Wilmer Forrest Trimble, Jr., A/K/A Wilmer Forrest Tremble, Jr., Sharon Trimble Donaldson, Selia Trimble Shawkey, and Billie J. Murphy Tremble v. Luminant Mining Company LLC ( 2015 )

ACCEPTED
06-15-00005-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/18/2015 4:33:01 PM
DEBBIE AUTREY
CLERK
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA,FILED
TEXAS
IN
______________________ 6th COURT OF APPEALS
TEXARKANA, TEXAS
6/18/2015 4:33:01 PM
06-15-0005-CV
DEBBIE AUTREY
______________________ Clerk
BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON,
CELIA TREMBLE SHAWKEY, WILMER FORREST TREMBLE, JR., THE
ESTATE OF WILMER FORREST TREMBLE, SR., Appellants
V.
LUMINANT MINING COMPANY LLC, ENERGY FUTURE HOLDINGS
CORPORATION AND SUBSIDIARIES, Appellees
On Appeal from the 4th District Court
Rusk County, Texas
Trial Court No. 2013-391
LUMINANT MINING COMPANY LLC'S
MOTION TO REINSTATE APPEALS
TO THE HONORABLE COURT OF APPEALS:
Appellee Luminant Mining Company LLC ("Luminant") moves to reinstate the
above-referenced appeal, and two companion ones, pursuant to Texas Rule of Appellate
Procedure 8.3, and for such motion shows the Court as follows:
Luminant was the Plaintiff in these partition suits in the trial court, now on appeal
before this Court ("the Partition Suits").1 Appellants Billie Murphy Tremble, Sharon
Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the
1
In their notices of appeal, Appellants named Luminant and Energy Future Holdings Corporation and "Subsidiaries"
as Appellees. Neither Energy Future Holdings Corporation nor any subsidiaries were Plaintiffs in the district court,
and thus these entities are not proper Appellees. These party issues will be addressed in the Brief of Appellees, once
the Court resolves the abatement of these appeals.
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Tremble Family") were Defendants. Luminant filed the Partition Suits on November 26,
2013.
On April 29, 2014, Luminant and each of numerous other related debtor entities
filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code
in the United States Bankruptcy Court for the District of Delaware. See Affidavit of
[bankruptcy attorney] attached to and incorporated by reference in this motion as Exhibit
1. The bankruptcy filing by Luminant and other debtors effected an automatic stay of
certain litigation in which the debtors were parties. Id. As is explained further below,
however, the stay did not and does not apply to the Partition Suits, and Luminant
therefore did not file a notice of bankruptcy in the Partition Suits. Id.
On December 12, 2014, the Tremble Family filed suit in the Rusk County District
Court against Luminant, Energy Future Holdings Corporation, and "Subsidiaries," in
Cause No. 2014-402 ("the Tremble Suit"). In the Tremble Suit, the Tremble Family
alleges fraud and other claims and seeks the recovery of damages. A true and correct
copy of the Tremble Family's petition is attached to this motion as Exhibit 2; see also
Affidavit of Marc O. Knisely attached to and incorporated by reference in this motion as
Exhibit 3.
On January 8, 2015, Luminant and Energy Future Holdings Corporation filed a
Notice of Suggestion on Pendency of Bankruptcy ("Notice of Bankruptcy") in the
Tremble Suit. Ex. 3. On May 19, 2015, the Tremble Family filed a copy of the Notice of
Bankruptcy that Luminant had previously filed in the Tremble Suit with the Clerk of this
Court in these three appeals in the Partition Suits.
2
On May 28, 2015, this Court issued an Order suspending the three appeals and
abating the cases. The Order states that "[a]ny party may move to reinstate the appeal by
promptly filing a motion to reinstate including, as an attachment, either a certified copy
of an order showing that the automatic bankruptcy stay has been lifted or any other
authenticated document demonstrating that reinstatement is permitted by federal law
and/or the relevant bankruptcy court."
The Tremble Suit is subject to the automatic bankruptcy stay because the members
of the Tremble Family are the plaintiffs in that suit against Luminant and Energy Future
Holdings Corporation, as defendants, the suit involves claims that are alleged to have
arisen in part before the filing of the bankruptcy petition, and the Tremble Family as
plaintiffs seek the recovery of damages from Luminant and Energy Future Holdings
Corporation. Ex. 1. In contrast, the Partition Suits were brought by Luminant as the
plaintiff, and no claims were or are asserted against Luminant in those suits. Id. [Discuss
any additional reasons why stay does not apply]. Accordingly, the bankruptcy stay does
not apply to the appeals pending before this Court, and, under applicable bankruptcy law,
the Court may properly reinstate the appeals. Id.
For these reasons, Appellee Luminant Mining Company LLC requests that the
Court reinstate these appeals.
Respectfully submitted,
3
Jackson, Sjoberg, McCarthy & Townsend, LLP
David E. Jackson
State Bar No. 10458500
djackson@jacksonsjoberg.com
Marc O. Knisely
State Bar No. 11614500
mknisely@jacksonsjoberg.com
711 W. 7th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
By: /s/ David E. Jackson
David E. Jackson
State Bar No. 10458500
ATTORNEYS FOR APPELLEES
LUMINANT MINING COMPANY LLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the above and foregoing Motion
to Reinstate was sent via the following method, to the following parties on this the 18th
day of June, 2015.
Billie J. Murphy Tremble
2806 Evans Street
Marshall, TX 75670
Via regular mail and
Certified Mail, RRR
70141200000120432610
Sharon Tremble Donaldson
2010 Wineberry Dr .
Katy, TX 77450
Via regular mail and
Certified Mail, RRR
70141200000120432627
Selia Tremble Shawkey
712 South 37th Street
San Diego, CA 92113
Via regular mail and
Certified Mail, RRR
70141200000120432634
Wilmer Forrest Tremble, Jr.
3614 Sheldon
Pearland, TX 77584
Via regular mail and
Certified Mail, RRR
70141200000120432641
/s/ David E. Jackson
David E. Jackson
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