ACCEPTED
03-13-00599-CV
4473504
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/12/2015 12:10:17 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00599-CV
_______________________________________________
FILED IN
In The Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
For The Third District of Texas 3/12/2015 12:10:17 PM
JEFFREY D. KYLE
Austin, Texas Clerk
______________________________________________
Horse Hollow Generation Tie LLC,
Appellant,
v.
Whitworth-Kinsey #2, Ltd.,
Whitworth-Kinsey #3, Ltd., and David Olen Whitworth,
Appellees.
____________________________________________________________
On Appeal from the 119th District Court of Concho County, Texas
The Honorable Garland B. Woodward, Presiding Judge
(Trial Cause No. DAC-09-04042)
APPELLEE’S UNOPPOSED MOTION TO CLARIFY AND CORRECT THE
COUNSEL OF RECORD OF THE APPELLEES
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Appellee Whitworth-Kinsey #3, Ltd. and respectfully moves the
Court to Clarify and Correct the Counsel of Record of the Appellees in this appeal, and
in support thereof, would show the court the following:
1. Attorney Laird Palmer (“Palmer”) represents, and remains counsel of
record for Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.
2. The undersigned, Matthew F. Wymer (“Wymer” or “the undersigned”)
represents, and remains counsel of record for Whitworth-Kinsey #3, Ltd., only.
2134321v.1 IMANAGE 106638 1
3. On November 27, 2013 Palmer filed a Brief for Cross-Appellant
Whitworth-Kinsey #2, Ltd.
4. On December 31, 2013 Renee F. McElhaney Yanta (“Yanta”), Wymer’s
former law partner, filed Brief of Appellee Whitworth-Kinsey #3, Ltd.
5. In 2014 Yanta ran for Judge of the 150th District Court in Bexar County,
Texas, and won said election.
6. In December 2014, Yanta began her transition from her private law
practice to the bench and shifting her caseload. As part of that transition, Yanta filed a
Motion for Substitution of Counsel for Wymer as counsel for Attorney Whitworth-
Kinsey #3, Ltd.
7. The Motion for Substitution of Counsel is unclear that Wymer would only
be substituting as counsel for Whitworth-Kinsey #3, Ltd. As a result, Wymer appeared
on the Court’s docket as counsel of record for all Appellees.
8. The undersigned, received the Court’s notice of the submission and oral
argument set for April 9, 2015. Due to Wymer’s trial schedule, he was unable to attend
the oral argument and attempted to contact Palmer to discuss a continuance, and whether
and why he (Wymer) appeared as counsel of record for all Appellees, but the then
available phone numbers for Palmer were disconnected.
9. Wymer conferred with Appellant’s counsel Jeffrey M. Tillotson, who
agreed to a continuance.
10. On March 6, 2015 the undersigned filed Appellees’ Unopposed First
Motion for Continuance of Submission and Oral Argument. Because Wymer was not
2134321v.1 IMANAGE 106638 2
able to reach Palmer, and unclear whether he had been correctly substituted as counsel
for all Appellees, the undersigned filed his motion on behalf of all three Appellees.
11. Additionally, in order to comply with the Court’s request for three paper
copies of all briefs filed, Wymer submitted briefs filed on behalf of all three Appellees
Whitworth-Kinsey #2, Ltd., David Olen Whitworth and Whitworth-Kinsey #3, Ltd. so
that no party would default on the Court’s request – apparently, Palmer also provided
briefs for all Appellees.
12. As of the date of this Motion, the undersigned has reached and spoken to
Palmer who has clarified and confirmed that he does in fact represent two of the three
Appellees – Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.
13. Palmer stated the following:
a. He represents, and remains counsel of record for Whitworth-
Kinsey #2, Ltd. and David Olen Whitworth; and
b. He has no objection to the continuance of the oral argument.
14. The undersigned respectfully requests the Court correct its record to reflect
as follows:
a. Attorney Laird Palmer represents and is counsel of record in
this appeal for: Appellees Whitworth-Kinsey #2, Ltd., and
David Olen Whitworth;
b. Attorney Matthew F. Wymer represents and is counsel of
record in this appeal for: Appellee Whitworth-Kinsey #3, Ltd.
15. The undersigned does not seek this clarification for purposes of delay, but
so that justice may be done and all parties be listed with their proper representation.
2134321v.1 IMANAGE 106638 3
WHEREFORE PREMISES CONSIDERED, Appellee’s counsel respectfully
requests that the representation for the parties be corrected, and that Appellee Whitworth-
Kinsey #3, Ltd. be granted all other relief to which it is justly entitled.
Respectfully submitted,
BEIRNE, MAYNARD & PARSONS, L.L.P.
/s/ Matthew F. Wymer
Matthew F. Wymer
State Bar No. 24005234
Email – mwymer@bmpllp.com
112 E. Pecan, Suite 2750
San Antonio, Texas 78205
Telephone: (210) 582-0227
Facsimile: (210) 582-0231
COUNSEL FOR APPELLEES
WHITWORTH-KINSEY #3, LTD.
CERTIFICATE OF CONFERENCE
Counsel for Appellees conferred with Laird Palmer and with Attorney Christopher
J. Schwegmann on March 11, 2015 and March 12, 2015, respectively, regarding the
clarification of the parties as set out in detail in this Motion.
/s/ Matthew F. Wymer
Matthew F. Wymer
2134321v.1 IMANAGE 106638 4
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing
document was forwarded to all counsel listed below pursuant to the Texas Rules of Civil
Procedure and Texas Rules of Appellate Procedure on the 12th day of March, 2015:
Jeffrey M. Tillotson
Email jtillotson@lynnllp.com
Christopher J. Schwegmann
Email cschwegmann@lynnllp.com
David S. Coale
Email dcoale@lynnllp.com
Lynn Tillotson Pinker & Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone No. (214) 981-3800
Telecopier No. (214) 981-3839
Counsel for Appellant
Horse Hollow Generation Tie LLC
Laird Palmer
Email lplaw@tstar.net
Law Offices of Laird Palmer
341 Ft. McKavitt
P. O. Box 860
Mason, Texas 76856
Telephone No. (325) 347-6350
Telecopier No. (325) 347-6334
Co-Counsel for Appellees
Whitworth-Kinsey #2, Ltd. and
David Olen Whitworth
/s/ Matthew F. Wymer
Matthew F. Wymer
2134321v.1 IMANAGE 106638 5
Horse Hollow Generation Tie, LLC// Whitworth-Kinsey 2, Ltd. v. Whitworth-Kinsey 2, Ltd. Whitworth-Kinsey 3, Ltd. And David Olen Whitworth// Cross-Appellee, Horse Hollow Generation Tie, LLC
Combined Opinion