Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. v. Murphy Exploration & Production Co.-USA, a Delaware Corporation

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ACCEPTED 04-15-00118-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/5/2015 11:48:57 AM KEITH HOTTLE CLERK NO. 04-15-00118-CV _____________________________________________________________________________ IN THE FOURTH COURT OF APPEALS FILED IN AT SAN ANTONIO, TEXAS 4th COURT OF APPEALS SAN ANTONIO, TEXAS ___________________________________________________________________________________________________________________ 5/5/2015 11:48:57 AM SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST KEITH E. HOTTLE Clerk JASIK, WILLIAM ALBERT HERBST, HELEN HERBST AND R. MAY OIL & GAS COMPANY, LTD., Appellants V. MURPHY EXPLORATION & PRODUCTION CO. - USA, A DELAWARE CORPORATION, Appellee __________________________________________________________________ On Appeal from the 218TH District Court of Atascosa County, Texas Honorable Stella Saxon, Presiding ________________________________________________________________ APPELLANTS' SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLANTS' BRIEF ________________________________________________________________ TO THE HONORABLE FOURTH COURT OF APPEALS: 1. Appellants Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. request an extension of time to file Appellants' Brief. Appellants' Brief is currently due on Wednesday, May 13, 2015. Appellants seek an extension to 30 days after a complete Clerk’s Record is filed. 2. CERTIFICATE OF CONFERENCE: Counsel for Appellants has conferred with Macey Stokes, Lead Counsel for Appellee, who has represented that Appellee does not oppose this motion. 3. Appellants’ Brief is currently due on May 13, 2015. Counsel responsible for drafting and filing Appellants' Brief began work on the record cites for the brief this week and learned, for the first time, that the Clerk’s Record omitted numerous attachments to the petition, the motions for partial summary judgment and responses thereto filed by both Appellants and Appellee. In other words, the body of these filings were included in the Clerk’s Record but their attachments were not. 4. Appellants have conferred with the deputy district clerk responsible for preparing the record and, pursuant to her instructions, have sent her and Margaret Littleton, the district clerk, a letter detailing the missing items and requesting a corrected/supplemental record. A copy of that letter is attached as Exhibit A. 5. This extension is necessary to provide the Court with an accurate record of what was before the district court and to afford counsel for Appellants adequate time to prepare the Appellants' Brief with cites to that record. 5. Appellants have previously requested one extension of time to file Appellants' Brief in this case. 2 WHEREFORE, premises considered, Appellants Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. request that the Court set as the deadline for Appellants to file Appellants' Brief in this case 30 days from the filing of the district clerk’s corrected/supplemental record. In the alternative, Appellants request a 30-day extension to June 13, 2015 or such other relief that the Court considers appropriate. Respectfully submitted, GRAVES DOUGHERTY HEARON & MOODY, P.C. By: /s/ Mary A. Keeney Mary A. Keeney State Bar No. 11170300 mkeeney@gdhm.com John B. McFarland State Bar No. 13598500 jmcfarland@gdhm.com 401 Congress Ave., Suite 2200 Austin, Texas 78701 Telephone: (512) 480-5682 Facsimile: (512) 480-5882 ATTORNEYS FOR APPELLANTS SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, WILLIAM ALBERT HERBST, HELEN HERBST AND R. MAY OIL & GAS COMPANY, LTD. 3 CERTIFICATE OF SERVICE I hereby certify that on May 5, 2015, a true and correct copy of the foregoing was served on counsel for Appellee via email and/or electronic service as shown below: Macey Reasoner Stokes Jason A. Newman Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR APPELLEE MURPHY EXPLORATION & PRODUCTION COMPANY - USA Macey.stokes@bakerbotts.com Jason.newman@bakerbotts.com /s/ Mary A. Keeney Mary A. Keeney 4 GD HM Mary A. Keeney Board Certified, Civil Appellate Law Texas Board of Legal Specialization GRAVES DOUGHERTY HEARON & MOODY A PROFESSIONAL CORPORATION 512.480.5682 512.480.5882 (fax) mkeeney@gdhm.com MAILING ADDRESS: P.O. Box 98 Austin, TX 78767-9998 May 5, 2015 Ms. Margaret E. Littleton Via Facsimile: (830) 769-1332 Atascosa County District Clerk Ms. Cris Benavidez Deputy Clerk #1 Courthouse Circle Drive Suite 4-B Jourdanton, Texas 78026 Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration & Production Co. - USA, a Delaware Corporation; In the 218th Judicial District of Atascosa County, Texas Fourth Court of Appeals Case No. 04-15-00118-CV Dear Ms. Littleton and Ms. Benavidez: Pursuant to my telephone conversation with deputy clerk Cris Benavidez and her instructions, I am providing a list of the documents missing from the Clerk's Record in the above-described and numbered cause. Ms. Benavidez further instructed that this communication be provided to the fax number provided above. I am also providing a copy of the letter of February 24, 2015, I sent to your office designating the matters to be included in the record. The numbering provided below coincides with the numbers of the items designated in that February 24 letter. The main documents missing are attachments to the petition and to motions and responses to motions. The main body of the petition and the motions and responses themselves were included in the clerk's record but the attachments were omitted. The attachments, however, are part of the petition, the motions and the responses and should have been made a part of the record. In addition, in one instance some but not all of the attachments were included — three pages were missing. The court of appeals cannot properly review this case under the current state of the clerk's record because it does not accurately reflect what was before the district court. EXHIBIT 1 401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com May 5, 2015 Page 2 This letter is a request for a corrected/supplemental record that would include the pleadings, motions, and responses with all of their attachments. In order to facilitate the court of appeals' review of the record, I am requesting that you redo the record in its entirety. In other words, the documents in the original clerk's record should be included in the order you prepared them before but should now include all of these missing attachments. This will require a renumbering of the record. In addition, please add to the record my original letter of February 24, 2015 designating the record as well as this letter so that there will be no confusion about what has been and is now being requested. Please notify this office of the cost of preparing this 'corrected/supplemental record, and we will forward a check to you in payment of that amount. I request that your office credit my clients with the $217 we paid on their behalf for the original record. 1. The main body of the Plaintiffs' Original Petition was included. Missing from the petition are the following exhibits, which were attached to and filed with the petition: Exhibit A - Shirley Adams Oil, Gas & Mineral Lease Exhibit B - William Herbst Oil, Gas & Mineral Lease Exhibit C - Plat of lease and unit boundaries 3. The main body of the Plaintiffs' Motion for Partial Summary Judgment was included. Missing from the motion are the following exhibits, which were attached to and filed with the motion: Exhibit A - Sworn declaration of Shirley Mae Herbst Adams Exhibit B - Sworn declaration of William Albert Herbst Exhibit C - Murphy's Response to Plaintiffs' Request for Disclosure Exhibit D - Sworn Declaration of Mary Keeney 7. The main body of Murphy's Motion for Partial Summary Judgment was included. Missing from the motion are the following exhibits, which were attached to and filed with the motion: Exhibit A - Affidavit of Barry Kane Heinen Exhibit B - Oil Gas & Mineral Lease signed by Shirley Adams Exhibit C - Oil, Gas & Mineral Lease signed by William Herbst Exhibit D - Affidavit of John C. McBeath, P.E. with affidavit exhibits May 5, 2015 Page 3 9. The main body of Plaintiffs' Response to Murphy's Motion for Partial Summary Judgment was included. Missing from the response are the following exhibits, which were attached to and filed with the motion: Exhibit A - Affidavit of Gregg Robertson Exhibit B - Railroad Commission of Texas Form H-1 Exhibit C - Docket No. 01-01249550-Examiner's Report Exhibit D - Rule 37 Case No. 0213270 Exhibit E - Rule 37 Case No. 0240684 Exhibit F Rule 37 Case No. 0211820 Exhibit G - Rule 37 Case No. 0245869 10. The main body of Murphy's Response to Plaintiffs' Motion for Partial Summary Judgment was included. Missing from the response are the following exhibits, which were attached to and filed with the motion: Exhibit A - Affidavit of Gregg Robertson Exhibit B - Transcript of Deposition of Shirley Adams Exhibit C - Transcript of Deposition of William Albert Herbst Exhibit D - William Herbst's Responses to Defendant's First Set of Interrogatories and Shirley Adam's Responses to Defendant's First Set of Interrogatories 15. The main body and most of the attachments to Plaintiffs' Motion for New Trial, Motion to Vacate or Modify the Judgment and Motion to Reconsider the Court's Decision on Partial Summary Judgment Motions were included. Missing are the following portions of the attachments: Last page of letter dated December 19, 2014 from Mary Keeney to Judge Saxon Letter dated November 12, 2014 from Judge Saxon, which should have immediately followed the December 19, 2014 letter Please file the Corrected/Supplemental Record with the Clerk of the Court of Appeals for the Fourth District in San Antonio, Texas in accordance with Rule 35 of the Texas Rules of Appellate Procedure. May 5, 2015 Page 4 Thank you for your attention to this matter. Please contact me if you have any questions. Yours truly, GRAVES, DOUGHERTY, HEARON & MOODY A Professional Corporation By: y61, M• ry A. eney A orneys Plainti ifs MAK/cfc cc: Macey Reasoner Stokes Jason A. Newman Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR APPELLEE MURPHY EXPLORATION & PRODUCTION COMPANY - USA Macey.stokes !,bakerbotts.com Jason.newman@bakerbotts.com Keith E. Hottle Fourth Court of Appeals Clerk Cadena-Reeves Justice Center 300 Dolorosa, Suite 3200 San Antonio, Texas 78205-3037 GO Mary A. Keeney MM Board Certified, Civil Appellate Law Texas Board of Legal Specialization GRAVES DOUGHERTY HEARON & MOODY 612.480.5882 . A PROFESSIONAL CORPORATION 512.480.5882 (fax) mkeeneyegdhm.com MAILING ADDRESS: P.O. _Box 98 Austin, TX 78787-9998 February 24, 2015 Ms. Margaret. E. Littleton Via: Federal Express Atascosa County District Clerk #1 Courthouse Circle Drive Suite 4-B Jourdanton, Texas 78026 Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration & Production Co. - USA, a Delaware Corporation; In the 218th Judicial District of Atascosa County, Texas Dear Ms. Littleton: Enclosed for filing in the above-described and numbered cause is Plaintiffs' Notice of Appeal pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, giving notice that they desire to appeal the Order Setting Asicle Final Judgment In Part and Entering Amended Final Judgment entered on February 10, 2015 in the captioned cause. Plaintiffs respectfully request that you prepare the Clerk's Record for the captioned cause in accordance with Rule 34 of the Texas Rules of Appellate Procedure. Please notify this office Of the cost of preparing the Clerk's Record, and we will forward a check to you in payment of that amount. Please include in the Clerk's Record the following, as well as any other items required by Rule 34.5(a) of the Texas Rules of Appellate Procedure: 401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.corn February 24, 2015 Page 2 DESCRIPTION DATE 1. Original Petition 5-24-13 2. Defendant's Original Answer and Jury Demand 7-1-13 3. Plaintiffs' Motion for Partial Summary Judgment 9-6-13 4. Defendant Murphy Exploration's Counterclaim 9-16-13 5. Murphy Exploration's First Amended Answer 1-22-14 6. Murphy Exploration's First Amended Counterclaims 1-22-14 7. Murphy Exploration's Motion for Partial Summary Judgment 1-24-14 8. Rule 11 - Deadlines for Responses and Replies to Motion for 6-4-14 Summary Judgment 9. Plaintiffs' Response to Murphy's Motion for Partial Summary 8-12-14 Judgment 10. Murphy Response to Plaintiffs' Motion for Partial. Summary 8-12-14 Judgment 11. Murphy's Reply in Support of its Partial Motion for Summary 8-26-14 Judgment and Motion to Strike 12, Plaintiffs' Reply to Murphy's Response to Plaintiffs' Motion for 8-28-14 Partial Summary Judgment 13. Murphy's Motion for Entry of Final Judgment 12-05-14 14, Final Judgment 12-15-14 15. Plaintiffs' Motion For New Trial, Motion To Vacate Or Modify The 1-02-15 Judgment, And Motion To Reconsider The Court's Decision On Partial Summary Judgment Motions 16. Steinle Amicus Ltr 1-21-15 17. Murphy Response to Motion for New Trial 1-27-15 18. Order Setting Aside Final Judgment In Part and Entering Amended 2-10-15 Final Judgment February 24, 2015 Page 3 Please file the Clerk's Record with the Clerk of the Court of Appeals for the Fourth District in San Antonio, Texas in accordance with Rule 35 of the Texas Rules of Appellate Procedure. Thank you for your attention to this matter. Please contact me if you have any questions. Yours truly, GRAVES, DOUGHERTY, HEARON & MOODY A Professional Corporation By; M A. Feeney At ► rn or. Plain 'ifs MAK/cfc cc: Jason A. Newman CAUSE NO. 13-05-0466-CVA SHIRLEY ADAMS, CHARLENE § IN THE DISTRICT COURT BURGESS, WILLIE MAE HERBST § JASIK, WILLIAM ALBERT HERBST, § HELEN HERBST and R. MAY OIL & § GAS COMPANY, LTD., Plaintiffs, vs. § 218th JUDICIAL DISTRICT MURPFIY EXPLORATION & PRODUCTION CO.-USA, A DELAWARE CORPORATION, § Defendant. § ATASCOSA COUNTY, TEXAS PLAINTIFFS' NOTICE OF APPEAL Pursuant to Texas Rule of Appellate Procedure 25.1, PLAINTIFFS SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, WILLIAM ALBERT HERBST, HELEN HERBST, AND R. MAY OIL. & GAS COMPANY, LTD hereby give notice of their desire to appeal from the Order Setting Aside Final Judgment In Part and Entering Amended Final Judgment, which was signed and entered on February 10 2015, in Civil Cause Number 13- 05-0466-CVA, Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. vs. Murphy Exploration & Production Co. USA, a Delaware Corporation, in the 218th Judicial District Court of Atascosa County, Texas. The appeal is to the 1 Fourth Court of Appeals in San Antonio, Texas. A copy of the February 10, 2015 Order Setting Aside Final Judgment and Entering Amended Final Judgment In Part of the Court is attached hereto as Exhibit A. To the extent necessary, Plaintiffs also appeal any adverse portions of the Final Judgment signed on December I5, 2014 that remain in effect. Dated: r4 Respectfully submitted, „ez Jo B. M Farland Sta Bar o. 13598 00 jmekland@gdlun.com Mary A. Keeney State Bar No. 11170300 mkeeney@gdhin.com GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701-3744 (512) 480-5682 Telephone (512) 480-4882 Telecopier ATTORNEYS FOR PLAINTIFFS 2 CERTIFICATE OF SERVICE I hereby certify that on February 24, 2015, a true and correct copy of the foregoing was served on counsel for Defendant via email as shown below: Bill Kroger Jason A. Newman Benjamin Sweet Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR DEFENDANT MURPHY EXPLORATION & PRODUCTION COMPANY - USA Jason.newman@bakerbotts.com 3 CAUSE NO. 13-05-0466-C'VA SHIRLEY ADAMS, CHARLENE BURGESS, IN THE DISTRICT COURTI WILLIE MAE HERBST. JASIK, FILED 47% Tv O'CLOCICLM MARGARET E. UTTLETON, DISTRICT CLERK WILLIAM ALBERT HERBST, •HELEN HERBST and R. MAY OIL & GAS COMPANY, LTD., FEB 1 0 2 315 Plaintiffs, vs. 218th JUDICIAL MURPHY EXPLORATION & PRODUCTION CO.-USA, A DELAWARE CORPORATION, Defendant § ATASCOSACOUNTY WS iv M ORDER SETTING ASIDE FINAL JUDGMENT AND ENTERING AMENDED FINAL JUDGMENT On February 2, 2015, came on to be considered the Motion for New Thal, Motion to Vacate or Modify the Judgment, and Motion to Reconsider the Court'S Decision on 'Partial Summary Judgmmt Motions, filed by Plaintiffs Shirley Adams, Charlene Burgess, Willie Mae Herbst Jul., William Albert. Herbst, Helen Herbst, and R. May Oil & Gas Company, Lid. The Court has condidered the. motions, the response filed by Murphy Exploration & Production Co.- USA, and the arguments presented by counsel and is of the opinion tl i:1;L aintiffs' motions . avut wool i'-ge ck; A should be granted in part efid•denied in partYor the following retrons: r57201.4-Firrai-Judgment-was-presenteil-te-Ithe-Cougt-Wttiout— .4iopez.notiee.to4zisintifkin-vivi 2. The December 15, 2014 Final Judgment improperly awards appellate attorney's fees to Murphy. .1tas-C,Curt-farids-that-these-fees-afe-not-rable-unflerweither-ehapters-31-or-- -Chapter..alLotthe-Texas-Givil-Praetiee-&-Remediee-Goile,-Ilze-Geart-furtherftrOs-thatitwoutel. -,ba-neitIterequi+able:aer-jest-te-awaril-these-fees7—The-eourtfertiter-finds-that-those-fees-are-net- 72501624 Rod& 1.454444.4* The Court vacates and modifies its ertlei► in part with regard to the award of appellate fees to Murphy. The Court modifies paragraph 3 of its December 15, 2014 final judgment in this matter and finds that should Plaintiffs appeal this Final Judgment, Murphy will expend reasonable and necessary attorneys' fees in the amount of $25,000 for defending the matter in the Court of Appeals, $7500 for responding to a petition for review, and $20,000 in the event the Supreme Court orders briefing n the mels and grants the petition. Therefore, should Plaintiffs . unsuccessfully appeal thisAtinal Judgment, they are ordered to pay Murphy's reasonable and necessary attorney's fees on appeal as directed in this judgment. 3, The Court finds that its rulings on Plaintiffs' Motion for Partial Summary Judgment and Defendant's Motion for Partial Summary Judgment should stand. IT IS THEREFORE ORDERED THAT Plaintiffs' Motion for New Trial, Motion to ekt Vacate or Modify the Judgment, and Motion to Reconsider the Court's Decision 4P Partial Summary Judgment Motions is denied, except that the December 15, 2014 Final Judgment in this ease is vacated and modified solely with regard to paragraph 3 as reflected in this order. Fr IS FURTHER ORDERED THAT Plaintiffs' Motion for Partial Summary Judgment is DENIED AND Defendants Motion for Partial Summary Judgment is GRANTED. Costs are taxed against Plaintiffs. IT IS FURTHER ORDERED that all other relief requested in this cause is DENIED. SIGNED this 10th day of February, 2015. LLA SAXON, Judge Presiding **************************************************************************************************** * P.01 * * TRANSACTION REPORT * * MAY-05-15 TUE 11:20 AM * * * * DATE START RECEIVER TX TIME PAGES TYPE NOTE M# DP * * * * MAY-05 11:13 AM 18307691332 6'39" 13 SEND OK 561 * * * * * * TOTAL : 6M 39S PAGES: 13 * * * **************************************************************************************************** 401 Congress Ave., Suite 2200 Austin, TX 76701 CFI D MM 612.480.5600 512-480-5662(Wriler's Direct No.) 512-480-5882(Direct Fax) GRAVES DOUGHERTY HEARON & MOODY www.gdhm.com A Professional Corporation MAILING ADDRESS: P.O. Box 98 Austin, TX 78767-9996 FAX TRANSMITTAL TO: Margaret E. Littleton Fax: (830) 769-1332 Cris Benavidez FROM: Mary A. Keeney RE: Cause No. 13-05-0466-CVA - Letter regarding Clerk's Record DATE: May 5, 2015 TOTAL PAGES TIME: INCLUDING COVER: 13 Notes, comments, special instructions: