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ACCEPTED 02-18-00178-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 5/24/2018 2:13 PM DEBRA SPISAK CLERK NO. 02-18-00178-CV FILED IN 2nd COURT OF APPEALS IN THE COURT OF APPEALS FORT WORTH, TEXAS FOR THE SECOND DISTRICT OF TEXAS5/24/2018 2:13:01 PM FORT WORTH, TEXAS DEBRA SPISAK Clerk ENERQUEST OIL & GAS, L.L.C., Appellant, v. ANTERO RESOURCES CORPORATION, Appellee. On Appeal from the 141st Judicial District of Tarrant County, Texas Trial Court Cause No. 141-290089-17 ANTERO’S RESPONSE TO ENERQUEST’S EMERGENCY MOTION FOR TEMPORARY RELIEF Jason R. Grill Phillip B. Dye, Jr. State Bar No. 24002185 State Bar No. 06311500 jason.grill@steptoe-johnson.com pdye@velaw.com STEPTOE & JOHNSON P.L.L.C. Jason M. Powers 10001 Woodloch Forest Drive, Suite 300 State Bar No. 24007867 The Woodlands, Texas 77380 jpowers@velaw.com Telephone: (281) 203-5700 Caroline C. Stewart Facsimile: (281) 203-5701 State Bar No. 24098477 cstewart@velaw.com VINSON & ELKINS L.L.P. 1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Telephone: (713) 758-2048 Facsimile: (713) 615-5766 Attorneys for Appellee Antero Resources Corporation TO THE HONORABLE COURT OF APPEALS: Appellee Antero Resources Corporation (“Antero”) responds to Appellant EnerQuest Oil & Gas, L.L.C.’s (“EnerQuest’s”) Emergency Motion for Temporary Relief as follows. Because EnerQuest concedes it will be participating in discovery in this case through a Texas-based entity it purports to manage, and therefore will actually incur the discovery expense it claims should be avoided, there is no reason to stay discovery—especially because the emerging facts are already showing additional jurisdictional contacts that EnerQuest sought to avoid revealing below. The only effect of the stay EnerQuest seeks would be to facilitate gamesmanship with respect to EnerQuest’s admitted obligation to continue responding to merits discovery on behalf of Braxton Minerals III, the Texas-based entity it manages. Procedural Background In pertinent part, this case concerns the theft of trade secrets belonging to Antero. Antero alleges that certain defendants below participated in a scheme to acquire confidential information about Antero’s oil-and-gas well-drilling activities from at least two individuals associated with a Fort Worth-based company providing landman and other title-related services to Antero. On March 9, 2018, Antero filed an amended petition in this case adding multiple defendants, including EnerQuest and Braxton Minerals III, LLC. 1 EnerQuest, an Oklahoma-based company, owns 75% of the membership interest in Braxton Minerals III, a limited liability company with its principal place of business in Fort Worth. Braxton Minerals III holds oil and gas properties that appear to have been targeted for acquisition on the basis of Antero’s non-public information. Braxton Minerals III’s acquisition of these properties was funded by EnerQuest, who in 2015 had reached out to Texas to enter into a business relationship with the other member of Braxton Minerals III—a Fort Worth-based entity called Braxton Minerals-Appalachia (“BMA”)—and the two Fort Worth residents who were principals of BMA, all of whom are also defendants below. EnerQuest contends that it is the managing member of Braxton Minerals III.1 On April 18, 2018, EnerQuest filed a special appearance denying that it was subject to personal jurisdiction in Texas. In that special appearance, EnerQuest admitted that it had searched its files and found confidential Antero documents received from one of BMA’s principals, a resident of Fort Worth. See Ex. A at 6-7. These documents had been requested by EnerQuest in emails sent to Texas, as explained in Antero’s answer to the special appearance. See Ex. B. On April 25, 2018, Antero served jurisdictional discovery on EnerQuest seeking to establish the scope of EnerQuest’s relevant contacts with Texas for 1 A defendant below has called into question whether the formation of Braxton Minerals III was fraudulent. Antero takes no position on that issue at this time, but assumes for purposes of this motion that EnerQuest is, as it claims to be, the managing member of Braxton Minerals III. 2 purposes of responding to EnerQuest’s special appearance. See Ex. B-4. The day after receiving these discovery requests, EnerQuest gave notice that the District Court would hear its special appearance on May 9, 2018. See Ex. C. On April 30, 2018, Braxton Minerals III filed an answer and generally appeared. See Ex. D. As expected, given that EnerQuest had already admitted in its special appearance that it had “removed Braxton Minerals-Appalachia as Manager of Braxton Minerals III and appointed itself as Manager of that company,” see Ex. A at 6, Braxton Minerals III’s answer was filed by EnerQuest’s counsel, see Ex. D. On May 1-2, 2018, Antero requested that EnerQuest agree to a continuance of the special appearance hearing to allow for limited jurisdictional discovery to proceed before the special appearance was decided. EnerQuest refused the request. Therefore, on May 2, 2018, Antero filed its response identifying those Texas contacts of which Antero was already aware, along with an alternative motion for continuance to obtain answers to the outstanding jurisdictional discovery requests and conduct further jurisdictional discovery as needed. See Ex. B. On May 11, 2018, the District Court denied EnerQuest’s special appearance, evidently concluding that specific personal jurisdiction over EnerQuest was already established without the need for further discovery. See Ex. E. 3 ARGUMENT EnerQuest argues for a stay of discovery to avoid expense and avoid deciding claims that may not be subject to personal jurisdiction. But as EnerQuest concedes, it will bear the expense of discovery in any event; and Texas law already prevents any risk that claims will be decided while EnerQuest’s appeal pends. In this Court, EnerQuest is merely doing what it did below: trying to avoid any inquiry whatsoever into jurisdictional facts. I. Because EnerQuest will remain in this litigation under another name, it faces no additional expense or inconvenience from continuing in discovery. EnerQuest’s primary argument is that it will suffer “substantial expense and inconvenience” from participating in discovery in Fort Worth. Motion at 4. But EnerQuest does not explain what expense or inconvenience it will suffer. Indeed, it does not explain why it will suffer any expense or inconvenience from participating in discovery in the name of EnerQuest, since it intends to participate in discovery in the name of Braxton Minerals III, the Texas-based entity it owns and on whose behalf it answered without contesting jurisdiction at all. Given that EnerQuest contends it is the sole manager of Braxton Minerals III, EnerQuest’s position is that it is the only entity capable of producing Braxton Minerals III’s documents, answering interrogatories on its behalf, or designating corporate representatives for its testimony. 4 Indeed, EnerQuest has conceded that it will continue to participate in discovery. Just two days ago, counsel for EnerQuest asked that Antero consent to stay discovery as to EnerQuest, explaining that EnerQuest would continue to participate in discovery as the manager of Braxton Minerals III: We intend to answer the discovery for BMIII and continue to participate in the discovery of the case, as well as produce any documents EnerQuest has in relation to BMIII, Bauer and Ashburn through BMIII. See Ex. F. EnerQuest cites no authority for the proposition that discovery should be stayed during the appeal of a special appearance when that discovery imposes no meaningful additional costs on the defendant. As reflected in each case EnerQuest cites, courts stay discovery during the appeal of a special appearance only when the requested discovery would impose a significant burden and expense on the specially appearing party. In Oryx Capital International, Inc. v. Sage Apartments, L.L.C., the appellate court granted a stay so that Oryx could avoid “the expense and inconvenience of discovery pending the resolution of this appeal.”
167 S.W.3d 432, 437 (Tex. App.—San Antonio 2005, no pet.). Again, in Lattin v. Barrett, the court “expressed concern for an appellant challenging the denial of a special appearance having to incur the expense and inconvenience of discovery pending resolution of the appeal of a special appearance.”
127 S.W.3d 276, 277 (Tex. App.—Waco 2003, no pet.). And finally, in Lacefield v. Elec. Fin. Grp., Inc., the court stayed discovery 5 on the sole basis of burden and expenses, stating: “Lacefield should not be required to submit to ‘the expense and inconvenience’ of discovery pending resolution of his appeal.”
21 S.W.3d 799, 800 (Tex. App.—Waco 2000, no pet.). Although burden and expense may be a valid basis on which to stay discovery in some cases, this issue has no weight here, where EnerQuest will be participating in discovery on behalf of Braxton Minerals III. EnerQuest has not explained how responding on behalf of itself would impose any measurable additional burden that would support a stay of discovery. Moreover, EnerQuest faces no special burden from participating in discovery in Texas. Based in Oklahoma City, EnerQuest has convenient access to Fort Worth, and because EnerQuest operates oil and gas wells in Texas, is registered to do business in Texas, and has an agent for service of process in Texas (see Ex. A at 4), it has already demonstrated that it has no serious objection to litigating in Texas. II. The automatic trial stay obviates any risk of a merits disposition that would affect EnerQuest’s substantial rights pending appeal. EnerQuest next contends that “the parties risk litigating claims … that must be dismissed” if it prevails on its jurisdictional appeal. Motion at 4. Not so. First, Texas statute is clear that an interlocutory appeal of an order denying a special appearance stays “the commencement of a trial” during the appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(b). As such, the District Court will not decide the outcome of the case while the appeal pends. But otherwise, the District Court retains 6 jurisdiction over the case during the interlocutory appeal and may proceed with all other matters. “Section 51.014(a)(7) provides that an interlocutory appeal may be brought after the denial of a special appearance, but the statute does not provide a stay of anything but the trial pending resolution of the appeal,” in contrast to appeals under Subsection (a)(3), (5), (8), or (12). Buswell v. The GWSPI Co., LLC,
511 S.W.3d 256, 257 (Tex. App.—San Antonio 2015, no pet.) (citing § 51.014(a)(7), (b)). An appellant therefore bears the burden of showing why Section 51.014(a) should be extended to discovery when they appeal under Section 51.014(a)(7). EnerQuest has not carried its burden. Second, even in the unlikely event EnerQuest were to prevail on its appeal, it is far from clear this case would be dismissed. Because EnerQuest demanded a hearing on its special appearance before any jurisdictional discovery, even a reversal of the District Court’s decision could merely result in a remand to the District Court to allow jurisdictional discovery exploring the EnerQuest contacts with the other Texas defendants that the evidence has already revealed in part. III. EnerQuest is attempting to take strategic advantage of its refusal to participate in jurisdictional discovery in the district court. EnerQuest fought ordinary jurisdictional discovery below, and its current motion appears designed to prevent the development of facts that could quickly resolve the jurisdictional issues on remand if necessary. As explained in the proceedings below, the District Court had discretion to permit discovery on a special 7 appearance. BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789, 800 (Tex. 2002); Barron v. Vanier,
190 S.W.3d 841, 847 (Tex. App—Fort Worth 2006, no pet.). Such commonplace discovery could easily have been allowed if it were necessary. But after EnerQuest insisted it had no relevant Texas contacts, Antero submitted clear evidence to the District Court that EnerQuest had reached out to Texas to obtain confidential information. In addition, since the time of the special appearance hearing, one of the BMA principals has testified in deposition that EnerQuest’s president and another EnerQuest employee actually came to Texas for an October 2015 meeting with the two BMA principals to discuss investing in Braxton’s mineral acquisition program, right before Braxton Minerals III was formed in November 2015 and acquired the allegedly tainted properties.2 In the court below, EnerQuest sought to avoid answering discovery that would have revealed that Texas contact, and EnerQuest’s motion in this Court appears intended to continue the strategy of seeking a decision on the special appearance without allowing the development of any fact record regarding its Texas contacts. This Court need not facilitate EnerQuest’s strategic approach. Allowing ordinary discovery to continue may reveal facts that will further solidify personal jurisdiction over EnerQuest and possibly lead EnerQuest to abandon its appeal. 2 See Ex. G (excerpt from deposition of Robert Scott Bauer) at 121-22. Because the Bauer deposition took place less than ten days ago, a final transcript has not been completed. Therefore, an excerpt of the “rough” draft transcript received from the reporter is attached. 8 Indeed, the strategic value of this stay to EnerQuest is likely its only real value. Given that EnerQuest will be participating in discovery under the name of Braxton Minerals III, the only practical impact of a stay of discovery would be to give EnerQuest a fig-leaf reason to selectively respond to discovery, i.e., a license to refuse to answer discovery requests and deposition questions about its activities in Texas. This selective responsiveness would be wasteful, as it makes no sense for an EnerQuest witness giving a deposition as a Braxton corporate representative to refuse to answer questions about EnerQuest’s visits to Texas. More troublingly still, EnerQuest could use the discovery stay to delay or limit the inquiry into the merits of the case against Braxton Minerals III, by choosing to disclose whatever facts it is comfortable disclosing, and then asserting that any inconvenient questions encroach on the subject of EnerQuest’s contacts with Texas—contacts which may well prove central to the manner in which Antero’s confidential information was solicited, disclosed, and used by multiple individuals and entities. Because the discovery stay would do nothing to avoid any expense or burden, there is no reason to risk entering a stay that could potentially be misused and abused. PRAYER Appellee Antero Resources Corporation respectfully requests that this Court deny EnerQuest’s Motion for Temporary Relief. Antero further requests the Court grant it such additional and further relief to which it may show itself entitled. 9 Respectfully submitted, STEPTOE & JOHNSON P.L.L.C. By: /s/Jason R. Grill Jason R. Grill State Bar No. 24002185 jason.grill@steptoe-johnson.com W. Henry Lawrence WV State Bar No. 2156 10001 Woodloch Forest Drive, Suite 300 The Woodlands, Texas 77380 281.203.5700 281.203.5701 (facsimile) VINSON & ELKINS L.L.P. By: /s/Jason M. Powers Phillip B. Dye, Jr. State Bar No. 06311500 pdye@velaw.com Jason M. Powers State Bar No. 24007867 jpowers@velaw.com Caroline C. Stewart State Bar No. 24098477 cstewart@velaw.com 1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 713.758.2222 713.758.2346 (facsimile) Attorneys for Appellee Antero Resources Corporation 10 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all parties listed below via E-service and/or via facsimile, on this the 24th day of May, 2018: Via E-Service: Via E-Service: ghamm@hammfirm.com apennington@phblaw.com Gene A. Hamm, II H. Allen Pennington, Jr. The Hamm Firm Matthew D. Germany 1333 W. McDermott, Suite 200 Pennington Hill, LLP Allen, Texas 75013 Tindall Square – Warehouse No. 3 Attorney for Plaintiff, Penn 509 Pecan Street, Suite 101 Investment Funds, LLC and New Fort Worth, Texas Defendants Venture Strong II, LLC and Attorneys for Defendants John Bradley Joe F. Penn Jr. Ashburn and New Defendant Post Oak Appalachia, LLC Via E-Service: Via E-Service: mhassett@tarrantbusinesslaw.com awoodward@hrepc.com Michael Hassett C. Andrew Woodward Jones Hassett, PC Holman Robertson Eldridge 440 North Center 8226 Douglas Ave., Suite 550 Arlington, Texas 76011 Dallas, Texas 75225 Attorney for Defendants Michael Attorney for Kelly O’Connor Fisher, Maegan Fisher and M&M Consulting Via E-Service: Via E-Service: Scott@braxtonenergy.com brad@postoakroyalty.com R. Scott Bauer Brad Ashburn 8851 Camp Bowie Boulevard W 100 N. Forest Park Blvd., Suite 201 Suite 200 Fort Worth, Texas 76102 Fort Worth, Texas 76116 Attorney for Braxton Minerals- Attorney for Braxton Acquisitions, Appalachia, LLC LLC; Braxton Energy, LLC; Braxton Minerals II, LLC; and R. Scott Bauer 11 Via E-Service: Via E-Service: rolandjohnson@hfblaw.com joe.cox@bracewell.com Roland K. Johnson Joseph M. Cox and Andrea D. Broyles Harris, Finley & Bogle, PC 1445 Ross Avenue, Suite 3800 777 Main Street, Suite 1800 Dallas, Texas 75202 Fort Worth, Texas 76102 Spencer F. Smith Attorney for Energy Corporation of McAfee & Taft America 211 N. Robinson Ave. Oklahoma City, Oklahoma 73102. Attorneys for EnerQuest Oil & Gas, L.L.C. and Braxton Minerals III, LLC Via E-Service: Via E-Service: cd@peebleslaw.com jnt@turnerandallen.com C.D. Peebles Jess N. Turner, III The Peebles Law Firm Turner & Allen, P.C. 1604 Devon Court P.O. Box 930 Southlake, TX 76092 Graham, Texas 76450 Attorney for Austin Fox Attorney for Turn 2 Energy, LLC /s/ Caroline C. Stewart_________________ CAROLINE C. STEWART 12 EXHIBITS Ex. A Special Appearance of Defendant EnerQuest Oil & Gas, L.L.C. to Object to Personal Jurisdiction Ex. B Intervenor Antero Resources Corporation’s Response to EnerQuest Oil & Gas L.L.C.’s Special Appearance and Motion to Continue Ex. C Notice of Hearing on EnerQuest Oil & Gas, L.L.C.’s Special Appearance to Object to Personal Jurisdiction Ex. D Defendant Braxton Minerals III, LLC’s Special Exceptions and Original Answer Ex. E Order Overruling Objection to Jurisdiction Ex. F Cox Email re: Discovery Stay Ex. G Robert Scott Bauer Deposition Excerpts US 5684346v.1 EXHIBIT A 141-290089-17 FILED TARRANT COUNTY 4/18/2018 2:57 PM THOMAS A. WILDER CAUSE NO. 141-290089-17 DISTRICT CLERK PENN INVESTMENT FUNDS, LLC, ) IN THE DISTRICT COURT OF Plaintiff, ) ) ANTERO RESOURCES CORPORATION, ) Intervenor, ) TARRANT COUNTY, TEXAS ) vs. ) ) BRAXTON ENERGY, LLC, et al., ) Defendants. ) 141ST JUDICIAL DISTRICT SPECIAL APPEARANCE OF DEFENDANT ENERQUEST OIL & GAS, L.L.C. TO OBJECT TO PERSONAL JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: Defendant EnerQuest Oil & Gas, L.L.C. (“EnerQuest”) files this special appearance under Rule 120a of the Texas Rules of Civil Procedure for the sole purpose of objecting to the personal jurisdiction of this Court over EnerQuest. EnerQuest’s special appearance is being made prior to the filing of a motion to transfer venue, answer, or any other plea, pleading or motion on EnerQuest’s behalf. For the reasons that follow, the Court should dismiss the claims asserted against EnerQuest for lack of personal jurisdiction. I. Summary of the Argument Defendant EnerQuest is not subject to personal jurisdiction in the State of Texas in this case. There are two types of personal jurisdiction: general and specific. Neither type of personal jurisdiction exists against EnerQuest under the circumstances here. EnerQuest is not subject to general or “all purpose” jurisdiction in the State of Texas because it is organized under the laws of and maintains its principal place of business in Oklahoma, not Texas. See Daimler AG v. Bauman,
571 U.S. 117,
134 S. Ct. 746, 760-61 (2014) (holding that foreign corporations only subject to general jurisdiction when “at home” in forum, such as when the forum is the defendant’s state of #5680198 incorporation or principal place of business). Additionally, EnerQuest is not subject to specific jurisdiction in the State of Texas in this case because none of Antero’s actions asserted in this case arise out of any activity by EnerQuest that was intentionally or purposefully directed at the State of Texas. See Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County,
137 S. Ct. 1773, 1780 (2017). Therefore, this Court lacks personal jurisdiction over EnerQuest and this case should be dismissed as to EnerQuest. II. Background A. Summary of Relevant Portions of Antero’s Amended Petition in Intervention and Its Claim Against EnerQuest. 1 This case concerns the alleged misappropriation by other Defendants of certain of Antero’s alleged trade secrets. Antero contends that a “Critical Date Report,” a “SWN June 2016 Acquisition Defects report,” and certain “Title Opinions” that pertain to oil and gas minerals located in West Virginia are its confidential trade secrets. Am. Pet. Interv. ¶¶ 22-28. Antero alleges that at some point in 2015 and 2016, one or more of the “Original Defendants” and New Defendant Austin Fox unlawfully acquired these alleged trade secrets from non-party Texhoma Land Consultants I Inc. in Tarrant County, Texas. 2
Id. ¶¶ 22,29. Antero also alleges the aforementioned 1 Due to the pre-answer stage of this case vis-à-vis EnerQuest, the following summary assumes well-pleaded allegations in the amended petition are true unless such facts are specifically controverted by evidence below and attached hereto. Nothing contained herein should be construed as an admission or concession that Antero’s allegations are in fact correct. 2 The “Original Defendants” are Braxton Energy, LLC; Braxton Acquisitions, LLC; Braxton Minerals II, LLC; Robert Scott Bauer; John Bradley Ashburn; Michael and Maegen Fisher; M&M Consulting,; and Kelly O’Connor. Am. Pet. Interv. ¶¶ 3-9. The “New Defendants” are Austin Fox; Joe F. Penn, Jr.; EnerQuest; Venture Strong II, LLC; Post Oak Appalachia, LLC; Turn 2 Energy, LLC; Braxton Minerals-Appalachia, LLC; Braxton Minerals III, LLC; and Global Oil and Gas Fields Oklahoma, LLC.
Id. ¶¶ 10-18.2 #5680198 Defendants, Plaintiff Penn Investment Funds, LLC, and New Defendant Joe F. Penn, Jr. conspired to misappropriate Antero’s trade secrets.
Id. 29, 50-54.Next, Antero contends that Original Defendant Braxton Minerals II, LLC used the allegedly misappropriated trade secrets to acquire oil and gas interests in West Virginia that were “adverse” to Antero’s interests, and that Braxton Minerals II subsequently transferred its allegedly ill-gotten mineral interests to New Defendant Braxton Minerals III, LLC and certain other Defendants (but not EnerQuest).
Id. ¶ 40.Antero further alleges that Braxton Minerals III is owned by EnerQuest and New Defendant Braxton Minerals-Appalachia, LLC, and that the latter entity is in turn owned by Original Defendants Robert Scott Bauer and John Bradley Ashburn, two of the alleged conspirators.
Id. ¶ 42.Other than its allegation that EnerQuest is one of the members of Braxton Minerals III, the only allegations in the amended petition directed at EnerQuest are that (i) EnerQuest claims to have removed and replaced Braxton Minerals-Appalachia as the manager of Braxton Minerals III, and (ii) as the manager of Braxton Minerals III, EnerQuest has offered West Virginia oil and gas properties owned by Braxton Minerals III for sale, certain of which properties Antero claims were acquired by other Defendants using the misappropriated trade secrets.
Id. ¶ 44,46. Antero’s amended petition does not allege that EnerQuest played any part in misappropriating the alleged trade secrets. More importantly, the amended petition does not allege EnerQuest took any actions within or directed at the State of Texas. As will be shown below, Antero’s claims do not arise out of any contact of EnerQuest within the State of Texas. B. Summary of EnerQuest’s Relevant Operations. EnerQuest is an oil and gas exploration and production company that is organized as a limited liability company under the laws of the State of Oklahoma, and it maintains its headquarters 3 #5680198 at 12368 Market Drive, Oklahoma City, Oklahoma 73114. Affidavit of Gregory Olson, ¶ 3 (attached as Exhibit 1). EnerQuest operates oil and gas wells in Oklahoma, Texas, Louisiana, Utah, and Arkansas.
Id. ¶ 4.In addition, EnerQuest owns non-operated oil and gas interests in Alabama, Arkansas, Florida, Georgia, Illinois Louisiana, Michigan, Mississippi, Nebraska, North Dakota, New Mexico, Oklahoma, Oregon, Pennsylvania, Texas, West Virginia, and Wyoming.
Id. Although EnerQuestis registered to and does conduct business in the State of Texas, it maintains no offices or employees in Texas.
Id. ¶ 3.Oklahoma is the only state in which EnerQuest maintains an office and employees.
Id. Relevant here,EnerQuest and Braxton Minerals-Appalachia formed Braxton Minerals III, a Delaware limited liability company, in November 2015.
Id. ¶ 5.Braxton Minerals III was organized for the express purpose of acquiring, owning, holding, and maintaining certain types of oil and gas interests in the States of West Virginia, Pennsylvania, and Ohio. See Limited Liability Company Agreement of Braxton Minerals III, LLC §§ 1.3, 2.1(a) (“BMIII Agreement” attached as Exhibit 1A). Generally, Braxton Minerals III was organized such that EnerQuest owns 75% of the equity interest in the company and Braxton Minerals-Appalachia owns 25% of the equity interest in the company. BMIII Agreement, § 3.6 & Exhibit A. Braxton Minerals-Appalachia was designated as the initial Manager of the company,
id. § 6.1(b),was responsible for conducting its day-to-day operations,
id. § 6.5(a),and was responsible for funding its day-to-day operations and expenses,
id. § 4.1(c).EnerQuest, for its part, committed to contribute up to $10 million in capital to Braxton Minerals III in order to acquire certain oil and gas interests located in West Virginia, Pennsylvania, or Ohio that were identified by the Manager as meeting certain agreed-upon criteria. See
id. § 4#5680198 4.1(a), (b), & Exhibit A. Prior to the Liquidity Event described below, EnerQuest did not exercise control over or participate in management activities of Braxton Minerals III. The first mineral interests acquired by Braxton Minerals III were purchased from Original Defendant Braxton Minerals II contemporaneously with the formation of Braxton Minerals III in November 2015. See
id. § 4.1(a). These “Previously Acquired Interests” were composed of 214.40 net mineral acres located in West Virginia. See
id. § 4.1; Olson Affidavit, ¶ 6. Braxton Minerals- Appalachia represented to EnerQuest at the time Braxton Minerals III was formed that the Previously Acquired Interests had been fully paid for by Braxton Minerals-Appalachia or its affiliates, and that such interests met certain other characteristics that fit with the package of mineral interests to be purchased by Braxton Minerals III. See BMIII Agreement § 4.1(a)(i). EnerQuest did not have any involvement in the initial acquisition of the Previously Acquired Interests by Braxton Minerals II, Braxton Minerals-Appalachia, or any of their managers, owners, or affiliates. Olson Affidavit, ¶ 6. Between November 2015 and April 2016, EnerQuest fully funded its $10 million capital commitment to Braxton Minerals III, which funds were used by Braxton Minerals III to purchase certain oil and gas interests in West Virginia and Pennsylvania. Olson Affidavit, ¶ 7. By letter dated March 10, 2016 from Brad Ashburn, Braxton Minerals-Appalachia notified EnerQuest pursuant to Section 4.5 of the BMIII Agreement that EnerQuest’s remaining commitment amount was less than $1 million and requested that EnerQuest elect whether it would contribute additional capital. Olson Affidavit, ¶ 8; March 10, 2016 Ltr. (attached as Exhibit 1B). Under the BMIII Agreement, EnerQuest then had 30 days to decide whether to commit to contribute another $10 million in capital to Braxton Minerals III, or Braxton Minerals-Appalachia was obligated to liquidate Braxton Minerals III. See BMIII Agreement, § 4.5. Ultimately, EnerQuest elected not to 5 #5680198 increase its capital contribution commitment to Braxton Minerals III, which triggered a “Liquidity Event” under Section 10.1 of the BMIII Agreement. Olson Affidavit, ¶ 8; Email of April 8, 2016 (attached as Exhibit 1C). As a result of the Liquidity Event, Braxton Minerals-Appalachia was supposed to select a liquidator, to be approved by EnerQuest, to wind up the affairs of Braxton Minerals III and distribute its assets to EnerQuest and Braxton Minerals-Appalachia as provided in the BMIII Agreement. See BMIII Agreement, § 10.2. However, Braxton Minerals-Appalachia failed or refused to do so. Olson Affidavit, ¶ 9. By letter dated August 9, 2017, EnerQuest notified Braxton Minerals-Appalachia that it was in breach of the BMIII Agreement by, among other things, failing to select a liquidator to wind the company up, and demanded that Braxton Minerals-Appalachia cure such breach before September 10, 2017. Olson Affidavit, ¶ 10; Aug. 9, 2017 Ltr. (attached as Exhibit 1D). Braxton Minerals-Appalachia failed and refused to cure its breach within the specified time period, so EnerQuest removed Braxton Minerals-Appalachia as Manager of Braxton Minerals III and appointed itself as Manager of that company on September 29, 2017, as allowed in the BMIII Agreement. Olson Affidavit, ¶¶ 10-11; Written Consent of Members of Braxton Minerals III, LLC dated Sept. 29, 2017 (attached as Exhibit 1E); Sept. 29, 2017 Ltr. (attached as Exhibit 1F). Subsequently, in February 2018, Antero’s counsel notified EnerQuest’s counsel that it believed Original Defendants Robert Scott Bauer and John Bradley Ashburn had possession of certain of its alleged trade secret documents and inquired as to whether EnerQuest had possession of certain specified documents. Feb. 23, 2018 Ltr. (attached as Exhibit 2). In response, EnerQuest searched its files, determined that it had received certain information from Original Defendant Robert Scott Bauer that Antero alleges are its trade secret documents, and so notified Antero. Olson 6 #5680198 Affidavit, ¶ 12; Email of March 5, 2018 from J. Black to H. Lawrence (attached as Exhibit 3). As EnerQuest’s counsel previously explained to Antero’s counsel (and were evidenced by the emails and text messages previously provided to Antero), such documents were disclosed to Greg Olson of EnerQuest by Bauer in February 2017 or later in the course of Bauer’s effort to solicit EnerQuest to invest in another of Bauer’s mineral acquisition programs. Olson Affidavit, ¶ 13; March 5, 2018 Email. EnerQuest did not know that Bauer allegedly acquired the subject information by unlawful means. Olson Affidavit, ¶ 13. In any event, the alleged trade secret information was received by Greg Olson of EnerQuest in Oklahoma.
Id. EnerQuest hasnot disclosed the documents to anyone outside of its organization other than Original Defendants Bauer and Ashburn.
Id. III. Argumentand Authorities “The plaintiff bears the initial burden of pleading allegations that suffice to permit a court’s exercise of personal jurisdiction over the nonresident defendant.” Searcy v. Parex Res., Inc.,
496 S.W.3d 58, 66 (Tex. 2016). If the plaintiff does so, the burden shifts to the defendant to negate the “bases for personal jurisdiction that exist in the plaintiff’s pleadings.”
Id. The Texaslegislature, through its long-arm statute, has authorized Texas courts to exercise personal jurisdiction over nonresidents to the limits allowed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See
id. (citing MokiMac River Expeditions v. Drugg,
221 S.W.3d 569, 574 (Tex. 2007)). As a result, the question of whether Texas courts may exercise personal jurisdiction over a nonresident is coextensive with whether the exercise of that jurisdiction comports with due process. See
id. Thus, thepresent inquiry is whether EnerQuest has sufficient minimum contacts with the State of Texas “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quotation omitted). 7 #5680198 There are two categories of personal jurisdiction: general and specific. General jurisdiction is “all-purpose jurisdiction” where the defendant can be sued in the forum state regardless of whether the plaintiff’s cause of action relates to the defendant’s contacts with the forum. Daimler AG v. Bauman,
134 S. Ct. 746, 754 (2014). Specific jurisdiction, on the other hand, allows jurisdiction only over claims that arise out of or relate to a defendant’s contacts with the forum state. See
id. For thereasons discussed below, EnerQuest does not have sufficient minimum contacts with Texas to support either general or specific jurisdiction in this case. Therefore, the Court should dismiss EnerQuest from this case for lack of personal jurisdiction. A. EnerQuest is not subject to general personal jurisdiction in Texas. Until relatively recently, some courts had interpreted the United States Supreme Court’s precedent as authorizing general personal jurisdiction in any forum with which the defendant had substantial, “continuous and systematic contacts.” Cf. Moki Mac River
Expeditions, 221 S.W.3d at 575(suggesting that general jurisdiction is present merely when a “defendant has made continuous and systematic contacts with the forum.”). Recently, however, the Supreme Court has rejected that view of general jurisdiction and held that it “is unacceptably grasping.”
Daimler, 134 S. Ct. at 761. Instead, the Supreme Court has emphasized “that only a limited set of affiliations with a forum will render a defendant amendable to all-purpose jurisdiction there.”
Id. at 760.For individuals, that place is the defendant’s domicile.
Id. For corporations,“the place of incorporation and place of business are [the] paradigm bases for general jurisdiction.”
Id. (quotation omitted).In Daimler, the Supreme Court held that general jurisdiction comports with due process only when a “corporation’s ‘affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.’”
Id. (quoting GoodyearDunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011) (emphasis added)). In explaining why a corporation’s principal 8 #5680198 place of business and state of incorporation are the paradigm examples of the “limited set of affiliations” that render a corporation at home, the Supreme Court analogized those locations to an individual’s domicile and indicated they were the corporation’s functional “equivalent” to an individual’s domicile. To be sure, the Supreme Court in Daimler left open the possibility that in “an exceptional case” a corporation might be deemed to be at home in a state other than its state of incorporation or principal place of business.
Id. at 761,n.19. However, the Court emphasized that the character of affiliations necessary to render a defendant at home in a state should be “unique” and “easily ascertainable,” like an individual’s domicile, or a corporation’s principal place of business and state of incorporation. See
id. at 760.Underscoring the point that the place where a corporation is deemed to be at home should be “unique” and “easily ascertainable,” the Court in Daimler rebuffed the dissent for suggesting that its holding would invite additional jurisdictional discovery as to the quantum of contacts necessary to establish general jurisdiction. See
id. at 761,n.20 (“But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home.”). Thus, it should come as no surprise that lower courts after Daimler have consistently rejected attempts to expand general jurisdiction over corporations to states other than the corporation’s principal place of business or state of incorporation. See, e.g., Sonera Holding B.V. v. Cukurova Holding A.S.,
750 F.3d 221, 223 (2d Cir. 2014) (per curiam) (stating “general jurisdiction extends beyond an entity’s state of incorporation and principal place of business only in the exceptional case . . .” (emphasis added)); Monkton Ins. Servs., Ltd. v. Ritter,
768 F.3d 429, 432 (5th Cir. 2014) (“It is, therefore, incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” (emphasis added)); Wal-Mart Stores, Inc. v. LeMaire,
395 P.3d 1116, 1122 (Ariz. Ct. App. 2017) (holding that an “exceptional case” where general jurisdiction 9 #5680198 would extend beyond the paradigm examples identified by the Supreme Court requires “exigent circumstances that render traditional jurisdictional limits unworkable.” (emphasis added)). EnerQuest is “at home” for purposes of general jurisdiction only in Oklahoma, not Texas. Oklahoma is where EnerQuest is organized. Oklahoma is where EnerQuest maintains its headquarters and its employees. Thus, Oklahoma is the place from where EnerQuest directs its business in multiple states. EnerQuest does not maintain an office or employees in any state other than Oklahoma. As a result, Oklahoma is the only “unique” and “easily ascertainable” place that is equivalent to EnerQuest’s domicile. As a result, Oklahoma is the only state in which EnerQuest is subject to general, “all purpose” jurisdiction untethered to its contacts with the forum. While EnerQuest conducts business in the State of Texas, it also conducts business in other states. The Supreme Court has made clear that doing substantial business in a state is not enough to confer general jurisdiction because “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Daimler AG,
134 S. Ct. 761, n.20. Therefore, EnerQuest is at home and subject to personal jurisdiction in only Oklahoma, not in Texas. B. EnerQuest is not subject to specific personal jurisdiction in Texas in this case. “In order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County,
137 S. Ct. 1773, 1780 (2017) (quotations and alterations omitted). This requires “an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State.”
Id. at 1781(quotation and alterations omitted). Moreover, to count as a “contact” giving rise to suit, the defendant’s actions giving rise to the suit must have been “purposefully directed . . . at residents of the forum” state. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 473 (1985). The Texas Supreme Court has 10 #5680198 identified “three features” or guideposts for analyzing the relevancy a defendant’s contacts with the forum in the context of specific personal jurisdiction: “(1) the relevant contacts are those of the defendant, and the unilateral activity of another person or a third party is not pertinent; (2) the contacts that establish ‘purposeful availment’ must be purposeful rather than random, fortuitous, isolated, or attenuated; and (3) the defendant must seek some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Searcy v. Parex Res., Inc.,
496 S.W.3d 58, 67 (Tex. 2016). In addition, “[s]pecific jurisdiction . . . does not exist where the defendant’s contacts with the forum state are not substantially connected to the alleged operative facts of the case.”
Id. at 70.The Texas Supreme Court has explained that this “substantial connection” test requires consideration of “[1] what the [plaintiff’s] claim is principally concerned with, [2] whether the [defendant’s] contacts will be the focus of the trial and consume most if not all of the litigations’ attention, and [3] whether the [defendant’s] contacts are related to the operative facts of the [plaintiff’s] claim.” TV Azteca v. Ruiz,
490 S.W.3d 29, 52-53 (Tex. 2016) (internal quotations and citations omitted). For purposes of specific personal jurisdiction, it does not matter how many contacts a defendant has with the forum state if the plaintiff’s claim does not relate to those contacts. See Bristol-Myers Squibb,
137 S. Ct. 1781-82. In this case, Antero’s claims concern the alleged misappropriation by other Defendants of Antero’s alleged trade secrets concerning oil and gas properties located in West Virginia. Although Antero alleges that the Original Defendants and New Defendant Austin Fox unlawfully acquired the alleged trade secrets from non-party Texhoma Land Consultants I Inc. in Tarrant County, Texas,
id. ¶¶ 22,29, Antero does not allege EnerQuest played any part in that alleged misappropriation. While EnerQuest did receive (in Oklahoma) certain of the allegedly trade secret information from Original Defendant Robert Scott Bauer in February 2017, Antero does not (and 11 #5680198 cannot) allege EnerQuest has used or disclosed that information, let alone that it did so in Texas. Further, even if EnerQuest did disclose or use Antero’s trade secret information (which it did not), any damages allegedly suffered by Antero from such disclosure or use would be realized in West Virginia, where the subject oil and gas properties are located, or in Colorado, where Antero alleges its corporate headquarters are located. See Am. Pet. Interv. ¶ 1. Simply put, Antero’s claims in this lawsuit have nothing to do with any contact between EnerQuest and the State of Texas. Therefore, this Court lacks specific personal jurisdiction over EnerQuest in this case. IV. Prayer Wherefore, for the reasons explained above, EnerQuest respectfully requests the Court set this matter for hearing at the earliest time possible and that, upon hearing, this special appearance be sustained in all things and the claims and causes of action against Defendant EnerQuest Oil & Gas, L.L.C. be dismissed for lack of personal jurisdiction. EnerQuest also requests any other or further relief, at law or in equity, to which it may be justly entitled. 12 #5680198 Respectfully submitted, BRACEWELL LLP By: /s/ Joseph M. Cox Joseph M. Cox State Bar No. 04950200 Joe.Cox@bracewell.com Andrea D. Broyles State Bar No. 24082744 Andrea.Broyles@bracewell.com 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 - and - Spencer F. Smith State Bar No. 24008625 MCAFEE & TAFT A Professional Corporation Tenth Floor, Two Leadership Square 211 N. Robinson Ave. Oklahoma City, Oklahoma 73102-7103 spencer.smith@mcafeetaft.com Attorneys for Defendant EnerQuest Oil & Gas, L.L.C. Certificate of Conference This certifies that on April 4, 2018 and April 6, 2018, a telephone conference was held with Jason Grill, attorney for Intervenor Antero Resources Corporation, regarding the merits of this motion. A reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed. Therefore it is presented to the Court for determination. /s/ Joseph M. Cox Joseph M. Cox 13 #5680198 Certificate of Service I hereby certify that on April 18, 2018, a true and correct copy of the foregoing document was served on the following counsel of record in accordance with the Texas Rules of Civil Procedure: Jason R. Grill Phillip B. Dye, Jr. W. Henry Lawrence Caroline C. Stewart Steptoe & Johnson PLLC Vinson & Elkins LLP 10001 Woodlock Forest Drive, Suite 300 1001 Fannin Street, Suite 2500 The Woodlands, Texas 77380 Houston, Texas 77002-6760 jason.grill@steptoe-johnson.com pdye@velaw.com hank.lawrence@stptoe-johnson.com cstewart@velaw.com Attorneys for Intervenor Antero Resources Attorneys for Intervenor Antero Resources Corporation Corporation Gene A. Hamm, II H. Allen Pennington, Jr. The Hamm Firm Matthew D. Germany 1333 W. McDermott, Suite 200 Pennington Hill, LLP Allen, Texas 75013 Tindall Square-Warehouse No. 3 ghamm@hammfirm.com 509 Pecan Street, Suite 101 Attorney for Plaintiff Penn Investment Fort Worth, Texas 76102 Funds, LLC, Joe F. Penn Jr., and Venture apennington@phblaw.com Strong II, LLC Attorneys for Defendant John Bradley Ashburn and Post Oak Appalachia, LLC Michael Hassett Avery McDaniel Jones Hasset, PC Law Office of Avery McDaniel 440 North Center 1205 N. Main Street Arlington, Texas 76011 Fort Worth, Texas 76164 mhasset@tarrantbusinesslaw.com avery@avrymcdaniel.com Attorney for Defendants Michael Fisher, Attorney for Braxton Minerals II, LLC Maegan Fisher, and M&M Consulting R. Scott Bauer C. Andrew Woodward 8851 Camp Bowie Boulevard W Holman Robertson Eldridge Suite 200 8226 Douglas Ave., Suite 550 Fort Worth, Texas Dallas, Texas 75225 scott@braxtonenergy.com awoodward@hrepc.com Attorney for Braxton Acquisitions, LLC, Attorney for Kelly O’Connor Braxton Energy LLC, and himself Roland K. Johnson Charles W. Sartain Harris, Finley & Bogle, P.C. Gray Reed & McGraw 777 Main Street, Suite 1800 1601 Elm Street, Suite 4600 Fort Worth, Texas 76102 Dallas, Texas 75201 rolandjohnson@hfblaw.com Attorneys for Global Oil and Gas Fields Attorneys for Energy Corporation of America /s/ Joseph M. Cox Joseph M. Cox 14 #5680198 Cause No. 141-290089-17 PENN INVESTMENT FUNDS, LLC, ) In the District Court Plaintiff, ) of Tarrant County, Texas ) ANTERO RESOURCES CORPORATION, ) Intervenor, ) ) vs. ) 141 st Judicial District ) BRAXTON ENERGY, LLC, et al., ) Defendants. ) Verification STATE OF OKLAHOMA § § COUNTY OF OKLAHOMA § Before me, the undersigned notary public, on this day personally appeared Gregory W. Olson, who after being duly sworn, stated on his oath that he has read the foregoing Special Ap- pearance to Object to Personal Jurisdiction and that the statements contained therein are true and correct based upon either his personal knowledge or information made available to him in in the course and scope of his employment for EnerQuest Oil & Gas, L.L.C. Gregory W. so President Em ritu EnerQuest Oil & Gas, L.L.C. Subscribed and sworn to before me by Gregory W. Olson, this /~day of April, 2018. (Seal) Notary Public My Commission Expires: _ _ __._........,_~---- 15 EXHIBIT 1 CAUSE NO. 141-290089-17 PENN INVESTMENT FUNDS, LLC, ) IN THE DISTRICT COURT OF Plaintiff, ) ) ANTERO RESOURCES CORPORATION, ) Intervenor, ) TARRANT COUNTY, TEXAS ) vs. ) ) BRAXTON ENERGY, LLC, et al., ) Defendants. ) 141 ST JUDICIAL DISTRICT AFFIDAVIT OF GREGORY W. OLSON STATE OF OKLAHOMA § § COUNTY OF OKLAHOMA § I, Gregory W. Olson, being duly sworn, depose and state the following upon my oath: 1. "I am over the age of 21. I have never been convicted of a felony. I am of sound mind, and I am fully competent to make this affidavit. This affidavit is being made in support of the Special Appearance of EnerQuest Oil & Gas, L.LC. ("EnerQuest") in the above-captioned case for the sole purpose of objecting to personal jurisdiction over EnerQuest. 2. "I am currently President Emeritus of EnerQuest, am semi-retired, and consult with EnerQuest on certain matters. From its creation in November of 1996 until December 31, 201 7, I was the President of EnerQuest. At all times relevant to this affidavit, I have resided in Edmond, Oklahoma and worked out of EnerQuest's Oklahoma City office. Through my positions as President and President Emeritus, I have personal knowledge of the facts stated herein, which are true and correct. 3. "EnerQuest is an oil and gas exploration and production company. It is organized as a limited liability company under the laws of the State of Oklahoma, and it maintains its headquarters at 12368 Market Drive, Oklahoma City, Oklahoma 73114. EnerQuest does not maintain any offices or employees in any state other than Oklahoma. 4. "EnerQuest operates oil and gas wells in Oklahoma, Texas, Louisiana, Utah, and Arkansas. In addition, EnerQuest owns non-operated oil and gas interests in Alabama, Arkansas, Florida, Georgia, Illinois Louisiana, Michigan, Mississippi, Nebraska, North Dakota, New Mexico, Oklahoma, Oregon, Pennsylvania, Texas, West Virginia, and Wyoming. 5. "In November 2015, EnerQuest and Braxton Minerals-Appalachia, LLC formed Braxton Minerals III, LLC, a limited liability company organized under Delaware law. A copy of the Limited Liability Company Agreement of Braxton Minerals III, LLC (the "BMIII Agreement") is attached hereto as Exhibit lA. Exhibits B and C and Schedules 4.l(b)(i) and 7.l(b)(i) to the BMIII Agreement have been omitted to protect certain irrelevant and/or confidential information from unnecessary disclosure. The BMIII Agreement was executed by myself, as President of EnerQuest, and by Brad Ashburn, as President of Braxton-Minerals- Appalachia, LLC, dated as of November 10, 2015. 6. "The "Previously Acquired Interests" referenced in Section 4.1 of the BMIII Agreement were composed of 214.40 net mineral acres located in West Virginia. EnerQuest was not involved in the initial acquisition of those interests by Braxton Minerals II, LLC, Braxton Minerals-Appalachia, LLC, or any of their managers, owners, or affiliates. 7. "EnerQuest committed to contribute up to $10,000,000 in capital to Braxton Minerals III, LLC. The initial capital contribution of $975,860.17 was to fund BMIII's acquisition of the aforementioned Previously Acquired Interests. Subsequent capital contributions were to fund the purchase of oil and gas interests acquired after the formation of BMIII, as described in the BMIII Agreement. Between November 2015 and April 2016, Page 2of5 EnerQuest fully funded its capital commitment to Braxton Minerals III, LLC. Those funds were used to purchase certain oil and gas interests in West Virginia and Pennsylvania on behalf of Braxton Minerals III, LLC. 8. "In March 2016, I received a letter dated March 10, 2016 from Brad Ashburn on behalf Braxton Minerals-Appalachia, LLC. That letter is attached hereto as Exhibit lB. The letter notified EnerQuest pursuant to Section 4. 5 of the BMIII Agreement that EnerQuest' s remaining commitment amount was less than $1,000,000 and requested that EnerQuest elect whether it would contribute additional capital. By email dated April 8, 2016 to Brad Ashburn, I notified Braxton Minerals-Appalachia, LLC that EnerQuest had elected not to contribute additional capital to Braxton Minerals III, LLC, according to the terms of the BMIII Agreement. A copy of my April 8, 2016 email is attached hereto as Exhibit 1C. 9. "This triggered a "Liquidity Event" under Section 10.1 of the BMIII Agreement. According to Section 10.2 of the BMIII Agreement, the above Liquidity Event required Braxton Minerals-Appalachia, as the initial Manager of Braxton Minerals III, LLC, to, among other things, propose a liquidator for EnerQuest' s approval who would wind up the affairs of Braxton Minerals III, LLC and distribute its assets as provided in the BMIII Agreement. However, Braxton Minerals-Appalachia, LLC failed or refused to timely propose a liquidator as provided in the BMIII Agreement. 10. "On or about August 9, 2017, I, as President of EnerQuest, sent a letter to Braxton Minerals-Appalachia, LLC, attention to Brad Ashburn and Scott Bauer, demanding that Braxton Minerals-Appalachia comply with the provisions of the BMIII Agreement by, among other things, proposing a liquidator as required by Section 10.2 of that Agreement by September 10, Page 3of5 20I 7. A copy of that letter is attached as ExhibitID. Braxton Minerals-Appalachia,LLC failed or refused to comply with EnerQuest' s demand within the specified time. I 1. "On September 29, 2017, I, as President of EnerQuest, executed a Written Consent of Members of Braxton Minerals III, LLC that, pursuant to certain provisions of the BMIII Agreement, removed Braxton Minerals-Appalachia, LLC as Manager of Braxton Minerals III, LLC and subsequently elected EnerQuest to be the replacement Manager. A copy of the Written Consent is attached hereto as Exhibit IE. On or about the same date, I sent a letter to Braxton-Minerals-Appalachia, LLC, attention to Brad Ashburn and Scott Bauer, advising it of EnerQuest's action. A copy of that letter is attached hereto as Exhibit IF. 12. "In February 20I 8, I learned that Antero Resources Corporation ("Antero") suspected that Robert Scott Bauer and John Bradley Ashburn had shared certain documents that Antero alleged were confidential and proprietary business records and trade secrets. In response, I searched my files and caused EnerQuest to search its files for the documents identified by Antero. Certain documents matching the description provided by Antero were located, which documents were then provided to EnerQuest's counsel, Jeremy Black, to provide to Antero's counsel. 13. "The documents described by EnerQuest were disclosed to me in February 20I 7 or later by Scott Bauer via email and text messages received by me in Oklahoma. Bauer disclosed the subject documents to me in an effort to solicit EnerQuest to invest in another of Bauer's mineral acquisition programs. Until February 2018, I did not know that Scott Bauer had allegedly obtained the subject documents by unlawful means. I did not disclose the subject information to anyone outside of EnerQuest except for Scott Bauer and Brad Ashburn. To the Page 4of5 best of my knowledge, no one else with EnerQuest has disclosed the subject information to anyone outside of EnerQuest except for Scott Bauer and Brad Ashburn." FURTHER AFFIANT SA YETH NOT. ¢- Dated this (J day of April, 2018. Gre ory President m tus EnerQuest Oil & Gas, L.L.C. SUBSCRIBED and SWORN TO before me on this /11tay of April, 2018, by Gregory W. Olson. (Seal) Page 5of5 EXHIBIT 1A LIMITED LIABILITY COMPANY AGREEMENT OF BRAXTON MINERALS III, LLC, a Delaware Limited Liability Company November 12, 2015 Braid. id. 4Sent: Friday, April 08, 2016 11:37 AM To: Brad Ashburn Subject: RE: Election Letter Attachments: model with matt's eur-1st prod. 4.2016.xlsx; Marcellus EUR vs Lateral Length.pdf; EQ Type Curve vs EQT.PDF; Peak Rate Per Ft vs Lateral.pdf; 2014 Aries Decline Curves.pdf; 2013 Aries Decline Curves.pdf; 2012 Aries Decline Curves.pdf; Before 2012 Aries Decline Curves.pdf; Antero Well Map.pdf; Pennsylvannia Marcellus EUR Study - March, 2016.pdf; Spotfire Plots.pdf; Marcellus Type Curve Analysis.pdf Brad, we’re going to elect not to move forward with funding. As you know, what really hurt the economics compared to the way I was looking at the deal before making the investment, is the deducts Antero started charging. If not for the general deterioration in the gas market, we still may have been able to model a rate of return that made sense. You had asked for the results of our analysis. Attached is the model. The model is using a 10.2 bcf eur. Also attached are a number of displays and spreadsheets Matt used in determining his type curve eur of 10.2 bcf. If you’re interested, we can schedule a call where Matt can walk you through the analysis and how to interpret some of his displays. Just let me know if you want to schedule something. You and your team are a talented group. I sincerely hope we can do business in the future. There were just some unexpected (Antero deducts) and uncontrollable (gas market deterioration) events that make it difficult to do anything at this time. I’ve enjoyed working with and getting to know you. I wish you all the best. Gregory W. Olson President EnerQuest Oil & Gas, LLC 12368 Market Drive Oklahoma City, OK 73114 (405) 478-3300 ext. 101 From: Brad Ashburn [mailto:brad@braxtonenergy.com] Sent: Thursday, March 10, 2016 4:20 PM To: Greg Olson who would EnerQuest, who would decide whether or not to approve the acquisitions based on on the information provided.” provided.17 Based on the information Antero has now, Bauer Based Ashbum did as EnerQuest asked, Bauer and Ashburn West Virginia acreage they were presumably sending EnerQuest information about the West were targeting and to which Antero’s trade secret documents relate. BMIII acquired the majority of relate. BMIII West of its West November 2015 through April 2016, Virginia minerals between November 2016,18 18 which Bauer a time frame for which Ashbum possessed a significant and Ashburn significant amount of of Antero’s trade secret information. information.”19 would have It would been consistent with Bauer’s practice, practice, in the course of of sending information from Texas to to solicit solicit EnerQuest’s funding, to to use the improperly-obtained improper1y—obtained confidential BMA’s of Antero in BMA’s confidential information of possession. For example, Bauer admits to to soliciting soliciting Joe Penn’s investment using Antero trade and the promise of secrets and of access to such secrets. secrets.”20 EnerQuest admits that it trade—secret—based offer from Bauer, it received at least one such trade-secret-based show that in the course of that discussion, EnerQuest specifically and the documents show specifically sought out Antero’s confidential confidential information. EnerQuest concedes that in or after February 2017, Bauer sent EnerQuest some of Antero’s trade secret documents that Bauer had maintained in in Texas: two drilling drilling schedules with detailed information on Antero’s drilling drilling program, a permit list list showing hoped would Antero’s active permits, and other information Bauer hoped prompt EnerQuest to invest in would prompt 17 17 See
id. id. 1*18 Affid. 1l Olson Affid. Cox Letter. ¶ 7; Cox 19 19 See Antero’s Title Title Opinions; Opinions; Drill of6.l5.20l5-Patterson Drill Schedule as of of6.l5.20l5-Rig 6.15.2015-Patterson 340; Drill Schedule as of 6.15.2015-Rig 10; 10; Exhibit WV 5 WV Permits as of 6.5.2015; Antero’s Critical of6.5.20l5; Critical Date Report (to (to be made available for for the Court’s review at the hearing on this Special Appearance). 2" 20 See Exhibit 2 (Transcript of Temporary Injunction hearing at 36:25-37:3 Penn of 3625-3713 (explaining that he told Joe Penn Antero’s trade secret documents because: “He“He was money in the deal. II was was looking to invest other money was making money him money making him on deals, deals, and then II wanted to to keep it it rolling, my bounds.”)). rolling, and so II overstepped my 5 more mineral acquisitions. more acquisitions.“21 from June of 2015 to 2016, contained These documents, dated from detailed information on Antero’s permits and drilling drilling schedules that that could only have been derived from Antero’s confidential confidential business information, and in in some cases, on the cases, had Antero’s logo on What EnerQuest does not mention in its papers is documents. What documents. is that that EnerQuest’s then-president Greg Olson actually reached out to Bauer Greg and requested Antero’s drilling Bauer in Texas and drilling schedule Bauer.” information from Bauer. 22 Discovery could turn up up additional trade-secret by trade—secret information sent by Ashbum to EnerQuest in earlier time periods, as EnerQuest has not specifically Bauer and Ashburn specifically denied documents or information pulled from receiving any other trade-secret documents from trade-secret documents. Worth—based BMIII. After In September 2017, EnerQuest sought to take control of Fort Worth-based repeated correspondence directed to Texas citizens and entities entities (attached to to EnerQuest’s Special Appearance 1-D, 1-E, 1-C, 1-D, Appearance as Exhibits 1-C, 1-E, and 1-F), 1-F), EnerQuest asserted its apparent role of manager of manager of BMIII. II. LEGAL STANDARD LEGAL STANDARD Courts have personal jurisdiction over a nonresident defendant when the state’s state’s long-arm statute permits such jurisdiction and the exercise of jurisdiction is consistent with federal and state due-process guarantees. Moncrief Oil Int’l Moncrief0il Int’! Inc. Inc. v. OAO Gazprom, 414 v. OAO 414 S.W.3d S.W.3d 142, 149 (Tex. 142, 149 As for the Texas long-arm statute, it broadly allows courts to exercise personal jurisdiction 2013). As who contracts with Texas residents with the intent that either party perform in over a nonresident who 2‘ 21 Affid. 11 Olson Affid. ¶ 13; Cox Letter. The 13; Cox The documents EnerQuest obtained and produced to Antero include: Drill 340 (a document 6.l5.2015~Patterson 340 Schedule as of 6.15.2015-Patterson document EnerQuest obtained from Bauer listing detailed information West Virginia); Drill Schedule as of 6.15.2015-Rig 10 about property interests in West may have document EnerQuest may 10 (a document obtained from Bauer on August 6, 2016, per the marking on the document, listing detailed information about property West Virginia); interests in West WV 6.52015 (a document Virginia); WV Permits as of 6.5.2015 document EnerQuest obtained from Bauer listing detailed permitting information about properties in WestWest Virginia); Antero’s Critical Critical Date Report (a (a document EnerQuest obtained from Bauer containing Antero’s Antero's logo and clearly clearly indicating it it belonged to to Antero). These materials will be available for for the Court’s review at at the hearing. 22 See Exhibit 3 (February 16, 2017 Email from 16, 2017 from Greg BMA, specifically Greg Olson, EnerQuest, to Scott Bauer, BMA, specifically how the wells were requesting the drill schedule to see how were scheduled). scheduled). 6 who “commits a tort Texas, and over a nonresident who whole or in part in this state.” T tort in whole TEX. CIV. EX. C IV. PRAC. P & RREM. RAC. & CODE EM. C ODE § § 17.042(2). As for due process concerns, because the Texas statute reaches l7.042(2). As far as the federal constitutional requirements for due process will allow,” Spir Star AG “as far AG v. v. S.W.3d 868, 872 (Tex. 2010), a state court can exercise Kimich, 310 S.W.3d exercisejurisdiction jurisdiction over a nonresident defendant if if (1) (1) the defendant has established “minimum contacts” with the state state and (2) (2) the exercise of jurisdiction comports with “traditional notions of of jurisdiction of fair fair play and substantial justice.” justice.” Int Int’l’l Shoe Co. Shoe Co. v. v. Washington, 316 (1945). Washington,
326 U.S. 310, 316 AA nonresident’s contacts can give rise rise to to general or specific specific personal jurisdiction. jurisdiction. Continuous and systematic contacts create general jurisdiction, while specific jurisdiction exists when of action arises from or is related to the defendant’s purposeful activities when the cause of activities with the state. Retamco Operating, Inc. Retamco Operating, V. Republic Drilling Co., Inc. v. S.W.3d 333, 338 C0,,
278 S.W.3d 338(Tex. 2009). III. ARGUMENT ARGUMENT A. EnerQuest is Subject to Personal Jurisdiction Because EnerQuest Committed a Tort in Because it Committed Texas. The evidence demonstrates that EnerQuest committed a tort in Texas, making The making it it subject to specific jurisdiction here. Using, disclosing, or merely acquiring trade secrets constitutes the tort specific of misappropriation as defined by Uniform Trade Secrets Act by the Texas Uniform Act (“TUTSA”). See T TEX. EX. CIV. C PRAC. IV. P & RREM. RAC. & CODE EM. C ODE § 134A; Seismic Wells, § 134A; LLC v. Wells, LLC v. Matthews,
2016 WL 3390507, at *3 2016 WL *3 (N.D. Tex. Feb. 22, 22, 2016) (“The tort tort of of misappropriation is defined by is defined by TUTSA.”). There is no doubt Ashbum, BMIII that EnerQuest requested information about oil and gas properties from Bauer, Ashburn, BMIII BMA—all Texas residents or entities—in furtherance of EnerQuest’s business relationship and/or BMA—all with these Texas entities, and as a result, EnerQuest acquired Antero’s trade secrets. secrets. Therefore, Antero has claims for misappropriation and conspiracy that arise arise directly directly out of of EnerQuest’s it had documents containing Antero’s trade secrets conduct directed at Texas. EnerQuest admits it secrets 7 making it amenable to Texas jurisdiction in 2017, making jurisdiction in connection with the misappropriation and case.” conspiracy claims in this case. 23 Exactly which which documents had and documents EnerQuest had and when, and and the may be liable in damages which EnerQuest may extent to which damages in addition to injunctive relief, is a matter for But tracing specific ultimate merits determination. But specific documents and timing is in no way relevant to no way the jurisdiction question to be decided today. was hardly the result of EnerQuest’s connection to these Texas events was random or fortuitous of random profit, reached outside of actions of other defendants. EnerQuest, seeking profit, Oklahoma to create a of Oklahoma two Texas residents in an agreement specifically seven-year relationship with a Texas business and two specifically designating they would work in Fort Worth. See Moncrief, 414 would do their work 414 S.W.3d S.W.3d at 151 151 (requiring, specific personal jurisdiction, for specific jurisdiction, that that the defendant “reach out beyond one state and create continuing relationships and some benefit, and obligations” and “seek some profit by benefit, advantage or profit by availing itself itself of the jurisdiction”). jurisdiction”). EnerQuest specifically requested information regarding permits and West Virginia, acreage in West Virginia,“24 and then accepted Antero’s trade secrets secrets documents that had been procured and maintained in in Texas by by EnerQuest’s Texas business partners,” who conceivably partners,25 who Based on acquired the information using EnerQuest’s funding. Based on the extraordinary level of of detail in someone would have no reason to disclose this data to someone these documents and the fact that Antero would knew or should have known pursuing a competing interest in the minerals in question, EnerQuest knew known was confidential that this information was confidential and proprietary information of Antero. Nevertheless, EnerQuest kept the trade secret documents in its possession without notifying Antero until Antero them.“ expressly requested them. 26 23 Cox Letter. See Cox 24 24 BMI Agreement BMI Agreement §§ 4.1; see Exhibit 3, Olson-Bauer Emails (specifically (specifically requesting the drilling schedule). schedule). 25 Cox Letter (acknowledging (acknowledging receipt of of Antero’s trade secret documents). documents). 2“ 26 Cox Letter (explaining that Bauer Cox Bauer sent EnerQuest the information in February of of 2017). 8 The Supreme The Supreme Court of of Texas has found that the receipt of of trade secrets, secrets. even if if the recipient did not request them, was of personal jurisdiction. was a contact weighing in favor of jurisdiction. See
id. (finding id.(finding jurisdiction proper when the defendants “accepted Moncrief’s personal jurisdiction Moncrief’ s alleged trade secrets”). find out whether EnerQuest ever came The Court need not await discovery to find The came to Texas to obtain these secrets or meet with their partners, as EnerQuest’s “[p]hysical presence in their partners, in the state state is is not required” to to exercise jurisdiction. jurisdiction.
Moncrief, 414 S.W.3d at 152.
414 S.W.3d 152. EnerQuest’s actions contributing to to the misappropriation of of Antero’s trade secrets secrets in Texas, and EnerQuest’s admitted possession documents from of trade secret documents from Texas, are sufficient sufficient for personal jurisdiction jurisdiction to attach. B. EnerQuest is Subject to Personal Jurisdiction Because EnerQuest Formed a Contract Because it Formed Performed in Texas. Texas Entities to be Performed with Texas EnerQuest sought and received the benefit benefit of Texas laws, purposefully forming a contract with Texas entities with the intent that the contract be performed in Texas and engaging in numerous communications with Texas residents, all of which numerous of which ultimately led to the disclosure of Antero’s trade secrets. some or all of secrets. These contacts gave rise to some of the claims at issue and subject TEX. EnerQuest to specific personal jurisdiction in Texas. See T CIV. EX. C PRAC. IV. P & RREM. RAC. & CODE EM. C ODE § 17.042. § 17.042. By who would By entering into the contract with Texas entities who would perform the contract in Texas, itself of Texas’ laws and protections. See Max EnerQuest purposefully availed itself Max Protetch, Protetch, Inc. Inc. v. v. 340 S.W.3d Herrin,
340 S.W.3d 878, 887 (Tex. App. 2011) (finding that a defendant purposefully availed itself 201 l) (finding itself of Texas laws through forming a contract to be performed in Texas). The BMIII Agreement The BMIII Agreement Ashbum, Texas residents, would contemplated that Bauer and Ashburn, would largely perform the contract in Texas, giving EnerQuest reason to anticipate being haled into court there. See Nagle & Black Nogle & Aviation, Inc, Aviation, Inc.,
290 S.W.3d 277, 283 (Tex. App. 290 S.W.3d App. 2009) (finding (finding personal jurisdiction, even though the defendant did “not locat[e] offices in Texas and [did] not target[] the Texas locat[e] any employees or offices market,” because “it specifically work of specifically chose to use the work of this Texas resident”). Moreover, even 9 if if Bauer and Ashburn never performed under the contract, BMA, Bauer contract, the contract’s direction that BMA, Ashbum perform the contract in Texas gave EnerQuest sufficient and Ashburn and harm might occur sufficient notice that harm was a reasonable prospect of litigation there. Zac in Texas and that there was & Co., Zac Smith & Inc. v. C0,, Inc. v. Otis Elevator Co.,
734 S.W.2d 665-66(Tex. 1987) S.W.2d 662, 665–66 when a contract (finding personal jurisdiction when 1987) (finding was was to be performed in Texas, even though performance never occurred). EnerQuest’s formation of BMIII was of BMIII was only the beginning of of the contacts giving rise to the BMIII was claims. BMIII claims. was an ongoing venture that imposed on both parties to work imposed obligations on work together The evidence already shows under the contract. The shows that EnerQuest participated in communications with its Texas business partner in furtherance of their working relationship and that Olson even him Antero’s secret drilling schedule.27 These communications (which asked Bauer to send him show were discovery will likely show jurisdiction. See Max were not isolated) give rise to jurisdiction. 340 Max Protetch, 340 S.W.3d at S.W.3d at 887 (describing the defendants’ defendants’ regular communications with Texas plaintiff). plaintiff). up to EnerQuest also sent significant payments to its Texas partner and contemplated sending up twenty million dollars to Texas (with the option to to increase this this amount “by additional $10,000,000 tranches”) in furtherance of this business relationship. relationship.”28 See Burger
478 471 U.S. at 468, 478 Burger King, 471 was (forming an enterprise in one state to send payments to a corporation in the forum state was sufficient to confer specific sufficient jurisdiction). Additionally, when specific jurisdiction). when EnerQuest sought to take over management of management of BMIII, it it did so through repeated and directed correspondence with Texas residents.” residents. 29 EnerQuest cannot credibly claim that it when itit it has insufficient Texas contacts when by entering into a seven-year contract to be of millions of dollars by contemplated investing tens of performed in Texas. 27 See Exhibit 3, Olson-Bauer Emails. 23 28 BMlll Agreement BMIII Agreement §§ 4.5. 29 1D to EnerQuest’s Special Appearance, Letter from Gregory Olson to See Exhibit 1D to BMI, dated August 9, 9, 2017. 10 10 The extent to which The which EnerQuest representatives were physically present in Texas in the of this transaction remains to be course of be discovered, but even if had never set foot in if EnerQuest had make itit amenable to jurisdiction of its Texas contacts make Texas, the purposeful and continuous nature of Supreme Court of Texas has “found jurisdiction over nonresidents with no here. In fact, the Supreme physical ties to Texas when an out-of-state contract was formed ‘for when ‘for the sole purpose of building in Texas,’ Zac a hotel in & Co., Zac Smith & Inc. v. Co., Inc. C0,,
734 S.W.2d v. Otis Elevator Co., 665—66 (Tex. 1987), S.W.2d 662, 665–66 1987), and when was executed in when enrollment for out-of-state school was in Arizona but was ‘actively ‘actively and successfully solicited’ solicited’ in Texas, Siskind v. Villa Found. v. Villa Found. for for Educ., Educ., Inc., Inc.,
642 S.W.2d 434, 437
642 S.W.2d 437(Tex.
414 S.W.3d 1982).” Moncrief, 414 1982).” S.W.3d at 154. LLC by arguing that its LLC 154. EnerQuest cannot avoid this result by agreement chose a law or forum Texas.” forum other than Texas. 30 “[E]ven “[E]Ven in instances where was where a contract was company with no signed in another state, an out-of-state company minimum no physical ties to Texas still has minimum when itit is clear the company contacts with Texas when company purposefully directed its activities towards 278 S.W.3d Texas.”
Retamco, 278 S.W.3d at 340. benefits of EnerQuest sought the benefits By doing business with a Texas entity, of a Texas forum. By profit from work EnerQuest intended to profit Ashburn performed in Texas. See Max work Bauer and Ashburn Max S.W.3d at 887 (finding Protetch, 340 S.W.3d would (finding personal jurisdiction and noting that the defendant would customer). Antero’s misappropriation claim arises receive a $65,000 payment from a Texas customer). arises directly BMA, and directly out of EnerQuest’s communications and connections with Bauer, Ashburn, BMA, BMIII, providing a substantial connection between EnerQuest’s business contacts with Texas and of the litigation. the operative facts of Moki Mac litigation. See Moki Mac River Expeditions v. S.W.3d 569,
221 S.W.3d v. Drugg, 221 576, 585 (Tex. 2007). 3" 30 See Smart Cull, LLC. Smart Call, L.L.C. v. S.W.3d 755, 766 (Tex. App. Genie Mobile,
349 S.W.3d v. Genio Holdings, LLC App. 2011); Citrin Holdings, LLC v. v. SW3d 269, 285-86 Minnis,
305 S.W.3d 285-86(Tex. App. 2009). ll 11 C. EnerQuest is Subject to Personal Jurisdiction Because EnerQuest Because it Reached Out to Texas Reached Out Texas Furtherance of a Conspiracy. in Furtherance The long-arrn statute grants jurisdiction over out-of-state defendants when The long-arm when their contacts with Texas in furtherance fiirtherance of Nat ’l Indus. of a conspiracy are sufficient to satisfy due process. Nat’l Indus. Sand Ass’n Ass ’n v. SW2d 769, 773 (Tex. 1995). v. Gibson, 897 S.W.2d BMIII Agreement 1995). Here, the BMIII Agreement demonstrates Ashburn and Bauer acted in service of Ashburn of BMIII when they acquired and maintained information (in BMIII when Texas) intended to justify justify EnerQuest’s investment in in West Virginia properties.“ properties. 31 EnerQuest Ashbum and Bauer to send EnerQuest specifically contracted for this service, requiring Ashburn specifically West Virginia minerals. In addition to soliciting the information, information relating to the West knew or should have known what it knew EnerQuest accepted what known were were trade secrets and maintained those of alerting Antero to the disclosure. trade secrets in its possession instead of disclosure.”32 On the basis of that information, EnerQuest paid substantial On sums to Texas to acquire the substantial sums Such payments support personal jurisdiction. ill-gotten property interests. Such jurisdiction. Bissbort v. Wright v. Wright & Pub. Printing & Pub. Co., 801
801 S.W.2d 588, 589 (Tex. App. 1990) 1990) (finding (finding that, that, through “the act act of of sum of money wiring a large sum money to a Texas bank, Wright Wright has availed itself of of the protection and remedies of of Texas law and Texas courts”). courts”) EnerQuest’s purposeful and sustained contacts with of the conspiracy at issue are sufficient to grant personal jurisdiction Texas in furtherance of jurisdiction over EnerQuest. See Henkel v. Emjo Investments, v. Emjo 480 S.W.3d Investments, Ltd.,
480 S.W.3d 1, (finding l, 7 (Tex. App. 2015) (finding commit fraud, even though the non- personal jurisdiction over a non-resident for conspiracy to commit non- made misrepresentations). was not alleged to have personally made resident was 31 31 BMlll Agreement BMIII Agreement §§ 4.1. 32 See Cox Letter (admitting to to possession of of Antero’s trade secret documents for at at least least one year). year). 12 12 D. Over EnerQuest Personal Jurisdiction Over Comports with Notions of Fair Play EnerQuest Comports and Substantial Justice. and Finally, exercising jurisdiction of fair jurisdiction over EnerQuest comports with traditional notions of and substantial justice. play and justice. EnerQuest is is not burdened by jurisdiction here; by jurisdiction here; EnerQuest’s Oklahoma City headquarters is nearer to this Court than EnerQuest is to some Oklahoma some destinations in its own home own home state, and nearer to this Court than Houston Houston is. Moreover, EnerQuest also has and oil and businesses and and gas operations in Texas. Second, Texas has a strong interest in adjudicating the dispute as the major players in the misappropriation did so in Texas, using funding from make use of Antero’s trade secrets. EnerQuest to make secrets. Third, adjudicating the dispute in in Texas would be and convenient given that all witnesses are located a short drive from be both effective and from Tarrant efficient and convenient location for the remainder of the County. Fourth, Tarrant County is an efficient parties and witnesses. Spir Star AG AG v.
310 S.W.3d v. Kimich,
310 S.W.3d 868, 878 (Tex. 2010); Moncrief, 414
Moncrie/’, 414 S.W.3d at 155. S.W.3d On balance, requiring EnerQuest to litigate in Texas would 155. On would not offend traditional of fair play and substantial justice, and personal jurisdiction is proper. notions of proper. IV. ANTERO SEEKS ALTERNATIVELY, ANTERO ALTERNATIVELY, A CONTINUANCE SEEKS A CONTINUANCE TO CONDUCT TO CONDUCT PERSONAL JURISDICTION DISCOVERY. PERSONAL JURISDICTION DISCOVERY. Under Rule 120a(3) Under ofthe l20a(3) of the Texas Rules of Civil Procedure, if the party opposing a special appearance cannot “present by by affidavit facts facts essential to justify his to justify may order his opposition, the court may a continuance to permit affidavits to be be obtained or depositions to be taken or discovery to be had or may make such other order as may make as is just.” T is just.” TEX. CIV. EX. R. C When the movant 120a(3). When IV. P. 120a(3). movant seeks a continuance so it may obtain testimony, “the party applying therefor shall it may shall make affidavit affidavit that that such showing the materiality thereof, and that he has used due diligence to procure testimony is material, showing known . . . .” such testimony, stating such diligence, and the cause of failure if known . . TEX. .” T CIV. EX. R. C . IV. P. 252. The Court has discretion to permit discovery on The BMC Software Belgium, on a special appearance. BMC Belgium, 13 13 N. N.V. v. Marchand, V. v. S.W.3d 789, 800 (Tex. 2002); Barron Marchand, 83 S.W.3d Barron v. Vanier, 190 v. Vanier, S.W.3d 841, 847 (Tex. 190 S.W.3d App—Fort Worth App—Fort Worth 2006, no no pet.). pet.). what the evidence already suggests: Antero has requested discovery to confirm what suggests: EnerQuest received or used trade secrets misappropriated by from other Texas by Texas residents and entities from hand shows and entities. Evidence already in hand residents and shows that EnerQuest deputized Texans Texans to get West Virginia minerals and to send that information to EnerQuest so that information related to West on the basis of EnerQuest could invest on of it. Though EnerQuest has not described what it. Though what information BMIII acquired, it admits having received Antero’s of the properties BMIII it received relating to any of them for at least one year. misappropriated documents from Texas and holding them year.”33 EnerQuest does Ashbum had misappropriated information in Texas about knowing that Bauer and Ashburn not deny knowing BMIII acquired, and EnerQuest does not deny that Bauer properties BMIII Ashburn represented they Bauer and Ashburn knowing that the certain trade had access to misappropriated information; EnerQuest denies only knowing secret documents in in EnerQuest’s possession were obtained by means.” by unlawful means. 34 However, TUTSA isis defined misappropriation under TUTSA defined as “acquisition of of a trade secret of of another by by a person who knows who know that knows or has reason to know that the trade secret was acquired by by improper means.” T TEX. EX. CIV. C PRAC. IV. P & RREM. RAC. & CODE EM. C ODE § § 134A.002(3). The supposed limit on what l34A.002(3). The knew is not what EnerQuest knew relevant to the jurisdictional jurisdictional dispute and should not be a basis on which to deny discovery. on which discovery. knows that EnerQuest obtained some In short, while Antero knows some of its trade secrets from Texas, know the full extent of Antero does not know how long itit lasted, when itit started, how of this misappropriation, when how EnerQuest profited and how from it. profited from it. Antero also does not yet have full visibility on the locations means by and means by which meetings—was communicated which its information—calls, emails, in-person meetings—was communicated to 33 Cox Letter. See Cox 34 34 Affld. fll Olson Affid. ¶ 13. 13. 14 14 EnerQuest. Antero therefore cannot provide the Court with the complete litany litany of of EnerQuest’s which deprives Antero of contacts with Texas, which of the ability to adequately prepare for the special on these issues is likely appearance hearing without further discovery. Testimony and discovery on of EnerQuest’s personal jurisdiction to generate evidence material to determining the issue of jurisdiction and permitted. See Lamar should be permitted. Lamar v. S.W.3d 130, v. Poncon,
305 S.W.3d 139-40(Tex.App.-Houston [1st 130, 139–40 [lst v. Maria Dist.] 2009, pet. denied); see also Said v. Investments, Inc., No. Maria Investments, 0l—08—00962—CV, 2010 No. 01–08–00962–CV,
2010 WL 457463, at *3 WL *3 (Tex. App.–Houston App.—Houston [1st Dist] Feb. 11 [lst Dist.] no pet.) (mem. op.) (observing 11 2010, no that “Rule 120a(3) that l20a(3) gives the trial trial court the discretion to continue a special appearance hearing and and may be served”). which evidence may thereby extend the time in which Antero diligently sought this needed information as quickly as possible, serving its filed its Special Appearance discovery requests (attached as Exhibit 4) only days after EnerQuest filed Appearance on April 18. on 18. Rather than responding to reasonable jurisdictional jurisdictional discovery, EnerQuest noticed its special appearance for a hearing in an attempt to insure Antero does not obtain full discovery on EnerQuest’s contacts and knowledge, which which cannot be procured from another source. Antero is on this jurisdictional therefore entitled to a continuance to obtain discovery on 321 jurisdictional issue. In re Stern,
321 S.W.3d 828, 839 (Tex. App. 2010) (“The trial may permit a continuance so that trial court may that the opposing party may obtain the necessary jurisdictional party may jurisdictional discovery.”). discovery”). V. AND PRAYER CONCLUSION AND CONCLUSION PRAYER Intervenor lntervenor Antero Resources Corporation requests that that the Court overrule EnerQuest’s special appearance, or alternatively, continue the hearing on same until jurisdictional on same jurisdictional discovery can be obtained, and grant Antero such additional and further relief which it relief to which may show it may show itself entitled. l5 15 Respectfully submitted, STEPTOE S & JJOHNSON TEPTOE & PLLC OHNSON PLLC By: /s/Jason /s/ Jason R. R. Grill Jason R. Grill 24002185 Bar No. 24002185 State Bar j ason. gri1l@steptoe—johnson.com jason.grill@steptoe-johnson.com W. Henry Lawrence W. Lawrence WV WV State Bar No. 2156 No. 2156 Woodloch Forest Drive, Suite 300 10001 Woodloch 10001 The Woodlands, Texas 77380 The 77380 281.203.5700 281.203.5701 (facsimile) 281.203.5701 VINSON V & EELKINS INSON & LLP LKINS LLP By: /s/ B. Dye /s/ Phillip B. Dye Dye, Jr. Phillip B. Dye, State Bar No. 06311500 No. 06311500 pdye@Velaw.com pdye@velaw.com Jason M.M. Powers Powers State Bar No. 24007867 No. 24007867 jpowers@Velaw.c0m jpowers@velaw.com Caroline C. Stewart State Bar No. 24098477 No. 24098477 cstewart@Velaw.com cstewart@velaw.com 2500 1001 Fannin Street, Suite 2500 1001 Houston, TXTX 77002-6760 77002-6760 713.758.2222 713.758.2346 (facsimile) ATTORNEYS A FOR IINTERVENOR TTORNEYS FOR NTERVENOR 16 16 CERTIFICATE OF CERTIFICATE CONFERENCE OF CONFERENCE May 11 and May on May I hereby certify that on May 2, 2018, I conferred by by telephone and e-mail with Spencer Smith, counsel for EnerQuest, regarding the merits of of Antero’s alternative motion to to continue the hearing on EnerQuest’s special appearance. A A reasonable effort effort has been made to resolve the motion to continue without the necessity of court intervention and the effort failed, as EnerQuest would not agree to Antero’s request. Therefore, this this dispute is is presented to to the Court determination. for determination. /s/Jason M. _/s/Jason Powers M. Powers_________________ M. Powers Jason M. Powers CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE copy of I hereby certify that a true and correct copy document has been forwarded of the foregoing document below via E-service to all parties listed below E—service and/or via facsimile, on 2nd day of on this the 2nd May, 2018: of May, Via E-Service: ghamm@hammflrm.c-am Via ghamm@hammfirm.com Via apenningt0n@phl1law.c0m Via E-Service: apennington@phblaw.com Gene Hamm, II Gene A. Hamm, 11 H. Allen Pennington, Jr. Hamm Firm The Hamm The Firm Matthew Germany Matthew D. Germany W. McDermott, 1333 W. 1333 200 McDerrnott, Suite 200 LLP Pennington Hill, LLP 75013 Allen, Texas 75013 Tindall Square —– Warehouse Warehouse No. No. 3 Attorney for Plaintiff, Penn Attorneyfor Penn 101 509 Pecan Street, Suite 101 Funds, LLC Investment Funds, and New LLC and New Defendants Fort Worth, Texas Venture II, LLC Venture Strong II, LLC and F Penn and Joe F..Penn Jr. Jr. for Defendants John Attorneys for John Bradley Ashburn Ashburn and New Defendant Post Oak and New Oak Appalachia, LLC Appalachia, LLC Via E-Service: Via Via E-Service: Via E-Service: avery@averymcdaniel.com mhassett@tarrantbusinesslaw.com mhassett@tarrantbusinesslaw.com McDaniel Avery McDaniel Michael Hassett Law Office Law Office of McDaniel Avery McDaniel of Avery PC Jones Hassett, PC Main Street 1205 N. Main 1205 440 North Center 440 76164 Fort Worth, Texas 76164 7601 1 Arlington, Texas 76011 Attorney for II, LLC for Braxton Minerals II, LLC Attorney for Fisher, for Defendants Michael Fisher, Maegan Maegan Fisher and M&M and M&M Consulting Via E-Service: Scott@braxtonenergy. Via Scott@braxtonenergy.comcom Via E-Service: Via awoodward@hrepc.com E-Service: awoodward@hrepc.com R. Scott Bauer C. Andrew Woodward Andrew Woodward Camp Bowie 8851 Camp 8851 Bowie Boulevard WW Holman Robertson Eldridge Holman 200 Suite 200 8226 Douglas Ave., 8226 550 AVe., Suite 550 76116 Fort Worth, Texas 76116 75225 Dallas, Texas 75225 Attorney forfor Braxton Acquisitions, Acquisitions, LLC,‘ LLC; Attorney for 0 ’Connor for Kelly O’Connor LLC and Energy, LLC Braxton Energy, and R. Bauer R. Scott Bauer Via r0landjohnson@hfblaw.c0m Via E-Service: rolandjohnson@hfblaw.com Via E-Service: j0e.c0x@bracewell.c0m Via joe.cox@bracewell.com Roland K. Johnson Roland Joseph M. Cox and Andrea M. Cox Andrea D. Broyles Harris, Finley && Bogle, PC PC 1445 Ross Avenue, Suite 3800 1445 3800 Main Street, Suite 1800 777 Main 1800 75202 Dallas, Texas 75202 76102 Fort Worth, Texas 76102 Spencer F. Smith for Energy Corporation of Attorney for ofAmerica America McAfee & McAfee & Taft 21 1 N. 211 Robinson Ave. N. Robinson Oklahoma City, Oklahoma Oklahoma Oklahoma 73102. Attorneys for for EnerQuest Oil & & Gas, Gas, L.L.C. L.L.C. and III, LLC and Braxton Minerals III, LLC Via E-Service: jnt@turnerandallen.com Via E—Service.' jnt@turnerandallen.com Via Via E-Service: cd@peebleslaw.com Jess N. Turner, III C.D. Peebles Turner && Allen, P.C. The Law Firm The Peebles Law Firm Box 930 P.O. Box Devon Court 1604 Devon 1604 76450 Graham, Texas 76450 Southlake, TXTX 76092 76092 Attorney for Energy, LLC for Turn 2 Energy, LLC for Austin Fox Attorney for Fox Via E Via brad@p0st0akr0yalty.c0m -Service: brad@postoakroyalty.com E-Service: Ashbum Brad Ashburn Brad 100 N. Forest Park Blvd., 100 201 BlVd., Suite 201 76102 Fort Worth, Texas 76102 for Braxton Minerals-Appalachia, Attorney for Minerals-Appalachia, LLC LLC _/s/ /s/ Caroline C. Stewart C. Stewart_________________ CAROLINE C AROLINE C. SSTEWART TEWART CAUSE NO. 141-290089-17 PENN INVESTMENT FUNDS, LLC, § IN THE DISTRICT COURT OF Plaintiff § § ANTERO RESOURCES CORPORATION, § Intervenor § § VS. 52‘ § BRAXTON ENERGY, LLC, § BRAXTON ACQUISITIONS, LLC, § BRAXTON MINERALS II, LLC, § ROBERT SCOTT BAUER, JOHN § BRADLEY ASHBURN, MICHAEL § FISHER, MAEGEN FISHER AND § M&M CONSULTING, § § Original Defendants § 141st JUDICIAL DISTRICT § § AUSTIN FOX, JOE F. PENN JR., § BRAXTON MINERALS III, VENTURE § STRONG II LLC, POST OAK § APPALACHIA LLC, TURN 2 ENERGY § LLC, BRAXTON—MINERALS § APPALACHIA LLC, AND ENERGY § CORPORATION OF AMERICA, § ENERQUEST OIL & GAS, L.L.C., § § New Defendants. § TARRANT COUNTY, TEXAS AFFIDAVIT AND VERIFICATION STATE OF TEXAS § COUNTY OF HARRIS E BEFORE ME, the undersigned authority, on this day personally appeared Jason R. Grill who, after being duly sworn upon his oath, stated as follows: Exhibit 1 BRACEWELL April 26, 2018 Jason Grill Steptoe & Johnson 10001 Woodloch Forest Drive, Suite 300 The Woodlands, Texas 77380 Re: Cause No. 141-290089-17; Penn Investment Funds, LLC v. Braxton Energy, LLC et al; in the 141' Judicial District Court of Tarrant County, Texas Dear Jason: Pursuant to the Rule 11 Agreement entered into on April 17, 2018 between counsel for Antero Resources Corporation ("Antero") and counsel for EnerQuest Oil and Gas, LLC ("EnerQuest") and Braxton Minerals Ill, LLC ("BMW"), EnerQuest and BMW are required to provide notice of any Trade Secret Documents of Antero in their possession and provide copies of any such Trade Secret Documents to Antero's counsel. By email on March 5, 2018, EnerQuest's counsel provided a copy of all of the Trade Secret Documents of Antero in its possession (including as manager of BMW) to you and Hank Lawrence, through two zip files and a ShareFile link. A copy of the March 5, 2018 email is attached hereto. All of the information included in that email was received by EnerQuest and/or BMW during or after February 2017 from Scott Bauer. The March 5, 2018 email includes all the Trade Secret Documents of Antero in the possession of EnerQuest or BMW, and no additional Trade Secret Documents have come into their possession since March 5, 2018. While EnerQuest and BMW have provided all of the Trade Secret Documents in their possession, EnerQuest and BMW have no knowledge or control over what Scott Bauer, Brad Ashburn, or their entity, Braxton Minerals-Appalachia, LLC, have in their possession. The only EnerQuest employees that have viewed the Trade Secret Documents are Greg Olson and Matt Mollman, each of whom made only a cursory review of the information and did not use the Trade Secret Documents to make any business decisions. The Trade Secret Documents have not been shared with any person or entity other than: (1) EnerQuest and BMW's attorneys in the above-referenced litigation, (2) Scott Bauer, and (3) Brad Ashburn, pursuant to a subpoena issued by Ashburn's counsel prior to the involvement of EnerQuest or BMIll in the above-referenced litigation. Joseph M. Cox T: +1.214.758.1077 F: +1.800.404.3970 Partner 1445 Ross Avenue, Suite 3800, Dallas, Texas 75202-2724 joe.cox@bracewell.com bracewell.com AUSTIN #5%ltrtEI-.3TICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC BRACEWELL Jason Grill April 26, 2018 Page 2 Please let me know if you have any questions or would like to discuss any of the information contained in this letter. Very tr y yours, Josep. M. Cox Part Enclosure AUSTIN # 5 %1 E7C3TICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC BRACEWELL Jason Grill April 26, 2018 Page 3 Cc: H. Allen Pennington, Jr. Phillip B. Dye, Jr. Matthew D. Germany Jason M. Powers Pennington Hill, LLP Caroline C. Stewart Tindall Square-Warehouse No. 3 Vinson & Elkins LLP 509 Pecan Street, Suite 101 1001 Fannin Street, Suite 2500 Fort Worth, Texas 76102 Houston, Texas 77002-6760 apennington@phblaw.com pdye@velaw.com Attorneys for Defendant John Bradley Ashburn jpowers@velaw.com and Post Oak Appalachia, LLC cstewart@velaw.com Attorneys for Intervenor Antero Resources Corporation Gene A. Hamm, II Roland K. Johnson The Hamm Firm Harris, Finley & Bogle, P.C. 1333 W. McDermott, Suite 200 777 Main Street, Suite 1800 Allen, Texas 75013 Fort Worth, Texas 76102 ghamm@hammfirm.com rolandjohnson@hfblaw.com Attorney for Plaintiff Penn Investment Funds, Attorneys for Energy Corporation of America LLC, Joe F. Penn Jr., and Venture Strong II, LLC Michael Hassett Avery McDaniel Jones Hasset, PC Law Office of Avery McDaniel 440 North Center 1205 N. Main Street Arlington, Texas 76011 Fort Worth, Texas 76164 mhasset@tarrantbusinesslaw.com avery@avrymcdaniel.conn Attorney for Defendants Michael Fisher, Maegan Attorney for Braxton Minerals II, LLC Fisher, and M&M Consulting R. Scott Bauer C. Andrew Woodward 8851 Camp Bowie Boulevard W Holman Robertson Eldridge Suite 200 8226 Douglas Ave., Suite 550 Fort Worth, Texas Dallas, Texas 75225 scott@braxtonenergy.com awoodward@hrepc.com Attorney for Braxton Acquisitions, LLC, Braxton Attorney for Kelly O'Connor Energy LLC, and himself Charles W. Sartain Gray Reed & McGraw 1601 Elm Street, Suite 4600 Dallas, Texas 75201 Attorneys for Global Oil and Gas Fields AUSTIN #56gypSTICUT DALLAS DUBAI. HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC Attachments: Emails.zia Text.zip Attachments.html From: Black, Jeremy Sent: Monday, March 05, 2018 2:59 PM To: 'Hank Lawrence' Cc: Jason Grill Subject: RE: Braxton - letter to Jeremy Black (2/23/18) Hank, In response to Antero's letter dated 2/23/18, EnerQuest has reviewed the materials in its possession or control including (1) various correspondence (email and texts messages) and (2) paper files EnerQuest received upon taking over the management of BMII I from Braxton Minerals-Appalachia, LLC ("BMA"). The focus of EnerQuest's review was to determine whether any of Antero's confidential and proprietary business records and trade secret information was shared with EnerQuest. Included with this email are the following materials: 1. A zip file containing six (6) emails involving Scott Bauer which reference and/or include a Critical Date Report and/or drilling schedule. 2. A zip file containing a text message exchange between Scott Bauer and Greg Olson w/ EnerQuest that includes a screen shot of a drill schedule. 3. A ShareFile link whereby certain additional information that was sent by Scott Bauer to Greg Olson w/ EnerQuest via Dropbox. These are being shared via ShareFile due to the size of the files. It is EnerQuest's belief that all of the information included in this email was received by EnerQuest in February 2017 (or later) and this information was shared by Scott Bauer in conjunction with Scott Bauer's attempt to have EnerQuest commit additional funds to his mineral acquisition program. As background, BMIII is the only mineral acquisition venture sponsored by Scott Bauer or Brad Ashburn (or any of their affiliated entities) in which EnerQuest has participated. BMIII acquired all of its minerals between November 2015 and April 2016, almost a year before any of the materials referenced in this email were provided by Scott Bauer to EnerQuest. EnerQuest has not shared this information with any party other than Scott Bauer and Brad Ashburn. Please let me know if you have any questions about or otherwise would like to discuss anything included in this response. Regards, Jeremy ShareFile Attachments Title Size EQ Response to Antero Letter Dated 2-23-18 589.8 MB Jeremy Black uses ShareFile to share documents securely. Learn More. Exhibit 2 1 1 REPORTER'S RECORD 2 VOLUME 1 OF 1 3 Cause No. 141-290089-17 4 PENN INVESTMENT FUNDS, X IN THE DISTRICT COURT LLC, X 5 Plaintiff, X ANTERO RESOURCES X 6 CORPORATION, X Intervenor X 7 X VS. X 141ST JUDICIAL DISTRICT 8 X BRAXTON ENERGY, LLC, X 9 BRAXTON ACQUISITIONS, X LLC, BRAXTON MINERALS X 10 II, LLC, ROBERT SCOTT X BAUER, JOHN BRADLEY X 11 ASHBURN, MICHAEL X FISHER, MAEGEN FISHER, X 12 M&M CONSULTING and X KELLY O'CONNOR X 13 Defendants. X TARRANT COUNTY, TEXAS 14 15 *-*-*-*-*-*-*-*-*-*-*-*-*-* 16 TEMPORARY INJUNCTION HEARING 17 *-*-*-*-*-*-*-*-*-*-*-*-*-* 18 19 BE IT REMEMBERED that on the 14th day of June, 20 2017, the following proceedings came on to be heard in 21 the above-entitled and -numbered cause before the 22 Honorable John P. Chupp, judge presiding, held in Fort 23 Worth, Tarrant County, Texas. 24 The proceedings were reported by machine 25 shorthand. Tina Fett, CSR Official Court Reporter 141st District Court 36 1 defected acreage on the Southwestern acquisition that 2 was defected b-c, assume that's because, leases 3 expired; is that correct? 4 A. It does say that, yes. 5 Q. Is that correct, did Kelly O'Connor give 6 you the Southwestern defect report?7 A. Igenerated it prior. No, I didn't have 8 it -- I mean, I generated it on my own, but I wanted 9 to -- I'll say I overstepped my bounds and wanted to 10 make sure Joe was comfortable with the investment. 11 Q. So is it your testimony, sir, that Kelly 12 O'Connor did not give you the Southwestern defect 13 report? 14 A. Yes, sir. 15 Q. So the statement in this email to Mr. Penn 16 is false, the statement in the second sentence? 17 A. Yes, sir. Mr. Penn had become very 18 difficult at this point. I was working for free, he 19 gave me a release, supposedly, from this case. 20 MR. HAMM: Objection. Nonresponsive. 21 THE COURT: Sustained. 22 Q. (By Mr. Lawrence) Why did you tell 23 Mr. Penn that Kelly O'Connor gave you the Southwestern 24 defect report? 25 A. He was looking to invest other money in the Tina Fett, CSR Official Court Reporter 141st District Court 37 1 deal. I was making him money on deals, and then I 2 wanted to keep it rolling, and so I overstepped my 3 bounds. 4 Q. I'll put up a text that was identified as 5 Penn 153 -- 6 A. Yes, sir. 7 Q. -- it's part of a text messages that you 8 sent to Mr. Penn. Have you reviewed the documents 9 that were produced by Penn Investment in discovery? 10 A. Yes, sir, most of them. 11 Q. So the email that I just showed you, 12 Exhibit 8, you are familiar with? 13 A. Yes, I knew this was coming -- or, yes, I 14 knew the stuff that was put in these messages were not 15 flattering in any way and looked different than they 16 are. 17 Q. Did you find this email on your server or 18 on any of your computers when you searched for 19 documents responsive to the subpoena duces tecum? 20 A. No, I couldn't find any of my emails as we 21 did the pull back. 22 Q. I'm sorry, let me clarify the question. 23 Not whether you found any, did you 24 perform a search for emails on your computers and 25 server such as this email, Exhibit 8? Tina Fett, CSR Official Court Reporter 141st District Court Exhibit 3 From: Scott Bauer
34 S.W.3d 8874 Exhibit 4 141-290089-17 CAUSE NO. 141-290089-17 PENN INVESTMENT FUNDS, LLC, § IN THE DISTRICT COURT OF Plaintiff § § ANTERO RESOURCES CORPORATION, § Intervenor § § VS. § § BRAXTON ENERGY, LLC, § BRAXTON ACQUISITIONS, LLC, § BRAXTON MINERALS II, LLC, § ROBERT SCOTT BAUER, JOHN § BRADLEY ASHBURN, MICHAEL § FISHER, MAEGEN FISHER AND § M&M CONSULTING, § § Original Defendants § 141st JUDICIAL DISTRICT § § AUSTIN FOX, JOE F. PENN JR., § BRAXTON MINERALS III, VENTURE § STRONG II LLC, POST OAK § APPALACHIA LLC, TURN 2 ENERGY § LLC, BRAXTON-MINERALS § APPALACHIA LLC, AND ENERGY § CORPORATION OF AMERICA, § ENERQUEST OIL & GAS, L.L.C., § § New Defendants. § TARRANT COUNTY, TEXAS INTERVENOR ANTERO RESOURCES CORPORATION’S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION TO ENERQUEST OIL & GAS, L.L.C. TO: Defendant EnerQuest Oil & Gas, L.L.C., by and through its attorneys of record, Joseph M. Cox and Andrea D. Broyles, 1445 Ross Avenue, Suite 3800, Dallas, Texas 75202, and Spencer F. Smith, McAfee & Taft, 211 N. Robinson Ave. Oklahoma City, Oklahoma 73102. Pursuant to Rules 192, 196 and 197 of the Texas Rules of Civil Procedure, Antero Resources Corporation (“Antero”), Intervenor in the above-captioned case, serves upon Defendant EnerQuest Oil & Gas, L.L.C. (“EnerQuest”), the following interrogatories and requests for production, the answers to which shall be made under oath separately and fully in writing within thirty (30) days after the date of service of these interrogatories and requests for production and shall be given to the undersigned counsel of record. I. INSTRUCTIONS 1. Unless otherwise specified, produce all requested documents in your possession, custody, or control. Without limitation, a document is deemed to be in your control if you have the right to secure the document or a copy thereof from another person or public or private entity having actual possession thereof. Such documents include any documents that you do now or did at any time during the period covered by these requests maintain or keep in personal files, private papers, electronic storage or devices, homes, personal automobiles, or anywhere else on or off your premises. 2. If you have in your possession, custody, or control a copy of a requested document, but not an original, please so state and produce the copy. 3. In lieu of producing original documents which are in your possession, custody, or control, you may produce copies provided that the copies are accurate and complete copies of original documents and provided that the originals are preserved and made accessible upon request during this or any subsequent proceeding. 4. If any document is responsive to a request for production and was, but is no longer, in your possession or custody or subject to your control, state what disposition was made of it and why, who disposed of the document, and the date(s) (or approximate date(s)) on which the document was disposed. 5. If any request asks for documents that are no longer in existence, identify the request and, with respect thereto: a. identify all such documents; b. state the time period during which such documents were maintained; c. state the circumstances under which such documents ceased to exist; d. state the date when such documents ceased to exist; e. identify all persons having knowledge of the circumstances under which such documents ceased to exist; and f. identify all persons who have knowledge or had knowledge of the documents and the contents thereof. 2 6. If any documents called for in response to any of these requests were furnished in response to another of these requests, or in response to previous requests of any party to this action, they need not be furnished again. Indicate, however, what the documents are and pursuant to which of those requests they were produced. 7. For each document withheld under a claim of privilege, state: a. the name and title of the author(s); b. the name and title of the person(s) to whom a copy of the document was sent or to whom any part of the document or a copy was shown; c. the date of the document; d. the name and title of the person(s) to whom the document was addressed; e. the number of pages; f. a brief description of the subject matter; g. the nature of the privilege claimed; h. the facts that support such claim of privilege; and i. the request(s) to which the document is otherwise responsive. 8. When a person is referred to or identified in an answer to an interrogatory, or identified as a source or partial source of an answer, set forth with respect to each such person: (1) his or her full name, employer, and position at the time in question, (2) his or her present employer and position, and (3) his or her present business and home address. 9. When a corporation, firm or other entity is referred to or identified in an answer to an interrogatory, or as a source or partial source of an answer, set forth with respect to such entity: (1) the full name of such entity, and (2) the address of such entity. 10. When a document is referred to or identified in an answer to an interrogatory, or as a source or partial source of an answer, set forth with respect to such document: (1) the identity of each person who either wholly or in part originated, initialed, signed, prepared or revised (and if the same was done on behalf of any person, the identity of such person), or who is referred to in any way on the face or back of such document, (2) the date of such document, (3) the type of document, (4) any identifying numbers on the face or back of such document, (5) the substance of such document, (6) the identity and location of each person who has possession, custody or control over each copy of such document, including, if such person is not an individual, the person exercising such possession, custody or control on behalf of such, and if such document has been destroyed or otherwise disposed, identify as herein required each person who destroyed or otherwise disposed of such document or who directed or participated in such destruction or other disposal of such document, and (7) if any document ever existed which referred or related to such 3 document, identify as herein required each such document which referred or related to such document. 11. Wherever an oral communication is referred to or identified in answer to any interrogatory, or as a source or partial source of an answer: (1) identify each person participating in or present during all or part of such oral communication and specify the date, time of day and duration of such oral communication, (2) state whether such oral communication took place in a face-to-face meeting or by means of a telephone, radio or other means of communication, (3) state the substance of what was said by each person during such oral communication, and (4) identify each document relating or referring to such oral communication. 12. With respect to and as part of the answer to each interrogatory, state whether the answer is given upon personal knowledge and, if so, identify each person upon whose knowledge the answer is given. If any answer is not given upon personal knowledge, identify the source of the information and belief. If any answer is based upon documents, identify each such document. If any answer is based upon oral communications, identify each such oral communication. 13. All interrogatories herein are continuing and are to be supplemented to the fullest extent required by the Texas Rules of Civil Procedure. Intervenor reserves the right to serve further interrogatories. 14. If you are asked to identify a document or an oral communication and object to identifying or to describing the document or oral communication because it allegedly constitutes privileged matter or work product, or is otherwise allegedly protected from discovery, you must still identify the document or oral communication in accordance with the definitions and instructions herein, except that instead of fully describing the substance of the document or oral communication for which privileged is claimed, you must describe the subject of the document or oral communication to the fullest extent consistent with the privilege or protection claimed, and you must hold the document or evidence of such oral communication subject to the further orders of the Court. II. DEFINITIONS 1. “Antero” and “Intervenor” shall mean Intervenor, Antero Resources Corporation. 2. “BMA” means Braxton Minerals-Appalachia LLC and any of its employees, officers, directors, agents, or contractors. 3. “BMII” means Braxton Minerals II and any of its employees, officers, directors, agents, or contractors. 4. “BMIII” means Braxton Minerals III and any of its employees, officers, directors, agents, or contractors. 5. “Communication” means a transmission from one person to another or in the presence of another, whether written, oral, telephonic, electronic or by any other means, including text messages. 4 6. “Defendants” shall mean Braxton Energy, LLC, Braxton Acquisitions, LLC, Braxton Minerals II, LLC, Robert Scott Bauer, John Bradley Ashburn, Michael Fisher, Maegan Fisher, M&M Consulting, Kelly O’Connor, Austin Fox, Joe F. Penn Jr., Braxton Minerals III, Venture Strong II LLC, Post Oak Appalachia LLC, Turn 2 Energy LLC, Braxton-Minerals, Appalachia LLC, Energy Corporation of America, EnerQuest, and any other persons or entities acting or purporting to act on their respective behalf. 7. “Document” means any printed, type-written or handwritten instrument of whatever character where the physical expression of any means of storage of information and includes, without limitation, any correspondence, memorandum, agreement, letter, hand or type written note, computer printout, computer tape, microfilm, microfiche, tape recording, photograph, motion picture, plat, diagram, survey, voice tapes, recordings, computer information, including but not limited to the text of e-mails, and other items of a similar nature, originals and non-identical copies and where originals and/or non-identical copies are in existence, a copy of the original and copy of all non-identical copies. 8. “Identify” means the following unless additional information is requested in a given interrogatory: a. With respect to a natural person, “identify” means to state the person’s full name, present employer, title, job description, business and home addresses and telephone numbers, and the person’s relationship, if any, with any party to this action; b. With respect to a person other than a natural person including any business entity, “identify” means to include its name, its address “all business addresses,” its date and place of formation, the type of legal entity which it is, and its chief executive officer; c. With respect to a “document,” “identify” means to state its title, date, author, addressee, recipient, subject matter or general nature, present location and custodian. Such documents shall be so identified whether or not the documents are in the possession of you or your attorney and whether or not the document is privileged; and d. With respect to oral statements or communications, identification means to state the maker, recipient, the date made, the place made, the persons present when the communication was made, the mode of communication, the subject matter, and the date of the communication. 9. “Person” means the plural as well as the singular and includes, without limitation, any natural person as well as any firm, corporation, unincorporated association, partnership of any kind, or any other form of legal entity unless the context clearly indicates otherwise. 10. The “Lawsuit” means the case styled Cause No. 141-290089-17; Penn Investment Funds, LLC, Plaintiff and Antero Resources Corporation, Intervenor v. Braxton Energy, LLC, et al.; in the 141st Judicial District Court of Tarrant County, Texas. 11. “Trade Secret Documents” means: a. Antero’s Critical Date Report dated November 15, 2016; 5 b. Any other Antero Critical Date Reports; c. The SWN June 2016 Acquisition Defects Report; d. Real Property Title Opinions prepared by Antero’s attorneys; e. All other documents setting forth Antero’s plans to drill wells, operate wells, form units, or acquire oil and gas interests; f. All other forms and types of information, including business, scientific, technical, economic, or engineering information, and any formula, design, prototype, pattern, plan, compilation, program device, program, code, device, method, technique, process, procedure, financial data, or list of actual or potential customers or suppliers, whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, created by or for Antero or its agents, attorneys, contractors, or similar personnel, not generally known or readily ascertainable through proper means by persons other than Antero and Texhoma Land Consultants I, Inc. 12. “Texhoma” means Texhoma Land Consultants I Inc. and any of its employees or contractors. 13. “Trade Secret Information” means any information embodied in a Trade Secret Document. 14. “You” or “Your” shall mean EnerQuest (together with its respective agents, employees, attorneys, affiliates, members, officers, directors, predecessors, successors, assigns, and any other person or entity acting or purporting to act on behalf of any of them) answering Antero’s written discovery requests. III. INTERROGATORIES INTERROGATORY NO. 1 Identify any and all persons who have knowledge of EnerQuest’s contacts with the State of Texas, including, but not limited to, persons located in or residents of the State of Texas. ANSWER: INTERROGATORY NO. 2 Identify any and all persons who have knowledge of EnerQuest’s contacts with Bauer, Ashburn, BMA, BMII, or BMIII. ANSWER: 6 INTERROGATORY NO. 3 If you contend that this lawsuit should be dismissed for want of jurisdiction pursuant to a special appearance by you, please identify any facts, documents, and/or witnesses that support your contention. ANSWER: INTERROGATORY NO. 4 State the times, sources, and means by which you obtained possession of each of the Trade Secret Documents, including identification of all agents, employees, or other individuals affiliated with you who obtained or viewed such Trade Secret Documents. ANSWER: INTERROGATORY NO. 5 State the times, sources, and means by which you conveyed to any other person any Trade Secret Document, or any Trade Secret Information. ANSWER: IV. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1 Produce any Trade Secret Documents still in your possession. RESPONSE: REQUEST FOR PRODUCTION NO. 2 Produce any and all documents that relate to the formation of BMIII, including, but not limited to, discussions of potential members, employees, agents, office locations, and business to be conducted by BMIII. RESPONSE: 7 REQUEST FOR PRODUCTION NO. 3 Produce all communications received from or sent to any person or location in Texas relating to the formation of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 4 Produce all communications received from or sent to any person or location in Texas relating to the business activities or prospective business activities of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 5 Produce all communications received from or sent to any person or location in Texas relating to the leasing activities or prospective leasing activities of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 6 Produce all communications received from or sent to any person or location in Texas relating to Antero’s leasing, production, operations, plans, or business in West Virginia. RESPONSE: REQUEST FOR PRODUCTION NO. 7 Produce all communications received from or sent to any person or location in Texas relating to EnerQuest’s investment or potential investment in the ownership or leasing of any oil and gas interests located in units operated, to be operated, drilled, or to be drilled by Antero. RESPONSE: REQUEST FOR PRODUCTION NO. 8 Produce any and all communications with Robert Scott Bauer. RESPONSE: 8 REQUEST FOR PRODUCTION NO. 9 Produce any and all communications with John Bradley Ashburn. RESPONSE: REQUEST FOR PRODUCTION NO. 10 Produce any and all communications with Austin Fox, Kelly O’Connor, or any other person employed by Texhoma Land Consultants I Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 11 Produce all documents relating to payments made by EnerQuest to any person or entity located in Texas or organized under the laws of the State of Texas for the purpose of acquiring or leasing oil and gas interests located in units operated, to be operated, drilled, or to be drilled by Antero (regardless of what entity would hold those minerals or leases). RESPONSE: REQUEST FOR PRODUCTION NO. 12 Produce all documents relating to BMIII’s sale of West Virginia oil and gas properties. RESPONSE: REQUEST FOR PRODUCTION NO. 13 Produce all documents relating to EnerQuest’s awareness of, management of, or participation in BMIII’s sale of West Virginia oil and gas properties. RESPONSE: REQUEST FOR PRODUCTION NO. 14 Produce all communications with BMA. RESPONSE: 9 REQUEST FOR PRODUCTION NO. 15 Produce all documents you transmitted to or received from BMA. RESPONSE: REQUEST FOR PRODUCTION NO. 16 Produce all documents in your possession, custody, or control relating to Texhoma Land Consultants I Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 17 Produce all documents in your possession, custody, or control transmitted to or received from Texhoma Land Consultants I Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 18 Produce any and all documents related to the locations and/or residences of all members, directors, officers, employees, and agents of EnerQuest. RESPONSE: REQUEST FOR PRODUCTION NO. 19 Produce any and all documents related to the locations and/or residences of all members, directors, officers, employees, and agents of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 20 Produce any and all documents that relate to any offices owned, maintained, or used, in the State of Texas, by or on behalf of EnerQuest. RESPONSE: 10 REQUEST FOR PRODUCTION NO. 21 Produce any and all documents that relate to any offices owned, maintained, or used, in the State of Texas, by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 22 Produce any and all documents that relate to business conducted in the State of Texas by or on behalf of EnerQuest, including, but not limited to, contacts with Bauer, Ashburn, BMA, or BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 23 Produce any and all documents that relate to business conducted in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 24 Produce any and all documents that relate to records or documents, owned or maintained by or on behalf of EnerQuest that are located in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 25 Produce any and all documents that relate to records or documents, owned or maintained by or on behalf of BMIII that are located in the State of Texas RESPONSE: REQUEST FOR PRODUCTION NO. 26 Produce documents sufficient to identify all property owned in the State of Texas by or on behalf of EnerQuest, including any oil and gas wells operated by EnerQuest. RESPONSE: 11 REQUEST FOR PRODUCTION NO. 27 Produce documents sufficient to identify all property owned in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 28 Produce any and all documents that relate to bank accounts maintained in the State of Texas by or on behalf of EnerQuest. RESPONSE: REQUEST FOR PRODUCTION NO. 29 Produce any and all documents that relate to bank accounts maintained in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 30 Produce any and all documents that relate to mailing addresses or telephone numbers maintained in the State of Texas by or on behalf of EnerQuest. RESPONSE: REQUEST FOR PRODUCTION NO. 31 Produce any and all documents that relate to mailing addresses or telephone numbers maintained in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 32 Produce any and all documents that relate to agents for service of process maintained in the State of Texas by or on behalf of EnerQuest. RESPONSE: 12 REQUEST FOR PRODUCTION NO. 33 Produce any and all documents that relate to agents for service of process maintained in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 34 Produce any and all documents that relate to any correspondence, e-mails, or phone calls to or from a person located in the State of Texas by or on behalf of EnerQuest. RESPONSE: REQUEST FOR PRODUCTION NO. 35 Produce any and all documents that relate to trips by or on behalf of EnerQuest to the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 36 Produce any and all documents that relate to meetings conducted by or on behalf of EnerQuest in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 37 Produce any and all documents that relate to meetings conducted by or on behalf of BMIII in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 38 Produce any and all documents that relate to the purchase or sale of any goods or services by or on behalf of EnerQuest in the State of Texas. RESPONSE: 13 REQUEST FOR PRODUCTION NO. 39 Produce any and all documents that relate to the purchase or sale of any goods or services by or on behalf of BMIII in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 40 Produce any and all documents that relate to advertisements or marketing done by or on behalf of EnerQuest in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 41 Produce any and all documents that relate to advertisements or marketing done by or on behalf of BMIII in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 42 Produce any and all documents that relate to the solicitation of business or employees conducted by or on behalf of EnerQuest in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 43 Produce any and all documents that relate to the solicitation of business or employees conducted by or on behalf of BMIII in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 44 Produce any and all documents that relate to any contracts entered into by or on behalf of EnerQuest with any resident of or Person located in the State of Texas. RESPONSE: 14 REQUEST FOR PRODUCTION NO. 45 Produce any and all documents that relate to any contracts entered into by or on behalf of BMIII with any resident of or person located in the State of Texas. RESPONSE: REQUEST FOR PRODUCTION NO. 46 Produce any and all documents that relate to taxes paid to any governmental entity in the State of Texas by or on behalf of EnerQuest. RESPONSE: REQUEST FOR PRODUCTION NO. 47 Produce any and all documents that relate to taxes paid to any governmental entity in the State of Texas by or on behalf of BMIII. RESPONSE: REQUEST FOR PRODUCTION NO. 48 Produce any and all documents that relate to lawsuits filed in the State of Texas (other than the instant suit) in which EnerQuest is a party or named third-party. RESPONSE: REQUEST FOR PRODUCTION NO. 49 Produce any and all documents that relate to lawsuits filed in the State of Texas (other than the instant suit) in which BMIII is a party or named third-party. RESPONSE: REQUEST FOR PRODUCTION NO. 50 If you contend that access to sources of proof will be easier if this lawsuit is tried in Oklahoma, please produce any and all documents that support that contention. RESPONSE: 15 REQUEST FOR PRODUCTION NO. 51 If you contend that the costs of securing the presence of willing witnesses will be lower if this lawsuit is tried in Oklahoma, please produce any and all documents that support that contention. RESPONSE: REQUEST FOR PRODUCTION NO. 52 If you contend that compulsory process will be available to secure the attendance of unwilling witnesses if this lawsuit is tried in Oklahoma, please produce any and all documents that support that contention. RESPONSE: REQUEST FOR PRODUCTION NO. 53 If you contend that the administrative burden of this lawsuit on a court in Oklahoma would be less than the burden on a court in Texas, please produce any and all documents that support that contention. RESPONSE: REQUEST FOR PRODUCTION NO. 54 Produce any and all documents that Gregory W. Olson relied upon or consulted when he provided the affidavit attached to EnerQuest’s Special Appearance. RESPONSE: 16 Respectfully submitted, STEPTOE & JOHNSON PLLC By: /s/ Jason R. Grill Jason R. Grill State Bar No. 24002185 jason.grill@steptoe-johnson.com W. Henry Lawrence WV State Bar No. 2156 10001 Woodloch Forest Drive, Suite 300 The Woodlands, Texas 77380 281.203.5700 281.203.5701 (facsimile) VINSON & ELKINS LLP By: /s/ Phillip B. Dye Phillip B. Dye, Jr. State Bar No. 06311500 pdye@velaw.com Jason M. Powers State Bar No. 24007867 jpowers@velaw.com Caroline C. Stewart State Bar No. 24098477 cstewart@velaw.com 1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 713.758.2222 713.758.2346 (facsimilie) ATTORNEYS FOR INTERVENOR 17 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all parties listed below via E-service and/or via facsimile, on this the 25th day of April, 2018: Via E-Service: ghamm@hammfirm.com Via E-Service: apennington@phblaw.com Gene A. Hamm, II H. Allen Pennington, Jr. The Hamm Firm Matthew D. Germany 1333 W. McDermott, Suite 200 Pennington Hill, LLP Allen, Texas 75013 Tindall Square – Warehouse No. 3 Attorney for Plaintiff, Penn 509 Pecan Street, Suite 101 Investment Funds, LLC and New Defendants Fort Worth, Texas Venture Strong II, LLC and Joe F. Penn Jr. Attorneys for Defendants John Bradley Ashburn and New Defendant Post Oak Appalachia, LLC Via E-Service: Via E-Service: avery@averymcdaniel.com mhassett@tarrantbusinesslaw.com Avery McDaniel Michael Hassett Law Office of Avery McDaniel Jones Hassett, PC 1205 N. Main Street 440 North Center Fort Worth, Texas 76164 Arlington, Texas 76011 Attorney for Braxton Minerals II, LLC Attorney for Defendants Michael Fisher, Maegan Fisher and M&M Consulting Via E-Service: Scott@braxtonenergy.com Via E-Service: awoodward@hrepc.com R. Scott Bauer C. Andrew Woodward 8851 Camp Bowie Boulevard W Holman Robertson Eldridge Suite 200 8226 Douglas Ave., Suite 550 Fort Worth, Texas 76116 Dallas, Texas 75225 Attorney for Braxton Acquisitions, LLC; Attorney for Kelly O’Connor Braxton Energy, LLC and R. Scott Bauer Via E-Service: rolandjohnson@hfblaw.com Via E-Service: joe.cox@bracewell.com Roland K. Johnson Joseph M. Cox and Andrea D. Broyles Harris, Finley & Bogle, PC 1445 Ross Avenue, Suite 3800 777 Main Street, Suite 1800 Dallas, Texas 75202 Fort Worth, Texas 76102 Spencer F. Smith Attorney for Energy Corporation of America McAfee & Taft 211 N. Robinson Ave. Oklahoma City, Oklahoma 73102. Attorneys for EnerQuest Oil & Gas, L.L.C. Via E-Service: jnt@turnerandallen.com Via E-Service: cd@peebleslaw.com Jess N. Turner, III C.D. Peebles Turner & Allen, P.C. The Peebles Law Firm P.O. Box 930 1604 Devon Court Graham, Texas 76450 Southlake, TX 76092 Attorney for Turn 2 Energy, LLC Attorney for Austin Fox Via E-Service: brad@postoakroyalty.com Brad Ashburn 100 N. Forest Park Blvd., Suite 201 Fort Worth, Texas 76102 Attorney for Braxton Minerals-Appalachia, LLC _/s/ Caroline C. Stewart_________________ CAROLINE C. STEWART EXHIBIT C 141-290089-17 FILED TARRANT COUNTY CAUSE NO. 141-290089-17 4/26/2018 4:52 PM THOMAS A. WILDER DISTRICT CLERK PENN INVESTMENT FUNDS, LLC, ) IN THE DISTRICT COURT OF Plaintiff, ) ) ANTERO RESOURCES CORPORATION, ) Intervenor, ) TARRANT COUNTY, TEXAS ) vs. ) ) BRAXTON ENERGY, LLC, et al., ) Defendants. ) 141ST JUDICIAL DISTRICT NOTICE OF HEARING Please take notice that Defendant EnerQuest Oil & Gas, L.L.C.’s Special Appearance to Object to Personal Jurisdiction dated April 18, 2018 is set for hearing on Wednesday, May 9, 2018 at 1:30 p.m. in the 141st District Court for Tarrant County, located at 100 N. Calhoun Street, Fort Worth, Texas 76196. Respectfully submitted, BRACEWELL LLP By: /s/ Joseph M. Cox Joseph M. Cox State Bar No. 04950200 Joe.Cox@bracewell.com Andrea D. Broyles State Bar No. 24082744 Andrea.Broyles@bracewell.com 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 - and – Spencer F. Smith State Bar No. 24008625 MCAFEE & TAFT A Professional Corporation Tenth Floor, Two Leadership Square 211 N. Robinson Ave. Oklahoma City, Oklahoma 73102-7103 spencer.smith@mcafeetaft.com Attorneys for Defendant EnerQuest Oil & Gas, L.L.C. #5689156 Certificate of Service I hereby certify that on April 26, 2018, a true and correct copy of the foregoing document was served on the following counsel of record in accordance with the Texas Rules of Civil Procedure: Jason R. Grill Phillip B. Dye, Jr. W. Henry Lawrence Caroline C. Stewart Steptoe & Johnson PLLC Vinson & Elkins LLP 10001 Woodlock Forest Drive, Suite 300 1001 Fannin Street, Suite 2500 The Woodlands, Texas 77380 Houston, Texas 77002-6760 jason.grill@steptoe-johnson.com pdye@velaw.com hank.lawrence@stptoe-johnson.com cstewart@velaw.com Attorneys for Intervenor Antero Resources Attorneys for Intervenor Antero Resources Corporation Corporation Gene A. Hamm, II H. Allen Pennington, Jr. The Hamm Firm Matthew D. Germany 1333 W. McDermott, Suite 200 Pennington Hill, LLP Allen, Texas 75013 Tindall Square-Warehouse No. 3 ghamm@hammfirm.com 509 Pecan Street, Suite 101 Attorney for Plaintiff Penn Investment Fort Worth, Texas 76102 Funds, LLC, Joe F. Penn Jr., and Venture apennington@phblaw.com Strong II, LLC Attorneys for Defendant John Bradley Ashburn and Post Oak Appalachia, LLC Michael Hassett Avery McDaniel Jones Hasset, PC Law Office of Avery McDaniel 440 North Center 1205 N. Main Street Arlington, Texas 76011 Fort Worth, Texas 76164 mhasset@tarrantbusinesslaw.com avery@avrymcdaniel.com Attorney for Defendants Michael Fisher, Attorney for Braxton Minerals II, LLC Maegan Fisher, and M&M Consulting R. Scott Bauer C. Andrew Woodward 8851 Camp Bowie Boulevard W Holman Robertson Eldridge Suite 200 8226 Douglas Ave., Suite 550 Fort Worth, Texas Dallas, Texas 75225 scott@braxtonenergy.com awoodward@hrepc.com Attorney for Braxton Acquisitions, LLC, Attorney for Kelly O’Connor Braxton Energy LLC, and himself Roland K. Johnson Charles W. Sartain Harris, Finley & Bogle, P.C. Gray Reed & McGraw 777 Main Street, Suite 1800 1601 Elm Street, Suite 4600 Fort Worth, Texas 76102 Dallas, Texas 75201 rolandjohnson@hfblaw.com Attorneys for Global Oil and Gas Fields Attorneys for Energy Corporation of America /s/ Joseph M. Cox Joseph M. Cox 2 #5689156 EXHIBIT D CAUSE NO. 141-290089-17 PENN INVESTMENT FUNDS, LLC, ) IN THE DISTRICT COURT OF Plaintiff, ) ) ANTERO RESOURCES CORPORATION, ) Intervenor, ) TARRANT COUNTY, TEXAS ) vs. ) ) BRAXTON ENERGY, LLC, et al., ) Defendants. ) 141ST JUDICIAL DISTRICT DEFENDANT BRAXTON MINERALS III, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER Defendant Braxton Minerals III, LLC (“BMIII”) hereby files its Special Exceptions and Original Answer to the Amended Petition in Intervention and Application for Temporary and Permanent Injunction (“Amended Petition in Intervention”) of Intervenor Antero Resources Corporation (“Antero”), and would respectfully show the Court as follows: I. SPECIAL EXCEPTIONS 1. Antero’s Amended Petition in Intervention includes a variety of vague, ambiguous, and generally stated allegations that do not meet these requirements, and wholly lacks any allegations of wrongdoing on the part of BMIII. Pursuant to Rule 91 of the Texas Rules of Civil Procedure, BMIII specially excepts to Antero’s claims for Trade Secret Misappropriation, Conspiracy, and Aiding and Abetting. Texas follows the “fair notice” standard for pleading, which looks at whether the opposing party can ascertain from the pleadings the nature and basic issues of the controversy and what testimony will be relevant. Horizon/ CMS Healthcare Corp. v. Auld, , 896 (Tex. 2000). If a plaintiff pleads a cause of action in general terms, the defendant may file special exceptions to require the plaintiff to plead specifically. See Subia v. Tex. Dept. of Human Servs.,
750 S.W.2d 827, 829 (Tex. App.—El Paso 1988, no writ). DEFENDANT BRAXTON MINERALS III, LLC’S Page 1 SPECIAL EXCEPTIONS AND ORIGINAL ANSWER #5692762 2. In the Amended Petition in Intervention, Antero has failed to identify any wrongful conduct by BMIII that injured Antero or caused Antero to incur damages. In fact, BMIII is only mentioned in eight (8) paragraphs throughout the Amended Petition in Intervention, related to the following subject matters: (a) Robert Scott Bauer identified certain Antero Title Opinions in his possession or that were obtained from John Bradley Ashburn, and those title opinions related to mineral properties acquired by BMIII; (b) BMIII’s membership structure and the current dispute between the members related to management of the company; and (c) EnerQuest Oil and Gas, LLC has advertised BMIII’s assets for sale. See Amended Petition in Intervention ¶¶ 38, 40, 42– 46, 62. Absent from the Amended Petition in Intervention is any alleged wrongful conduct by BMIII; instead, Antero has alleged conduct of third parties or information completely irrelevant to the elements of any of Antero’s causes of action. As a result of Antero’s vague, ambiguous, and general pleading, BMIII cannot ascertain from the Amended Petition in Intervention which causes of action Antero is pursuing against BMIII, or even what conduct of BMIII Antero alleges is wrongful. Accordingly, Antero should be required to re-plead and provide sufficient information to give BMIII “fair notice” of the causes of action asserted. II. GENERAL DENIAL 3. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, BMIII denies each and every allegation in Antero’s Amended Petition in Intervention and demands strict proof thereof by a preponderance of the evidence. III. AFFIRMATIVE DEFENSES 4. Antero’s claims are barred, in whole or in part, due to the failure to state a claim upon which relief may be granted. 5. Antero’s claims are barred, in whole or in part, by virtue of the doctrine of waiver. DEFENDANT BRAXTON MINERALS III, LLC’S Page 2 SPECIAL EXCEPTIONS AND ORIGINAL ANSWER #5692762 6. Antero’s claims are barred, in whole or in part, by virtue of the doctrine of estoppel. 7. Antero’s claims are barred, in whole or in part, by virtue of the statute of limitations doctrine. IV. REQUEST FOR DISCLOSURE 8. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, BMIII requests that Antero disclose, within thirty (30) days of service of this request, the information or material described in Rule 194.2. V. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant BMIII respectfully requests that the Court sustain its special exceptions to Antero’s Amended Petition in Intervention. Specifically, BMIII requests that the Court require Antero to re-plead its claims against BMIII. BMIII further requests that Antero take nothing by its claims, and BMIII recover the costs of this proceeding, and such other and further relief to which it may be justly entitled. Respectfully submitted, BRACEWELL LLP By: /s/ Joseph M. Cox Joseph M. Cox State Bar No. 04950200 Joe.Cox@bracewell.com Andrea D. Broyles State Bar No. 24082744 Andrea.Broyles@bracewell.com 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 Attorneys for Defendant Braxton Minerals III, LLC DEFENDANT BRAXTON MINERALS III, LLC’S Page 3 SPECIAL EXCEPTIONS AND ORIGINAL ANSWER #5692762 CERTIFICATE OF SERVICE I hereby certify that on April 30, 2018, a true and correct copy of the foregoing document was served on all counsel of record in accordance with the Texas Rules of Civil Procedure. /s/ Joseph M. Cox Joseph M. Cox DEFENDANT BRAXTON MINERALS III, LLC’S Page 4 SPECIAL EXCEPTIONS AND ORIGINAL ANSWER #5692762 EXHIBIT E EXHIBIT F Powers, Jason From: Cox, Joe
Document Info
Docket Number： 02-18-00178-CV
Filed Date： 5/24/2018
Precedential Status： Precedential
Modified Date： 5/29/2018