Wilmer Forrest Trimble, Jr., A/K/A Wilmer Forrest Tremble, Jr., Sharon Trimble Donaldson, Selia Trimble Shawkey, and Billie J. Murphy Tremble v. Luminant Mining Company LLC

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ACCEPTED 06-15-00005-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/18/2015 4:33:01 PM DEBBIE AUTREY CLERK IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA,FILED TEXAS IN ______________________ 6th COURT OF APPEALS TEXARKANA, TEXAS 6/18/2015 4:33:01 PM 06-15-0005-CV DEBBIE AUTREY ______________________ Clerk BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON, CELIA TREMBLE SHAWKEY, WILMER FORREST TREMBLE, JR., THE ESTATE OF WILMER FORREST TREMBLE, SR., Appellants V. LUMINANT MINING COMPANY LLC, ENERGY FUTURE HOLDINGS CORPORATION AND SUBSIDIARIES, Appellees On Appeal from the 4th District Court Rusk County, Texas Trial Court No. 2013-391 LUMINANT MINING COMPANY LLC'S MOTION TO REINSTATE APPEALS TO THE HONORABLE COURT OF APPEALS: Appellee Luminant Mining Company LLC ("Luminant") moves to reinstate the above-referenced appeal, and two companion ones, pursuant to Texas Rule of Appellate Procedure 8.3, and for such motion shows the Court as follows: Luminant was the Plaintiff in these partition suits in the trial court, now on appeal before this Court ("the Partition Suits").1 Appellants Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the 1 In their notices of appeal, Appellants named Luminant and Energy Future Holdings Corporation and "Subsidiaries" as Appellees. Neither Energy Future Holdings Corporation nor any subsidiaries were Plaintiffs in the district court, and thus these entities are not proper Appellees. These party issues will be addressed in the Brief of Appellees, once the Court resolves the abatement of these appeals. 1 Tremble Family") were Defendants. Luminant filed the Partition Suits on November 26, 2013. On April 29, 2014, Luminant and each of numerous other related debtor entities filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the District of Delaware. See Affidavit of [bankruptcy attorney] attached to and incorporated by reference in this motion as Exhibit 1. The bankruptcy filing by Luminant and other debtors effected an automatic stay of certain litigation in which the debtors were parties. Id. As is explained further below, however, the stay did not and does not apply to the Partition Suits, and Luminant therefore did not file a notice of bankruptcy in the Partition Suits. Id. On December 12, 2014, the Tremble Family filed suit in the Rusk County District Court against Luminant, Energy Future Holdings Corporation, and "Subsidiaries," in Cause No. 2014-402 ("the Tremble Suit"). In the Tremble Suit, the Tremble Family alleges fraud and other claims and seeks the recovery of damages. A true and correct copy of the Tremble Family's petition is attached to this motion as Exhibit 2; see also Affidavit of Marc O. Knisely attached to and incorporated by reference in this motion as Exhibit 3. On January 8, 2015, Luminant and Energy Future Holdings Corporation filed a Notice of Suggestion on Pendency of Bankruptcy ("Notice of Bankruptcy") in the Tremble Suit. Ex. 3. On May 19, 2015, the Tremble Family filed a copy of the Notice of Bankruptcy that Luminant had previously filed in the Tremble Suit with the Clerk of this Court in these three appeals in the Partition Suits. 2 On May 28, 2015, this Court issued an Order suspending the three appeals and abating the cases. The Order states that "[a]ny party may move to reinstate the appeal by promptly filing a motion to reinstate including, as an attachment, either a certified copy of an order showing that the automatic bankruptcy stay has been lifted or any other authenticated document demonstrating that reinstatement is permitted by federal law and/or the relevant bankruptcy court." The Tremble Suit is subject to the automatic bankruptcy stay because the members of the Tremble Family are the plaintiffs in that suit against Luminant and Energy Future Holdings Corporation, as defendants, the suit involves claims that are alleged to have arisen in part before the filing of the bankruptcy petition, and the Tremble Family as plaintiffs seek the recovery of damages from Luminant and Energy Future Holdings Corporation. Ex. 1. In contrast, the Partition Suits were brought by Luminant as the plaintiff, and no claims were or are asserted against Luminant in those suits. Id. [Discuss any additional reasons why stay does not apply]. Accordingly, the bankruptcy stay does not apply to the appeals pending before this Court, and, under applicable bankruptcy law, the Court may properly reinstate the appeals. Id. For these reasons, Appellee Luminant Mining Company LLC requests that the Court reinstate these appeals. Respectfully submitted, 3 Jackson, Sjoberg, McCarthy & Townsend, LLP David E. Jackson State Bar No. 10458500 djackson@jacksonsjoberg.com Marc O. Knisely State Bar No. 11614500 mknisely@jacksonsjoberg.com 711 W. 7th Street Austin, Texas 78701 (512) 472-7600 (512) 225-5565 FAX By: /s/ David E. Jackson David E. Jackson State Bar No. 10458500 ATTORNEYS FOR APPELLEES LUMINANT MINING COMPANY LLC 4 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of the above and foregoing Motion to Reinstate was sent via the following method, to the following parties on this the 18th day of June, 2015. Billie J. Murphy Tremble 2806 Evans Street Marshall, TX 75670 Via regular mail and Certified Mail, RRR 70141200000120432610 Sharon Tremble Donaldson 2010 Wineberry Dr . Katy, TX 77450 Via regular mail and Certified Mail, RRR 70141200000120432627 Selia Tremble Shawkey 712 South 37th Street San Diego, CA 92113 Via regular mail and Certified Mail, RRR 70141200000120432634 Wilmer Forrest Tremble, Jr. 3614 Sheldon Pearland, TX 77584 Via regular mail and Certified Mail, RRR 70141200000120432641 /s/ David E. Jackson David E. Jackson 5