                                                                       ACCEPTED
                                                                   03-13-00336-CV
                                                                           5132381
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                              5/4/2015 10:16:48 AM
                                                                 JEFFREY D. KYLE
                                                                            CLERK
             NO. 03-13-00336-CV

                                                   FILED IN
        IN THE COURT OF APPEALS             3rd COURT OF APPEALS
                                                AUSTIN, TEXAS
                 FOR THE
                                            5/4/2015 10:16:48 AM
        THIRD DISTRICT OF TEXAS               JEFFREY D. KYLE
                AT AUSTIN                           Clerk


               R.D. TIPS, INC.,
                  Appellant,

                       v.

              VIRGINIA JETT,
                 Appellee


  Appeal from the 98th Judicial District Court
            Travis County, Texas
   The Honorable Rhonda Hurley, Presiding


MOTION FOR JUDGMENT AGAINST SURETY


         Eric J. Taube
         State Bar No. 19679350
         etaube@taubesummers.com
         Taube Summers Harrison Taylor Meinzer Brown LLP
         100 Congress Avenue, Suite 1800
         Austin, Texas 78701
         Telephone:      (512) 472-5997
         Telecopier:     (512) 472-5248

         COUNSEL FOR APPELLEE VIRGINIA JETT




                                                         Page i
TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Texas Rule of Appellate Procedure, Appellee Virginia Jett (“Ms.

Jett”) files this Motion for Judgment Against Surety, and respectfully shows the

court as follows:

                                  Background

         1. On February 11, 2013, the 419th District Court of Travis County,

Texas, rendered judgment in favor of Ms. Jett and against Appellant R.D. Tips

(“Tips”) in the amount of $3,354,314.06 in actual damages; $85,000 in attorney’s

fees; $260 in court costs; and post-judgment interest at the rate of 5% (the

“Judgment”).

         2. On October 7, 2013, Tips suspended the Judgment by posting a

supersedeas bond in the amount of $3,788,745.47. The surety of such bond was

named as SureTec Insurance Company, a company organized under the laws of the

State of Texas.

         3. This Court unanimously affirmed the Judgment on April 9, 2015. The

Court denied Tips’ Motion for Rehearing on April 29, 2015.

         4. On April 30, 2015, Ms. Jett filed a Motion to Expedite the Mandate,

which is pending before this Court.




                                                                           Page 2
          5. Now, Ms. Jett requests that this Court grant her judgment against

Tips’ surety, both for the original Judgment amount and for the costs that have

been awarded her.

                           Argument and Authorities

          6. Under Texas Rule of Appellate Procedure 43.5, “When a court of

appeals affirms the trial court judgment . . . the court of appeals must render

judgment against the sureties on the appellant's supersedeas bond, if any, for the

performance of the judgment and for any costs taxed against the appellant.”

          7. The Court affirmed the trial court judgment in this case. The Court’s

April 9, 2015 judgment does not appear to include the requested judgment against

the sureties.

          8. In accordance with paragraph 44 of the Court’s “Practice Before the

Court” instructions,1 Ms. Jett prayed in her brief for rendition of judgment against

the surety on Appellant’s supersedeas bond. In particular, in her brief filed on

November 21, 2013, Appellee stated as follows: “Ms. Jett further requests that this

Court render judgment for her against the sureties on Appellant R.D. Tips, Inc.'s

supersedeas bond.” Response Br. of Appellee Virginia Jett, at 43 (Section VI:

Conclusion and Prayer).



1
  See Texas Judicial Branch, Third Court of Appeals, “Practice Before the Court,”
http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx#supersedeas-bond.

                                                                              Page 3
          9. Now, believing the relief requested is warranted under the Texas

Rules of Appellate Procedure and this Court’s practice guidelines, Ms. Jett

reiterates her request that this Court grant her judgment against the surety for the

amount of the judgment against Tips and for the costs that have been awarded her.

                              PRAYER FOR RELIEF

      For the reasons stated above, Appellee Virginia Jett respectfully requests

that this Court (i) grant judgment against the surety for the performance of the

district court Judgment and for the costs that have been awarded her, and (ii) grant

her all other relief to which the Court deems her justly entitled.




                                                                              Page 4
Respectfully submitted,

TAUBE SUMMERS HARRISON TAYLOR MEINZER BROWN LLP

By:   /s/ Eric J. Taube
      Eric J. Taube
      State Bar No. 19679350
      etaube@taubesummers.com
      Douglas A. Fohn
      State Bar No. 24036578
      dfohn@taubesummers.com
      Christopher G. Bradley
      State Bar No. 24069407
      cbradley@taubesummers.com
      Andrew Preston Vickers
      State Bar No. 24084021
      avickers@taubesummers.com

100 Congress Avenue, Suite 1800
Austin, Texas 78701
Telephone:     (512) 472-5997
Telecopier:    (512) 472-5248

ATTORNEYS FOR APPELLEE VIRGINIA JETT




                                             Page 5
                 TEX. R. APP. P. 9.4(I)(3) CERTIFICATION

      Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Motion contains
774 words. This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text. In making this certificate of compliance, I am
relying on the word count provided by the software used to prepare the document.

                                         /s/ Eric J. Taube
                                         Eric J. Taube


                      CERTIFICATE OF CONFERENCE

      Counsel for Ms. Jett attempted to confer with opposing counsel concerning
the matters raised in this motion on May 1, 2015, but was unable to do so.

                                             /s/ Eric J. Taube
                                         Eric J. Taube


                         CERTIFICATE OF SERVICE

      The undersigned counsel certifies that this document was served via
telecopy on Appellant R.D. Tips, Inc.’s counsel in accordance with TEX. R. CIV. P.
21a on May 4, 2015.

      Jonathan D. Pauerstein
      ROSENTHAL PAUERSTEIN SANDOLOSKI AGATHER LLP
      755 East Mulberry, Suite 200
      San Antonio, Texas 78212
      (210) 354-4034 (Fax)

                                             /s/ Eric J. Taube
                                         Eric J. Taube




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