Hydrogeo, LLC, First Bank & Trust East Texas v. Quitman Independent School District

ACCEPTED
06-15-00007-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/2/2015 9:18:06 AM
DEBBIE AUTREY
CLERK

No. 06-15-00007-CV

In the Court of Appeals for the FILED IN
6th COURT OF APPEALS
Sixth Judicial District of Texas TEXARKANA, TEXAS
Texarkana, Texas 7/2/2015 9:18:06 AM
DEBBIE AUTREY
Clerk

HYDROGEO, LLC AND FIRST BANK & TRUST EAST TEXAS
Appellants
AND
DEBERRY 3 OPERATING COMPANY, LLC,
Appellants

v.

QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER SABINE
WASTE DISPOSAL DISTRICT, AND Woon COUNTY CENTRAL HOSPITAL DISTRICT,
Appellees

On Appeal from the 402nd Judicial District Court
Wood County, Texas

BRIEF OF APPELLANTS, HYDROGEO, LLC and
FIRST BANK & TRUST EAST TEXAS

J. DON WESTBROOK
Texas Bar No. 21215500
COGHLAN CROWSON, LLP
1127 Judson Road, Suite 211
Longview, Texas 75601
(903) 758-5543
(903) 753-6989 (fax)
dwestbrook@ccfWw.com
ORAL ARGUMENT REQUESTED Attorneys for Hydrogeo, LLC and
First Bank & Trust East Texas
 Certificate of Interested Persons

The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case.

Appellants Counsel for Hydrogeo, LLC and
Hydrogeo, LLC and First Bank & Trust East Texas
First Bank & Trust East Texas
J. Don Westbrook
Michael E. Starr
Coghlan, Crowson, LLP
1127 Judson Road, Suite 211
P.O. Box 2665
Longview, Texas 75606-2665

Appellant Counsel for DeBerry 3 Operating
DeBerry 3 Operating Company, LLC Company, LLC:

Michael L. Dunn
Smead, Anderson & Dunn
2110 Horseshoe Lane
Longview, Texas 75606

Appellee Counsel for Wood County, Upper
Wood County, Upper Sabine Sabine Waste Disposal District and
Waste Disposal District and Wood Wood County Central Hospital
County Central Hospital District District

Edward J. (Nick) Nicholas
Linebarger Goggan Blair &
Sampson, LLP
4828 Loop Central Drive, Suite 600
Houston, Texas 77081

ii
 Jim L. Lambeth
Alison Wylie
Linebarger Goggan Blair & Sampson,
LLP
1517 W. Front St. Suite 202
Tyler, Texas 75702

Appellee Counsel for Quitman Independent
Quitman Independent School District School District

David Hudson
Perdue, Brandon, Fielder, Collins &
Mott, LLP
POBox2007
Tyler, Texas 75710

iii
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... v, vi

STATEMENT OF THE CASE ..................................................................... vii

STATEMENT REGARDING ORAL ARGUMENT .................................. viii

ISSUES PRESENTED ................................................................................. viii

STATEMENT OF FACTS .............................................................................. l

SUMMARY OF THE ARGUMENT .............................................................. 5

ARGUMENT AND AUTHORITIES ............................................................. 7

A. Issue No. 1........................................................................................ 7

B. Issue No. 2 ...................................................................................... 11

CONCLUSION ............................................................................................. 20

PRAYER ....................................................................................................... 21

CERTIFICATE OF COMPLIANCE ............................................................ 22

CERTIFICATE OF SERVICE ...................................................................... 22

INDEX OF APPENDICES ........................................................................... 23

iv
 INDEX OF AUTHORITIES

Cases

Interstate Northborough P 'ship v. State, 66 S. W.3d 213
(Tex. 2001) ............................................................................................ 7

Alvarado v. Farah Mfg. Co., 830 S.W.2d 911
(Tex. 1992) ................................................................................... 7, 8, 9

Good v. Baker, 339, S.W.3d 260
(Tex. App.-Texarkana 2011, pet. denied) ...................................... 11

Maro v. State, 168 S.W.2d 510
(Tex. Civ. App.-Amarillo 1943, writ ref'd) .................................... 12

K.R.P., 80 S.W.3d 669
(Tex. App.-Houston [1 ' 1 Dist.] 2002, pet. denied) ........................... 12

Maximum Medical Improvement, Inc. v. County ofDallas, 272 S.W.3d 832
(Tex. Civ. App.-Dallas 2008, no pet.) ................................. 12, 13, 15

Pete Dominguez Enterprises v. County ofDallas, 188 S.W.3d 385
(Tex. Civ. App.-Dallas 2006, no pet.) ............................................. 13

DMV Vacuum Services, Inc. v. Zavala County Appraisal District, 812 S.W.2d 435
(Tex. App.-San Antonio 1991, no writ) .................................... 13, 14

Estates ofElkins v. County ofDallas, 146 S.W.3d 826
(Tex. App.-Dallas 2004, no pet.) ............................................... 14, 15

Sonnier v. Chisholm Ryder Co., 909 S.W.2d 475
(Tex. 1995) ......................................................................................... 18

Logan v. Mullis, 686 S.W.2d, 605
(Tex. 1985) ......................................................................................... 18

Palmer v. Palmer, 831S.W.2d479
(Tex. App.-Texarkana 1992, no writ) ............................................. 19

v
University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287
(Tex. 1967) ................................................................................... 19, 20

Taylor v. Rigby, 574 S.W.2d 833
(Tex. App.-1978 writ refd) ............................................................. 20

Goldberg v. R.J Longo Constr. Co., 54 F.3d 243
(5th Cir. 1995) .................................................................................... 20

Shipley v. Biscamp, 580 S.W.2d 52
(Tex. App.-Houston [14th Dist.] 1979, no writ) ............................. 20

Spencer-Sauer Lumber Co. v. Ballard, 98 S.W.2d 1054
(Tex. App.-San Antonio 1936, no writ) .......................................... 20

Other

Tex. Bus. & Com. Code Ann. §1.20l(b)(9)(Vernon 1987) ............... 2, 16, 17

Tex. Tax Code Ann. §33.47(a) (Vernon 1992) .................. 2, 6, 11, 13, 14, 19

Tex. Tax Code Ann.§ 32.03 (Vernon 1992) ........................................... 2, 16

TEX. R. CIV. P. 193.6 ............................................................................. 3, 6, 9

TEX. R. CIV. P. 193.6 (b) ..................................................................... 6, 9, 10

TEX. R. CIV. P. 193.6 (a) ..................................................................... 8, 9, 10

TEX. R. CIV. P. 307 ...................................................................................... 12

Tex. Tax Code Ann.§ 33.47 (Vernon 1992) ......................................... 12, 13

Tex. Tax Code Ann.§ 33.05 (Vernon 1992) ............................................... 16

Tex. Tax Code Ann.§ 32.03(a) (Vernon 1992) ........................................... 17

Texas Attorney General Opinion No. DM-438, May 2, 1997 ..................... 16

vi
 No. 06-15-00007-CV

In the
Court of Appeals for the
Sixth Judicial District of Texas
Texarkana, Texas

HYDROGEO, LLC AND FIRST BANK & TRUST EAST TEXAS
Appellants

AND

DEBERRY 3 OPERATING COMPANY, LLC,
Appellants

v.

QUITMAN INDEPENDENT SCHOOL DISTRICT, Woon COUNTY, UPPER SABINE
WASTE DISPOSAL DISTRICT, AND Woon COUNTY CENTRAL HOSPITAL DISTRICT,
Appellees

On Appeal from the 40znct Judicial District Court
Wood County, Texas

STATEMENT OF THE CASE

Hydrogeo, LLC and First Bank & Trust East Texas, (hereinafter "Hydrogeo"),

appellants in the above captioned appeal, file this Brief of Appellants, and

respectfully request this Honorable Court of Appeals to reverse the judgment granted

in favor of Quitman Independent School District, Wood County, Upper Sabine

Waste Disposal District and Wood County Central Hospital District (hereinafter

vii
"taxing entities") by the 402°ct Judicial District Court in Wood County, Texas and

render judgment that appellees take nothing by this suit.

STATEMENT REGARDING ORAL ARGUMENT

Hydrogeo believes that oral argument will aid in the Court's decision

concerning the arguments raised in this appeal.

ISSUES PRESENTED

ISSUEN0.1

Did the trial court commit reversible error by admitting Plaintiffs'
Exhibit "A" into evidence when the document had not been produced prior to
trial, and when the taxing entities failed to make any showing of good cause for
their failure to produce the document.

ISSUE N0.2

Did the trial court err by finding the taxing entities' entire alleged tax lien
enforceable against Hydrogeo, when taxing entities failed to segregate that
portion of the lien which was unenforceable against Hydrogeo.

viii
 STATEMENT OF FACTS

This appeal is from the trial court's decision granting various taxing entities

the authority to foreclose tax liens on two oil and gas leases owned and operated by

Hydrogeo. Appellant First Bank & Trust East Texas owns a mortgage lien on the

leases, which leases are located in Wood County, Texas.

The taxing entities originally filed suit in July 2012 naming three different

owners and listing two leases i.e., the Denton White (Tract One) and the I.E.

Robinson (Tract Two), claiming delinquent taxes owed for the years 2009 through

2011, and seeking foreclosure of real and personal property interests. (1 C.R. p.8) 1

At the time of the filing of the lawsuit, taxing entities, although aware ofHydrogeo's

leasehold ownership, incorrectly sued three entities who did not own any interest in

the Denton White lease. (2 R.R. p. 57, line 21 - p. 58, line 8.) Taxing entities did

not sue anyone owning an interest in the Robinson lease for the years 2010 and 2011

(2 R.R. p. 109, line 7 - p. 110, line 18). Even a cursory search of the applicable

county clerk's records or their own tax rolls would have revealed the correct owners'

names. (2 R.R. p. 25 line 20 - p. 26, line 3). It was not until a year later that they

filed a First Amended Petition naming Hydrogeo, LLC and First Bank & Trust East

1
References to the Clerk's Record will be by Arabic numeral indicating the volume, the
abbreviation "C.R." and page number. References to the Reporter's Record will be in the same
manner using the abbreviation "R.R." References to the appendix will be with the abbreviation
"App." and the letter of the referenced appendix tab.

1
Texas for the first time. (1 C.R. p. 36) They filed a second petition naming a 50%

leasehold owner in one of the two leases, DeBerry 3 Operating Company, LLC on

March 6, 2014. ( 1 C.R. p. 164) None of appellants received notification of taxing

entities' claimed tax liens prior to filing their First Amended Petition. (2 R.R. p. 56,

lines 17-19). Hydrogeo, LLC has always been current on its ad valorem taxes since

the time it began operations of the two leases in 2012. (2 R.R. p. 56, lines 13-16).

As mentioned, Hydrogeo, LLC purchased the two leases in question in 2012,

meaning they did not own the properties on January 1' 1 of either 2009, 2010 or 2011,

which is significant because Hydrogeo alleges they are buyers in ordinary course as

defined by Tex. Bus. Com. Code §1.201 (b) (9) (Vernon 1987). (2 R.R. p. 55, line

19-p. 56, line 5.) Hydrogeo filed verified denials and obtained response to requests

for admissions confirming no ownership, lack of prior notice, and questioning the

validity of the amount of the lien. (1 C.R. p. 54, 58, 78). As such, Hydrogeo contends

they effectively rebutted the presumption given to taxing authorities under Tex. Tax

Code Ann. §33.47(a) (Vernon 1992). Additionally, Hydrogeo as a buyer in ordinary

course, believe they are protected against enforcement of the taxing authorities' tax

lien as it relates to any personalty located on the two oil and gas leases. (Tex. Tax

Code § 32.03, App. G).

The enforceability of the tax lien was tried as a bench trial before the court on

September 18, 2014. The taxing entities offered Plaintiffs' Exhibit "A", labeled

2
"Certified Copy of Tax Records'', dated August 22, 2014. (2 R.R. p. 7 line 15-20).

Hydrogeo objected to the offer of Exhibit "A" for admission. (2 R.R. p. 8, line 1 -

line 7). The objection dealt with the potential violation of TEX. R. CIV. P. 193.6, in

that Exhibit "A" had not been provided to Hydrogeo prior to trial. (2 R.R. p. 8 line

20 - p. 9, line 1). Hydrogeo believes the trial court erred by admitting Exhibit "A"

even though taxing entities made no showing of good cause or lack of unfair surprise

and/or prejudice. The questionable Exhibit "A" was the only evidence offered by

taxing entities, who then rested. (2 R.R. p. 9, line 10-16). Hydrogeo moved for

directed verdict, which was overruled. (2 R.R. p. 19, line 15-18 and 2 R.R. p. 22,

line 3).

Exhibit "A" is a seven page document regarding the two leases, and is attached

as Appendix A. Page one describes a 0.83335 royalty interest in the Denton White

lease for the year 2009. (emphasis added). (2 R.R. p. 40, line 9 -p. 41, line 9). The

owners of the leases on Exhibit "A" are listed as "Black Diamond Operating Co.

LLC" for year 2009 and "Rheata Resources LLC" for years 2011 and 2012. (3 C.R.

p. 7-9 and App. A). The trial court subsequently ruled that Rheata Resources LLC

never owned an interest in either of the two oil and gas leases for the years in

question and issued a directed verdict confirming its ruling. (2 R.R. p. 109, line 7 -

p. 110, line 18, and App. B). Subsequently, evidence at trial revealed the owner and

operator of both leases during all three years in question was "Steelman Investments,

3
Inc." (Defendants Black Diamond and Rheata Exhibit Nos. 3 and 5). The taxing

entities have never sued "Steelman Investments, Inc." for collection of the

delinquent taxes.

In addition to listing the wrong owners, Plaintiffs' Exhibit "A" describes, on

page one, the interest being taxed as a "royalty interest". (App. A). Page one of

Exhibit "A" is taxing entities' sole evidentiary support for its claim for delinquent

taxes for year 2009 regarding the Denton White lease. (2 R.R. p. 7, line 15 - 20).

Subsequent testimony during trial revealed that taxing entities' claim for taxes on a

royalty interest was incorrect. (2 R.R. p. 40, line 9 - p. 41, line 9). A royalty interest

comes from the lessor side of an oil and gas lease, while taxing entities' intended

lien is for a working interest, which comes from the lessee side. (2 R.R. p. 40, line

9, - p. 41, line 9). Despite taxing entities' Exhibit "A" listing the wrong owners and

describing the wrong interest, the trial court ultimately ruled in favor of taxing

entities on January 14, 2015, granting their request for foreclosure on tax liens on

Hydrogeo's two leases. (App. B).

Hydrogeo requested Findings of Fact and Conclusions of Law on January 21,

2015. (App. C). The trial court issued Findings of Fact and Conclusions of Law on

February 4, 2015. (App. D). Hydrogeo objected to the trial court's findings by

requesting Additional Findings of Fact and Conclusions of Law on February 13,

2015, and by listing specific findings and conclusions. (App. E). The trial court

4
denied Hydrogeo' s requests by re-issuing the same Findings of Fact and Conclusions

of Law on February 23, 2015. (App. F). Hydrogeo filed its Notice of Appeal on

January 27, 2015. (App. I).

SUMMARY OF ARGUMENT

Hydrogeo's two leases should be free from the taxing entities' efforts to

foreclose because:

1) the one piece of evidence (App. A) was incorrectly admitted by the trial

court, in that it had not been provided to opponents prior to trial and good cause was

not shown by taxing entities to allow admission;

2) even if Exhibit "A" was properly admitted, it does not prove taxing

entities' claims because it lists the wrong owners, describes the wrong properties,

and does not distinguish between the values given to the leases' personalty from the

values given to the realty;

3) taxing entities' reliance on its rebuttable presumption is misplaced

because Hydrogeo effectively rebutted the presumption, forcing the taxing entities

to prove each element of their cause of action, which they failed to do;

4) failure by the taxing entities to prove the valid amount of the underlying

tax claims is critical because without a valid debt, there can be no valid lien on which

to foreclose.

5
 Regarding the evidentiary question, the taxing entities offered one document

(Exhibit "A") into the evidence and then rested. (2 R.R. p. 7, line 15 - p. 7, line 20);

(2 R.R. p. 9, line 10 - p. 9, line 16). Exhibit "A" constitutes the entire proof offered

by taxing entities. Since Exhibit "A" had not been provided to opponents prior to

trial in direct violation of TEX. R. CIV. P. 193.6, the trial court had no discretion to

admit Exhibit "A" unless taxing entities were able to make a showing of good cause

for not complying with discovery requests. TEX. R. CIV. P. 193.6 (b). The record

is silent on this issue; no showing was made by the taxing entities. There can be no

doubt that since Exhibit "A" constitutes the entire proof offered by taxing entities,

that the trial court's decision to improperly admit it constitutes harmful error.

Even if Exhibit "A" was properly admitted, it contains incorrect information

such as listing the wrong owners, describing the wrong property and failing to

distinguish between realty and personalty. (App. A).

Exhibit "A" is a certified copy of the delinquent tax rolls regarding the alleged

tax lien. Under §33.47a of the Tax Code, taxing entities are entitled to a rebuttable

presumption unless Hydrogeo is able to offer sufficient evidence to rebut that

presumption. Hydrogeo offered verified pleadings, responses to requests for

admissions, documents and testimony sufficient to rebut the taxing entities'

presumption. Since the burden of going forward with evidence shifted back to them,

the taxing entities were required to prove their case; they offered no additional proof.

6
 The failure by the taxing entities to prove the valid amount of the underlying

tax claims is critical because without a valid debt, there can be no valid lien on which

to foreclose. A lien is incident to and inseparable from the debt. Since no attempt

was made by the taxing entities to segregate those taxes assessed for personalty,

there is no evidence of the valid amount of taxes owed. Thus, there is no evidence

of a valid lien.

Since taxing entities offered less than a scintilla of admissible evidence

supporting their underlying tax claim, their alleged lien is also invalid. Thus, the

trial court's judgment permitting foreclosure ofHydrogeo's property was in error.

ARGUMENT AND AUTHORITIES
ISSUES PRESENTED
ISSUEN0.1

Did the trial court commit reversible error by admitting Plaintiffs'
Exhibit "A" into evidence when the document had not been timely produced
prior to trial, and when taxing entities failed to show good cause for its failure
to timely supplement discovery responses.

Regarding the standard of review for the evidentiary objection presented in

Issue No. 1, the trial court's decision to admit or exclude evidence is reviewed for

abuse of discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220

(Tex. 2001 ). However, the trial court had no discretion to admit Exhibit "A" without

taxing entities making a showing of good cause. Alvarado v. Farah Mfg. Co., 830

7
S.W.2d 911, 914. Since taxing entities made no effort, and there is no record of

good cause being shown, the trial court committed error.

Taxing entities offered Plaintiffs' Exhibit "A" to be admitted. (2 R.R. p. 7,

line 15-20). Hydrogeo objected on the grounds that the document being proffered

had not been provided to Hydrogeo prior to the trial, even though a specific request

for production had been made. (2 R.R. p. 8, line 1-p. 9, line 8). Specifically, in

request for production No. 8, taxing entities were asked to produce, "each and every

tangible piece of evidence you plan to use at the trial of this cause." (2 R.R. p. 8, line

21-23). Taxing entities acknowledged the proposed Exhibit "A" had not been

provided prior to trial but argued that the proposed exhibit was an updated version

ofa document produced in year 2013 without offering any evidence of how Exhibit

"A" differed from the earlier production. (2 R.R. p 9, line 2 - 4.)

TEX. R. CIV. P. 193.6 (a) states that "a party who fails to make, amend, or

supplement a discovery response in a timely manner may not introduce in evidence

the material or information that was not timely disclosed, or offer the testimony of a

witness other than a named party who was not timely identified unless the court finds

that: "l) there was good cause for the failure to timely make, amend or supplement

the discovery response; or 2) the failure to timely make, amend or supplement the

discovery response will not unfairly surprise or unfairly prejudice the other parties."

(App. J).

8
 The burden of proving good cause and/or a lack of unfair prejudice rests on

taxing entities as the party introducing the evidence. TEX. R. CIV. P. 193.6 (b).

Taxing entities failed to offer any reason why they did not timely produced the

exhibit in question. (2 R.R. p. 9, line 2-4). The Supreme Court considered this issue

in Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992), and held that

TEX. R. CIV. P. 193.6 is mandatory, and its sole sanction- exclusion of evidence-

is automatic, unless there is good cause to excuse its imposition. The good cause

exception permits a trial court to excuse a failure to comply with discovery in

difficult or impossible circumstances. The trial court has discretion to determine

whether the offering party has met his burden of showing good cause to admit the

testimony; but the trial court has no discretion to admit testimony excluded by the

rule without a showing of good cause. Id. (emphasis added). As the court stated, "It

is both reasonable and just that a party expect that the rules he has attempted to

comply with will be enforced equally against his adversary. To excuse

noncompliance without a showing of good cause frustrates that expectation." Id. at

914.

Simply put, good cause did not exist for failing to comply with the applicable

discovery rules. The trial court erred by admitting the evidence without requiring

taxing entities to make a showing of good cause. The next question is whether the

taxing entities proved a showing oflack of unfair surprise or unfair prejudice, TEX.

9
R. CIV. P. 193.6(a). The burden of proving lack of unfair surprise and prejudice is

on taxing entities and must be supported by the record. TEX. R. CIV. P. 193.6(b).

The following quote constitutes taxing entities' entire showing and is recorded at

(2 R.R. p. 8, line 16-19 and p. 9, line 2-4).

"Your Honor, we did provide them tax statements. We also gave them the

calculations for taxes under the Texas Property Tax Code.

The Court: So this is simply the updated tax rolls?

Mr. Lambeth: Yes, your Honor."

There is no record of what tax statements, if any, were provided or what

calculations if any, were ever given to Hydrogeo. In fact, taxing entities point out

the proposed Exhibit "A" is not the same document which might have been provided

back in 2013, and by its nature, could not have been produced back in 2013 since it

is dated in 2014. (2 R.R. p. 8, line 20-p. 9, line 1.) Since the document in question

was not produced back in 2013, taxing entities' discovery responses necessarily

needed to be supplemented prior to trial. Clearly it is a different document. As the

record indicates, no other explanation is offered by taxing entities.

Finally, since no showing of good cause, lack of unfair surprise and/or

prejudice is shown, the only remaining question for the Court of Appeals is whether

the trial court's error is harmful. To obtain reversal for any error arising from an

erroneous admission of evidence, Hydrogeo must show that the error probably

10
resulted in an improper judgment. Good v. Baker, 339 S.W.3d 260, 273 (Tex.

App.-Texarkana 2011, pet. denied).

As shown in the record, the only document offered by taxing entities to

support their allegations in the entire case is Exhibit "A". (2 R.R. p. 9, line 10-16.)

An alleged certified copy of the tax rolls regarding the property in question allows

the taxing authorities a rebuttable presumption to establish its prima facia case as to

every material fact necessary to establish its cause of action. Tex. Tax Code

§33.47(a). In fact, Exhibit "A" constitutes taxing entities' entire prima facia case.

So if this document was improperly admitted, taxing entities produced no evidence

to support any of their allegations. There can be no question therefore that the trial

court's error in improperly admitting Exhibit "A" constitutes harmful error. Clearly,

the trial court's judgment should be reversed and rendered.

ISSUE NO. 2

Did the trial court err by holding taxing entities' entire alleged tax lien
enforceable against Hydrogeo, LLC, and First Bank & Trust East Texas when
taxing entities failed to segregate that portion of the lien which was
unenforceable against Hydrogeo.

Regarding the standard of review, Hydrogeo objected and excepted to the

findings of fact of the trial court and asked for further findings consistent with its

theory of the case. Thus, the court of appeals may review the findings of the trial

court and is not bound by the trial court's findings unless such are supported by the

11
evidence in the case. TEX. R. CIV. P. 307; Maro v. State, 168 S.W.2d 510 (Tex. Civ.

App.-Amarillo 1943, writ refd). The trial court's conclusions of law are not

binding on the court of appeals and are reviewed de nova. In re K.R.P., 80 S.W.3d

669, 674 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

In a suit to collect delinquent taxes, the taxing units offering of a certified

copy of delinquent tax rolls showing the property and the amount of the tax and

penalties imposed and the interest accrued, constitutes prima facia evidence that each

person charged with a duty relating to the imposition of the tax has complied with

all requirements of law and that the amount of tax alleged to be delinquent against

the property and the amount of penalties and interest due on that tax as listed are the

correct amounts. Tex. Tax Code Ann. § 33.47 (Vernon 1992). This is a rebuttable

presumption. Maximum Medical Improvement, Inc. v. County ofDallas, 272 S.W.3d

832, 836-837 (Tex. Civ. App.-Dallas 2008, no pet.). As this court held, once the

presumption is rebutted, the taxing authorities are required to prove each and every

element of its cause of action. Id.

Here, Hydrogeo filed an affirmative defense and verified denial in its First

Amended Answer on August 8, 2013. (1 C.R. p. 54, 58) The only documents offered

into evidence by taxing entities did not list Hydrogeo as the delinquent tax payer.

Plaintiffs' Exhibit "A" (2 R.R. p. 7 line 15-19 and App. A). Additionally, Hydrogeo

offered two request for admission responses in which taxing entities acknowledged

12
not providing notice to Hydrogeo prior to serving them with the amended petition.

(1 C.R. p. 78). Because these facts were undisputed at trial, no presumption existed

under Tex. Tax Code Ann.§ 33.47 (Vernon 1992) and taxing entities were required

to prove each and every element of their case. Maximum Medical Improvement, Inc.

v. County of Dallas, 272 S.W.3d 832, 836-837 (Tex. Civ. App.-Dallas 2008, no

pet.). Since the trial court did not apply the proper burden of proof, this case should

be reversed and rendered.

THE BURDEN OF PROOF IS ON THE TAXING ENTITIES

According to Pete Dominguez Enterprises v. County of Dallas, 188 S.W.3d

385 (Tex. Civ. App.-Dallas 2006 no pet.), the evidentiary presumption envisioned

by §33.47(a) is rooted in part on the reliability of taxing authorities' processes and

records. (citing DMV Vacuum Services, Inc. v. Zavala County Appraisal District,

812, S.W.2d 435, 437-38 (Tex. App.-San Antonio 1991, no writ). However, ifthe

party named in the certified tax roll is incorrect, the court cannot rely on the accuracy

of the tax records. Id. As stated by Dominguez, "if the identity of the entity named

as owner of the property on that tax roll does not match the identity of the defendant

sued for non-payment, then no presumption arises and no prima facia case is

established by the taxing authority." Id. ·

While Dominguez is an ownership issue case, it is not the only case dealing

with the sufficiency of the rebuttable presumption referenced in §33.47(a). For
13
instance, Estates ofElkins v. County ofDallas, 146 S.W.3d 826 (Tex. App.-Dallas

2004, no pet.), states that after the taxing authority makes its prima facia case by

introducing the tax records required by Tex. Tax Code Ann. § 33.47(a) (Vernon

1992), the burden then shifts to the taxpayer to show, by introducing competent

evidence, that he has paid the full amount of taxes, penalties and interest, or that

there is some other defense that applies to his case. (Emphasis added).

In this case the defense is not misidentification of the party, but rather lack of

ownership, failure to prove the amount of taxes due on the underlying debt, failure

to correctly identify the interest on which the lien was claimed and lack of

enforceability of the tax lien. On these issues Hydrogeo offered competent evidence

rebutting the presumption set out in §33.47(a). Once that happened, taxing entities

were required to establish sufficient evidence to support their alleged claims. As

stated in the Estates of Elkins case, if the taxing authorities' evidence did, in fact,

create a legal presumption, that presumption disappeared when the Estates offered

evidence rebutting the taxing authorities' evidence. See also DMV Vacuum Services,

Inc. v. Zavala County Appraisal District (explaining the presumption under

§33.47(a)). As the DMV court explains, ifthe taxpayer offers evidence sufficient to

justify a finding against a presumed fact, the presumption disappears as to that

element of the taxing authorities' cause of action. The taxing authorities' evidence

then has to stand on its own to prove that particular element. Id.

14
 The Estate of Elkins case did not consider misidentification as the issue, but

instead considered whether of the full amount of taxes, penalties and interest was

due, and the court found that the evidence offered by the taxing authorities, (in effect

only the certified copy of tax rolls), did not constitute more than a mere scintilla of

evidence. Therefore, the court of appeals reversed and rendered judgment in favor

of the appellant.

Another case, Maximum Medical Improvement, Inc. v. County ofDallas, 272

S.W.3d 832, (Tex. App.-Dallas 2008, no pet.) found that "when a taxing

authority's prima facia case is rebutted, the presumption disappears ... " As in our

case, the taxpayer filed a verified denial that it was improperly sued, claiming that

another entity was a proper party. Dallas County attempted, as in this case, to argue

that the prima facia presumption still applies. The court of appeals disagreed,

reversed the judgment and rendered a take nothing judgment on Dallas County's

claims.

Hydrogeo is an oil and gas operator, and the property sought to be foreclosed

on by taxing entities is two producing oil and gas leases. As it relates to ad valorem

taxes, these properties are taxed in at least two different categories: 1) the leasehold

estate itself, which is the oil and gas in the ground, including the legal right to operate

the well; 2) the actual production equipment, such as casing, tubing, pump jacks,

tanks, and surface pipelines.

15
 According to their Second Amended Petition, at least a portion of taxing

entities' judgment sought was due to taxes on Hydrogeo's personalty. (1 C.R. p.

164). Its petition states that "the value of any personal property that may be described

above, and which the tax lien is sought to be enforced, is in excess of FIVE

HUNDRED AND NO 100/ DOLLARS ($500.00)". Taxing entities clearly seek to

foreclose on a tax lien against both personal and real property.

As stated in a 1997 Texas Attorney General Opinion, "irrespective of whether

production equipment is real or personal property, it must be appraised separately

from its corresponding mineral leasehold interest. Opinion No. DM-438, May 2,

1997. As the opinion also recognizes, the classification of property as real or

personal is material to such matters as the statute of limitations because the statute

treats real and personal property differently. Tex. Tax Code Ann.§ 33.05 (Vernon

1992).

The statute of limitations is not the only issue the legislature uses to treat real

and personal property differently. In our case, Hydrogeo, because of the undisputed

evidence offered at trial, is exempt from having any lien foreclosed on their

personalty. Tex. Tax Code Ann. § 32.03 (Vernon 1992), and Tex. Bus. & Com.

Code Ann. §1.201(b)(9)(Vernon 1987). Since Hydrogeo filed a verified denial

contesting ownership of the property during the applicable years in question and

questioning the sufficiency of the lien on the property both real and personal, the

16
burden of proof to plead and prove all of the elements of taxing entities' claim shifted

to them. They offered no evidence distinguishing between the amounts of the lien

claimed for real property compared to the amount claimed for personalty. Thus,

taxing entities failed, as a matter of law, to meet their burden of proof.

Tex. Tax Code Ann §32.03(a) states in part "[E]xcept as provided by

Subsection (a-1), a tax lien may not be enforced against personal property transferred

to a buyer in ordinary course of business as defined by § 1.201 (9) of the Business

and Commerce Code for value who does not have actual notice of the existence of

the lien." (App. G). The exception listed in Subsection a-1 applies only to

manufactured homes, and has no application to our case. According to § 1.201 (b)(9),

a "buyer in ordinary course of business" essentially means a person that buys in good

faith, without knowledge that the sale violates the rights of another person. (App.

H). Thus, combining the elements of §32.03(a) and §1.20l(b)(9), Hydrogeo needs

to show they paid value for their personalty, without notice of the lien, in an arm's

length transaction, and in the normal course of business.

The undisputed evidence presented at trial is that Hydrogeo was a buyer in

ordinary course of business as defined. Bill Godsey testified he had no knowledge

of a previous tax lien. (2 R.R. p. 55, line 11-15). He testified Hydrogeo paid value

for the leases. (2 R.R. p. 55, line 19-21). He testified Hydrogeo comported with the

usual and customary practices of a buyer in the industry, in an arm's length

17
transaction. (2 R.R. p. 55, line 22-p. 56, line 5). No effort was made by taxing

entities to rebut this line of testimony.

Once Hydrogeo established itself as a buyer in the ordinary course of business,

the taxing entities' claim for a tax lien regarding Hydrogeo's personalty is not

enforceable. (App G.). The next question is whether taxing entities segregated that

portion of its unenforceable lien from the enforceable part. In order to answer this

question, the trial court should have determined what portion of the taxes were

assessed for the personalty, compared to that portion assessed for the realty. The

personalty is that portion of the leases which is not fixed to the realty.

In determining whether oil and gas equipment is a fixture to real estate, courts

consider primarily the intention of the party making the annexation. Sonnier v.

Chisholm Ryder Co., 909 S.W.2d 475, 479, (Tex. 1995); Logan v. Mullis, 686

S.W.2d, 605, 607-08 (Tex. 1985). In the trial of this case Bill Godsey, president of

Hydrogeo, testified he can and will remove any and all production equipment from

the two leases in question. (2 R.R., p. 62, line 10 - p. 64, line 3.) Loretta Ward,

landman for Hydrogeo also testified that the equipment can and will be removed. (2

R.R. p. 26, line 7 - p. 26, line 17.) Since the testimony offers undisputed evidence

regarding the intent of the owner of the equipment in question, the only decision

supported by the evidence is that all of the production equipment on the two oil and

gas leases is personalty. This distinction is important because Hydrogeo as a buyer

18
in ordinary course as defined in Tex. Tax Code Ann. § 32.03 (a) (Vernon 1992), is

exempt from enforcement of any part of the taxing entities' alleged lien against their

personalty. (Id.)

Because at least a portion of the lien is unenforceable, it was incumbent on

taxing entities to prove at trial how much of their alleged lien was due to the

personalty on the two well locations. This the taxing entities failed to do. (2 R.R.

p. 88, line 7- 14.) In fact, the only testimony regarding the value of the personalty

was provided by Bill Godsey, President ofHydrogeo, (2 R.R. p. 59, line 10 - p. 61,

line 16, and Exhibit HB-9), showing that the value of the personalty actually exceeds

the total appraised value of the leases.

Since taxing entities' lien is based on a total value of the taxes due for both

realty and personalty, and because that portion of the lien for personalty is

unenforceable, and since the value of the personalty exceeds the value of taxing

entities' entire alleged lien, the underlying basis for the alleged lien fails as a matter

of law. The taxing entities' claim of right to foreclose on Hydrogeo's two leases

also fails.

Taxing entities must prove the amount of the underlying debt on the real

property. A lien is an incident of, and is inseparable from, the debt. Palmer v.

Palmer, 831 S.W.2d 479, 482, (Tex. App.-Texarkana 1992, no writ); citing

University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287 (Tex.

19
1967); See also Taylor v. Rigby, 574 S.W.2d 833, 839 (Tex. App.-1978 writ

refd); As the court stated in Taylor v. Rigby: "where there is ... a debt secured by

a lien, the lien is an incident of and inseparable from the debt. When one sues on the

debt, the lien is thereby necessarily implicated, and both must be put in issue ... ".

Goldberg v. R.J. Longo Constr. Co., 54 F.3d 243, 246 (5th Cir. 1995); citing Taylor

v. Rigby, 574 S.W.2d 833, 839 (Tex. App. 1978 writ refd).

In Shipley v. Biscamp, 580 S.W.2d 52, 54 (Tex. App.-Houston [14th Dist.]

1979, no writ), the plaintiff failed to prove a current debt to support a lien. The issue

before the court was whether there was any debt in existence upon which foreclosure

of the contractual lien could be predicated at the time of trial, since it is fundamental

that without a debt there can be no lien. Id. The court states "that the general rule

seems to be universal that a lien is but an accessory to, or mere incident of, the debt

secured by it, and is discharged and extinguished, ipso facto et eo instante, by

payment of the debt." Id. citing Spencer-Sauer Lumber Co. v. Ballard, 98 S.W.2d

1054 (Tex. App.-San Antonio 1936, no writ). The court held that it was plaintiffs

burden to prove a debt in existence at the time of trial.

CONCLUSION

As shown herein, the one piece of evidence offered by taxing entities was

improperly admitted because it had not been provided to opponents prior to trial and

no effort was made by taxing entities to prove good cause which would allow

20
admission. By definition, as the one document proffered by taxing entities, the trial

court's error was harmful.

Even if the document was properly admitted, it does not prove the essential

elements of taxing entities' claims and the rebuttable presumption relied upon by

them and the trial court was misplaced. Hydrogeo effectively rebutted the

presumption requiring taxing entities to offer admissible evidence to prove their

cause of action. Since no evidence was offered, their claims fail.

The only document relied upon by taxing entities 1s fraught with

misinformation, such as listing the wrong owners, listing the interest as a "royalty

interest" and failing to segregate the amount of taxes assessed for personalty.

Segregating the portion of the taxes assessed for personalty was essential because

the amount of the tax lien for personalty was unenforceable against a buyer in the

ordinary course of business, such as Hydrogeo. Taxing entities made no attempt to

segregate. As such, the evidence cannot support taxing entities' desire to foreclose

on the entire claimed lien on the two oil and gas leases in question. The trial court's

judgment therefore should be reversed and rendered.

PRAYER

Wherefore Premises Considered, the Court should reverse the trial court's

judgment, and render judgment in favor of appellants Hydrogeo, LLC and First Bank

and Trust East Texas and hold that the taxing entities take nothing against appellants.

21
 Respectfully submitted,

Isl J. Don Westbrook
J. Don Westbrook
Texas Bar No. 21215500
COGHLAN CROWSON, L.L.P.
1127 Judson Road, Ste. 211
Longview, Texas 75605
(903) 758-5543
(903) 753-6989 Facsimile
email: dwestbrook@ccfww.com
Attorneys for Appellants Hydrogeo, LLC
and First Bank & Trust East Texas

CERTIFICATE OF COMPLIANCE

Counsel certifies that this brief contains, as counted by Microsoft Word, 5,644
words. It was typed in 14-point Times New Roman.

Dated: July 2, 2015 Isl J. Don Westbrook
J. Don Westbrook

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing Brief of Appellants has been

served on all counsel of record in this appeal in accordance with the Texas Rules of

Appellate Procedure on July 2, 2015.

Isl J. Don Westbrook
J. Don Westbrook

22
 Index of Appendices

A. Plaintiffs' Exhibit "A", Certified Copy of Tax Records, dated August 22,
2014 (7 pages).

B. Trial court's Judgment dated January 14, 2015 (C.R. p. 199-203)

C. Hydrogeo, LLC and First Bank & Trust East Texas' Request for Findings of
Fact and Conclusions of Law, dated January 21, 2015. (C.R. p. 207 - 208).

D. Court's Findings of Fact and Conclusions of Law, dated February 4, 2015.
(C.R. p. 217 - 221).

E. Hydrogeo, LLC and First Bank & Trust East Texas' Request for Additional
Findings of Fact and Conclusions of Law, dated February 13, 2015. (C.R. p.
222-226).

F. Court's Findings of Fact and Conclusions of Law, dated February 23, 2015.
(C.R. p. 227 - 231 ).

G. Tex. Tax Code §32.03 (a) (Vernon 1992).

H. Tex. Bus. & Com. Code Ann. §1.201(b)(9) (Vernon 1987).

I. Hydrogeo, LLC and First Bank & Trust East Texas' Notice of Appeal, dated
January 27, 2015. (C.R. p. 204 - 205).

J. Tex. R. Civ. P. 193.6(a) & (b).

23
Appendix A
..
CERTIFIED COPY OF TAX RECORDS
FOR
QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER SABINE
WASTE DISPOSAL DISTRICT AND WOOD COUNTY CENTRAL HOSPITAL DISTRICT

SUIT NO. T-3625

QUITMAN INDEPENDENT SCHOOL DISTRICT, ET AL VS. BLACK DIAMOND
OPERATING CO LLC, ET AL

THE STATE OF TEXAS x
WOOD COUNTY x

I hereby certify that the following exhibit (ensuing page(s)) is a true and correct copy of entries in the
tax records of my office. The penalty and interest amounts were calculated according to Section 33.01
and 33.07 of the Texas Property Tax Code.
r..&l
In testimony whereof, witness my hand and seal of office this O? ~ day of_-'~~_,,'--"='----'
20.l!f__.

Carol Taylor
Tax Assessor-Collector and Custodian of the Tax
Records for: QUITMAN INDEPENDENT
SCHOOL DIS1RICT, WOOD COUNTY, UPPER
SABINE WASTE DISPOSAL DIS1RICT and
WOOD COUNTY CENTRAL HOSPITAL
DIS1RICT

EXHIBIT "A"

Suit No. T-3625 Suit Key No. 2137912
 Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: (903)763-2261 Fax: (903)763-5753

Property: 0154550-0001055-5-RI
Quick Ref ID: N355851
Owner: BLACK DIAMOND OPERATING CO LLC
Legal Description: 0.833335 0154550 WHITE DENTON BLACK
DIAMOND OPER RI (ROYALTY INTERESl)

BLACK DIAMOND OPERATING CO LLC
4420 VALLEY RANCH RD
LONGVIEW, TX 75602-6671

Tax Bill (Effective Date: 09/15/2014) Balance Due if Paid By September 30, 2014: 29,131.29
Bill Levy Disc/Credi
Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance
2009
Quitman lsd 10,679.32 10,305.12 7,082.29 2,664.25 0.00 09/2212010 516.38 19,909.48
Waste Disposal District 169.36 163.42 112.33 42.24 0.00 09/2212010 8.20 315.73
Wood county 4,375.23 4,221.93 2,901.57 1,455.37 0.00 09/2212010 220.76 8,511.41
yyao~. ~unty Central 211.70 204.28 140.39 52.82 0.00 09/2212010 10.24 394.67
Totals 15,435.61 14,894.75 10,236.58 4,214.68 0.00 755.58 29,131.29

Totals 15,435.61 14,894.75 10,236.58 4,214.68 0.00 755.58 29,131.29

Balance Due if Paid By September 30, 2014: 29,131.29

Pay By Total Due
October 31, 2014 29,304.68
November 30, 2014 29,478.09
December 31, 2014 29,651.50

PrintedonB/2212014 11:43AM Page 1 of 1
 Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: {903)763-2261 Fax: (903)763-5753

Property: 0154550-0715543-WI
Quick Ref ID: N357528
Owner: RHEATA RESOURCES LLC
Legal Description: 0.833335 0154550 WHITE DENTON BLACK
DIAMOND OPER WI

RHEATA RESOURCES LLC
PO BOX921
KILGORE, TX 75663

Tax Bill (Effective Date: 09/10/2014) Balance Due if Paid By September 30, 2014: 22,099.47
Bill Levy Disc/Credi
Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance
2010
Quitman lsd 5,309.68 5,309.68 2,973.42 1.242.47 0.00 0.00 9,525.57
Waste Disposal District 89.10 89.10 49.89 20.85 0.00 0.00 159.84
Wood County 2,415.20 2.415.20 1,352.51 753.54 0.00 0.00 4,521.25
~oo_~. saunty Central 104.58 104.58 58.57 24.47 0.00 0.00 187.62
Totals 7,918.56 7,918.56 4,434.39 2,041.33 0.00 0.00 14,394.28
2011
Quitman lsd 3,070.38 3,070.38 1,350.97 663.20 0.00 0.00 5,084.55
waste Disposal District 53.48 53.48 23.53 11.55 0.00 0.00 88.56
Wood County 1,405.18 1,405.18 618.28 404.69 0.00 0.00 2,428.15

........
Wood County Central
Totals
62.76
4,591.80
62.76
4,591.80
27.61
2,020.39
13.56
1,093.00
0.00
0.00
0.00
0.00
103.93
7,705.19

Totals 12,510.36 12,510.36 6,454.78 3,134.33 0.00 0.00 22,099.47

Balance Due if Paid By September 30, 2014: 22,099.47

Pay By Total Due
October 31, 2014 22,245.25
November 30, 2014 22,391.03
December 31, 2014 22,536.79

Printedon8/22/2014 11:44AM Page 1 of 1
 Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: (903)763-2261 Fax: (903)763-5753
Property: 0154550-0716237-WI
Quick Ref ID: N366493
ONner. HYDROGEO LLC
legal Description: 0.833335 0154550 WHITE DENTON HYDROGEO
LLCWI

HYDROGEO LLC
PO BOX 921
KILGORE, TX 75663

Tax Bill (Effective Date: 08/22/2014) Balance Due if Paid By August 31, 2014: 0.00
Bill Levy Disc/Credi
Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance
2012
Quitman lsd 473.88 0.00 0.00 0.00 0.00 01/03/2013 473.88 0.00
Waste Disposal District 8.12 0.00 0.00 0.00 0.00 01/03/2013 8.12 0.00
Wood County 213.14 0.00 0.00 0.00 0.00 01/0312013 213.14 0.00
yyood. sounty Central 8.88 0.00 0.00 0.00 0.00 01/0312013 8.88 0.00
Totals 704.02 o.oo 0.00 0.00 o.oo 704.02 0.00
2013
Quitman lsd 3,086.91 0.00 0.00 0.00 0.00 02/06/2014 3,086.91 0.00
Waste Disposal District 53.67 0.00 0.00 0.00 0.00 02/06/2014 53.67 0.00
Wood County 1,394.67 0.00 0.00 0.00 0.00 02/0612014 1,394.67 0.00
Wood County Central 56.18 0.00 0.00 0.00 0.00 02/06/2014 56.18 0.00
" .......
Totals 4,591.43 0.00 0.00 0.00 0.00 '. 4,591.43 0.00

Totals 5,295.45 0.00 0.00 0.00 0.00 5,295.45 0.00

Balance Due if Paid By August 31, 2014: 0.00

Printed on 8122/2014 11:44 AM Page 1 of 1
 Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400.0713907-WI
Quick Ref ID: N310883
Owner. BLACK DIAMOND OPERATING CO LLC
legal Description: 0.875000 0133400 ROBINSON IE BLACK
DIAMOND OPER WI

BLACK DIAMOND OPERATING CO LLC
4420 VALLEY RANCH RD
LONGVIEW, TX 75602-6671

Tax Bill (Effective Date: 09/23/2014) Balance Due if Paid By September 30, 2014: 9,423.15
Bill levy Disc/Credi
Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance
2007
Quitman lsd 5,187.91 0.00 933.82 918.26 0.00 0712212008 7,039.99 0.00
Waste Disposal District 77.36 0.00 18.84 14.41 0.00 0512112009 110.61 0.00
Wood County 2,138.87 0.00 520.67 531.91 0.00 05/2112009 3,191.45 0.00
~od. c,ounty Central 112.40 0.00 27.35 20.98 0.00 05/21/2009 160.73 0.00
Totafs 7,516.54 0.00 1,500.68 1,485.56 0.00 10,502.78 0.00
2008
Quitman lsd 92.43 0.00 12.02 0.00 0.00 05121/2009 104.45 0.00
Waste Disposal District 1.32 0.00 0.17 0.00 0.00 05/21/2009 1.49 0.00
Wood County 37:17 0.00 4.83· 0.00 0.00 05/21/2009 42.00 0.00
Wood County Central 1.78 0.00 0.23 0.00 0.00 05121/2009 2.01 0.00
" .......
Totals 132.70 0.00 17.25 0.00 0.00 149.95 0.00
2009
Quitman lsd 3,704.18 3,333.42 2,338.38 906.37 0.00 09/2212010 508.76 6,440.17
Waste Disposal District 58.74 52.86 37.07 14.37 0.00 0912212010 8.06 102.12
Wood County 1,517.57 1,365.67 958.02 495.12 0.00 0912212010 217.51 2,753.20
~oOO.. c,ounty Central 73.43 66.08 46.35 17.97 0.00 09/22/2010 10.09 127.66
Totals 5,353.92 4,818.03 3,379.82 1,433.83 o.oo 744.42 9,423.15

Totals 13,003.16 4,818.03 4,897.75 2,919.39 0.00 11,397.15 9,423.15

Balance Due if Paid By September 30, 2014: 9,423.15

Pay By Total Due
October 31, 2014 9,479.25
November 30, 2014 9,535.33
December31,2014 9,591.43

Printed on 8/22/2014 11:42 AM Page 1 of 1
..
Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400-0715543-VVI
Quick Ref ID: N357525
owner: RHEATA RESOURCES LLC
Legal Description: 0.875000 0133400 ROBINSON IE BLACK
DIAMOND OPER WI

RHEATA RESOURCES LLC
PO BOX921
KILGORE, TX 75663

Tax Bill (Effective Date: 09/10/2014) Balance Due if Paid By September 30, 2014: 21,750.06
Bill Levy Disc/Credi
Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance
2010
Quitman lsd 4,480.57 4,480.57 2,509.11 1,048.45 0.00 0.00 8,038.13
Waste Disposal District 75.19 75.19 42.10 17.59 0.00 0.00 134.88
Wood County 2,038.06 2,038.06 1,141,32 635.88 0.00 0.00 3,815.26
'!'!".°":.~aunty Central 88.25 88.25 49.42 20.65 0.00 0.00 158.32
Totals 6,682.07 6,682.Ql 3,741.95 1,722.57 0.00 0.00 12,146.59
2011
Quitman lsd 3,826.81 3,826.81 1,683.80 826.59 0.00 0.00 6,337.20
Waste Disposal District 66.65 66.65 29.33 14.40 0.00 0.00 110.38
Wocx! County 1,751.36 1,751.36 no.60 504.39 0.00 0.00 3,026:35
'f'!".od. ~unty Central 78.22 78.22 34.42 16.90 0.00 0.00 129.54
Totals 5,723.04 5,723,04 2,518.15 1,362.28 o.oo 0.00 9,603.47

Totals 12,405.11 12,405.11 6,260.10 3,084.85 0.00 0.00 21,750.06

Balance Due if Paid By September 30, 2014: 21,750.06

Pay By Total Due
October 31, 2014 21,894.61
November 30, 2014 22,039.17
December 31, 2014 22,183.73

Printed on 812212014 11:42 AM Page 1 of 1
..
Account Summary
Carol Taylor, Tax Collector
Wood County Tax Office
P.O. BOX 1919
Quitman, TX 75783
Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400-0716237-WI
Quick Ref ID: N366491
Owner: HYDROGEO LLC
Legal Description: 0.875000 0133400 ROBINSON I E HYDROGEO
LLCWI

HYDROGEO LLC
POBOX921
KILGORE, TX 75663

Tax Bill (Effective Date: 08/2212014) Balance Due if Paid By August 31, 2014: 0.00
Bill Levy Disc/Credi
Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance
2012
Quitman lsd 1,376.69 0.00 0.00 0.00 0.00 01/03/2013 1,376.6~ 0.00
Waste Disposal District 23.58 0.00 0.00 0.00 0.00 01103/2013 23.58 0.00
Wood County 619.20 0.00 0.00 0.00 0.00 01/03/2013 619.20 0.00
y:ro_o~. scunty Central 25.81 0.00 O.DD 0.00 0.DD 01/03/2013 25.81 0.00
Totals 2,045.28 0.00 0.00 0.00 0.00 2,045.28 o.oo
2013
Quitman lsd 4,142.30 0.DD 0.00 0.00 0.00 02106/2014 4,142.30 0.00
Waste Disposal District 72.02 0.00 0.00 0.DD 0.00 02/06/2014 72.02 0.00
Wood County 1,871.50 0.00 0.00 0.00 0.00 02/06/2014 1,871.50 O.DD
~"ilio 'i__myof ;:-dg~
,,
Judge Presiding

I
lt
f
I
I
I
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I
.II
,,_ .
• •·:....: ·:
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. ·~ .

I
Appendix E
 ,..
02/13/2015 FRI 14:33
.
PAX 903~989 Cognlan Cro,,.on

• iZJOOS/013

SUIT NO. T-3625
~
v 'c:l-
Q ITMAN INDEPENDENT SCHOOL § IN THE DISTRICT COURT ~ ~
~O:'('> ~
DI TRI CT, ET AL § ·:/
.:'.);.r,
<;.,,T / "T7

§ <> ~-2:, O>
§ WOOD COUNTY, TEXAS ~~ ~
§ ;;,>, c>\ i'71
& x 402ND JUJR~it
- '
;,T~er ''

LACK DIAMOND OPERATING CO X WOOD ~oakTtTEXAS.
LC, ETAL

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 14, 2015 the Court entered judgment on the above captioned cause.
fter considering the pleadings, the evidence, the argument and briefs from counsel, the
ourt, in response to request from Defendant, makes findings of fact and conclusions of
aw as follows:

Findings of Fact

There are two properties that are the subject of this delinquent tax suit. Tract 1 is a
.833335 Interest in the Denton White Lease # 154550, Abstract 588, the D Townsend
urvey, Wood Coiinty, Texas. Tract 2 is a 0.875 Working Interest in the IE Robinson
ease #133400, Abstract 588, the D Townsend Survey, Wood County, Texas. There are
es, penalties and interest due and owing on these two properties for tax years 2009-
011 in the amount of$82,403.97 as of the date of trial.

. Defendants Black Diamond Operating Co LLC and DeBerry 3 Operating Company,
LC were the owners as of January l, 2009, of certain property described as a 0.833335
terest in the Denton White Lease #154550, Abstract 588, the D Townsend Survey,
corded in Volume 23 l 9, Page 32, official Deed Records of Wood County, which is the
ubject of Tract I tax account number N35585 l .

. The appraisal roll and tax roll of Wood County names Black Diamond Operating Co
LC as the owner of a 0.833335 Interest in the Denton White Lease #154550, Abstract
88, the D Townsend Survey, which is the subject of Tract 1 tax account number
355851 for the tax year 2009 .

. Taxes, penalties and interest are due and owing on Tract 1 tax account number
355851 to Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District for the tax year 2009 in the
ount of $29,131.29 as of the date of trial, after all credits and offsets have been f
roperly posted to the account. r
. Defendant DeBerry 3 Operating Company, LLC and Steelman Investments, Inc were

II
t e owners as of January l, 2010 and January 1, 2011, of certain property described as a

"00227
I
l
• •
I .833335 Interest in the Denton White Lease #154550, Abstract 588, the D Townsend
j
urvey, recorded in Document No. 2009-00009144, official Deed Records of Wood
ounty, which is the subject of Tract I tax account number N357528 .

I
1
. The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources
LC as the owner of a 0.833335 Interest in the Denton White Lease #154550, Abstract
88, the D Townsend Survey, which is the subject of Tract I tax account number
357528 for the tax years 2010-2011.

. Taxes, penalties and interest are due and owing on Tract I tax account number
357528 to Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District for the tax years 20 I 0 and
011 in the amount of $22,099 .47 as of the date of trial, after all credits and offsets have
een properly posted to the account.

. Defendants Hydrogeo, LLC and DeBerry 3 Operating Company, LLC are the current
wners as of the date of the trial of certain property described as 0.833335 Interest in the
enton White Lease #154550, Abstract 588, the D Townsend Survey, recorded in
acumen! No. 2012-00004176, official Deed Records of Wood County, which is the
ubject of Tract l's current tax account number N366493 and Tract l's prior tax account
umbers N3558 i and N357528 .

. Defendant First Bank & Trust East Texas is a lienholder on certain property described
s a 0.833335 Interest in the Denton White Lease #154550, Abstract 588, the D

I
ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of
ood County, which is the subject of Tract l's current tax account number N366493 and
ract I's prior tax account numbers N3558 l and N357528.

0. The total amount of taxes, penalties and interest that are due for Tract 1, comprised of
he tax accounts N35585 l and N357528, to Quitman Independent School District, Wood
aunty, Upper Sabine Waste Disposal District and Wood County Central Hospital
istrict for the tax years 2009-2011 is $51,230.76 as of the date of trial, after all credits
nd offsets have been properly posted to the accounts.

I. Steelman Investments, Inc was the owner as of January 1, 2009, of certain property
escribed as a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, f

I
he D Townsend Survey, Wood County, which is the subject of Tract 2 tax account
umber N310883.

2. The appraisal roll and tax roll of Wood County incorrectly names Black Diamond
perating Co LLC as the owner of a 0.875 Working Interest in the IE Robinson Lease f
133400, Abstract 588, the D Townsend Survey which is the subject of Tract 2 tax f
ccount number N310883 for the tax year 2009.

3. Taxes, penalties and interest are due and owing on Tract 2 tax account number
310883 to Quitman Independent School District, Wood County, Upper Sabine Waste
I
"fl0228
. ··' l
I
f
l
 • •
Disposal District and Wood County Central Hospital District for the tax year 2009 in the
amount of $9,423.15 as of the date of trial, after all credits and offsets have been properly
osted to the account.

14. Steelman Investments, Inc was the owner as of January 1, 20 I 0 and January I, 2011,
f certain property described as a 0.875 Working Interest in the IE Robinson Lease
133400, Abstract 588, the D Townsend Survey, Wood County, which is the subject of
ract 2 tax account number N357525.

15. The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources
LC as the owner of a 0.875 Working Interest in the IE Robinson Lease #133400,
bstract 588, the D Townsend Survey, Wood County, which is the subject of Tract 2 tax
ccount number N357525 for the tax years 20 I 0-20 ! I.

6. Taxes, penalties and interest are due and owing on Tract 2 tax account number
357525 to Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District for the tax years 2010-2011
n the amount of $21,750.06 as of the date of trial, after all credits and offsets have been
roperly posted to the account.

7. Defendant Hydrogeo, LLC is the current o\vner as of the date of trial of certain
roperty described as a 0.875 Working Interest in the IE Robinson Lease #133400,
bstract 588, the D Townsend Survey, recorded in Document No. 2012-00004176,
fficial Deed Records of Wood County, which is the subject of Tract 2's current tax
ccount number ' N36649 l and Tract 2' s · prior tax account numbers N3 l 0883 and
357525.

8. Defendant First Bank & Trust East Texas is a lienholder on certain property described
s a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, the D
ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of
ood County, which is the subject of Tract 2's current tax account number N366491 and
ract 2's prior tax account numbers N310883 and N357525.

I . The total amount of taxes, penalties and interest that are due for Tract 2, comprised of
e tax accounts N310883 and N357525, to Quitman Independent School District, Wood
ounty, Upper Sabine Waste Disposal District and Wood County Central Hospital
istrict for the tax years 2009-2011 is $31,173.21 as of the date of trial, after all credits I
d offsets have been properly posted to the accounts. !
2 . Defendant Rheata Resources LLC is not a past owner, nor a current owner, for neither
act I nor Tract 2 and therefore is not liable, whether in rem or in personam, for any of r
t e tax amounts set forth. f
I

00022.9
I
I
 • •
Conclusions of Law

I. The Court had personal jurisdiction over all parties necessary to the judgment entered
erein and had jurisdiction over the subject matter before the Court .

. Delinquent taxes, penalties and interest are due and owing on Tract I, comprised of
he tax accounts N35585 l and N357528, for the tax years 2009-2011 in the amount of
51,230.76, as shown in the delinquent tax statement submitted by Quitman Independent
chool District, Wood County, Upper Sabine Waste Disposal District and Wood County
entral Hospital District as Plaintiffs' Exhibit "A", under Chapter 33, TEX. TAX CODE

. Delinquent taxes, penalties and interest are due and owing on Tract 2, comprised of the
ax accounts N3 l 0883 and N357525, for the tax years 2009-2011 in the amount of
31,173.21, as shown in the delinquent tax statement submitted by Quitman Independent
chool District, Wood County, Upper Sabine Waste Disposal District and Wood County
entral Hospital District as Plaintiffs' Exhibit "A", under Chapter 33, TEX. TAX CODE.

. Quitman Independent School District, Wood County, and Wood County Central
ospital District are further entitled to additional· penalties and interest for unpaid taxes
n Tract 1 and Tract 2 at the rates prescribed by Subchapters A and C of Chapter 33,
EX. TAX CODE which accrues from the date of judgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District shall recover of and from
efendant Black Diamond Operating Co LLC, a personal money judgment as to Tract 1,
ccount number N355851 for tax year 2009 only in the amount of$29,131.29 plus post
j dgment interest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE
hich accrues from the date of judgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District shall recover of and from
fondants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank &
rust East Texas, an in rem judgment as to Tract 1, account numbers N355851 and I
357528 for tax years 2009-2011 in the amount of $51,230.76 plus post judgment
i terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which
f
a crues from the date of judgment until paid.
I[
7 Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District shall recover of and from
d fondants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank &
Ii
st East Texas, an in rem judgment as to Tract 2, account numbers NJ I 0883 and
357525 for tax years 2009-2011 in the amount of $31,173.21 plus post judgment
i terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which li
a crues from the date of judgment until paid.

800230
l
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 • •
8. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste
isposal District and Wood County Central Hospital District shall recover nothing from
efendant Rheata Resources LLC.

. A tax lien has attached to the properties which are the subject of Tract l tax account
umbers N355851, N357528, and N366493; and Tract 2 tax account numbers N310883,
357525, and N366491 securing payment of the amounts set forth above.

0. Quitman Independent School District, Wood County, Upper Sabine Waste Disposal
istrict and Wood County Central Hospital District are entitled to a final judgment
oreclosing the tax lien attached to the property, which is the subject of Tract 1 tax
ccount numbers N355851, N357528, and N366493; and Tract 2 tax account numbers
310883, N357525, and N366491.

l. Costs of Suit, including Costs of Court and Abstract Fees, are assessed against
efendants Black Diamond Operating Co LLC, in personam; and Hydrogeo, LLC;
eBerry 3 Operating Company, LLC; First Bank & Trust East Texas, in rem.

2. An Order of Sale shall be issued by the Clerk upon the request of any Plaintiff or
tervening taxing unit and any sale shall be done as prescribed by Subchapter A of
hapter 34, TEX. TAX CODE.

3. All relief not granted is denied.

igned this the ;2. tf day of ;;;;;-4 '2015.

Judge Presiding

I!
t;:
~

']{)0231
Appendix G
711/2015 Tex. TaxCode§32.03

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Document: Tex. Tax Code§ 32.03 r·§ i Aotiom•

• Previous Next •
Tex. Tax Code § 32.03

Citation

This document Is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S,B, 459, S.B. 529 (ch. 37), S.B. 835 (ch, 6), S.B.
901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch, 4).

Texas Statutes&. Codes Annotated by LexisNexis® Occupations Code Title 1 Property Tax Code Subtitle E Collections and Delinguencv Chapter 32
Tax Liens and Personal Liabilitv

Sec. 32.03. Restrictions on Personal Property Tax Lien.
(a) Except as provided by Subsection (a-1), a tax lien may not be enforced against personal property transferred to a buyer in ordinary course of business as defined by
Section 1.201(9) of the Business & Commerce Code for value who does not have actual notice of the existence of the lien,
(a-1} With regard to a manufactured home, a tax lien may be recorded at any time not later than six months after the end of the year for which the tax was owed. A tax
lien on a manufactured home may be enforced if it has been recorded in accordance with the laws in effect at the time of the recordation of the lien, A properly recorded tax
lien may not be enforced against a new manufactured home that is owned by a person who acquired the manufactured home from a retailer as a buyer in the ordinary course
of business.
(a-2) A person may not transfer ownership of a manufactured home until all tax liens perfected on the home that have been timely filed with the Texas Department of
Housing and Community Affairs have been extinguished or satisfied and released and any personal property taxes. on the manufactured home which accrued on each January
1 that falls within the 18 months preceding the date of the sale have been paid. This subsection does not apply to the sale of a manufactured home in inventory.
(b) A bona fide purchaser for value or the holder of a lien recorded on a manufactured home statement of ownership and location is not required to pay any taxes that have
not been recorded with the Texas Department of Housing and Community Affairs. Jn this section, manufactured home has the meaning assigned by Section 32.015(b),
Unless a tax lien has been filed timely with the Texas Department of Housing and Community Affairs, no taxing unit, nor anyone acting on its behalf, may use a tax warrant
or any other method to attempt to execute or foreclose on the manufactured home.
(c) A taxpayer may designate in writing which tax year will be credited with a particular payment. If a taxpayer pays all the amounts owing for a given year, the taxing unit
shall issue a receipt for the payment of the taxes for the des·1gnated year.
{d} Notwithstanding any other provision of this section, if a manufactured home was omitted from the tax roll for either or both of the two preceding tax years, the taxing
unit may file a tax lien within the 150-day period following the date on which the tax becomes delinquent.
(e) If personal property taxes on a manufactured home have not been levied by the taxing unit, the taxing unit shall provide, upon request, an estimated amount of taxes
computed by multiplying the taxable value of the manufactured home, according to the most recent certified appraisal roll for the taxing unit, by the taxing unit's adopted tax
rate for the preceding tax year. In order to enable the transfer of the manufactured home, the tax collector shall accept the payment of the estimated personal property taxes
and issue a certification to the Texas Department of Housing and Community Affairs that the estimated taxes are being held in escrow until the taxes are levied. Once the
taxes are levied, the tax collector shall apply the escrowed sums to the levied taxes. At the time the tax collector accepts the payment of the taxes, the tax collector shall
provide notice that the payment of the estimated taxes is an estimate that may be raised once the appraisal rolls for the year are certified and that the new owner may be
liable for the payment of any difference between the tax established by the certified appraisal roll and the estimate actually paid.

History

Enacted by Acts 1979, 66th Leg., ch. 841 (S.B. 621), § 1, effective January l, 1982; am. Acts 1985, 69th Leg., ch, 846 (S.S. 1267), § 16, effective September 1, 1985;
am. Acts 1991, 72nd Leg., ch. 617 (S.S. 1539), § 12, effective August 26, 1991; am. Acts 1991, 72nd Leg., ch, 836 (S.S. 772), § 5.2, effective August 26, 1991; am. Acts

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AppendixH
711/2015 Tex. Bus. & Com. Code§ 1.201

;....1ore

i Previous Next•
Tex. Bus. & Com. Code § 1.201

Citation

This document is current through the 2015 regular session, 84th legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B.
901(ch.54), S.B. 903 (ch. 3), S.B.1749 (ch. 29), and s.B. 1985 (ch.4).

Texas Statutes and Codes BUSINESS AND'COMMERCE CODE TITLE 1. UNIFORM COMMERCIAL CODE CHAPTER 1. GENERAL

PROVISIONS SUBCHAPTER B. GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION

§ 1.201. General Definitions
(a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other chapters of this title that apply to

Document: Tex. Bus. & Com. Code§ 1.201 r"'·s~ Actions ...
-~--fli)~so·cJe-ctl6~det1tilt10hs-tohta·1n·ecri11othm-n-apters··orthlS-nt1e·i:rraca-pp1y·!:'cfpan:1cular chapters or parts thereof:
( 1) "Action," in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined.

(2) "Aggrieved party" means a party entitled to pursue a remedy.
(3) "Agreement," as distinguished from "contract," means the bargain of the parties In fact, as found in their language or inferred from other circumstances, including course
of performance, course of dealing, or usage of trade as provided in Section 1.303.
{ 4) "Bank" means a person engaged in the business of banking and includes a savings bank, savings and Joan association, credit union, and trust company.
{5) "Bearer'' means a person in control of a negotiable electronic document of title or a person in possession of a negotiable instrument, a negotiable tangible document of

title, or a certificated security that is payable to bearer or indorsed in blank,
{6) MBlll of lading" means a document of title evidencing the receipt of goods for shipment issued by a person engaged in the business of directly or indirectly transporting or
foiwarding goods. The term does not include a warehouse receipt.
(7) "Branch" includes a separately incorporated foreign branch of a bank,
(8) "Burden of establlshing" a fact means the burden of persuading the trier of fact that the existence of the fact is more probable than its nonexistence.

(9) "Buyer in ordinary course of business" means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods,
and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the

person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices. A person

that sells oil, gas, or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. A buyer in ordinary course of business may buy for
cash, by exchange of other property, or on secured or unsecured credit, and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that

takes possession r.f the goods or has a right to recover the goods from the seller under Chapter 2 may be a buyer in ordinary course of business. "Buyer in ordinary course of
business" does not include a person that acquires goods in a transfer in bulk or as security for or In total or partial satisfaction of a money debt.
(10) "Conspicuous," with reference to a term, means so wrltten, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.
Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language tn the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set
off from surrounding text of the same size by symbols or other marks that call attention to the language.
(11) "Consumer" means an individual who enters into a transaction primarily for personal, family, or household purposes.

(12) "Contract," as distinguished from "agreement," means the total legal obligation that results from the parties' agreement as determined by this title as supplemented by
any other applicable laws.
(13) "Creditor" includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee
In bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor's or assignor's estate.
(14) "Defendant" includes a person in the position of defendant in a counterclaim, cross-claim, or third-party claim.

(15) "Delivery," with respect to an electronic document of title, means voluntary transfer of control, and with respect to an instrument, a tangible document of title, or

chattel paper, means voluntary transfer of possession. Q
(16) "Document of title" means a record that in the regular course of b L J r financing is treated as adequately evidencing that the person in possession or control of
the record is entitled to receive, control, hold, and dispose of the record and the goods the record covers, and purports to be issued by or addressed to a bailee and to cover

goods in the bailee's possession which are either identified or are fungible portions of an Identified mass. The term Includes a bill of lading, transport document, dock warrant,
dock receipt, warehouse receipt, and order for delivery of goods. An electronic document of title is evidenced by a record consisting of information stored in an electronic
medium. A tangible document of title is evidenced by a record consisting of lnforrnation that is inscribed on a tangible medium.
(17) "Fault" means a default, breach, or wrongful act or omission.
(18) "Fungible goods" means:
(A) goods of which any unit, by nature or usage of trade, is the equivalent cl any other like unit; or

(B) goods that by agreement are treated as equivalent.

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Appendix I
 ...
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;,:'- 'L '··
SUIT NO. T-3625 "·· J,·· , "' C: · ·,

Q TMAN INDEPENDENT SCHOOL § IN THE DISTRICT