Petrohawk Properties, L.P., and P-H Energy, L.L.C. v. Noel Diane Jones

ACCEPTED
06-14-00003-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/29/2015 6:40:03 PM
DEBBIE AUTREY
CLERK

No. 06-14-00003-CV

FILED IN
In the 6th COURT OF APPEALS
TEXARKANA, TEXAS

Sixth Court of Appeals 1/29/2015 6:40:03 PM
DEBBIE AUTREY
Texarkana, Texas Clerk

PETROHAWK PROPERTIES, L.P.
AND P-H ENERGY, L.L.C.,
Appellants,
v.

NOEL DIANE JONES, ET AL.,
Appellees.

On Appeal from the 71st District Court,
Harrison County, Texas (Cause No. 11-0849)

MOTION FOR REHEARING

Reagan W. Simpson
State Bar No. 18404700
Marc S. Tabolsky
State Bar No. 24037576
YETTER COLEMAN LLP
909 Fannin Street, Suite 3600
Houston, Texas 77010
Tel. (713) 632-8000
Fax (713) 632-8002
(additional counsel listed on inside
cover)

Counsel for Appellants
Harry L. “Gil” Gillam, Jr.
State Bar No. 07921800
GILLAM & SMITH L.L.P.
303 S. Washington Avenue
Marshall, Texas 75670-4157
Tel. (903) 934-8450
Fax (903) 934-9257

Guy S. Lipe
State Bar No. 12394600
Jason M. Powers
State Bar No. 24007867
Stacy M. Neal
State Bar No. 24060322
Nicholas N. Shum
State Bar No. 24075072
VINSON & ELKINS L.L.P.
1001 Fannin St., Suite 2500
Houston, Texas 77002
Tel. (713) 758-2522
Fax (713) 615-5809

2
 TABLE OF CONTENTS

PAGE

Index of Authorities .................................................................................... 4

Argument .................................................................................................... 6

I. The Court’s Interpretation of Defensible Title Is Incorrect. ........... 8

II. The Court’s Discussion of Horne’s Opinion and the
Purported Damages Evidence Relies on Factual
Inaccuracies. .................................................................................... 18

Conclusion and Prayer ............................................................................. 24

Certificate of Compliance Under Appellate Rule 9.4 .............................. 26

Certificate of Service ................................................................................ 27

3
 INDEX OF AUTHORITIES

PAGE(S)

Americo Life, Inc. v. Myer,
440 S.W.3d 18 (Tex. 2014) ........................................................ 14, 15, 16

Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C.,
352 S.W.3d 445 (Tex. 2011) ...................................................... 14, 15, 16

Apex Fin. Corp. v. Brown,
7 S.W.3d 820 (Tex. App.—Texarkana 1999, no pet.)........................... 10

Balandran v. Safeco Ins. Co. of Am.,
972 S.W.2d 738 (Tex. 1998) .................................................................. 12

Birmingham Fire Ins. Co. of Pa. v. Am. Nat’l Fire Ins. Co.,
947 S.W.2d 592 (Tex. App.—Texarkana 1997, writ denied) ............... 13

Forbau v. Aetna Life Ins. Co.,
876 S.W.2d 132 (Tex. 1994) .................................................................. 10

Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd.,
352 S.W.3d 462 (Tex. 2011) .................................................................. 14

Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch,
443 S.W.3d 820 (Tex. 2014) ............................................................ 18, 24

Lewis v. E. Tex. Fin. Co.,
136 Tex. 149, 146 S.W.2d 977 (1941) ................................................... 13

Petrohawk Properties, L.P. v. Jones,
— S.W.3d —, 2015 WL 170225 (Tex. App.—Texarkana
Jan. 14, 2015, no pet. h.) ......................................................................... 6

Sun Oil Co. (Delaware) v. Madeley,
626 S.W.2d 726 (Tex. 1981) .................................................................. 13

4
Rules

TEX. R. APP. P. 9.4 ..................................................................................... 26

TEX. R. APP. P. 9.5 ..................................................................................... 27

5
 Appellants Petrohawk Properties, L.P. and P-H Energy, L.L.C.

(collectively “Petrohawk”) respectfully submit this motion for rehearing

in response to the opinion issued by the Court on January 14, 2015.

Petrohawk Properties, L.P. v. Jones, — S.W.3d —, 2015 WL 170225

(Tex. App.—Texarkana Jan. 14, 2015, no pet. h.). Petrohawk requests

that the Court consider the following:

ARGUMENT

While Petrohawk respectfully disagrees with the Court’s

resolution of many of the issues addressed in the Court’s opinion,

Petrohawk does not seek in this motion to reurge every argument that

this Court has already rejected. That said, Petrohawk does seek

rehearing on two points where the Court either relied on grounds that

were not raised by any of the parties or where, Petrohawk respectfully

submits, the Court’s opinion appears to be based on factual

inaccuracies.

First, Petrohawk moves for rehearing on the Court’s conclusion

that the district court properly instructed the jury that under the July

2008 agreement, Petrohawk was obligated to lease minerals for tracts

6
where the Lessors did not own 100% of the gross mineral interest in the

Haynesville Shale. See Opinion, Section II.B.3.c, pp. 34-38.

In rejecting Petrohawk’s argument that the district court

improperly instructed the jury that Lessor’s did not have to own 100%

of the Haynesville Shale mineral interest in a tract before Petrohawk

was required to pay a lease bonus, the Court adopted an interpretation

of the contract that was not raised by any party in the district court or

this Court. Compare Op. at 37 with Appellants’ Br. 41-43; Appellees’ Br.

22-26; 2 CR 270-76. Because the Court’s opinion relies on a rationale

not previously raised by the district court or any of the parties,

Petrohawk responds to the Court’s interpretation of the July 2008

agreement. Petrohawk respectfully submits that the Court’s

interpretation of the agreement’s definition of Defensible Title is both

incorrect based on the text of the July 2008 agreement itself and also

improperly relies on extrinsic evidence of the parties’ subjective intent.

Second, Petrohawk respectfully submits that the Court’s

conclusion that there was “more than a scintilla of evidence that

supports the jury’s implied finding of no market value, the evidence is

legally sufficient to support the award of damages” is incorrect and is

7
based on certain factual inaccuracies. See Opinion, Section II.B.5, pp.

41-44.

I. The Court’s Interpretation of Defensible Title Is Incorrect.

Whether the district court properly instructed the jury that the

“language in paragraph 3(iii) reading: ‘the title to the properties

comprising the Subject Interests includes all rights in the Haynesville

Shale and rights owned by Lessors in the Bossier Shale’ does not

require the Lessors to own 100% of the gross Haynesville Shale mineral

acreage on the tract” turns on whether the district court correctly

interpreted paragraph 3(iii). The parties do not dispute that Petrohawk

only had to pay lease bonuses on properties on which the Lessors had

Defensible Title as defined paragraph 3(i-iii). Appellees’ Br. 22;

Appellants’ Reply Br. 20.

Where the parties and the Court differ is how to interpret

paragraph 3(iii). Petrohawk argued that Paragraph 3(iii)’s plain text,

properly interpreted, provided that Defensible Title existed only if the

Lessors had to own 100% of the gross mineral interest in the

Haynesville Shale. The text compels this interpretation because the

agreement provides that Defensible Title required Lessors to own “all

8
rights in the Haynesville Shale” but only “rights owned by Lessors in the

Bossier Shale” for Lessors to have Defensible Title. Plaintiffs, however,

argued that the Court should simply add by implication the word

“Lessors’” between “all” and “rights.”

But this Court disagreed with all of the parties. Instead, this

Court held that to avoid rendering any language superfluous, it had to

harmonize the broad statements in the first unnumbered paragraph

indicating (according to the Court) that the agreement covered “all of

the Family’s unleased mineral interests in the subject area as long as

those interests included, at a minimum, the Haynesville Shale (its

primary focus), and those depths of the Bossier Shale that were

unleased and not held by production (its secondary focus),” Op. at 37,

with the requirement in the definition of Defensible Title that Lessors

convey “all rights in the Haynesville Shale and rights owned by Lessors

in the Bossier Shale.” Id. The Court accomplished this result by

essentially rewriting the definition of Defensible Title.

Under the Court’s interpretation, “all rights in the Haynesville

Shale and rights owned by Lessors in the Bossier Shale” should be

interpreted to mean “the rights to all depths in the Haynesville Shale

9
and the rights to all depths currently unleased or currently not

producing owned by the Lessors in the Bossier Shale.” Id. (emphasis in

original).

The Court’s interpretive approach is flawed because of two errors.

First, it improperly lets general provisions control over specific

provisions and thus rewrites the agreement under the guise of

interpretation. Second, the Court’s examination of “surrounding

circumstances” as part of interpreting the July 2008 agreement goes

well beyond the limited purposes for which Texas law permits

examination of surrounding circumstances.

The Court’s interpretive approach does not properly take into

account the controlling legal principle that specific contractual

provisions control over general provisions. Forbau v. Aetna Life Ins. Co.,

876 S.W.2d 132, 133-34 (Tex. 1994); Apex Fin. Corp. v. Brown, 7 S.W.3d

820, 826 (Tex. App.—Texarkana 1999, no pet.). The rule that specific

provisions control over general provisions is particularly strong in this

case where the text of the July 2008 agreement itself indicates that the

specific provisions of paragraph 3 are intended to control over the

general provisions of the first paragraph.

10
 While the Court focuses extensively on not rendering superfluous

the unnumbered first paragraph’s general statements about what

mineral interests are covered by the agreement, it does not take into

account the July 2008 agreement’s plain text indicating that the parties

intended for the specific provisions of paragraph 3, which contains the

Defensible Title limitation, to control over the general provisions of the

first unnumbered paragraph.

The parties’ expressed intent for paragraph 3 to control is found in

the last sentence of the paragraph, which states that the leases “shall

include all depths, subject to the lease provisions contemplated in

paragraph 3 herein, as to those properties within the Subject Interests

that are currently unleased or not currently producing.” PX1 at 1

(emphasis added).

In other words, the very sentence in the first paragraph that has

the language the Court relies on to rewrite paragraph 3(iii) expressly

states that Petrohawk’s leasing obligations are controlled by the specific

provisions of paragraph 3.

Thus, not only does the Court’s interpretation of Defensible Title

not conform to the contract-interpretation principle that specific

11
provisions control over general provisions, but it also results in

precisely the outcome the Court was trying to avoid. That is, the

Court’s interpretation renders the “subject to the lease provisions

contemplated in paragraph 3” superfluous. The Court did not need to

read the general provisions of the first paragraph into Defensible Title

to preserve the meaning of all provisions. Rather, all of the agreement’s

provisions are given meaning by respecting the parties’ expressed intent

that the obligation to lease and pay bonus was to be governed and

restricted by the specific provisions of paragraph 3.

The second flaw in the Court’s approach is that it appears to have

improperly considered extrinsic evidence of Petrohawk’s subjective

intent as part of the Court’s examination of circumstances surrounding

the execution of the contract. Courts may not look to “surrounding

circumstances” to interpret contracts. Rather, courts may examine such

evidence only for the limited purpose of determining whether an

ambiguity exists.

 “While parol evidence of the parties’ intent is not admissible
to create an ambiguity, the contract may be read in light of
the surrounding circumstances to determine whether an
ambiguity exists.” Balandran v. Safeco Ins. Co. of Am., 972
S.W.2d 738, 741 (Tex. 1998) (internal citation omitted).

12
  “It follows that parol evidence is not admissible to render a
contract ambiguous, which on its face, is capable of being
given a definite certain legal meaning. This rule obtains
even to the extent of prohibiting proof of circumstances
surrounding the transaction when the instrument involved,
by its terms, plainly and clearly discloses the intention of the
parties, or is so worded that it is not fairly susceptible of
more than one legal meaning or construction.” Sun Oil Co.
(Delaware) v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981)
(quoting Lewis v. E. Tex. Fin. Co., 136 Tex. 149, 146 S.W.2d
977, 980 (1941)).

 “Birmingham’s argument is an attempt to circumvent the
parol evidence rule by importing an examination of
‘surrounding circumstances’ into standard contract
interpretation. However, an examination of precedent
reveals that ‘surrounding circumstances’ are only examined
to determine whether a contract is latently ambiguous.”
Birmingham Fire Ins. Co. of Pa. v. Am. Nat’l Fire Ins. Co.,
947 S.W.2d 592, 602 (Tex. App.—Texarkana 1997, writ
denied).

Petrohawk believes the above-cited cases from the Texas Supreme

Court and this Court properly state the rule limiting the use of

“surrounding circumstances” evidence in contract interpretation. Thus,

under these cases, the Court’s reliance on evidence of surrounding

circumstances in interpreting the provisions of Paragraph 3(iii) for a

purposes beyond determining whether the contract is ambiguous (such

as the broader purpose of interpreting the contract) is incorrect and

erroneous.

13
 It is true that in other cases, the Texas Supreme Court has

perhaps implicitly suggested that “surrounding circumstances” evidence

can play a broader role beyond the limited inquiry as to whether a

contract is ambiguous. See, e.g., Americo Life, Inc. v. Myer, 440 S.W.3d

18, 22 (Tex. 2014) (“A written contract must be construed to give effect

to the parties’ intent expressed in the text as understood in light of the

facts and circumstances surrounding the contract’s execution, subject to

the limitations of the parol-evidence rule.”) (citing Houston Exploration

Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469

(Tex. 2011)); Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C.,

352 S.W.3d 445, 451 (Tex. 2011) (“Understanding the context in which

an agreement was made is essential in determining the parties’ intent

as expressed in the agreement, but it is the parties' expressed intent

that the court must determine. Extrinsic evidence cannot be used to

show that the parties probably meant, or could have meant, something

other than what their agreement stated.”). Petrohawk respectfully

submits that Balandran and Birmingham Fire Insurance Company

state the correct rule.

14
 But even when the Texas Supreme Court has not expressly

limited the role of “surrounding circumstances” evidence as it did in

Balandran, the Court has limited what constitutes evidence of

surrounding circumstances: “Facts and circumstances that may be

considered include the commercial or other setting in which the contract

was negotiated and other objectively determinable factors that give

context to the parties’ transaction.” Myer, 440 S.W.3d at 22 (emphasis

added). Similarly, Anglo-Dutch states that extrinsic evidence “cannot be

used to show the parties’ motives or intentions apart from the

[agreement]; it can only provide the context in which the agreement was

reached.” 352 S.W.3d at 452.

In this case, the Court’s examination of surrounding

circumstances went too far. On pages 35 and 36, the Court undertakes

an extensive discussion of the parties’ respective knowledge of oil and

gas leasing, oil and gas production in Harrison County, the different

geological formations that were at issue, the presence of vertical Pugh

clauses in certain prior leases, and existing leasing and production of

certain shallower depths. Op. at 36.

15
 But at the end of this discussion, the Court went beyond what

Myer and Anglo-Dutch may allow. The Court went beyond evidence of

the “setting in which the contract was negotiated” and the “objectively

determinable factors.” Myer, 440 S.W.3d at 22. Instead, the Court went

on to address Petrohawk’s subjective intentions when it entered into the

agreement. The Court did this when it stated that “While Petrohawk

was primarily focused on leasing Haynesville Shale mineral interests, it

was secondarily interested in the Bossier Shale.” Op. at 36. At this

point, however, the Court’s analysis crossed the line from looking at

what might be considered evidence of surrounding circumstances into

what Anglo-Dutch expressly prohibits—evidence of Petrohawk’s

purported “motives or intentions.” Anglo-Dutch, 352 S.W.3d at 452.

Moreover, it appears that the Court’s reference to what it

perceives as Petrohawk’s subjective intention is not a passing reference

but in fact was an integral part of how it construed the text of the July

2008 agreement. Immediately after describing Petrohawk’s primary

and secondary focus, the Court relies on this view of Petrohawk’s

subjective intent in its contract analysis. Op. at 37 (“Looking back at

the Agreement with this in mind, we see in the first paragraph that the

16
parties intended that Petrohawk would lease all of the Family’s

unleased mineral interests in the subject area as long as those interests

included, at a minimum, the Haynesville Shale (its primary focus), and

those depths of the Bossier Shale that were unleased and not held by

production (its secondary focus).”

Thus, not only did the Court incorrectly rewrite the definition of

Defensible Title when it effectively incorporated text from other parts of

the agreement into paragraph 3(iii) and changed the phrase “all rights”

to be “the rights,” its analysis also incorrectly relied on extrinsic

evidence of Petrohawk’s subjective intent when it interpreted the July

2008 agreement.

For these reasons, and those set forth in Petrohawk’s briefs,

Petrohawk respectfully suggests that the Court incorrectly interpreted

the July 2008 agreement and that, in light of the correct interpretation

of the agreement, the district court’s instruction cannot stand. Thus,

for all of these reasons, Petrohawk requests that the Court reverse the

district court’s judgment and render judgment that Petrohawk is not

liable for failing to lease tracts 2-6, 9-13, 16-26, 28-30, and 33 in which

it is undisputed Lessors did not own all of the Haynesville Shale

17
interests. Alternatively, the erroneous instruction requires a new trial

on all issues.

II. The Court’s Discussion of Horne’s Opinion and the
Purported Damages Evidence Relies on Factual
Inaccuracies.

The Texas Supreme Court has explained that when an expert’s

opinions rely “on insufficient data and unsupported assumptions,” it is

conclusory and without evidentiary value. Houston Unlimited, Inc.

Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 838 (Tex. 2014).

Similarly, “if the record contains no evidence supporting an expert’s

material factual assumptions, or if such assumptions are contrary to

conclusively proven facts, opinion testimony founded on those

assumptions is not competent evidence.” Id. at 833.

Here, the Court held that there was more than a scintilla of

evidence to support the jury’s implied finding of no market value. Op. at

43-44. The Court reached this conclusion based on its finding that while

the evidence was conflicting, “it would support Horne’s testimony that

there was no market value for the leases.” Id. at 43.

Petrohawk respectfully submits that the Court’s conclusion that

there was conflicting evidence supporting Horne’s testimony is based in

18
a misapprehension of what Horne actually testified at trial. The

Court’s opinion states that

[Horne] testified that the lack of capital for such ventures
brought about a situation wherein the only new leasing of oil
and gas minerals was due to commitments made by the
lessees before the crash of the financial markets or due to
unit leasing. He further testified that oil and gas minerals in
the ground only have a lease value if there is a market for
leasing them. He opined that, since in October 2008 there
was no market for them, Appellees’ leasehold estate in the
minerals had no market value.

Op. at 41-42.

But Horne did not say that the “only new leasing of oil and gas

minerals was due to commitments made by the lessees before the crash

of the financial markets or due to unit leasing.” Id. While this is

certainly how Plaintiffs characterized Horne’s testimony, Appellees’ Br.

45, that is not what Horne testified. At trial, Horne admitted that

although he said leasing in Harrison County had come to a “screeching

halt,” he readily acknowledged “[c]ertainly there were some leases being

acquired.” 7 RR 141.

Moreover, Horne acknowledged that the leasing that was

occurring in Harrison County in October 2008 could have been for

19
reasons other than remnant leasing or pre-existing contractual

commitments.

Q. You know there were some leases being signed on
Harrison County acreage in October, don’t you?

A. I suspect there were. They could have been either
entered into previously or they could have been leases
to complete a unit or for some other reason, but the land
rush that existed here prior to, and really in all the shale
plays, really ceased due to the economic conditions due to the
market conditions in October of 2008.

7 RR 136 (emphasis added).

Thus, while Horne certainly opined that the mineral leasing

market in Harrison County in October 2008 had slowed considerably,

he never testified that new leases were not being signed in October

2008 nor did he testify that any such new leases were limited to prior

commitments or unit leasing. Rather, Horne himself admitted that new

leases could have been entered into for other reasons as well. Thus,

Horne did not testify leasing had stopped in Harrison County in

October 2008 nor did he testify that there was no market for leases in

October 2008.

Nor did Horne testify that minerals only have a lease value if

there is a market for them. His opinion was narrower than that. Horne

20
opined that “There is no value to minerals in the ground unless

somebody is not [sic] knocking on your door or giving you a phone call

offering to pay you something for them.” 7 RR 133.

But Horne never said that there was no one contacting the

Plaintiffs in October 2008 and there is no evidence in the record from

which a reasonable juror could infer that the Plaintiffs were not

receiving any phone calls or inquiries to lease their minerals.

First, the Court states that although Ellen Miller and Lelia

Vaughan sent emails to their family members on October 24 and 27,

2008 discussing various inquiries and requests for leases they had

received, the emails did not make clear when the inquiries and requests

were made. See Op. at 43; DX275, DX278. Even under the Court’s

reading of the emails, however, they do not provide any evidence that

no offers or inquiries were made in October 2008.1 But Horne’s opinion

can support the jury’s zero-market-value finding only if there is

evidence in the record that Plaintiffs did not receive any inquiries or

requests to lease in October 2008.

1 While Lelia Vaughan’s October 27, 2008 email does not expressly state
when EXCO requested a lease from the family, her email makes clear that
she believed EXCO’s offer was still on the table, because she stated “[w]e do
not need to entertain EXCO’s request for a lease at this time.” See DX278.

21
 Second, the Court’s opinion does not address DX264, an October 9,

2008 email from Ned Hartline, attorney for several of the Plaintiffs, to

Petrohawk’s Herod stating that “What can I tell my people? We are

still getting calls from other interested potential lessees. What

are your intentions?” DX264. Unlike the other emails the Court

discussed, Mr. Hartline’s email makes clear that as of October 9,

Plaintiffs were still getting calls “from other interested potential

lessees.” DX264. And nowhere in the record is there conflicting

evidence suggesting that Plaintiffs were not receiving these calls or that

Mr. Hartline’s statement to Herod was incorrect.

Third, the Court’s opinion states that “Fort Staggers, vice

president of the bank that was trustee of one of the Appellee interests,

testified that there had been no interest in leasing all of the tracts from

October 2008 until trial.” Op. at 43. But this is not what Mr. Staggers

testified. He never said that there was “no interest” in leasing the

tracts from October 2008 until trial. Rather, Mr. Staggers said he did

not “receive any viable offers for the unleased acreage on these 32 tracts

that’s in 162A after October of 2008.” 7 RR 173. This testimony,

however, does not address what occurred in October 2008.

22
 Nor does it state that no offers were received to lease the tracts.

Rather, Staggers simply agreed that there were no “viable offers.” But

for there to be no market value at all, under Horne’s purported opinion,

there had to be no offers regardless of whether the mineral owners

considered them viable.

Staggers further answered “no” when asked “is there any interest

shown in buying all the acreage from October 28th -- all the acreage

that’s listed in 162A from October of 2008 through today?” 7 RR 173.

But whether someone is interested in buying the minerals is a

fundamentally different question than whether someone was in

interested in obtaining a mineral lease. Just because there may not

have been someone willing to buy Plaintiffs’ minerals does not mean

that there was no interest in leasing the minerals. Obtaining a mineral

lease and purchasing a mineral estate are two fundamentally different

transactions.

In short, there is no record evidence to support the key

assumption of Horne’s opinion as to when minerals have no lease

value—that no one was calling Plaintiffs in October 2008 to lease their

minerals. Hartline’s email unequivocally indicates that there were still

23
actively interested lessees in October 2008 and there is no conflicting

evidence which suggests that there were no such inquiries. Because

Plaintiffs failed to offer any evidence from which a reasonable juror

could infer that Plaintiffs were not receiving any inquiries or offers to

lease their minerals in October 2008, there was legally insufficient

evidence to support the jury’s damages findings in Question 11. Mel

Acres Ranch, 443 S.W.3d at 838.

For these reasons, and those set forth in Petrohawk’s briefs,

Petrohawk requests that the Court reverse the district court’s judgment

and render a take-nothing judgment in light of the legally insufficient

evidence to support the jury’s answer to Question 11.

CONCLUSION AND PRAYER

For these reasons, the Petrohawk appellants respectfully request

that the Court grant this motion for rehearing and all other relief to

which they may be entitled.

24
 Respectfully submitted,

/s/Reagan W. Simpson
Guy S. Lipe Reagan W. Simpson
State Bar No. 12394600 State Bar No. 18404700
Jason M. Powers rsimpson@yettercoleman.com
State Bar No. 24007867 Marc S. Tabolsky
Stacy M. Neal State Bar No. 24037576
State Bar No. 24060322 mtabolsky@yettercoleman.com
Nicholas N. Shum YETTER COLEMAN LLP
State Bar No. 24075072 909 Fannin Street, Suite 3600
VINSON & ELKINS L.L.P. Houston, Texas 77010
1001 Fannin St., Suite 2500 Tel. (713) 632-8000
Houston, Texas 77002 Fax (713) 632-8002
Tel. (713) 758-2522
Fax (713) 615-5809
Harry L. “Gil” Gillam, Jr.
State Bar No. 07921800
GILLAM & SMITH L.L.P.
303 S. Washington Avenue
Marshall, Texas 75670-4157
Tel. (903) 934-8450
Fax (903) 934-9257

COUNSEL FOR APPELLANTS

25
 CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4

I certify that this document complies with the type-volume

limitation of Texas Rule of Appellate Procedure 9.4(i)(2) because it

contains 3,699 words, excluding the parts of the document exempted by

Texas Rule of Appellate Procedure 9.4(i)(1).

/s/Marc S. Tabolsky
Marc S. Tabolsky

26
 CERTIFICATE OF SERVICE

Pursuant to TEX. R. APP. P. 9.5(e), I hereby certify that a true and

correct copy of this document has been served on lead counsel for

appellees by electronic means on January 29, 2015, as follows:

Kevin Dubose Dean A. Searle
ALEXANDER DUBOSE JEFFERSON SEARLE & SEARLE PC
TOWNSEND P.O. Box 910
1844 Harvard Street Marshall, Texas 75670
Houston, Texas 77008-4342
kdubose@adtappellate.com

Mark C. Harwell John Mercy
W. Mark Cotham MERCY CARTER & TIDWELL, LLP
COTHAM, HARWELL & O’CONOR 1724 Galleria Oaks Drive
1616 S. Voss, Suite 200 Texarkana, Texas 75503
Houston, Texas 77057
mharwell@chetexas.com
mcotham@chetexas.com

/s/Marc S. Tabolsky
Marc S. Tabolsky

27