EXCO Operating Company, LP v. Mary K. McGee

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