                                                                                         ACCEPTED
                                                                                     12-13-00035-CV
                                                                        TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                                5/29/2015 4:48:22 PM
                                                                                       CATHY LUSK
                                                                                              CLERK


                        No. 12-13-00035-CV
 
                                                                    FILED IN
                                                             12th COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             5/29/2015 4:48:22 PM
                              In the                              CATHY S. LUSK
                                                                      Clerk
                      Twelfth Court of Appeals
  
 
 
                            Aaron Jordan, et al,
                                                          Appellants,

                                     v.

                            Cynthia Kay Lyles,
 
                                                          Appellee.
 
 
 
 
                 UNOPPOSED MOTION TO CORRECT OR CLARIFY
                   THE COURT’S JUDGMENT AND MANDATE
     
 


        J. BRAD MCCAMPBELL                         GREG SMITH
        State Bar No. 13358000                     State Bar No. 18600600
        CURTIS, ALEXANDER                          NOLAN SMITH
           MCCAMPBELL & MORRIS, P.C.               State Bar No. 24075632
        P. O. Box 38                               RAMEY & FLOCK, P.C.
        Emory, TX 75440                            100 E. Ferguson, Suite 500
        Telephone: (903) 473-227                   Tyler, TX 75702
        Facsimile: (903) 473-3069                  Telephone: (903) 597-3301
        bmccampbell@cammpclaw.com                  Facsimile: (903) 597-2413
                                                   gsmith@rameyflock.com
                                                   nolans@rameyflock.com


                  COUNSEL FOR APPELLEE CYNTHIA KAY LYLES
TO THE HONORABLE COURT OF APPEALS:
       Cynthia Lyles, appellee, requests this Court’s order correcting a clerical

error appearing in the Court’s judgment and duplicated in its mandate.

Essentially, these documents can be construed as awarding punitive damages,

even though the parties agree such damages should not be part of the recovery.

The Court should modify the judgment and mandate to clarify that punitive

damages have not been recovered.


                         The denial of punitive damages
                           was not contested below.

       The jury verdict awarded $156,016 in actual damages and $50,000 in

punitive damages. CR 201, 204. Post-trial and before judgment, the appellants

agreed that this verdict would not support a punitive-damage recovery, because

the jury wasn’t unanimous in the underlying findings. 6 RR 11 (“. . . [S]o I admit

that, we’re not entitled to the punitive damages in this cause.”)

       The district court did not award recovery of either actual or punitive

damages but rather entered a take-nothing judgment notwithstanding the verdict.

CR 228-29. On appeal, while the appellants sought to recover actual damages,

they consistently disclaimed any attempt to recover punitive damages:




Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate                                            Page 2
•      Each time the Appellants’ Brief referenced the verdict’s punitive-damage

       finding, an accompanying footnote explained that the Appellants

       “conceded the exemplary damages were improper due to lack of

       unanimity on the predicate questions. 6 RR at 11.” See Appellants’ Brief at

       n.3, n. 55.

•      The Appellants’ Brief and Reply both ended with requests to “render

       judgment in conformity with the jury’s verdict (other than the exemplary

       damages).” Appellants’ Br. at 25; Reply Br. at 32 (emphasis added).

Nothing else was said about punitive damages in the appeal. The recovery of

punitive damages simply was not on the table.


                     The appellate judgment and mandate,
               by entering judgment “according to the verdict,”
              raise an issue about recovery of punitive damages.

       On appeal, the appellants challenged the district court’s liability

determination and they sought actual damages. This Court, agreeing with them,

found some evidence of breach of fiduciary duty and reversed. The Court’s

opinion did not address punitive damages or otherwise imply that they should be

recovered. Yet the appellate judgment and mandate state that judgment has been

rendered “in accordance with the jury’s verdict,” which, as already stated,

includes a now-immaterial finding on punitive damages.

       Based on the case history, all parties now agree that exemplary damages


Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
 
                                                                                     Page 3
should not be part of the appellate judgment and that instead judgment should

be rendered only on actual damages. But regardless what they agree the

judgment should do, the Appellants are of the view that the current judgment and

mandate in fact actually award them punitive damages. And they have secured a

writ of garnishment in an amount--$220,795.64--that impliedly includes the

unsustainable $50,000 in punitive damages. See attached writ of garnishment. So,

even though there is no issue as to what the judgment and mandate should award,

there are real issues as to what they in fact do award and whether this accurately

reflects the Court’s intended result.


                       The Court may clarify and correct
                       the clerical error in its judgment.

       Under TRAP 19 and under the Court’s inherent authority, this Court

retains the power to correct clerical errors in its judgments and mandates and to

clarify them. The present circumstances—where the judgment says it is rendered

according to “the verdict” but the intention was instead to award merely actual

damages—support the use of this corrective power. The Court should revise its

judgment and mandate to clarify that punitive damages have in fact not been

recovered, so as to conform the judgment and mandate with the appellate issues

and the Court’s intentions.




Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
 
                                                                                     Page 4
                   The Court may also act to ensure finality.

       Since the district court’s judgment was a take-nothing judgment, and since

this Court’s judgment does not state any money-damage amount, there currently

is no judgment—of any court—identifying the amount of the Appellants’

recovery. This at least potentially raises a question as to the judgment’s finality.

See, e.g., Merchandise Mart, Inc. v. Marcus, 515 S.W.2d 663, 664 (Tex. 1974)(where

neither the appellate judgment nor the opinion stated the amount for which the

defendant was liable, the appellate judgment was interlocutory). To ensure no

problem as to finality, the Court should revise or clarify its judgment and

mandate to clearly identify that it is only the actual damage amount/finding, and

not any punitive damages, for which judgment has been reversed and rendered

and to state the damage amount--$156,016.


                             Certificate of Conference

       Appellants’ lead counsel on appeal, Mr. Chad Baruch, states that

Appellants do not oppose the requested relief.




Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
 
                                                                                       Page 5
                               Conclusion and Prayer

         Under TRAP 19, as well as the Court’s inherent powers to clarify its

    judgments (and any additionally relevant rules, statutes or common-law

    doctrines), Lyles prays that the Court would correct, amend, clarify or

    otherwise revise its judgment and its mandate so as to expressly state that the

    Appellants have recovered only actual and not punitive damages. Lyles of

    course requests all other relief this Court may deem appropriate.

                                              Respectfully submitted,

                                                 /s/ Greg Smith
                                              GREG SMITH
                                              State Bar No. 18600600
                                              NOLAN SMITH
                                              State Bar No. 24075632
                                              RAMEY & FLOCK, P.C.
                                              100 E. Ferguson, Suite 500
                                              Tyler, TX 75702
                                              Telephone: (903) 597-3301
                                              Facsimile: (903) 597-2413
                                              gsmith@rameyflock.com
                                              nolans@rameyflock.com

                                              J. BRAD MCCAMPBELL
                                              State Bar No. 13358000
                                              CURTIS, ALEXANDER,
                                                 MCCAMPBELL & MORRIS, P.C.
                                              P. O. Box 38
                                              Emory, TX 75440
                                              Telephone: (903) 473-2297
                                              Facsimile: (903) 473-3069
                                              bmccampbell@cammpclaw.com

                                              Counsel for Appellee,
                                              Cynthia Kay Lyles

Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
 
                                                                                      Page 6
                               Certificate of Service

       The undersigned certifies that a copy of the above and foregoing

document was served upon counsel for Appellants in accordance with the

applicable Texas Rules of Civil Procedure on this the 29th day of May, 2015, on

the following:

       Via e-filing baruchesq@aol.com
       Chad Baruch
       The Law Office of Chad Baruch
       3201 Main Street
       Rowlett, TX 75088



                                                /s/ Greg Smith
                                               Greg Smith




Unopposed Motion to Correct or Clarify
the Court’s Judgment and Mandate
 
                                                                                  Page 7
WRIT OF GARNISHMENT AFTER JUDGMENT                                        Paper #2
                                                                          ATTY
THE STATE OF TEXAS

CAUSE NO: 2015-1852-4

TO: CYNTHIA LYLES, JUDGMENT DEBTOR - 503 RIVER PARK RD., MCGREGOR, TEXAS 76657

GREETINGS:

WHEREAS, in the judgment described below the Plaintiff(s) secured a judgment in this Court against the said
Defendant(s), the Plaintiff(s) has/have applied for a Writ of Garnishment against you, Garnishee.

Judgment Court: 402 ND JUDICIAL DISTRICT
County of Judgment: WOOD COUNTY
State of Judgment: TEXAS
Judgment Rendered in Cause Number: 2011-115
Plaintiffs: AARON JORDAN, MICHAEL JORDAN, HEATHER JORDAN, GILBERT JORDAN, PHYLLIS ANN
WOODS AND DONNA JOYCE CURTIS
Garnishment Cause No.: 2015-1852-4
Judgment Debtor: CYNTHIA LYLES
Garnishee: FIRST NATIONAL BANK - CENTRAL TEXAS, A BANKING INSTITUTION
Garnishment Filing Date: MAY 15, 2015
Judgment Amount: $220,795.64 WITH POST JUDGMENT INTEREST ON SAID AMOUNT AT THE RATE
OF 5% PER ANNUM AND COST OF 'SUIT

THEREFORE, YOU -ARE HEREBY COMMANDED to file a sworn written answer on or before ten o'clock A.M.,
on the Monday next following the expiration of twenty days from the date of service hereof, then and there to
answer upon oath:

         1. What, if anything, you are indebted to the said Defendant, and were, when this writ was served
         upon you?
        ,2. What effects, if any, of the said defendant you had in your possession when this Writ was served or
you have received prior to the answer date?
         3. What other persons.ff any, within your knowledge, are indebted to the said defendant, or have
effects belonging to said defendant in their possession?

YOU ARE FURTHER COMMANDED NOT to pay to the defendant any debt or to deliver to him any effects
pending further order of this court.

HEREIN FAIL NOT, but make due answer as the law directs.


ISSUED AND GIVEN UNDER MY HAND AND SEAL OF OFFICE, at Waco, McLennan County, Texas.
Issue Date: MAY 18, 2015


PAUL R. LEAKE                                              Jon R. Gimble
P.O. BOX 1300                                              District Cle
FORN~y,TEXAS75126                                          PO Box                           .
                                                           Waco, c nnan Co         y,   T~ ~
Plaintiffs Attorney
                                                           B            ,..  ?P'     I ~/£           ,Deputy
                                                                 ROBERTA JEWELL
