                                                                                                                       ACCEPTED
                                                                                                                   04-15-00118-CV
                                                                                                       FOURTH COURT OF APPEALS
                                                                                                            SAN ANTONIO, TEXAS
                                                                                                              5/5/2015 11:48:57 AM
                                                                                                                    KEITH HOTTLE
                                                                                                                            CLERK

                                          NO. 04-15-00118-CV
_____________________________________________________________________________
                           IN THE FOURTH COURT OF APPEALS       FILED IN
                                AT SAN ANTONIO, TEXAS     4th COURT OF APPEALS
                                                                                          SAN ANTONIO, TEXAS
___________________________________________________________________________________________________________________
                                                                                       5/5/2015 11:48:57 AM
    SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE      HERBST
                                                 KEITH E. HOTTLE
                                                      Clerk
   JASIK, WILLIAM ALBERT HERBST, HELEN HERBST AND R. MAY
                   OIL & GAS COMPANY, LTD.,
                                        Appellants
                              V.

        MURPHY EXPLORATION & PRODUCTION CO. - USA,
                  A DELAWARE CORPORATION,
                                             Appellee
__________________________________________________________________
       On Appeal from the 218TH 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.
      2.     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.

      3.     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.

      4.     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.

      5.     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.



                                          2
      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.




                                       3
                         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




                                         4
    GD
    HM                                                                                Mary A. Keeney
                                                                                      Board Certified, Civil Appellate Law
                                                                                      Texas Board of Legal Specialization
GRAVES DOUGHERTY HEARON & MOODY
         A PROFESSIONAL CORPORATION                                                   512.480.5682
                                                                                      512.480.5882 (fax)
                                                                                      mkeeney@gdhm.com

                                                                                      MAILING ADDRESS:
                                                                                      P.O. Box 98
                                                                                      Austin, TX 78767-9998




                                                              May 5, 2015



     Ms. Margaret E. Littleton                                          Via Facsimile: (830) 769-1332
     Atascosa County District Clerk
     Ms. Cris Benavidez
     Deputy 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

                        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.


                                                                                                     EXHIBIT                 1



  401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com
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


                                       By: y61,
                                          M• ry A. eney
                                          A orneys   Plainti ifs



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
    GO                                                                               Mary A. Keeney
    MM                                                                               Board Certified, Civil Appellate Law
                                                                                     Texas Board of Legal Specialization
GRAVES DOUGHERTY HEARON & MOODY
                                                                                     612.480.5882
         . A PROFESSIONAL CORPORATION                                                512.480.5882 (fax)
                                                                                     mkeeneyegdhm.com

                                                                                     MAILING ADDRESS:
                                                                                     P.O. _Box 98
                                                                                     Austin, TX 78787-9998




                                                              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 Asicle 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:




  401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.corn
February 24, 2015
Page 2



     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 6-4-14
     Summary Judgment

9.   Plaintiffs' Response to Murphy's Motion for Partial Summary 8-12-14
     Judgment

10. Murphy Response to Plaintiffs' Motion for Partial. Summary 8-12-14
    Judgment

11. Murphy's Reply in Support of its Partial Motion for Summary 8-26-14
    Judgment and Motion to Strike

12, Plaintiffs' Reply to Murphy's Response to Plaintiffs' Motion for 8-28-14
    Partial Summary Judgment

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 1-02-15
    Judgment, And Motion To Reconsider
    The Court's Decision On Partial Summary Judgment Motions

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 2-10-15
    Final Judgment
February 24, 2015
Page 3




      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


                                       By;
                                             M A. Feeney
                                             At ► rn or. Plain 'ifs


MAK/cfc

cc:   Jason A. Newman
                        CAUSE NO. 13-05-0466-CVA

SHIRLEY ADAMS, CHARLENE § IN THE DISTRICT COURT
BURGESS, WILLIE MAE HERBST §
JASIK, WILLIAM ALBERT HERBST, §
HELEN HERBST and R. MAY OIL & §
GAS COMPANY, LTD.,
     Plaintiffs,

vs.                                       §   218th JUDICIAL DISTRICT

MURPFIY EXPLORATION &
PRODUCTION CO.-USA,
A DELAWARE CORPORATION,                   §
         Defendant.
                                          §   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


                                      1
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 I5,

2014 that remain in effect.

Dated:   r4                    Respectfully submitted,



                                                     „ez
                               Jo B. M Farland
                               Sta Bar o. 13598 00
                               jmekland@gdlun.com
                               Mary A. Keeney
                               State Bar No. 11170300
                               mkeeney@gdhin.com
                               GRAVES, DOUGHERTY, HEARON &
                               MOODY, P.C.
                               401 Congress Avenue, Suite 2200
                               Austin, Texas 78701-3744
                               (512) 480-5682 Telephone
                               (512) 480-4882 Telecopier

                               ATTORNEYS FOR PLAINTIFFS




                                       2
                               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




                                       3
                                     CAUSE NO. 13-05-0466-C'VA
  SHIRLEY ADAMS, CHARLENE BURGESS,                           IN THE DISTRICT COURTI
  WILLIE MAE HERBST. JASIK,                                                 FILED 47% Tv       O'CLOCICLM
                                                                            MARGARET E. UTTLETON, DISTRICT CLERK
  WILLIAM ALBERT HERBST,
 •HELEN HERBST and
  R. MAY OIL & GAS COMPANY, LTD.,                                                        FEB 1 0 2 315
             Plaintiffs,

  vs.                                                       218th JUDICIAL

 MURPHY EXPLORATION &
 PRODUCTION CO.-USA,
 A DELAWARE CORPORATION,
          Defendant
                                                    §       ATASCOSACOUNTY WS
                                                                           iv M
              ORDER SETTING ASIDE FINAL JUDGMENT AND ENTERING
                          AMENDED FINAL JUDGMENT
         On February 2, 2015, came on to be considered the Motion for New Thal, Motion to

 Vacate or Modify the Judgment, and Motion to Reconsider the Court'S Decision on 'Partial

 Summary Judgmmt Motions, filed by Plaintiffs Shirley Adams, Charlene Burgess, Willie Mae

 Herbst Jul., William Albert. Herbst, Helen Herbst, and R. May Oil & Gas Company, Lid. The
 Court has condidered the. motions, the response filed by Murphy Exploration & Production Co.-

 USA, and the arguments presented by counsel and is of the opinion tl
                                                                   i:1;L
                                                                       aintiffs' motions .
                                                 avut wool i'-ge ck; A
 should be granted in part efid•denied in partYor the following retrons:

                                  r57201.4-Firrai-Judgment-was-presenteil-te-Ithe-Cougt-Wttiout—

.4iopez.notiee.to4zisintifkin-vivi

         2.     The December 15, 2014 Final Judgment improperly awards appellate attorney's

 fees to Murphy. .1tas-C,Curt-farids-that-these-fees-afe-not-rable-unflerweither-ehapters-31-or--

 -Chapter..alLotthe-Texas-Givil-Praetiee-&-Remediee-Goile,-Ilze-Geart-furtherftrOs-thatitwoutel.

 -,ba-neitIterequi+able:aer-jest-te-awaril-these-fees7—The-eourtfertiter-finds-that-those-fees-are-net-



                                                                                             72501624
                                    Rod& 1.454444.4*
  The Court vacates and modifies its ertlei► 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 n the mels and grants the petition. Therefore, should Plaintiffs

. unsuccessfully appeal thisAtinal 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
                                                                              ekt
 Vacate or Modify the Judgment, and Motion to Reconsider the Court's Decision 4P Partial

 Summary Judgment Motions is denied, except that the December 15, 2014 Final Judgment in

 this ease is vacated and modified solely with regard to paragraph 3 as reflected in this order.

         Fr IS FURTHER ORDERED THAT Plaintiffs' Motion for Partial Summary Judgment is
 DENIED AND Defendants 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 10th day of February, 2015.



                                                           LLA SAXON, Judge Presiding
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* MAY-05 11:13 AM 18307691332               6'39"     13 SEND           OK                  561    *
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                                                                                   401 Congress Ave., Suite 2200
                                                                                   Austin, TX 76701
             CFI D
             MM                                                                    612.480.5600
                                                                                   512-480-5662(Wriler's Direct No.)
                                                                                    512-480-5882(Direct Fax)
        GRAVES DOUGHERTY HEARON & MOODY
                                                                                   www.gdhm.com
                     A Professional Corporation
                                                                                   MAILING ADDRESS:
                                                                                   P.O. Box 98
                                                                                   Austin, TX 78767-9996



                                                  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
                                                                        TOTAL PAGES
            TIME:                                                       INCLUDING COVER: 13

                                         Notes, comments, special instructions:
