ACCEPTED
01-13-00853-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/6/2015 4:55:59 PM
CHRISTOPHER PRINE
CLERK
No. 01-13-00853-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
10/6/2015 4:55:59 PM
HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
DERNICK RESOURCES, INC.
v.
DAVID WILSTEIN AND LEONARD WILSTEIN,
INDIVIDUALLY AND AS TRUSTEE OF THE
LEONARD AND JOYCE WILSTEIN REVOCABLE TRUST
On Appeal From the 164th Judicial District Court
Of Harris County, Texas; Cause No. 2002-31310
Emergency Motion to Increase Amount
of Deposit in Lieu of Supersedeas Bond
Britton D. Monts Tom C. McCall Kendall M. Gray
Texas Bar No. 14303900 Texas Bar No. 13350300 Texas Bar No. 00790782
bmonts@themontsfirm.com tmccall@themccallfirm.com kendallgray@andrewskurth.com
THE MONTS FIRM David B. McCall Georgia L. Lucier
401 Congress Ave. Texas Bar No. 13344500 Texas Bar No. 24043523
Suite 1540 dmccall@themccallfirm.com georgialucier@andrewskurth.com
Austin, Texas 78701-3851 THE McCALL FIRM Kathryn Boatman
Telephone: (512) 474-6092 3660 Stoneridge Road Texas Bar No. 24062624
Facsimile: (512) 692-2981 Suite F-102 kathrynboatman@andrewskurth.com
Austin, Texas 78746 ANDREWS KURTH LLP
Telephone: (512) 477-4242 600 Travis Street, Suite 4200
Facsimile: (512) 477-2271 Houston, Texas 77002-2929
Telephone: (713) 220-3981
Facsimile: (713) 238-7183
ATTORNEYS FOR APPELLEES AND CROSS-APPELLANTS
DAVID WILSTEIN AND LEONARD WILSTEIN, INDIVIDUALLY AND AS
TRUSTEE OF THE LEONARD AND JOYCE WILSTEIN REVOCABLE TRUST
HOU:3596655.2
TABLE OF CONTENTS
I. Introduction And Summary .............................................................1
II. Arguments And Authorities .............................................................2
III. Conclusion And Prayer .....................................................................5
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HOU:3596655.2
TABLE OF AUTHORITIES
Page(s)
CASES
Fairways Offshore Exploration, Inc. v. Patterson Services, Inc.,
355 S.W.3d 296 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) .......................................................................................................4
In re Nalle Plastics Family Ltd. P’ship,
406 S.W.3d 168 (Tex. 2013)......................................................................4
Jackson Walker, LLP v. Kinsel,
No. 07-13-00130-CV, 2014 WL 720889 (Tex. App.—
Amarillo Feb. 14, 2014, no pet.) .............................................................5
Whitmire v. Greenridge Place Apartments,
333 S.W.3d 255 (Tex. App.—Houston [1st Dist.] 2010,
pet. dism’d) ...............................................................................................3
STATUTES
Tex. Civ. Prac. & Rem. Code § 52.006 ........................................................3
OTHER AUTHORITIES
Tex. R. App. P. 24.4(b) ..................................................................................1
Tex. R. App. P. 24.4(d) ..................................................................................1
Texas Rule of Appellate Procedure 24.2(a)(1) ..................................... 1, 3
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I.
INTRODUCTION AND SUMMARY
This Court must review the amount of a deposit in lieu of
supersedeas bond “based both on conditions as they existed at the
time the trial court signed an order, and on changes in those
conditions afterward.” Tex. R. App. P. 24.4(b). Earlier this year, this
Court increased the trial court’s judgment to a new total of
$4,429,376.71. Conditions changed. More security is needed.
The Wilsteins asked Dernick to increase its deposit, but it
refused, claiming (erroneously) this Court’s June 30, 2015 judgment is
tentative and ineffective and therefore need not be fully superseded
to stay execution until the mandate issues. The Wilsteins then filed a
motion asking the trial court to require Dernick to increase its
deposit, but the court refused, adopting Dernick’s facially erroneous
“mandate” argument.1
The Wilsteins now ask this Court to apply the law correctly and
require Dernick to increase its deposit to comply with Texas Rule of
Appellate Procedure 24.2(a)(1). The Wilsteins’ motion “must be heard
at the earliest practicable time” because, in the meantime, the
Wilsteins are left unprotected. Tex. R. App. P. 24.4(d).
1 See Exhibit A, a transcript of the September 25, 2015 hearing, at 13.
HOU:3596655.2
II.
ARGUMENTS AND AUTHORITIES
The trial court’s original judgment awarded a total of
$3,238,260.90.2 To suspend enforcement during its appeal, Dernick
filed a cash deposit of $583,427.08 in lieu of supersedeas bond, which
Dernick determined was the sum of compensatory damages,
prejudgment interest on those damages, two years of post-judgment
interest on the entire judgment, and costs awarded in the judgment.3
Dernick eventually agreed to deposit another $1 million for a total of
$1,583,427.98, and execution of the original judgment was stayed.
Since then, however, this Court significantly increased the trial
court’s judgment. On June 30, 2015, the Court modified the trial
court’s judgment to award the Wilsteins an additional $750,000 of
compensatory damages, originally awarded by the jury but set aside
by the trial court, and interest on those compensatory damages.4 The
total amount of the judgment is now $4,429,376.71.5 That means
2 See 3CR3523–28, attached hereto as Exhibit B.
3 3CR3704–08, attached hereto as Exhibit C.
4 2CR3166–78, attached hereto as Exhibit D, at 3177.
See Exhibit E, a true and correct copy of this Court’s judgment; see also
5
Exhibit B.
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HOU:3596655.2
Dernick’s deposit in lieu of supersedeas bond is no longer sufficient,
and the Wilsteins are left unprotected.6
By rule, the total amount that must be superseded is now
$2,032,412.67, including the sum of compensatory damages,
prejudgment interest, post-judgment interest for the estimated
duration of the appeal, and costs:
$583,427.14, the superseded amount in the original
judgment,7
$750,000, the Bradshaw compensatory damage award,8
$365,924.26, prejudgment interest on the Bradshaw
award, as reflected in the Court’s judgment,9
$111,592.43, two years of post-judgment on the Bradshaw
award, and
$221,468.84, one year of post-judgment interest on the
entire judgment.
See Tex. R. App. P. 24.2(a)(1); Tex. Civ. Prac. & Rem. Code § 52.006.
See Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255, 262 (Tex.
6
App.—Houston [1st Dist.] 2010, pet. dism’d) (noting that a bond “secure[s] the
appellee and abate[s] the remedies he would otherwise have for realizing his
judgment”).
7 Exhibit C.
8 Exhibit E.
9 Exhibit E.
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The trial court abused its discretion in suspending execution of
the Wilsteins’ judgment without a sufficient deposit. There is no
doubt that the $750,000 Bradshaw damage award is compensatory
and must be superseded. In re Nalle Plastics Family Ltd. P’ship, 406
S.W.3d 168, 171–72 (Tex. 2013). But the court did not even include
that.
Additionally, omission of adequate interest is an abuse of
discretion. Fairways Offshore Exploration, Inc. v. Patterson Services, Inc.,
355 S.W.3d 296, 304 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“We conclude that a supersedeas bond that does not include in its
sum the amount of prejudgment interest is ‘patently ineffective’ to
secure a money judgment awarding such interest.”). Dernick’s
original deposit included only two years of estimated post-judgment
interest. But the original judgment was signed on July 9, 2013, more
than two years ago, and Dernick has indicated that it will file a
petition for review with the Texas Supreme Court later this year.
Assuming the petition is denied after it is filed—the quickest possible
resolution—that process will likely take another four to six months at
least, extending the appellate process another year beyond the two
years of post-judgment interest currently posted by Dernick.
As such, additional post-judgment interest must be added: one
additional year on the amount originally superseded, and three years
on the new $750,000 Bradshaw award, which is effective as of the
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date of the original judgment (July 9, 2013). Jackson Walker, LLP v.
Kinsel, No. 07-13-00130-CV, 2014 WL 720889, at *1 (Tex. App.—
Amarillo Feb. 14, 2014, no pet.) (holding that setting the amount of a
supersedeas bond that does not include adequate post-judgment
interest is an abuse of discretion).
The current deposit is only $1,583,427.08. Therefore, the deposit
is deficient by $448,985.59,10 and the Wilsteins are left unprotected.
III.
CONCLUSION AND PRAYER
The Wilsteins request that the Court grant this Emergency
Motion and require Dernick to increase the deposit in lieu of
supersedeas by $448,985.59. Should Dernick fail to comply, the
Wilsteins request permission to execute on the amended judgment.
This is the result of subtracting Dernick’s current deposit, $1,583,427.08,
10
from the amount that must be superseded, $2,032,412.67.
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Respectfully submitted,
By:/s/Kendall M. Gray
Kendall M. Gray
Texas Bar No. 00790782
kendallgray@andrewskurth.com
Georgia L. Lucier
Texas Bar No. 24043523
georgialucier@andrewskurth.com
Kathryn Boatman
Texas Bar No. 24062624
kathrynboatman@andrewskurth.com
ANDREWS KURTH LLP
600 Travis Street, Suite 4200
Houston, Texas 77002-2929
Telephone: (713) 220-3981
Facsimile: (713) 238-7183
Britton D. Monts
Texas Bar No. 14303900
bmonts@themontsfirm.com
THE MONTS FIRM
401 Congress Ave., Suite 1540
Austin, Texas 78701-3851
Telephone: (512) 474-6092
Facsimile: (512) 692-2981
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Tom C. McCall
Texas Bar No. 13350300
tmccall@themccallfirm.com
David B. McCall
Texas Bar No. 13344500
dmccall@themccallfirm.com
THE McCALL FIRM
3660 Stoneridge Road, Suite F-102
Austin, Texas 78746
Telephone: (512) 477-4242
Facsimile: (512) 477-2271
Attorneys for Appellees and
Cross-Appellants David Wilstein
and Leonard Wilstein, Individually
and as Trustee of the Leonard and
Joyce Wilstein Revocable Trust
CERTIFICATE OF CONFERENCE
The undersigned conferred with counsel for Appellant and
Cross-Appellee Dernick Resources, Inc. on October 6, 2015. Counsel
for Dernick Resources, Inc. does not agree to the relief requested in
this Motion.
/s/Kendall M. Gray
Kendall M. Gray
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CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2015, true and correct copies
of the above and foregoing instrument have been e-served on the
following counsel for Dernick Resources, Inc.:
Alan B. Daughtry
alan@alandaughtrylaw.com
675 Shartle Circle
Houston, Texas 77024
Kathrine M. Silver
ksilver@jw.com
Richard A. Howell
rahowell@jw.com
Jackson Walker L.L.P.
1401 McKinney, Suite 1900
Houston, Texas 77010
D. Patrick Long
plong@pattonboggs.com
Patton Boggs LLP
2000 McKinney Ave., Suite 1700
Dallas, TX 75201
/s/Kendall M. Gray
Kendall M. Gray
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