                                                                                           ACCEPTED
                                                                                       03-13-00336-CV
                                                                                               5225335
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 5/11/2015 10:21:48 AM
                                                                                     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        5/11/2015 10:21:48 AM
                                                                  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 APPELLEE'S
                    MOTION TO EXPEDITE THE MANDATE


                                               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.




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To The Honorable Third Court of Appeals:

        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 of the 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 of Texas, which it is entitled to 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 of many plaintiffs who hold money judgments that are on appeal.

While she has been unable to execute upon the superseded judgment, that is always

so when a defendant appeals an adverse money judgment and posts a supersedeas

bond to secure the plaintiff during the appellate process. And, while Appellee says



       Appellee's motion is unverified and not supported by affidavit, which alone warrants its
denial. Cf Andrews v. Twin Montana, Inc., 547 S.W.2d 54, 56 (Tex. Civ. App.-Fort Worth
1977, no writ) ("the motion of appellant for extension of time for filing his brief is not verified
and ... there is no affidavit presented in support of it. Under these circumstances appellant has
not proved anything by his motion; he has merely made some unsupported allegations.").

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she needs the money awarded in the judgment, 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 the judgment

until the appellate process is exhausted, then good cause for the same relief would

exist in most cases in which defendants appeal from money judgments. The good

cause standard demands more, but Appellee has not provided 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

superseded judgment. Appellee thus has not sustained her burden to establish good

cause.

         For the foregoing reasons, Appellee's motion should be denied.

                                        Respectfully submitted,



                                        J o athan D. Pauerstein
                                        State Bar No. 15637500
                                        ROSENTHAL PAUERSTEIN
                                         SANDOLOSKI A GATHER LLP
                                         755 E. Mulberry, Suite 200
                                         San Antonio, Texas 78212
                                         Telephone: (21 0) 225-5000
                                         Facsimile: (21 0) 354-4034
                                         jpauerstein@rpsalaw .com

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                                      ATTORNEYS FOR APPELLANT,
                                      R.D. TIPS, INC.

                     CERTIFICATE OF COMPLIANCE


      The undersigned counsel certifies that this document contains 63 8 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 of the
foregoing Appellant's Response To Motion To Expedite The Mandate was served
via United States Mail on this 11th day of May, 2015, upon the following counsel
of record:

                         Eric J. Taube
                         Taube Summers Harrison Taylor
                         Meinzer Brown LLP
                         100 Congress Avenue, 18th Floor
                         Austin, Texas 78701




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