding them. Doing so would have been fiscally imprudent at the very

least and possibly even unconstitutional. The Texas Constitution bars cities

from granting public money to private individuals. See, e.g., Tex. Const. Art.

III, § 52(a). Tendering public money to a private individual when a court has

refused to order an award of such money gives every indication of falling

within this prohibition.

D. The response fails to distinguish Long’s core holding that there is only
   one final money judgment under Section 304.005(a).

    The response fails to come to grips with the on-point holding in Long v.

Castle Texas Production L.P., 426 S.W.3d 73 (Tex. 2014), that, when there are

multiple trial court judgments, postjudgment interest under Section

304.005(a) is based on “only one final judgment” which accrues from “a


                                      5
money judgment’s date.” Id. at 75-76, 79. In choosing between Long and

Bramlett,4 the response would focus on the single question of whether new

evidence was taken on remand. Whittington Resp. at 2-3. But that is looking

at Bramlett from the wrong end and ignores the more fundamental holding in

Long about a single, final money judgment. Bramlett allowed the party that

won on appeal to get interest from the date of the judgment he tried to have

rendered before a first appeal. It did not hold that the party responsible for

the original erroneous judgment was to collect interest from the date of that

party’s own mistake.

E. The response’s other arguments on post-judgment interest are una-
   vailing.

      The response concludes its discussion of the postjudgment interest issue

with three bullet points, each of which is mistaken in its argument. Whitting-

tons Resp. at 4. The third bullet point (that the City could have voluntarily

deposited the extra jury verdict amount) has already been addressed and

shown to be fundamentally wrong. See Part I.C, above. The second bullet

point (that the City had to accept that it might have to pay interest on the ju-

ry’s verdict if it took possession early) is flawed for the same reason. It is the



4
    407 S.W.3d 229 (Tex. 2013)


                                        6
money judgment, not the verdict on compensation, that triggers compensa-

tion, and there was no money judgment in this case until 2013.

    The first bullet point also is wrong. It insinuates that full compensation

includes, as a constitutional, the right of a landowner to postjudgment interest

for the time the landowner is actively avoiding compensation and seeking to

prevent the taking altogether. No authority is cited for this proposition, and

there is none.

    Unlike prejudgment interest,5 postjudgment interest is not an element of

constitutional just compensation. A landowner is legally free to forego the

deposited sums and challenge the right to take, but there is no right to claim

retroactive postjudgment interest while the landowner pursues that option.

In a related context, the California Supreme Court unanimously held that

there is no constitutional right to both the funds deposited to take possession

and pursuit of a challenge to the right to take. Mt. San Jacinto Community

College Dist. v. Superior Court, 151 P.3d 1166, 1176 (Cal. 2007). The court said

that a landowner “cannot have it both ways.” Id. at 1177. The same principle

applies to the parallel situation here. The Whittingtons have no constitution-




5
 Prejudgment interest is an element of just compensation under the Texas Constitution.
State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941).


                                          7
al right to challenge the right to take then claim interest that runs while they

pursue the challenge to an unsuccessful conclusion.

II. THE CITY SHOULD HAVE BEEN CREDITED WITH THE INTEREST THAT HAD ACCU-
    MULATED ON ITS DEPOSITED FUNDS DURING THE PERIOD THE WHITTINGTONS
    REJECTED THE FUNDS.

A. Shambry’s holding is not about prejudgment interest under Section
   304.201.

       As already explained, City Pet. at 18, the decision below awarding the in-

terest that had accumulated on the City’s deposits, tendering funds for the

taking, to the Whittingtons instead of crediting it to the City conflicts with

this Court’s decision in Shambry.6 With no supporting argument beyond an

ipse dixit, the response mistakenly distinguishes Shambry by characterizing it

as a ruling about prejudgment interest. Whittington Resp. at 5. But Shambry

is directly on point in favor of the City’s position on this issue. Shambry dis-

tinguishes between interest that accumulates on deposited funds (which does

not inure to the benefit of a party such as the Whittingtons) and interest un-

der Section 304.201 of the Government Code.




6
    152 Tex. 122, 255 S.W.2d 184 (1953) (per curiam)



                                              8
       As detailed in the appeals court opinion in Shambry,7 the condemnor (a

city housing authority) had deposited funds ($3,850) into the registry of the

court so it could take possession pending completion of the condemnation

litigation. The jury verdict—reduced to judgment, in contrast to the 2007

jury verdict in this case—increased the compensation awarded by the special

commissioners. 252 S.W.2d at 966. The appeals court held that the land-

owner was entitled to interest on the amount of this increase; however, it

specifically held that no interest was allowable on the deposited sum. Id. This

deposit, explained the court and re-emphasized on rehearing, constituted a

“tender” to the landowner which “could have been withdrawn” at any time.

Id. This Court’s per curiam opinion specifically approved the latter holding.

255 S.W.2d at 185.

       This recitation of Shambry’s actual facts refutes the response’s mischar-

acterization of the interest on the deposited amount. The interest allowed on

the amount of the increase was the prejudgment interest in the statutory

sense of the term “prejudgment interest” used in the relevant statute, Sec-

tion 304.201. This part of the lower court decision was not addressed in this

Court’s per curiam opinion. The interest disallowed on the deposited funds is


7
    252 S.W.2d 963 (Tex.Civ.App.—Austin 1952, writ ref’d n.r.e.)


                                            9
the equivalent of the interest that accumulated in this case on the City’s de-

posited funds during the period the Whittingtons were trying to avoid the

taking altogether.8 Shambry’s clear holding is that the Whittingtons are not

to be credited with that interest. That the appeals court nonetheless did so is

in direct conflict with this Court’s Shambry decision. Allowing the Whitting-

tons to recover both prejudgment interest on amounts above the deposited

funds and the interest on the deposited funds (as to which interest is not al-

lowable to the landowner) would be an unjustifiable double recovery here.

B. Shambry is not countermanded by other authority cited in the re-
   sponse.

    The response’s discussion of other authorities beyond Shambry does not

call Shambry into question. Sellers v. Harris County, 483 S.W.2d 242 (Tex.

1972), and State Farm Life Ins. Co. v. Martinez, 216 S.W.3d 799 (Tex. 2007),

see Whittington Resp. at 5, are non-condemnation cases dealing with im-

pleader and interpleader actions and deposits by non-parties to the lawsuits.

That the Court held that the non-parties were not entitled to, or responsible

for, interest on the deposited funds that were not theirs is both unsurprising

and of no consequence to this case. Webb’s Fabulous Pharmacies, Inc. v. Beck-

8
  Most of this interest accumulated before the 2013 judgment and, in that non-technical
sense, accumulated “prejudgment.” But it is not “prejudgment interest” as that statuto-
ry term of art is used in Section 304.201.


                                          10
with, 449 U.S. 155 (1980), see Whittington Resp. at 6, likewise concerned

disposition of interest in an interpleader action. 449 U.S. at 160. And, in con-

trast to the situation here, the claimants in that case had no right of access to

the funds during the litigation’s pendency.

    The response’s citation to Arete Partners, L.P. v. Gunnerman, 643 F.3d

410 (5th Cir. 2011), see Whittington Resp. at 6, is especially curious since Are-

te supports the City on the accumulated interest issue. Citing Shambry, the

Fifth Circuit explained that interest “does not accrue on funds to which the

plaintiff has access prior to the final judgment.” 643 F.3d at 415.

                                   CONCLUSION

    The Court should grant the City’s petition for review and grant the City

the relief prayed for. City Pet. at 21.




                                          11
                                  Respectfully submitted,

                                  Anne L. Morgan, Interim City Attorney
                                  Meghan Riley, Division Chief-Litigation
                                  City of Austin
                                  P. O. Box 1088
                                  Austin, Texas 78767-1088
                                  (512) 974-2268
                                  (512) 974-6490 fax


                                  __/s/ Renea Hicks______
                                  Renea Hicks
                                  State Bar No. 09580400
                                  LAW OFFICE OF MAX RENEA HICKS
                                  101 West 6th Street, Suite 504
                                  Austin, Texas 78701-2934
                                  (512) 480-8231
                                  (512) 480-9105 fax
                                  rhicks@renea-hicks.com

                                 ATTORNEYS FOR PETITIONER
                                 CITY OF AUSTIN

                        CERTIFICATE OF COMPLIANCE

   Based on the word count provided by the computer program used to
prepare this petition, counsel states that the number of words in the perti-
nent pages of the document is 2,364.


                              _/s/ Renea Hicks___________
                              Renea Hicks




                                    12
                           CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of this Reply to Response to
Petition for Review has been served through the electronic filing system on
the following counsel of record on April 29, 2015:

John J. McKetta, III
Robert J. Hearon, Jr.
William Christian
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress Ave., Suite 2200
Austin, Texas 78701.

                               _/s/ Renea Hicks___________
                               Renea Hicks




                                     13
