                                                                                                 ACCEPTED
                                                                                            04-014-00494-CV
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                        4/20/2015 2:00:08 PM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK


                             NO. 04-14-00494-CV
                      IN THE FOURTH COURT OF APPEALS       FILED IN
                                                     4th COURT OF APPEALS
                            SAN ANTONIO, TEXAS        SAN ANTONIO, TEXAS
                                                                  4/20/2015 2:00:08 PM
                    United Parcel Service, Inc. and Roland Leal, KEITH E. HOTTLE
                                                                         Clerk
                                                         Appellants/Cross-Appellees,
                                           v.
Robert Scott Rankin, Individually, Rachelle Rankin, Individually and As Next
Friend for Avery Rankin, a Minor, As Next Friend for Kara Rankin, a Minor
              and As Next Friend for Samuel Rankin, a Minor
                                                         Appellees/Cross-Appellants.
      On Appeal from the 224th Judicial District Court, Bexar County, Texas
                   Honorable Cathy Stryker, Presiding Judge
                    Trial Court Cause No. 2011-CI-07922

  OPPOSITION TO CROSS-APPELLANTS’ MOTION FOR LEAVE TO
FILE REPLY TO CROSS-APPELLEES’ REPLY TO NEW ARGUMENT IN
CROSS-APPELLANTS’ REPLY BRIEF THAT RULE 167.4(a) IS INVALID
__________________________________________________________________
         In their conference, counsel for Cross-Appellees, United Parcel Service, Inc.
and Roland Leal, indicated to counsel for Cross-Appellants that Cross-Appellees
would not oppose Cross-Appellants filing a Reply to Cross-Appellees’ Reply to
New Argument in Cross-Appellants’ Reply Brief that Rule 167.4(A) Is Invalid, if
such reply was limited to responding only to arguments made in Cross-Appellees’
Reply.
         However, Cross-Appellants’ Reply, which was submitted for filing on April
17, 2015, is not so limited, but raises new arguments attacking the trial court’s
judgment that were never raised in the trial court or in Cross-Appellants’ Brief, and
accordingly have been waived. Cross-Appellees therefore oppose and request that
the Court deny Cross-Appellants’ motion for leave to file their Reply.
      Tex. Civ. Prac. & Rem. Code § 42.001(5) provides: “Litigation costs means
money actually spent and obligations actually incurred that are directly related to
the action in which a settlement offer is made.” (emphasis added).
      Tex. R. Civ. P. 167.4(a) provides: “. . . the court must award the offeror
litigation costs against the offeree from the time the offer was rejected to the time
of judgment.” (emphasis added).
      Here, the trial court correctly interpreted section 42.001(5) and Rule
167.4(a) to only allow the award of attorney’s fees that had actually been spent or
incurred as of the time of the trial court’s judgment and therefore properly denied
Cross-Appellants’ request for an award of attorneys’ fees for a potential appeal
because such fees had not been incurred and did not meet this requirement.
      In their Reply at 4-6, Cross-Appellants argue for the first time that the trial
court’s interpretation of section 42.001(5) and Rule 167.4(a) is erroneous because
it allegedly results in Chapter 42 and Rule 167 violating the equal protection
provisions of the Texas and United States Constitutions and the Texas Open Courts
provisions. These arguments have been waived and need not be considered by this
Court because they were never raised in the trial court or in Cross-Appellants’
Brief. “Failure to object at trial that a statute is unconstitutional waives the
complaint on appeal.” Garza v. State, 04-10-00269-CR, 2011 WL 61724, at *5
(Tex. App.—San Antonio Jan. 5, 2011, pet. ref’d) (citing Sony v. State, 307
S.W.3d 348, 352 (Tex. App.—San Antonio 2009, no pet.)); Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009). Likewise, a litigant must raise an open-
courts challenge in the trial court. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
222 (Tex. 2002) (citing S.V. v. R.V., 933 S.W.2d 1, 25 (Tex. 1996) and City of San
Antonio v. Schautteet, 706 S.W.2d 103, 104-105 (Tex. 1986)). Moreover, the rules
of appellate procedure do not allow an appellant to raise an issue in a reply brief
which was not included in his original brief. Aon Risk Services Sw., Inc. v. C.L.

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Thomas, Inc., 13-13-00205-CV, 2014 WL 7233379, at *4 n.9 (Tex. App.—Corpus
Christi Dec. 19, 2014, no. pet. h.) (citing Tex. R. App. P. 38.3; Dallas Cnty. v.
Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006, pet. denied). A court of
appeals will not consider arguments that are not raised in the appellant’s original
brief. See Ledbetter v. Soliven, 2-02-060-CV, 2003 WL 151968, at *3 (Tex.
App.—Fort Worth Jan. 23, 2003, pet. denied).
       Additionally, Cross-Appellees’ Reply at 3 and 5-7 argues that the trial
court’s interpretation that “the time of judgment” as used in Rule 167.4(a), means
the trial court’s judgment, not appellate court’s judgment, is erroneous because it
allegedly conflicts with and abridges substantive rights granted by Chapter 42.
Again, this argument has been waived and need not be considered by this Court
because it was never raised in the trial court or in Cross-Appellants’ Brief. The
failure to raise an issue in the trial court waives the issue on appeal. Tex. R. App.
P. 33.1; Vejara v. Levior Intern., LLC, 04-11-00595-CV, 2012 WL 5354681, at *7
(Tex. App.—San Antonio Oct. 31, 2012, pet. denied) (“A party to a lawsuit waives
the right to raise even a constitutional claim on appeal if that claim is not presented
to the trial court.”).
                              Conclusion and Prayer
       Therefore, Cross-Appellees request that the Court deny Cross-Appellants’
motion for leave to file their Reply and not consider the arguments presented
therein because such Reply is not limited to responding only to arguments raised in
Cross-Appellees’ Reply, but consists entirely of new arguments challenging the
validity and constitutionality of Chapter 42 and Rule 167 under the trial court’s
interpretation of these provisions, that were never raised in the trial court or in
Cross-Appellants’ Brief, and therefore were waived.




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                                         Respectfully submitted,

                                         KING & SPALDING LLP


                                         By: /s/ H. Victor Thomas
                                              H. Victor Thomas
                                              Texas Bar No. 19851500
                                              1100 Louisiana, Suite 4000
                                              Houston, Texas 77002
                                              Telephone: (713) 751-3200
                                              Facsimile: (713) 751-3290

                                               W. Randall Bassett
                                               Georgia Bar No. 41525
                                               King & Spalding LLP
                                               1180 Peachtree Street, N.E.
                                               Atlanta, Georgia 30309
                                               Telephone: (404) 572-4600
                                               Facsimile: (404) 572-5100

                         CERTIFICATE OF SERVICE

      I certify that on April 20, 2015, I used the Court’s electronic case filing
system to file this Opposition and to serve it on counsel for appellees as follows:
      Doug Perrin
      Mark Perrin
      The Perrin Law Firm
      325 N. Saint Paul St., Suite 600
      Dallas, TX 75201-3828

      Peter D. Marketos
      Reese Gordon Marketos LLP
      750 N. Saint Paul St., Suite 610
      Dallas, Texas 75201



                                                /s/ H. Victor Thomas
                                                H. Victor Thomas

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