ACCEPTED
12-15-00087-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/2/2015 4:40:39 PM
Pam Estes
CLERK
CASE NO. 12-15-00087-CV
EXCO OPERATING COMPANY, § IN THE TWELFTH
FILED IN
12th COURT OF APPEALS
LP, Appellant, § TYLER, TEXAS
§ 9/2/2015 4:40:39 PM
v. § COURT OF PAMAPPEALS
ESTES
§ Clerk
MARY K. MCGEE, §
Appellee. § TYLER, TEXAS
APPELLANT EXCO OPERATING COMPANY,
LP’S, MOTION TO SUPPLEMENT BRIEF OF
APPELLANT EXCO OPERATING COMPANY, LP
EXCO Operating Company, LP, (“EXCO” or “Appellant”) asks the Court to
permit it to supplement its Brief of Appellant EXCO Operating Company, LP
(EXCO’s “Brief”).
A. INTRODUCTION
1. Appellant is EXCO Operating Company, LP; Appellee is Mary K.
McGee (“McGee”).
B. ARGUMENTS AND AUTHORITIES
2. A Court of Appeals may permit a party to supplement a brief
whenever justice requires under Texas Rule of Appellate Procedure 38.7.
3. While preparing its Reply Brief in this appeal, EXCO discovered new
Texas case law which was issued after the trial of this case. In a matter of first
impression in the 14th Court of Appeals, the court addressed whether attorney’s
fees may be recovered against a partnership under Texas Civil Practice Remedies
1
Code § 38.001. Fleming & Assocs. v. Barton, 425 S.W.3d 560 (Tex. App.–
Houston [14th Dist.]), Feb. 27, 2014, pet. denied May 1, 2015). In doing so, the
court held that a “trial court erred by awarding statutory attorney’s fees . . . under
section 38.001 because a limited liability partnership is neither an individual nor a
corporation.” Fleming & Assocs. v. Barton, 425 S.W.3d at 562 (emphasis added).
More specifically, the court stated, “under the plain language of section 38.001(8),
a person may not recover attorney's fees against a partnership.” Id. at 576.
Accordingly, the court modified the trial court’s judgment, “to remove all portions
awarding attorney’s fees.” Id. at 562. The Texas Supreme Court in May of this
year, over a year after the trial of the case which is the subject of this appeal,
declined review of the holding in Fleming.
5. EXCO included this newly developed case law in its Reply Brief.
However, to ensure that the matter is properly before this Court, EXCO seeks to
supplement its original Brief, as well. EXCO’s proposed Supplemental Brief is
being filed contemporaneously with this Motion.
6. The Court should allow EXCO to file a supplemental brief. EXCO’s
supplemental brief addresses a matter previously brought to Appellee’s attention
and briefed in EXCO’s Reply Brief. Additionally, although the issue raised therein
is significant, it is limited in scope as it focuses on the recent opinion in Fleming &
Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 574 (Tex. App.– Houston[14th Dist.]
2
2014, no pet.). Lastly, filing of a supplemental brief will not delay the submission
of the appeal. This matter has been set for oral argument and submission on
October 22, 2015. Accordingly, there is sufficient time for Appellee to file a
response, if any, prior to oral argument and submission.
7. The Court should allow EXCO to file a supplemental brief because no
prejudice will result to McGee if the Court permits the supplementation.
8. Justice requires the supplementation of EXCO’s Brief so that newly
developed, relevant case law may be briefed and presented to this Court.
C. CONCLUSION
9. EXCO files this Motion for consideration by the honorable Court for
permission to supplement its Brief in the interest of justice to address the recently
developed case law directly relating to the issues presented in the subject appeal.
EXCO’s proposed Supplemental Brief has been filed contemporaneously with this
Motion.
D. PRAYER
10. For these reasons, EXCO asks the Court to grant this Motion to
Supplement Brief of Appellant EXCO Operating Company, LP.
3
Respectfully submitted,
WILSON, ROBERTSON & CORNELIUS, P.C.
One American Center
909 ESE Loop 323, Suite 400 [01]
P.O. Box 7339
Tyler, Texas 75711-7339
Telephone: 903/509-5000
Telecopier: 903/509-5091
By: /s/ Matthew T. Milam
JENNIFER PARKER AINSWORTH
Texas Bar No. 00784720
jainsworth@wilsonlawfirm.com
MATTHEW T. MILAM
Texas Bar No. 24065746
mmilam@wilsonlawfirm.com
ATTORNEYS FOR APPELLANT
EXCO OPERATING COMPANY, LP
CERTIFICATE OF CONFERENCE
I certify that I have conferred with opposing counsel by telephone and have
attempted in good faith to reach an agreement about this Motion to Supplement.
We have been unable to reach an agreement. Appellee opposes this Motion to
Supplement.
/s/ Matthew T. Milam
Matthew T. Milam
CERTIFICATE OF SERVICE
I certify that on September 2, 2015, I served a copy of the foregoing Motion
to Supplement Brief of Appellant EXCO Operating Company, LP, on the party
listed below by electronic service and that the electronic transmission was reported
as complete. My email address is mmilam@wilsonlawfirm.com.
/s/ Matthew T. Milam
Matthew T. Milam
4