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 06-15-00004-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/20/2015 12:19:50 PM DEBBIE AUTREY CLERK IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA, TEXAS FILED IN ______________________ 6th COURT OF APPEALS TEXARKANA, TEXAS 10/20/2015 12:19:50 PM No. 06-15-00004-CV DEBBIE AUTREY ______________________ Clerk BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON, SELIA 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. 2013-390 LUMINANT MINING COMPANY LLC'S MOTION TO REINSTATE APPEALS WITH LIFT STAY ORDER 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 in compliance with this Court’s June 25, 2015 Order, and for such motion shows the Court as follows: 1 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 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. The bankruptcy filing by Luminant and other debtors effected an automatic stay of certain litigation in which the debtors were parties. Luminant concluded that the stay, however, did not apply to the Partition Suits under Bankruptcy law, and Luminant therefore did not file a notice of bankruptcy in the Partition Suits. 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. 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. 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. 2 On May 19, 2015, the Tremble Family filed a copy of Luminant’s 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. 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." Luminant previously filed motions to reinstate these appeals, but discussed legal authorities about why it believes the stay does not apply to the Partition Suits and did not obtain or include a lift stay order. On June 25, 2015, this Court overruled the previous motions to reinstate these appeals because the motions did “not include (1) a certified copy of an order showing that the automatic stay has been lifted or (2) an authenticated document demonstrating that reinstatement is permitted by federal law and/or the relevant bankruptcy court.” In the bankruptcy proceeding, on July 21, 2015, Luminant and Energy Future Holdings Corporation moved for an order confirming that the stay was not in effect or to lift the stay as to this and the two related appeals. A true and correct copy of that motion is submitted with this motion as Exhibit A and incorporated in this motion by reference. 3 On October 15, 2015, the bankruptcy court heard and granted the motion to lift stay as to these appeals. A certified copy of the bankruptcy court’s lift stay order is submitted with this motion as Exhibit B and incorporated by reference in this motion. For these reasons, Appellee Luminant Mining Company LLC requests that the Court reinstate these appeals. Respectfully submitted, 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 4 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of the above and foregoing Motion to Reinstate Appeals With Lift Stay Order was sent via the following method, to the following parties on this the 20th day of October, 2015. Billie J. Murphy Tremble PO Box 541 Marshall, TX 75671-0541 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5823 Sharon Tremble Donaldson 2010 Wineberry Dr . Katy, TX 77450 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5847 Selia Tremble Shawkey 712 South 37th Street San Diego, CA 92113 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5854 Wilmer Forrest Tremble, Jr. 3615 Sheldon Pearland, TX 77584 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5861 /s/ David E. Jackson David E. Jackson 5