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 ( 2015 )

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
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* MAY-05-15 TUE 11:20 AM *
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* DATE START RECEIVER TX TIME PAGES TYPE NOTE M# DP *
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* MAY-05 11:13 AM 18307691332 6'39" 13 SEND OK 561 *
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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: