Petrohawk Properties, L.P., and P-H Energy, L.L.C. v. Noel Diane Jones ( 2015 )

ACCEPTED
06-14-00003-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/29/2015 6:40:03 PM
DEBBIE AUTREY
CLERK
No. 06-14-00003-CV
FILED IN
In the 6th COURT OF APPEALS
TEXARKANA, TEXAS
Sixth Court of Appeals 1/29/2015 6:40:03 PM
DEBBIE AUTREY
Texarkana, Texas Clerk
PETROHAWK PROPERTIES, L.P.
AND P-H ENERGY, L.L.C.,
Appellants,
v.
NOEL DIANE JONES, ET AL.,
Appellees.
On Appeal from the 71st District Court,
Harrison County, Texas (Cause No. 11-0849)
MOTION FOR REHEARING
Reagan W. Simpson
State Bar No. 18404700
Marc S. Tabolsky
State Bar No. 24037576
YETTER COLEMAN LLP
909 Fannin Street, Suite 3600
Houston, Texas 77010
Tel. (713) 632-8000
Fax (713) 632-8002
(additional counsel listed on inside
cover)
Counsel for Appellants
Harry L. “Gil” Gillam, Jr.
State Bar No. 07921800
GILLAM & SMITH L.L.P.
303 S. Washington Avenue
Marshall, Texas 75670-4157
Tel. (903) 934-8450
Fax (903) 934-9257
Guy S. Lipe
State Bar No. 12394600
Jason M. Powers
State Bar No. 24007867
Stacy M. Neal
State Bar No. 24060322
Nicholas N. Shum
State Bar No. 24075072
VINSON & ELKINS L.L.P.
1001 Fannin St., Suite 2500
Houston, Texas 77002
Tel. (713) 758-2522
Fax (713) 615-5809
2
TABLE OF CONTENTS
PAGE
Index of Authorities .................................................................................... 4
Argument .................................................................................................... 6
I. The Court’s Interpretation of Defensible Title Is Incorrect. ........... 8
II. The Court’s Discussion of Horne’s Opinion and the
Purported Damages Evidence Relies on Factual
Inaccuracies. .................................................................................... 18
Conclusion and Prayer ............................................................................. 24
Certificate of Compliance Under Appellate Rule 9.4 .............................. 26
Certificate of Service ................................................................................ 27
3
INDEX OF AUTHORITIES
PAGE(S)
Americo Life, Inc. v. Myer,
440 S.W.3d 18 (Tex. 2014) ........................................................ 14, 15, 16
Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C.,
352 S.W.3d 445 (Tex. 2011) ...................................................... 14, 15, 16
Apex Fin. Corp. v. Brown,
7 S.W.3d 820 (Tex. App.—Texarkana 1999, no pet.)........................... 10
Balandran v. Safeco Ins. Co. of Am.,
972 S.W.2d 738 (Tex. 1998) .................................................................. 12
Birmingham Fire Ins. Co. of Pa. v. Am. Nat’l Fire Ins. Co.,
947 S.W.2d 592 (Tex. App.—Texarkana 1997, writ denied) ............... 13
Forbau v. Aetna Life Ins. Co.,
876 S.W.2d 132 (Tex. 1994) .................................................................. 10
Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd.,
352 S.W.3d 462 (Tex. 2011) .................................................................. 14
Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch,
443 S.W.3d 820 (Tex. 2014) ............................................................ 18, 24
Lewis v. E. Tex. Fin. Co.,
136 Tex. 149, 146 S.W.2d 977 (1941) ................................................... 13
Petrohawk Properties, L.P. v. Jones,
— S.W.3d —, 2015 WL 170225 (Tex. App.—Texarkana
Jan. 14, 2015, no pet. h.) ......................................................................... 6
Sun Oil Co. (Delaware) v. Madeley,
626 S.W.2d 726 (Tex. 1981) .................................................................. 13
4
Rules
TEX. R. APP. P. 9.4 ..................................................................................... 26
TEX. R. APP. P. 9.5 ..................................................................................... 27
5
Appellants Petrohawk Properties, L.P. and P-H Energy, L.L.C.
(collectively “Petrohawk”) respectfully submit this motion for rehearing
in response to the opinion issued by the Court on January 14, 2015.
Petrohawk Properties, L.P. v. Jones, — S.W.3d —, 2015 WL 170225
(Tex. App.—Texarkana Jan. 14, 2015, no pet. h.). Petrohawk requests
that the Court consider the following:
ARGUMENT
While Petrohawk respectfully disagrees with the Court’s
resolution of many of the issues addressed in the Court’s opinion,
Petrohawk does not seek in this motion to reurge every argument that
this Court has already rejected. That said, Petrohawk does seek
rehearing on two points where the Court either relied on grounds that
were not raised by any of the parties or where, Petrohawk respectfully
submits, the Court’s opinion appears to be based on factual
inaccuracies.
First, Petrohawk moves for rehearing on the Court’s conclusion
that the district court properly instructed the jury that under the July
2008 agreement, Petrohawk was obligated to lease minerals for tracts
6
where the Lessors did not own 100% of the gross mineral interest in the
Haynesville Shale. See Opinion, Section II.B.3.c, pp. 34-38.
In rejecting Petrohawk’s argument that the district court
improperly instructed the jury that Lessor’s did not have to own 100%
of the Haynesville Shale mineral interest in a tract before Petrohawk
was required to pay a lease bonus, the Court adopted an interpretation
of the contract that was not raised by any party in the district court or
this Court. Compare Op. at 37 with Appellants’ Br. 41-43; Appellees’ Br.
22-26; 2 CR 270-76. Because the Court’s opinion relies on a rationale
not previously raised by the district court or any of the parties,
Petrohawk responds to the Court’s interpretation of the July 2008
agreement. Petrohawk respectfully submits that the Court’s
interpretation of the agreement’s definition of Defensible Title is both
incorrect based on the text of the July 2008 agreement itself and also
improperly relies on extrinsic evidence of the parties’ subjective intent.
Second, Petrohawk respectfully submits that the Court’s
conclusion that there was “more than a scintilla of evidence that
supports the jury’s implied finding of no market value, the evidence is
legally sufficient to support the award of damages” is incorrect and is
7
based on certain factual inaccuracies. See Opinion, Section II.B.5, pp.
41-44.
I. The Court’s Interpretation of Defensible Title Is Incorrect.
Whether the district court properly instructed the jury that the
“language in paragraph 3(iii) reading: ‘the title to the properties
comprising the Subject Interests includes all rights in the Haynesville
Shale and rights owned by Lessors in the Bossier Shale’ does not
require the Lessors to own 100% of the gross Haynesville Shale mineral
acreage on the tract” turns on whether the district court correctly
interpreted paragraph 3(iii). The parties do not dispute that Petrohawk
only had to pay lease bonuses on properties on which the Lessors had
Defensible Title as defined paragraph 3(i-iii). Appellees’ Br. 22;
Appellants’ Reply Br. 20.
Where the parties and the Court differ is how to interpret
paragraph 3(iii). Petrohawk argued that Paragraph 3(iii)’s plain text,
properly interpreted, provided that Defensible Title existed only if the
Lessors had to own 100% of the gross mineral interest in the
Haynesville Shale. The text compels this interpretation because the
agreement provides that Defensible Title required Lessors to own “all
8
rights in the Haynesville Shale” but only “rights owned by Lessors in the
Bossier Shale” for Lessors to have Defensible Title. Plaintiffs, however,
argued that the Court should simply add by implication the word
“Lessors’” between “all” and “rights.”
But this Court disagreed with all of the parties. Instead, this
Court held that to avoid rendering any language superfluous, it had to
harmonize the broad statements in the first unnumbered paragraph
indicating (according to the Court) that the agreement covered “all of
the Family’s unleased mineral interests in the subject area as long as
those interests included, at a minimum, the Haynesville Shale (its
primary focus), and those depths of the Bossier Shale that were
unleased and not held by production (its secondary focus),” Op. at 37,
with the requirement in the definition of Defensible Title that Lessors
convey “all rights in the Haynesville Shale and rights owned by Lessors
in the Bossier Shale.” Id. The Court accomplished this result by
essentially rewriting the definition of Defensible Title.
Under the Court’s interpretation, “all rights in the Haynesville
Shale and rights owned by Lessors in the Bossier Shale” should be
interpreted to mean “the rights to all depths in the Haynesville Shale
9
and the rights to all depths currently unleased or currently not
producing owned by the Lessors in the Bossier Shale.” Id. (emphasis in
original).
The Court’s interpretive approach is flawed because of two errors.
First, it improperly lets general provisions control over specific
provisions and thus rewrites the agreement under the guise of
interpretation. Second, the Court’s examination of “surrounding
circumstances” as part of interpreting the July 2008 agreement goes
well beyond the limited purposes for which Texas law permits
examination of surrounding circumstances.
The Court’s interpretive approach does not properly take into
account the controlling legal principle that specific contractual
provisions control over general provisions. Forbau v. Aetna Life Ins. Co.,
876 S.W.2d 132, 133-34 (Tex. 1994); Apex Fin. Corp. v. Brown, 7 S.W.3d
820, 826 (Tex. App.—Texarkana 1999, no pet.). The rule that specific
provisions control over general provisions is particularly strong in this
case where the text of the July 2008 agreement itself indicates that the
specific provisions of paragraph 3 are intended to control over the
general provisions of the first paragraph.
10
While the Court focuses extensively on not rendering superfluous
the unnumbered first paragraph’s general statements about what
mineral interests are covered by the agreement, it does not take into
account the July 2008 agreement’s plain text indicating that the parties
intended for the specific provisions of paragraph 3, which contains the
Defensible Title limitation, to control over the general provisions of the
first unnumbered paragraph.
The parties’ expressed intent for paragraph 3 to control is found in
the last sentence of the paragraph, which states that the leases “shall
include all depths, subject to the lease provisions contemplated in
paragraph 3 herein, as to those properties within the Subject Interests
that are currently unleased or not currently producing.” PX1 at 1
(emphasis added).
In other words, the very sentence in the first paragraph that has
the language the Court relies on to rewrite paragraph 3(iii) expressly
states that Petrohawk’s leasing obligations are controlled by the specific
provisions of paragraph 3.
Thus, not only does the Court’s interpretation of Defensible Title
not conform to the contract-interpretation principle that specific
11
provisions control over general provisions, but it also results in
precisely the outcome the Court was trying to avoid. That is, the
Court’s interpretation renders the “subject to the lease provisions
contemplated in paragraph 3” superfluous. The Court did not need to
read the general provisions of the first paragraph into Defensible Title
to preserve the meaning of all provisions. Rather, all of the agreement’s
provisions are given meaning by respecting the parties’ expressed intent
that the obligation to lease and pay bonus was to be governed and
restricted by the specific provisions of paragraph 3.
The second flaw in the Court’s approach is that it appears to have
improperly considered extrinsic evidence of Petrohawk’s subjective
intent as part of the Court’s examination of circumstances surrounding
the execution of the contract. Courts may not look to “surrounding
circumstances” to interpret contracts. Rather, courts may examine such
evidence only for the limited purpose of determining whether an
ambiguity exists.
 “While parol evidence of the parties’ intent is not admissible
to create an ambiguity, the contract may be read in light of
the surrounding circumstances to determine whether an
ambiguity exists.” Balandran v. Safeco Ins. Co. of Am., 972
S.W.2d 738, 741 (Tex. 1998) (internal citation omitted).
12
 “It follows that parol evidence is not admissible to render a
contract ambiguous, which on its face, is capable of being
given a definite certain legal meaning. This rule obtains
even to the extent of prohibiting proof of circumstances
surrounding the transaction when the instrument involved,
by its terms, plainly and clearly discloses the intention of the
parties, or is so worded that it is not fairly susceptible of
more than one legal meaning or construction.” Sun Oil Co.
(Delaware) v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981)
(quoting Lewis v. E. Tex. Fin. Co., 136 Tex. 149, 146 S.W.2d
977, 980 (1941)).
 “Birmingham’s argument is an attempt to circumvent the
parol evidence rule by importing an examination of
‘surrounding circumstances’ into standard contract
interpretation. However, an examination of precedent
reveals that ‘surrounding circumstances’ are only examined
to determine whether a contract is latently ambiguous.”
Birmingham Fire Ins. Co. of Pa. v. Am. Nat’l Fire Ins. Co.,
947 S.W.2d 592, 602 (Tex. App.—Texarkana 1997, writ
denied).
Petrohawk believes the above-cited cases from the Texas Supreme
Court and this Court properly state the rule limiting the use of
“surrounding circumstances” evidence in contract interpretation. Thus,
under these cases, the Court’s reliance on evidence of surrounding
circumstances in interpreting the provisions of Paragraph 3(iii) for a
purposes beyond determining whether the contract is ambiguous (such
as the broader purpose of interpreting the contract) is incorrect and
erroneous.
13
It is true that in other cases, the Texas Supreme Court has
perhaps implicitly suggested that “surrounding circumstances” evidence
can play a broader role beyond the limited inquiry as to whether a
contract is ambiguous. See, e.g., Americo Life, Inc. v. Myer, 440 S.W.3d
18, 22 (Tex. 2014) (“A written contract must be construed to give effect
to the parties’ intent expressed in the text as understood in light of the
facts and circumstances surrounding the contract’s execution, subject to
the limitations of the parol-evidence rule.”) (citing Houston Exploration
Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469
(Tex. 2011)); Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C.,
352 S.W.3d 445, 451 (Tex. 2011) (“Understanding the context in which
an agreement was made is essential in determining the parties’ intent
as expressed in the agreement, but it is the parties' expressed intent
that the court must determine. Extrinsic evidence cannot be used to
show that the parties probably meant, or could have meant, something
other than what their agreement stated.”). Petrohawk respectfully
submits that Balandran and Birmingham Fire Insurance Company
state the correct rule.
14
But even when the Texas Supreme Court has not expressly
limited the role of “surrounding circumstances” evidence as it did in
Balandran, the Court has limited what constitutes evidence of
surrounding circumstances: “Facts and circumstances that may be
considered include the commercial or other setting in which the contract
was negotiated and other objectively determinable factors that give
context to the parties’ transaction.” Myer, 440 S.W.3d at 22 (emphasis
added). Similarly, Anglo-Dutch states that extrinsic evidence “cannot be
used to show the parties’ motives or intentions apart from the
[agreement]; it can only provide the context in which the agreement was
reached.” 352 S.W.3d at 452.
In this case, the Court’s examination of surrounding
circumstances went too far. On pages 35 and 36, the Court undertakes
an extensive discussion of the parties’ respective knowledge of oil and
gas leasing, oil and gas production in Harrison County, the different
geological formations that were at issue, the presence of vertical Pugh
clauses in certain prior leases, and existing leasing and production of
certain shallower depths. Op. at 36.
15
But at the end of this discussion, the Court went beyond what
Myer and Anglo-Dutch may allow. The Court went beyond evidence of
the “setting in which the contract was negotiated” and the “objectively
determinable factors.” Myer, 440 S.W.3d at 22. Instead, the Court went
on to address Petrohawk’s subjective intentions when it entered into the
agreement. The Court did this when it stated that “While Petrohawk
was primarily focused on leasing Haynesville Shale mineral interests, it
was secondarily interested in the Bossier Shale.” Op. at 36. At this
point, however, the Court’s analysis crossed the line from looking at
what might be considered evidence of surrounding circumstances into
what Anglo-Dutch expressly prohibits—evidence of Petrohawk’s
purported “motives or intentions.” Anglo-Dutch, 352 S.W.3d at 452.
Moreover, it appears that the Court’s reference to what it
perceives as Petrohawk’s subjective intention is not a passing reference
but in fact was an integral part of how it construed the text of the July
2008 agreement. Immediately after describing Petrohawk’s primary
and secondary focus, the Court relies on this view of Petrohawk’s
subjective intent in its contract analysis. Op. at 37 (“Looking back at
the Agreement with this in mind, we see in the first paragraph that the
16
parties intended that Petrohawk would lease all of the Family’s
unleased mineral interests in the subject area as long as those interests
included, at a minimum, the Haynesville Shale (its primary focus), and
those depths of the Bossier Shale that were unleased and not held by
production (its secondary focus).”
Thus, not only did the Court incorrectly rewrite the definition of
Defensible Title when it effectively incorporated text from other parts of
the agreement into paragraph 3(iii) and changed the phrase “all rights”
to be “the rights,” its analysis also incorrectly relied on extrinsic
evidence of Petrohawk’s subjective intent when it interpreted the July
2008 agreement.
For these reasons, and those set forth in Petrohawk’s briefs,
Petrohawk respectfully suggests that the Court incorrectly interpreted
the July 2008 agreement and that, in light of the correct interpretation
of the agreement, the district court’s instruction cannot stand. Thus,
for all of these reasons, Petrohawk requests that the Court reverse the
district court’s judgment and render judgment that Petrohawk is not
liable for failing to lease tracts 2-6, 9-13, 16-26, 28-30, and 33 in which
it is undisputed Lessors did not own all of the Haynesville Shale
17
interests. Alternatively, the erroneous instruction requires a new trial
on all issues.
II. The Court’s Discussion of Horne’s Opinion and the
Purported Damages Evidence Relies on Factual
Inaccuracies.
The Texas Supreme Court has explained that when an expert’s
opinions rely “on insufficient data and unsupported assumptions,” it is
conclusory and without evidentiary value. Houston Unlimited, Inc.
Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 838 (Tex. 2014).
Similarly, “if the record contains no evidence supporting an expert’s
material factual assumptions, or if such assumptions are contrary to
conclusively proven facts, opinion testimony founded on those
assumptions is not competent evidence.” Id. at 833.
Here, the Court held that there was more than a scintilla of
evidence to support the jury’s implied finding of no market value. Op. at
43-44. The Court reached this conclusion based on its finding that while
the evidence was conflicting, “it would support Horne’s testimony that
there was no market value for the leases.” Id. at 43.
Petrohawk respectfully submits that the Court’s conclusion that
there was conflicting evidence supporting Horne’s testimony is based in
18
a misapprehension of what Horne actually testified at trial. The
Court’s opinion states that
[Horne] testified that the lack of capital for such ventures
brought about a situation wherein the only new leasing of oil
and gas minerals was due to commitments made by the
lessees before the crash of the financial markets or due to
unit leasing. He further testified that oil and gas minerals in
the ground only have a lease value if there is a market for
leasing them. He opined that, since in October 2008 there
was no market for them, Appellees’ leasehold estate in the
minerals had no market value.
Op. at 41-42.
But Horne did not say that the “only new leasing of oil and gas
minerals was due to commitments made by the lessees before the crash
of the financial markets or due to unit leasing.” Id. While this is
certainly how Plaintiffs characterized Horne’s testimony, Appellees’ Br.
45, that is not what Horne testified. At trial, Horne admitted that
although he said leasing in Harrison County had come to a “screeching
halt,” he readily acknowledged “[c]ertainly there were some leases being
acquired.” 7 RR 141.
Moreover, Horne acknowledged that the leasing that was
occurring in Harrison County in October 2008 could have been for
19
reasons other than remnant leasing or pre-existing contractual
commitments.
Q. You know there were some leases being signed on
Harrison County acreage in October, don’t you?
A. I suspect there were. They could have been either
entered into previously or they could have been leases
to complete a unit or for some other reason, but the land
rush that existed here prior to, and really in all the shale
plays, really ceased due to the economic conditions due to the
market conditions in October of 2008.
7 RR 136 (emphasis added).
Thus, while Horne certainly opined that the mineral leasing
market in Harrison County in October 2008 had slowed considerably,
he never testified that new leases were not being signed in October
2008 nor did he testify that any such new leases were limited to prior
commitments or unit leasing. Rather, Horne himself admitted that new
leases could have been entered into for other reasons as well. Thus,
Horne did not testify leasing had stopped in Harrison County in
October 2008 nor did he testify that there was no market for leases in
October 2008.
Nor did Horne testify that minerals only have a lease value if
there is a market for them. His opinion was narrower than that. Horne
20
opined that “There is no value to minerals in the ground unless
somebody is not [sic] knocking on your door or giving you a phone call
offering to pay you something for them.” 7 RR 133.
But Horne never said that there was no one contacting the
Plaintiffs in October 2008 and there is no evidence in the record from
which a reasonable juror could infer that the Plaintiffs were not
receiving any phone calls or inquiries to lease their minerals.
First, the Court states that although Ellen Miller and Lelia
Vaughan sent emails to their family members on October 24 and 27,
2008 discussing various inquiries and requests for leases they had
received, the emails did not make clear when the inquiries and requests
were made. See Op. at 43; DX275, DX278. Even under the Court’s
reading of the emails, however, they do not provide any evidence that
no offers or inquiries were made in October 2008.1 But Horne’s opinion
can support the jury’s zero-market-value finding only if there is
evidence in the record that Plaintiffs did not receive any inquiries or
requests to lease in October 2008.
1 While Lelia Vaughan’s October 27, 2008 email does not expressly state
when EXCO requested a lease from the family, her email makes clear that
she believed EXCO’s offer was still on the table, because she stated “[w]e do
not need to entertain EXCO’s request for a lease at this time.” See DX278.
21
Second, the Court’s opinion does not address DX264, an October 9,
2008 email from Ned Hartline, attorney for several of the Plaintiffs, to
Petrohawk’s Herod stating that “What can I tell my people? We are
still getting calls from other interested potential lessees. What
are your intentions?” DX264. Unlike the other emails the Court
discussed, Mr. Hartline’s email makes clear that as of October 9,
Plaintiffs were still getting calls “from other interested potential
lessees.” DX264. And nowhere in the record is there conflicting
evidence suggesting that Plaintiffs were not receiving these calls or that
Mr. Hartline’s statement to Herod was incorrect.
Third, the Court’s opinion states that “Fort Staggers, vice
president of the bank that was trustee of one of the Appellee interests,
testified that there had been no interest in leasing all of the tracts from
October 2008 until trial.” Op. at 43. But this is not what Mr. Staggers
testified. He never said that there was “no interest” in leasing the
tracts from October 2008 until trial. Rather, Mr. Staggers said he did
not “receive any viable offers for the unleased acreage on these 32 tracts
that’s in 162A after October of 2008.” 7 RR 173. This testimony,
however, does not address what occurred in October 2008.
22
Nor does it state that no offers were received to lease the tracts.
Rather, Staggers simply agreed that there were no “viable offers.” But
for there to be no market value at all, under Horne’s purported opinion,
there had to be no offers regardless of whether the mineral owners
considered them viable.
Staggers further answered “no” when asked “is there any interest
shown in buying all the acreage from October 28th -- all the acreage
that’s listed in 162A from October of 2008 through today?” 7 RR 173.
But whether someone is interested in buying the minerals is a
fundamentally different question than whether someone was in
interested in obtaining a mineral lease. Just because there may not
have been someone willing to buy Plaintiffs’ minerals does not mean
that there was no interest in leasing the minerals. Obtaining a mineral
lease and purchasing a mineral estate are two fundamentally different
transactions.
In short, there is no record evidence to support the key
assumption of Horne’s opinion as to when minerals have no lease
value—that no one was calling Plaintiffs in October 2008 to lease their
minerals. Hartline’s email unequivocally indicates that there were still
23
actively interested lessees in October 2008 and there is no conflicting
evidence which suggests that there were no such inquiries. Because
Plaintiffs failed to offer any evidence from which a reasonable juror
could infer that Plaintiffs were not receiving any inquiries or offers to
lease their minerals in October 2008, there was legally insufficient
evidence to support the jury’s damages findings in Question 11. Mel
Acres Ranch, 443 S.W.3d at 838.
For these reasons, and those set forth in Petrohawk’s briefs,
Petrohawk requests that the Court reverse the district court’s judgment
and render a take-nothing judgment in light of the legally insufficient
evidence to support the jury’s answer to Question 11.
CONCLUSION AND PRAYER
For these reasons, the Petrohawk appellants respectfully request
that the Court grant this motion for rehearing and all other relief to
which they may be entitled.
24
Respectfully submitted,
/s/Reagan W. Simpson
Guy S. Lipe Reagan W. Simpson
State Bar No. 12394600 State Bar No. 18404700
Jason M. Powers rsimpson@yettercoleman.com
State Bar No. 24007867 Marc S. Tabolsky
Stacy M. Neal State Bar No. 24037576
State Bar No. 24060322 mtabolsky@yettercoleman.com
Nicholas N. Shum YETTER COLEMAN LLP
State Bar No. 24075072 909 Fannin Street, Suite 3600
VINSON & ELKINS L.L.P. Houston, Texas 77010
1001 Fannin St., Suite 2500 Tel. (713) 632-8000
Houston, Texas 77002 Fax (713) 632-8002
Tel. (713) 758-2522
Fax (713) 615-5809
Harry L. “Gil” Gillam, Jr.
State Bar No. 07921800
GILLAM & SMITH L.L.P.
303 S. Washington Avenue
Marshall, Texas 75670-4157
Tel. (903) 934-8450
Fax (903) 934-9257
COUNSEL FOR APPELLANTS
25
CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4
I certify that this document complies with the type-volume
limitation of Texas Rule of Appellate Procedure 9.4(i)(2) because it
contains 3,699 words, excluding the parts of the document exempted by
Texas Rule of Appellate Procedure 9.4(i)(1).
/s/Marc S. Tabolsky
Marc S. Tabolsky
26
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5(e), I hereby certify that a true and
correct copy of this document has been served on lead counsel for
appellees by electronic means on January 29, 2015, as follows:
Kevin Dubose Dean A. Searle
ALEXANDER DUBOSE JEFFERSON SEARLE & SEARLE PC
TOWNSEND P.O. Box 910
1844 Harvard Street Marshall, Texas 75670
Houston, Texas 77008-4342
kdubose@adtappellate.com
Mark C. Harwell John Mercy
W. Mark Cotham MERCY CARTER & TIDWELL, LLP
COTHAM, HARWELL & O’CONOR 1724 Galleria Oaks Drive
1616 S. Voss, Suite 200 Texarkana, Texas 75503
Houston, Texas 77057
mharwell@chetexas.com
mcotham@chetexas.com
/s/Marc S. Tabolsky
Marc S. Tabolsky
27