ACCEPTED
06-15-00005-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/20/2015 12:27:01 PM
DEBBIE AUTREY
CLERK
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA, TEXAS
FILED IN
______________________ 6th COURT OF APPEALS
TEXARKANA, TEXAS
10/20/2015 12:27:01 PM
No. 06-15-00005-CV
DEBBIE AUTREY
______________________ Clerk
BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON,
SELIA 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
WITH LIFT STAY ORDER
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 in compliance with this Court’s June 25, 2015 Order, and for such
motion shows the Court as follows:
1
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
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. The bankruptcy
filing by Luminant and other debtors effected an automatic stay of certain litigation in
which the debtors were parties. Luminant concluded that the stay, however, did not apply
to the Partition Suits under Bankruptcy law, and Luminant therefore did not file a notice
of bankruptcy in the Partition Suits.
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.
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.
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.
2
On May 19, 2015, the Tremble Family filed a copy of Luminant’s 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.
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."
Luminant previously filed motions to reinstate these appeals, but discussed legal
authorities about why it believes the stay does not apply to the Partition Suits and did not
obtain or include a lift stay order. On June 25, 2015, this Court overruled the previous
motions to reinstate these appeals because the motions did “not include (1) a certified
copy of an order showing that the automatic stay has been lifted or (2) an authenticated
document demonstrating that reinstatement is permitted by federal law and/or the
relevant bankruptcy court.”
In the bankruptcy proceeding, on July 21, 2015, Luminant and Energy Future
Holdings Corporation moved for an order confirming that the stay was not in effect or to
lift the stay as to this and the two related appeals. A true and correct copy of that motion
is submitted with this motion as Exhibit A and incorporated in this motion by reference.
3
On October 15, 2015, the bankruptcy court heard and granted the motion to lift
stay as to these appeals. A certified copy of the bankruptcy court’s lift stay order is
submitted with this motion as Exhibit B and incorporated by reference in this motion.
For these reasons, Appellee Luminant Mining Company LLC requests that the
Court reinstate these appeals.
Respectfully submitted,
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 Appeals With Lift Stay Order was sent via the following method, to the
following parties on this the 20th day of October, 2015.
Billie J. Murphy Tremble
PO Box 541
Marshall, TX 75671-0541
Via regular mail and
Certified Mail, RRR
7015 0640 0003 1869 5823
Sharon Tremble Donaldson
2010 Wineberry Dr .
Katy, TX 77450
Via regular mail and
Certified Mail, RRR
7015 0640 0003 1869 5847
Selia Tremble Shawkey
712 South 37th Street
San Diego, CA 92113
Via regular mail and
Certified Mail, RRR
7015 0640 0003 1869 5854
Wilmer Forrest Tremble, Jr.
3615 Sheldon
Pearland, TX 77584
Via regular mail and
Certified Mail, RRR
7015 0640 0003 1869 5861
/s/ David E. Jackson
David E. Jackson
5