Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. v. Murphy Exploration & Production Co.-USA, a Delaware Corporation

Case Information

NO. 04-15-00118-CV

| IN THE FOURTH COURT OF APPEALS | FILED IN | | :--: | :--: | | AT SAN ANTONIO, TEXAS | 4th COURT OF APPEALS SAN ANTONIO, TEXAS |

SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MABHERBSE JASIK, WILLIAM ALBERT HERBST, HELEN HERBST ANI P. MAY OIL &; GAS COMPANY, LTD., Appellants V.

MURPHY EXPLORATION &; PRODUCTION CO. - USA, A DELAWARE CORPORATION, Appellee

On Appeal from the ${218}^{\text{TH}}$ District Court of Atascosa County, Texas Honorable Stella Saxon, Presiding

APPELLANTS' SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLANTS' BRIEF

TO THE HONORABLE FOURTH COURT OF APPEALS:

1. Appellants Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil &; Gas Company, Ltd. request an extension of time to file Appellants' Brief. Appellants' Brief is currently due on Wednesday, May 13, 2015. Appellants seek an extension to 30 days after a complete Clerk's Record is filed.

1. CERTIFICATE OF CONFERENCE: Counsel for Appellants has conferred with Macey Stokes, Lead Counsel for Appellee, who has represented that Appellee does not oppose this motion.
2. Appellants' Brief is currently due on May 13, 2015. Counsel responsible for drafting and filing Appellants' Brief began work on the record cites for the brief this week and learned, for the first time, that the Clerk's Record omitted numerous attachments to the petition, the motions for partial summary judgment and responses thereto filed by both Appellants and Appellee. In other words, the body of these filings were included in the Clerk's Record but their attachments were not.
3. Appellants have conferred with the deputy district clerk responsible for preparing the record and, pursuant to her instructions, have sent her and Margaret Littleton, the district clerk, a letter detailing the missing items and requesting a corrected/supplemental record. A copy of that letter is attached as Exhibit A.
4. This extension is necessary to provide the Court with an accurate record of what was before the district court and to afford counsel for Appellants adequate time to prepare the Appellants' Brief with cites to that record.
5. Appellants have previously requested one extension of time to file Appellants' Brief in this case.

WHEREFORE, premises considered, Appellants Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil &; Gas Company, Ltd. request that the Court set as the deadline for Appellants to file Appellants' Brief in this case 30 days from the filing of the district clerk's corrected/supplemental record. In the alternative, Appellants request a 30-day extension to June 13, 2015 or such other relief that the Court considers appropriate.

Respectfully submitted, GRAVES DOUGHERTY HEARON &; MOODY, P.C.

By: /s/ Mary A. Keeney Mary A. Keeney State Bar No. 11170300 mkeeney@gdhm.com John B. McFarland State Bar No. 13598500 jmcfarland@gdhm.com 401 Congress Ave., Suite 2200 Austin, Texas 78701 Telephone: (512) 480-5682 Facsimile: (512) 480-5882 ATTORNEYS FOR APPELLANTS SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, WILLIAM ALBERT HERBST, HELEN HERBST AND R. MAY OIL &; GAS COMPANY, LTD.

CERTIFICATE OF SERVICE

I hereby certify that on May 5, 2015, a true and correct copy of the foregoing was served on counsel for Appellee via email and/or electronic service as shown below:

Macey Reasoner Stokes Jason A. Newman Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR APPELLEE MURPHY EXPLORATION &; Production COMPANY - USA Macey.stokes@bakerbotts.com Jason.newman@bakerbotts.com /s/ Mary A. Keeney Mary A. Keeney

A PROFESSIORAL CORPORATION

May 5, 2015

Ms. Margaret E. Littleton Atascosa County District Clerk Ms. Cris Benavidez Deputy Clerk #1 Courthouse Circle Drive Suite 4-B Jourdanton, Texas 78026

Via Facsimile: (830) 769-1332

Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration &; Production Co. - USA, a Delaware Corporation; In the 218th Judicial District of Atascosa County, Texas

Fourth Court of Appeals Case No. 04-15-00118-CV Dear Ms. Littleton and Ms. Benavidez: Pursuant to my telephone conversation with deputy clerk Cris Benavidez and her instructions, I am providing a list of the documents missing from the Clerk's Record in the above-described and numbered cause. Ms. Benavidez further instructed that this communication be provided to the fax number provided above. I am also providing a copy of the letter of February 24, 2015, I sent to your office designating the matters to be included in the record. The numbering provided below coincides with the numbers of the items designated in that February 24 letter. The main documents missing are attachments to the petition and to motions and responses to motions. The main body of the petition and the motions and responses themselves were included in the clerk's record but the attachments were omitted. The attachments, however, are part of the petition, the motions and the responses and should have been made a part of the record. In addition, in one instance some but not all of the attachments were included - three pages were missing. The court of appeals cannot properly review this case under the current state of the clerk's record because it does not accurately reflect what was before the district court.

May 5, 2015 Page 2

This letter is a request for a corrected/supplemental record that would include the pleadings, motions, and responses with all of their attachments. In order to facilitate the court of appeals' review of the record, I am requesting that you redo the record in its entirety. In other words, the documents in the original clerk's record should be included in the order you prepared them before but should now include all of these missing attachments. This will require a renumbering of the record. In addition, please add to the record my original letter of February 24, 2015 designating the record as well as this letter so that there will be no confusion about what has been and is now being requested. Please notify this office of the cost of preparing this corrected/supplemental record, and we will forward a check to you in payment of that amount. I request that your office credit my clients with the $\$217$ we paid on their behalf for the original record.

1. The main body of the Plaintiffs' Original Petition was included. Missing from the petition are the following exhibits, which were attached to and filed with the petition:

Exhibit A - Shirley Adams Oil, Gas &; Mineral Lease Exhibit B - William Herbst Oil, Gas &; Mineral Lease Exhibit C - Plat of lease and unit boundaries 3. The main body of the Plaintiffs' Motion for Partial Summary Judgment was included. Missing from the motion are the following exhibits, which were attached to and filed with the motion:

Exhibit A - Sworn declaration of Shirley Mae Herbst Adams Exhibit B - Sworn declaration of William Albert Herbst Exhibit C - Murphy's Response to Plaintiffs' Request for Disclosure Exhibit D - Sworn Declaration of Mary Keeney 7. The main body of Murphy's Motion for Partial Summary Judgment was included. Missing from the motion are the following exhibits, which were attached to and filed with the motion:

Exhibit A - Affidavit of Barry Kane Heinen Exhibit B - Oil Gas &; Mineral Lease signed by Shirley Adams Exhibit C - Oil, Gas &; Mineral Lease signed by William Herbst Exhibit D - Affidavit of John C. McBeath, P.E. with affidavit exhibits

May 5, 2015 Page 3 9. The main body of Plaintiffs' Response to Murphy's Motion for Partial Summary Judgment was included. Missing from the response are the following exhibits, which were attached to and filed with the motion:

Exhibit A - Affidavit of Gregg Robertson Exhibit B - Railroad Commission of Texas Form H-1 Exhibit C - Docket No. 01-01249550-Examiner's Report Exhibit D - Rule 37 Case No. 0213270 Exhibit E - Rule 37 Case No. 0240684 Exhibit F - Rule 37 Case No. 0211820 Exhibit G - Rule 37 Case No. 0245869 10. The main body of Murphy's Response to Plaintiffs' Motion for Partial Summary Judgment was included. Missing from the response are the following exhibits, which were attached to and filed with the motion:

Exhibit A - Affidavit of Gregg Robertson Exhibit B - Transcript of Deposition of Shirley Adams Exhibit C - Transcript of Deposition of William Albert Herbst Exhibit D - William Herbst's Responses to Defendant's First Set of Interrogatories and Shirley Adam's Responses to Defendant's First Set of Interrogatories 15. The main body and most of the attachments to Plaintiffs' Motion for New Trial, Motion to Vacate or Modify the Judgment and Motion to Reconsider the Court's Decision on Partial Summary Judgment Motions were included. Missing are the following portions of the attachments:

Last page of letter dated December 19, 2014 from Mary Keeney to Judge Saxon Letter dated November 12, 2014 from Judge Saxon, which should have immediately followed the December 19, 2014 letter

Please file the Corrected/Supplemental Record with the Clerk of the Court of Appeals for the Fourth District in San Antonio, Texas in accordance with Rule 35 of the Texas Rules of Appellate Procedure.

May 5, 2015

Page 4

Thank you for your attention to this matter. Please contact me if you have any questions.

Yours truly, GRAVES, DOUGHERTY, HEARON &; MOODY A Professional Corporation

MAK/cfc cc: Macey Reasoner Stokes Jason A. Newman Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR APPELLEE MURPHY EXPLORATION &; PRODUCTION COMPANY - USA Macey.stokes@bakerbotts.com Jason.newman@bakerbotts.com Keith E. Hottle Fourth Court of Appeals Clerk Cadena-Reeves Justice Center 300 Dolorosa, Suite 3200 San Antonio, Texas 78205-3037

Mary A. Keeney
Board Certified, Civil Appellate Law Texas Board of Legal Specialization

$512.480\mathrm{.5882}$ $512.480\mathrm{.5882}$ (fax) mkeeney@gdhm.com MALING ADDRESS: P.O. Box 98

Austin, TX 78767-9998

February 24, 2015

Ms. Margaret E. Littleton Via: Federal Express Atascosa County District Clerk #1 Courthouse Circle Drive Suite 4-B Jourdanton, Texas 78026

Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration &; Production Co. - USA, a Delaware Corporation; In the 218th Judicial District of Atascosa County, Texas

Dear Ms. Littleton: Enclosed for filing in the above-described and numbered cause is Plaintiffs' Notice of Appeal pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, giving notice that they desire to appeal the Order Setting Aside Final Judgment In Part and Entering Amended Final Judgment entered on February 10, 2015 in the captioned cause.

Plaintiffs respectfully request that you prepare the Clerk's Record for the captioned cause in accordance with Rule 34 of the Texas Rules of Appellate Procedure. Please notify this office of the cost of preparing the Clerk's Record, and we will forward a check to you in payment of that amount.

Please include in the Clerk's Record the following, as well as any other items required by Rule 34.5(a) of the Texas Rules of Appellate Procedure:

| | DESCRIPTION | DATE | | :--: | :--: | :--: | | 1. | Original Petition | 5-24-13 | | 2. | Defendant's Original Answer and Jury Demand | 7-1-13 | | 3. | Plaintiffs' Motion for Partial Summary Judgment | $9-6-13$ | | 4. | Defendant Murphy Exploration's Counterclaim | $9-16-13$ | | 5. | Murphy Exploration's First Amended Answer | $1-22-14$ | | 6. | Murphy Exploration's First Amended Counterclaims | $1-22-14$ | | 7. | Murphy Exploration's Motion for Partial Summary Judgment | $1-24-14$ | | 8. | Rule 11 - Deadlines for Responses and Replies to Motion for Summary Judgment | $6-4-14$ | | 9. | Plaintiffs' Response to Murphy's Motion for Partial Summary Judgment | $8-12-14$ | | 10. | Murphy Response to Plaintiffs' Motion for Partial Summary Judgment | $8-12-14$ | | 11. | Murphy's Reply in Support of its Partial Motion for Summary Judgment and Motion to Strike | $8-26-14$ | | 12. | Plaintiffs' Reply to Murphy's Response to Plaintiffs' Motion for Partial Summary Judgment | $8-28-14$ | | 13. | Murphy's Motion for Entry of Final Judgment | $12-05-14$ | | 14. | Final Judgment | $12-15-14$ | | 15. | Plaintiffs' Motion For New Trial, Motion To Vacate Or Modify The Judgment, And Motion To Reconsider The Court's Decision On Partial Summary Judgment Motions | $1-02-15$ | | 16. | Steinle Amicus Ltr | $1-21-15$ | | 17. | Murphy Response to Motion for New Trial | $1-27-15$ | | 18. | Order Setting Aside Final Judgment In Part and Entering Amended Final Judgment | $2-10-15$ |

Please file the Clerk's Record with the Clerk of the Court of Appeals for the Fourth District in San Antonio, Texas in accordance with Rule 35 of the Texas Rules of Appellate Procedure.

Thank you for your attention to this matter. Please contact me if you have any questions.

Yours truly, GRAVES, DOUGHERTY, HEARON &; MOODY A Professional Corporation

MAK/cfe cc: Jason A. Newman

CAUSE NO. 13-05-0466-CVA

| SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, WILLIAM ALBERT HERBST, HELEN HERBST and R. MAY OIL &; GAS COMPANY, LTD.,
Plaintiffs,
vs. | IN THE DISTRICT COURT | | :--: | :--: | | | | | | | | | 218th JUDICIAL DISTRICT | | | | | | | | | ATASCOSA COUNTY, TEXAS |

PLAINTIFFS' NOTICE OF APPEAL

Pursuant to Texas Rule of Appellate Procedure 25.1, PLAINTIFFS SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, WILLIAM ALBERT HERBST, HELEN HERBST, AND R. MAY OIL &; GAS COMPANY, LTD hereby give notice of their desire to appeal from the Order Setting Aside Final Judgment In Part and Entering Amended Final Judgment, which was signed and entered on February 10, 2015, in Civil Cause Number 13-05-0466-CVA, Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil &; Gas Company, Ltd. vs. Murphy Exploration &; Production Co. USA, a Delaware Corporation, in the 218th Judicial District Court of Atascosa County, Texas. The appeal is to the

Fourth Court of Appeals in San Antonio, Texas. A copy of the February 10, 2015 Order Setting Aside Final Judgment and Entering Amended Final Judgment In Part of the Court is attached hereto as Exhibit A. To the extent necessary, Plaintiffs also appeal any adverse portions of the Final Judgment signed on December 15, 2014 that remain in effect.

Dated: Feb. 34, 2015 Respectfully submitted,

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on February 24, 2015, a true and correct copy of the foregoing was served on counsel for Defendant via email as shown below:

Bill Kroger Jason A. Newman Benjamin Sweet Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 ATTORNEYS FOR DEFENDANT MURPHY EXPLORATION &; Production COMPANY - USA Jason.newman@bakerbotts.com

CAUSE NO. 13-05-0466-CVA

On February 2, 2015, came on to be considered the Motion for New Trial, Motion to Vacate or Modify the Judgment, and Motion to Reconsider the Court's Decision on Partial Summary Judgment Motions, filed by Plaintiffs Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst, and R. May Oil &; Gas Company, Lid. The Court has considered the motions, the response filed by Murphy Exploration &; Production Co. USA, and the arguments presented by counsel and is of the opinion that Plaintiffs' motions should be granted in part and denied in part for the following reasons:

• 1. The December 15, 2014 Final Judgment was presented to the Court without proper notice to Plaintiffs, in violation of Texas Rule of Civil Procedure 305;
• 1. The December 15, 2014 Final Judgment is properly awards appellate attorney's fees to Murphy. The Court finds that these fees are not recoverable under either Chapter 37 or Chapter 38 of the Texas Civil Practice &; Remedies Code. The Court further finds that it would be neither equitable nor just to award these fees. The Court further finds that these fees are not

Find Judgment

The Court vacates and modifies its order in part with regard to the award of appellate fees to Murphy. The Court modifies paragraph 3 of its December 15, 2014 final judgment in this matter and finds that should Plaintiffs appeal this Final Judgment, Murphy will expend reasonable and necessary attorneys' fees in the amount of $\$25,000$ for defending the matter in the Court of Appeals, $\$7500$ for responding to a petition for review, and $\$20,000$ in the event the Supreme Court orders briefing on the merits and grants the petition. Therefore, should Plaintiffs

Anandad unsuccessfully appeal this final Judgment, they are ordered to pay Murphy's reasonable and necessary attorney's fees on appeal as directed in this judgment.

3, The Court finds that its rulings on Plaintiffs' Motion for Partial Summary Judgment and Defendant's Motion for Partial Summary Judgment should stand.

IT IS THEREFORE ORDERED THAT Plaintiffs' Motion for New Trial, Motion to Vacate or Modify the Judgment, and Motion to Reconsider the Court's Decision of Partial Summary Judgment Motions is denied, except that the December 15, 2014 Final Judgment in this case is vacated and modified solely with regard to paragraph 3 as reflected in this order.

IT IS FURTHER ORDERED THAT Plaintiffs' Motion for Partial Summary Judgment is DENIED AND Defendant's Motion for Partial Summary Judgment is GRANTED.

Costs are taxed against Plaintiffs.

IT IS FURTHER ORDERED that all other relief requested in this cause is DENIED.

SIGNED this ${10}^{\text{th}}$ day of February, 2015.

GRAVES DOUGHERTY HEARON &; MOODY A Professional Corporation

401 Congress Ave., Suite 2200 Austin, TX 78701 512.480 .5600 512-480-5682(Writer's Direct No.) 512-480-5882(Direct Fax) www.gdhm.com MAILING ADDRESS: P.O. Box 98

Austin, TX 78767-9998

FAX TRANSMITTAL

TO: $$ Margaret E. Littleton Fax: (830) 769-1332 Cris Benavidez

FROM: Mary A. Keeney RE: $$ Cause No. 13-05-0466-CVA - Letter regarding Clerk's Record DATE: May 5, 2015 TIME: $$ TOTAL PAGES INCLUDING COVER: 13

Notes, comments, special instructions:

Case Details

Case Name: Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. v. Murphy Exploration & Production Co.-USA, a Delaware Corporation

Court Name: Court of Appeals of Texas

Date Published: May 5, 2015

Docket Number: 04-15-00118-CV

Court Abbreviation: Tex. App.