EXCO Operating Company, LP v. Mary K. McGee ( 2015 )

ACCEPTED
12-15-00087-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/16/2015 10:16:55 AM
Pam Estes
CLERK
CAUSE NO. 12-15-00087-CV
EXCO OPERATING COMPANY, LP § IN THE TWELTH
FILED IN
Appellant § 12th COURT OF APPEALS
§ TYLER, TEXAS
VS. § 9/16/2015 10:16:55 AM
§ COURT OF PAMAPPEALS
ESTES
§ Clerk
§
MARY K. MCGEE, §
Appellee § TYLER, TEXAS
APPELLEE MARY K. MCGEE’S MOTION FOR LEAVE TO
FILE A SURREPLY BRIEF
Appellee, Mary K. McGee, files this her Motion for Leave to File a Surreply Brief to
Appellant EXCO Operating Company, LP’s Reply and, in support thereof, would respectfully
show the Court as follows:
I. ARGUMENT & AUTHORITIES
Texas Rule of Appellate Procedure 38 governs the requisites for briefing on appeal. No
portion of Rule 38 addresses or governs the filing of a surreply. Rule 38.3 states that the
“appellant may file a reply brief addressing any matter in the appellee’s brief.” See Tex. R. App.
P. 38.3. Rule 38.7 states that “a brief may be amended or supplemented whenever justice
requires, on whatever reasonable terms the court may prescribe.” See Tex. R. App. P. 38.7.
Appellee does not, in any strict terms, require “supplementation” or “amendment” of her brief.
Appellee does, however, require an opportunity to respond to Appellant’s Reply, for the most
paramount reason that Appellant’s Reply presents a new argument that was not raised in the trial
court below or in the initial briefing to this Court, in violation of Tex. R. App. P. 33.1.
Appellant’s raising of this new argument at the 11th hour in their Reply brief has deprived
Appellee an opportunity to respond and, thus, justice requires that she be permitted leave to file
her Surreply.
II. PRAYER
For these reasons, Appellee respectfully asks the Court to grant her Motion for Leave to
File her Surreply and for any and all other relief to which she may be entitled.
Respectfully submitted,
SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
BY: ____/s/Justin A. Smith_______________
JOHN D. SLOAN, JR.
Texas Bar No. 18505100
E-mail: jsloan@sloanfirm.com
JUSTIN A. SMITH
Texas Bar No. 24058357
E-mail: jsmith@sloanfirm.com
101 East Whaley Street
P.O. Drawer 2909
Longview, Texas 75606
Telephone: (903) 757-7000
Facsimile: (903) 757-7574
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that on September 16, 2015 I served a copy of Appellee Mary K. McGee’s
Motion for Leave to File a Surreply Brief listed below by electronic service, and the electronic
transmission was reported as complete. My e-mail address is jsmith@sloanfirm.com.
___/s/Justin A. Smith___________________
JUSTIN A. SMITH