                                                                                                     ACCEPTED
                                                                                                 01-15-00867-CV
                                                                                      FIRST COURT OF APPEALS
                                                                                              HOUSTON, TEXAS
                                                                                           12/28/2015 9:11:19 PM
                                                                                           CHRISTOPHER PRINE
                                                                                                          CLERK

                              NO. 01-15-00867-CV
______________________________________________________________________________
                                                                  FILED IN
                                FIRST COURT OF APPEALS     1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                              HOUSTON, TEXAS               12/28/2015 9:11:19 PM
                                                           CHRISTOPHER A. PRINE
______________________________________________________________________________
                                                                    Clerk

    PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND GAS, L.P.,
                                 Appellants.
                                                              FILED IN
                                               V.      1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
    ALFREDO                                            12/28/2015
              DE LA GARZA, INDIVIDUALLY AND AS NEXT FRIEND  FOR 9:11:19
                                                                  XXXXXX  PM
                                                       CHRISTOPHER
              XX XX XXXXX AND XXXXXXXX XX XX XXXXX, MINORS             A. PRINE
                                                                Clerk
                                               &

    JOHN PAUL ADAME, INDIVIDUALLY AND AS NEXT FRIEND OF XXXXXXXXX
    XXXXXX XXXXX, XXXX XXXX XXXXX XXX, AND XXXX XXXXXXXX XXXXX,
                               MINORS,
                               Appellees.

______________________________________________________________________________

                  On Appeal from the 215th Judicial District Court,
                               Harris County, Texas
                              Cause No. 2014-42519
______________________________________________________________________________

  APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO STAY UNDERLYING
                          TRIAL COURT LITIGATION
______________________________________________________________________________

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

       NOW COMES Appellee John Paul Adame, individually and as next friend for

XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX XXX, AND XXXX

XXXXXXXX XXXXX, minors, and files this Appellees’ Response to Appellants, Penn Virginia

Oil & Gas GP, LLC and Penn Virginia Oil & Gas L.P.’s Motion to Stay Underlying Trial Court

Litigation, and in support thereof would respectfully show the Court the following:


	
	
                             Introduction & Summary of Response

1. The trial court signed an order denying appellants’ Motion to Compel Arbitration and to

    Abate as to claims filed by Appellee John Paul Adame, individually and as next friend for his

    minor children, on September 11, 2015. A copy of this order is attached as Exhibit “A”.

    On October 12, 2015, the trial court signed an order denying appellants’ Motion for

    Reconsideration of the trial court’s order denying appellants’ Motion to Compel Arbitration.

    A copy of this order is attached as Exhibit “B”. This arbitration ruling is now pending

    before the Court.

2. The trial court granted appellants’ motion to compel arbitration and to abate as to Intervenor

    Ernesto Gonzalez, Jr. in the underlying lawsuit. This order was signed on November 24,

    2015 and provided that Mr. Gonzalez’s claims would be abated. A copy of this order is

    attached as Exhibit “C”.        Intervenor Ernesto Gonzalez, Jr. has filed a Motion for

    Reconsideration of Order Granting Motion to Compel Arbitration. This motion is set for

    hearing on January 15, 2016. A copy of this motion is attached as Exhibit “D”.

3. On December 8, 2015, appellants filed a motion to abate the De La Garza and Adame

    appellees’ claims pending the Gonzalez arbitration.

4. The underlying litigation should not be stayed as to the De La Garza or Adame appellees.

    The general rule provides that a stay will only be ordered when arbitration or a motion for

    arbitration is granted by the trial court. While there are circumstances where parallel

    litigation will be stayed as to a party not subject to arbitration, appellants have failed to meet

    their burden to mandate a stay in this case. Appellants have failed to show that continuing the

    underlying litigation as to the De La Garza and Adame appellees would in any way waste

    judicial time or resources, create potentially damaging consequences to the Gonzalez



	
	
    arbitration or interfere with the Court of Appeal’s jurisdiction or the subject matter of this

    appeal.

                                   Argument and Authorities

5. Tex. Civ. Prac. & Rem. Code § 171.021(c) provides that “An order compelling arbitration

    must include a stay of proceeding subject to Section 171.025.” Tex. Civ. Prac. & Rem. Code

    § 171.025 states that :

       (a) The court shall stay a proceeding that involves an issue subject to arbitration if an
       order for arbitration or an application for that order is made under this subchapter.
       (b) The stay applies only to the issue subject to arbitration if that issue is severable from
       the remainder of the proceeding.
       Tex. Civ. Prac. & Rem. Code Ann. § 171.025.

6. 9 U.S.C. § 3 provides that:

       If any suit or proceeding be brought in any of the courts of the United States upon any

       issue referable to arbitration under an agreement in writing for such arbitration, the court

       in which such suit is pending, upon being satisfied that the issue involved in such suit or

       proceeding is referable to arbitration under such an agreement, shall on application of one

       of the parties stay the trial of the action until such arbitration has been had in accordance

       with the terms of the agreement, providing the applicant for the stay is not in default in

       proceeding with such arbitration.” 9 U.S.C.A. § 3.

       In some circumstances, the courts have allowed for stays of underlying parallel litigation

    brought by parties not subject to an arbitration agreement. In the case of In re Ghanem, 203

    S.W.3d 896, 899 (Tex. App. 2006), the appellate court conditionally granted a writ of

    mandamus as to a trial court’s order refusing to completely stay parallel litigation brought by

    nonsignatory to an arbitration agreement. The Beaumont court focused on the potential harm

    to the arbitration by allowing nonsignatories to arbitration agreements to proceed with



	
	
    litigation and noted the policy favoring arbitration.        The court also looked to whether

    proceeding with litigation would destroy the signatory’s right to a meaningful arbitration,

    citing Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343

    (5th Cir.2004) (citing Adams v. Ga. Gulf Corp., 237 F.3d 538, 541 (5th Cir.2001)). The

    court held that,    “Additionally, the record indicates the three-factor test for invoking

    the section 3 mandatory stay discussed in Waste Management, Inc. has been met, viz: (1)

    similarity of operative facts; (2) inseparability of claims; and (3) effect of the litigation on the

    arbitration. See Waste Mgmt., Inc., 372 F.3d at 344–45; 9 U.S.C.A. § 3.”

7. Appellants have not shown inseparability of claims between the Adame claims and Ernesto

    Gonzalez, Jr.’s claims.

8. Appellants have failed to show any “potentially damaging consequences” to the Gonzalez

    arbitration in allowing the De La Garza and Adame litigation to continue as is required in In

    re Ghanem.

9. Appellants argue that it would be difficult for the parties to mediate meaningfully and

    frustrate the resolution process absent a ruling from the Court of Appeals as to whether the

    De La Garza and Adame litigation is subject to arbitration. There is no showing that

    mediation would be more difficult or would “frustrate the resolution process” in this case.

                                               Conclusion

10. Appellants have failed to meet their burden of proving that allowing the De La Garza and

    Adame litigation to proceed would in any way affect, harm or adversely impact Ernesto

    Gonzalez, Jr.’s arbitration. Appellants have failed to show any basis for a stay of the De La

    Garza and Adame litigation.

                                                Prayer



	
	
       Wherefore, premises considered, appellees, John Paul Adame, XXXXXXXXX

XXXXXX XXXXX, XXXX XXXX XXXXX XXX, AND XXXX XXXXXXXX XXXXX,

minors, pray that this Court deny appellants’ motion to stay underlying trial court litigation and

for such other and further relief to which they may be entitled, whether in law or in equity.

                                              Respectfully submitted,

                                              THE GUTIERREZ LAW FIRM, INC.


                                      By:     /S/ J. JAVIER GUTIERREZ
                                              J. Javier Gutierrez
                                              State Bar No. 24045997
                                              javier@gutierrezlawfirm.com
                                              Ana Laura Gutierrez
                                              State Bar No. 24069843
                                              ana@gutierrezlawfirm.com
                                              700 East Third Street
                                              Alice, Texas 78332
                                              Telephone: (361) 664-7377
                                              Facsimile: (361) 664-7245

                                              Attorneys for Appellees John Paul Adame,
                                              Individually and as Next Friend of XXXXXXXXX
                                              XXXXXX XXXXX, XXXX XXXX XXXXX XXX
                                              and XXXX XXXXXXXX XXXXX




	
	
                                CERTIFICATE OF SERVICE

        The undersigned attorney does hereby certify that a true and correct copy of the foregoing
instrument was forwarded to all counsel of record as listed below, by the method of service
indicated, on this the 28th day of December, 2015.

                                                    By:     /S/ J. JAVIER GUTIERREZ
                                                            J. Javier Gutierrez

Via Email
Mr. John David Hart
Law Office of John David Hart
Wells Fargo Tower
201 Main St. Ste. 1720
Fort Worth, Texas 76102

Via Email
Mr. Thomas J. Smith
Mr. Kelly C. Hartmann
Ms. Alexis M. Butler Hester
Galloway, Johnson, Tompkins,
Burr & Smith
1301 McKinney, Suite 400
Houston, Texas 77010

Via Email
Mr. Brit T. Brown
Mr. Benjamin A. Escobar, Jr.
Beirne, Maynard & Parsons, L.L.P.
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056

Via Email
Mr. J.J. Knauff
The Miller Law Firm
Turtle Creek Centre
3811 Turtle Creek Blvd., Ste. 1950
Dallas, Texas 75219


	

	




	
	
                                                CAUSE NO. 2014-42519


    ALFREDO DE LA GARZA,                                      §       IN THE DISTRICT COURT OF
    INDnnDUALLYandASNEXTFRIEND                                §
    FOR REDACTED           and                                §
    REDACTED             , minors                             §
                                                              §
    v.                                                        §
                                                              §
    PENN VIRGINIA OIL & GAS, L.P., PENN                       §
    VIRGINIA OIL & GAS GP LLC,                                §
    MIKE FERGUSON, TRIFECTA OILFIELD                          §
    SERVICES, LLC, CUDD PRESSURE                              §
    CONTROL, INC., ROYWELL                                    §       215th JUDICIAL DISTRICT
    SERVICES, INC., and OAKS PERSONNEL                        §
    SERVICES, INC. d/b/a THE OAKS GROUP                       §


      ORDER DENYING DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN
      VIRGINIA OIL & GAS GP LLC'S MOTION TO COMPEL ARBITRATION AND TO
                                    ABATE



            On       1J 17-f-- day of   S -ep            , 2015, came to be considered Defendants, Penn

    Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP_LLC's Motion to Compel Arbitration

    and to Abate. After considering the motion and hearing the arguments of counsel, this Court is of

    the opinion that the Motion should be DENIEij iiRO that Plainti:Ws' claims against Defendant

    !Z0t:gUSGP and   Defendant Oaks Personnel               ffis d/bla The Oaks G:roup be severed frem artd
-   p:roceed te trial oft October        20f-5.


      FILED                                               71.t-          S       I   11
         Chris Daniel
         District Clerk




                                                  Elaine H. Palmer
                                                  JUDGE, 215TH DISTRICT COURT
                                                                                                   I      A
                                                                                                        EXHIBIT




    Order Denying Defendants, Penn Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP LLC's   Page I ofl
    Motion to Compel Arbitration and to Abate
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this October 23. 2015


     Certified Document Number:        66994917 Total Pages: 1




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                                                1U/5/ZU15 1Z:ZZ:Z5 PM
                                                                                                Chris Daniel - District Clerk
                                                                                                Harris County
                                                                                                Envelope No: 7226643
                                                                                                By:SPENCER,JEANETTA
                                                                                                Filed: 10/5/2015 12:22:25 PM
                                                    CAUSE NO. 2014-42519
                                                                                                                          Pgs-1
                                                                                                                          RECSY
          ALFREDO DE LA GARZA,                                       §       IN THE DISTRICT COURT OF
          INDIVIDUALLY and AS NEXT FRIEND                            §
          FOR REDACTED            and                                §
          REDACTED              , minors                             §
                                                                     §
          v.                                                         §       HARJUSCOUNTY,TEXAS
                                                                     §
          PENN VIRGINIA OIL & GAS, L.P.,                             §
          PENN VIRGINIA OIL & GAS GP LLC,                            §
          and MIKE FERGUSON                                          §       215th JUDICIAL DISTRICT


                 ORDER DENYING D·EFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND
                              PENN VIRGINIA OIL & GAS GP LLC'S
               MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO COMPEL
                                       ARBITRATION


                  On this the_ day of October, 2015, came to be heard and considered Defendants, Penn

          Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP LLC's Motion for Reconsi.deration of

          Order Denying Motion to Compel Arbitration in the above-styled and nu1nbered cause, and the

          Court having considered said motion and response is of the opinion that the motion should be in all

          things DENIED.

                  It is therefore ORDERED, ADJUDGED and DECREED that Defendants, Penn Virginia Oil

          & Gas, L.P. and Penn Virginia Oil & Gas GP LLC's Motion for Reconsideration of Order Denying


,......
          Motion to Compel Arbitration is DENIED.
4-<
 0
                  It is further ordered that the statements in the Affidavit of Ernest W. Nelson regarding intent

          be stricken in their entirety.                                                                          EXHIBIT
                             SIGNED AND ORDERED this the_ day of October, 2015.                             I 'B
                                                                         Signed:
                                                                   10/12/2015
                                                                    JUDGE PRESIDING


          Order Denying Defendants, Penn Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP LLC's     Page 1 of 1
          Motion for Reconsideration of Order Denying Motion to Compel Arbitration
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in 1ny office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this October 23. 2015


     Certified Document Number:        67408422 Total Pages: 1




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                           11/3/2015 3:41:31 PM
                                                                           Chris Daniel- District Clerk
                                                                           Harris County
                                                                           Envelope No: 7665857
                                                                           By:SPENCER,JEANETTA
                                                                           Filed: 11/3/2015 3:41:31 PM
                                                                                                     Pgs-1
                                   CAUSE NO. 2014-42519

ALFREDO DE LA GARZA,                              §            IN THE DISTRICT COURT OF
INDIVIDUALLY and AS NEXT FRIEND                   §
FOR REDACTED            and                       §
REDACTED              , minors                    §
                                                  §
v.                                                §                 HARRIS COUNTY, TEXAS
                                                  §
PENN VIRGINIA OIL & GAS, L.P.,                    §
PENN VIRGINIA OIL & GAS GP, LLC,                  §
MIKE FERGUSON, TRIFECTA                           §
OILFIELD SERVICES, LLC, CUDD                      §
PRESSURE CONTROL, INC.,                           §
ROYWELL SERVICES, INC. and OAKS                   §
PERSONNEL SERVICES, INC. d/b/a                    §
THE OAKS GROUP                                    §                 281 ST JUDICIAL DISTRICT


ORDER ON DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN VIRGINIA
  OIL & GAS GP, LLC'S MOTION TO COMPEL ARBITRATION AND TO ABATE
         CLAIIVIS FILED BY INTERVENOR, ERNESTO GONZALEZ, JR.

       On the _ _ day of _ _ _ _ _ _ _, 2015, the Court considered Defendants Penn

Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP, LLC's Motion to Compel Arbitration

and to Abate the claims filed by Intervenor, Ernesto Gonzalez, Jr., pending such arbitration.

After considering the motion, this Court GRANTS Defendants Penn Virginia Oil & Gas, L.P.

and Penn Virginia Oil & Gas GP, LLC' s Motion to Compel Arbitration and to Abate.

       Therefore, Intervenor, Ernesto Gonzalez, Jr., is ORDERED to arbitrate his claims against

Penn Virginia Oil & Gas, L.P. and Penn Virginia Oil & Gas GP, LLC in accordance with the

Nabors Dispute Resolution Program.

       It is further ORDERED that the claim asserted by Intervenor, Ernesto Gonzalez, Jr., shall

be ABATED until the resolution of such arbitration.
                                                 Signed:
                                             11/24/2015        _·
                                                      PRESIDING JUDGE

                                                                                   EXHIBIT

                                                                            IC
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this December 28. 2015


     Certified Document Number:        67999138 Total Pages: 1




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                                              12/2/2015 4:28:28 PM
                                                                         Chris Daniel - District Clerk Harris County
                                                                                             Envelope No. 8060281
                                                                                                  By: bradley darnell
                                                                                      Filed: 12/2/2015 4:28:28 PM

                               CAUSE NO. 2014-42519

ALFREDO DE LA GARZA,                               §      IN THE DISTRICT COURT
INDIVIDUALLY                                       §
AND AS NEXT FRIEND                                 §
FOR REDACTED                                       §
AND REDACTED                       ,               §
MINORS,                                            §
     Plaintiffs,                                   §
                                                   §
                                                   §
JOHN PAUL ADAME, INVIDUALLY AND                    §
AS NEXT FRIEND OF REDACTED                         §
REDACTED                                           §
                            , MINORS               §
       Intervenor                                  §
                                                   §
ERNESTO GONZALEZ, JR.                              §
     Intervenor                                    §
                                                   §
VS.                                                §      215TH JUDICIAL DISTRICT
                                                   §
PENN VIRGINIA OIL & GAS, L.P.; PENN                §
VIRGINIA OIL & GAS GP, L.L.C.;                     §
MIKE FERGUSON; TRIFECTA OILFIELD                   §
SERVICES, L.L.C.; CUDD PRESSURE                    §
CONTROL, INC.; AND ROYWELL                         §
SERVICES, INC.; OAKS PERSONNEL INC.,               §
D/B/A THE OAKS GROUP                               §
Defendants                                         §      HARRIS COUNTY, TEXAS

  ERNESTO GONZALEZ, JR.'S MOTION FOR RECONSIDERATION OF ORDER
            GRANTING MOTION TO COMPEL ARBITRATION

TO THE HONORABLE JUDGE OF SAID COURT:

       Intervenor, Emesto Gonzalez, Jr. ("Gonzalez"), respectfully files this Motion for

Reconsideration of this Court's order granting Defendants Penn Virginia Oil & Gas GP,

LLC & Penn Virginia Oil & Gas, L.P.'s (collectively "Penn Virginia") Motion to Compel

Arbitration and Abate Claims filed by Intervenor Emesto Gonzalez, Jr. In support of this

Motion for Reconsideration, Intervenor Gonzalez would respectfully show as follows:


                                                               EXHIBIT

                                                         I D                                1
       On June 18, 2015, Penn Virginia filed its Motion to Compel Arbitration and

Abate the claims of Plaintiffs Alfredo De La Garza, individually and as next friend of his

minor children, and Intervenor John Paul Adame, individually and as next friend of his

minor children (hereinafter referred to as "First Motion to Compel"). In their First Motion

to Compel, Penn Virginia argued that Plaintiff De La Garza and Intervenor Adame's

claims are subject to arbitration because (1) Penn Virginia agreed to participate in Nabors

Industries, Inc.'s (Nil) Dispute Resolution Program ("DRP"), which purports to require

arbitration, as "Electing Entities"; and (2) Plaintiff De La Garza and Intervenor Adame

are signatories to an agreement to participate in Nil's DRP as well.           Among the

documents that Penn Virginia cited to support their argument were a 2008 contract

between Penn Virginia L.P. (PVLP) and Nabors Drilling USA, LP (NDUSA); a 2010

contract between Penn Virginia MC, Energy LLC (PVMC) and NDUSA; and an affidavit

signed by Ernest W. Nelson, dated September 11, 2015 in which Mr. Nelson makes

statements regarding Penn Virginia's "intent" regarding the 2008 and 2010 contracts.

Plaintiff and Intervenor Adame filed responses to Penn Virginia's First Motion to

Compel in which they argued that their claims against Penn Virginia were not subject to

arbitration. Plaintiff De La Garza and Intervenor Adame argued that Plaintiff De La

Garza and Intervenor Adame were not parties to the DRP because the parties to the DRP

were: (1) PVLP and PVMC, and their parent, subsidiary and affiliated corporations, as

well as the employees, officers and directors of each; and (2) the present and former

employees and applicants of NIL Plaintiff De La Garza and Intervenor Adame further

argued that Plaintiff De La Garza and Intervenor Adame were not employees or

applicants of Nil, but were employees of Nabors Completion and Production Services




                                                                                         2
(NCPS). At the time of the incident that is the basis of Plaintiff De La Garza's and

Intervenor Adame's claims, NCPS was a separate entity of Nil, and NCPS and Nil were

both subsidiaries of Nabors Industries Ltd. ("NID").         Plaintiff De La Garza and

Intervenor Adame also objected to the affidavit of Ernest W. Nelson because any

evidence of intent violates the parol evidence rule, as parol evidence is only admissible if

a contract is ambiguous, and there was no showing that either contract was ambiguous.

Plaintiff De La Garza and Intervenor Adame further argued that the contract that covers

the work performed on the date of the incident is a Master Service Contract (MSC) that

was entered into on March 28, 2013 between Penn Virginia Oil and Gas Corporation

("PVOG"), PVLP, PVMC and Plaintiff De La Garza and Intervenor Adame's employer

NCPS. An oral hearing was conducted on September 11, 2015 and this Court issued an

order denying Penn Virginia's First Motion.       Penn Virginia then filed a Motion for

Reconsideration of Order Denying Motion to Compel Arbitration on October 1, 2015.

Attached to Penn Virginia's Motion for Reconsideration, was another affidavit from

Ernest W. Nelson dated October 1, 2015, which again purported to explain Penn

Virginia's "intent" with regard to the 2008 and 2010 contracts. On October 12, 2015 this

Court signed an order denying Penn Virginia's Motion for Reconsideration and further

ordered that the statements in the Affidavit of Ernest W. Nelson regarding intent be

stricken in their entirety.

        On November 3, 2015 Penn Virginia filed its Motion to Compel Arbitration and

to Abate Claims filed by Intervenor Ernesto Gonzalez, Jr. This motion was virtually

identical to Penn Virginia's First Motion to Compel. Attached to Penn Virginia's Motion

to Compel Arbitration and to Abate Claims filed by Intervenor Ernesto Gonzalez, Jr., was




                                                                                          3
the same affidavit dated October 1, 2010 signed by Ernest W. Nelson, containing the

same statements regarding "intent" that this Court previously ordered be stricken in their

entirety. Intervenor Gonzalez timely filed a Response, which made the same arguments

as Plaintiffs De La Garza and Intervenor Adame made in their response to Penn

Virginia's First Motion to Compel. An oral hearing was conducted November 20, 2015.

On November 22, 2015 this Court issued an order granting Penn Virginia's Motion to

Compel Arbitration and Abate Claims filed by Intervenor Ernesto Gonzalez, Jr.

       This Court's order granting Penn Virginia's Motion to Compel Arbitration and to

Abate the claims of Ernesto Gonzalez, Jr. produces a result that is inconsistent with this

Court's previous ruling on Penn Virginia's First Motion to Compel. It would be unfair

for Intervenor Gonzalez to be compelled to arbitration and for his claims to be abated

because Plaintiff De La Garza, Intervenor Adame, and Intervenor Gonzalez are

identically situated with regard to their claims. Intervenor Gonzalez was a coworker of

Plaintiff De La Garza and Intervenor Adame at the time of the incident, was also an

employee ofNCPS, and he was also injured during the same incident. As such, the issue

of whether or not their claims are subject to arbitration should be treated identically.

Furthermore, Penn Virginia did not present any arguments in their Motion to Compel

Arbitration and Abate the claims of Intervenor Gonzalez that were not considered in Penn

Virginia's First Motion to Compel. Intervenor Gonzalez urges this Court to follow the

precedent that was set when this Court ruled that Plaintiff De La Garza and Intervenor

Adame's claims are not subject to arbitration, as there is a strong presumption that

precedents should be followed to foster efficiency, fairness and legitimacy. Weiner v.

Wasson, 900 S.W.2d 316, 320 (Tex. 1995).




                                                                                        4
       For the reasons set forth in Intervenor Gonzalez's Response to Penn Virginia's

Motion to Compel Arbitration and to Abate Claims filed by Intervenor Emesto Gonzalez,

Jr., Intervenor Gonzalez respectfully requests that the Court reconsider the pleadings, the

evidence set forth therein, and the arguments made by Intervenor Gonzalez.

                                              PRAYER

       For the foregoing reasons, Intervenor Emesto Gonzalez, Jr. would urge this court

to reconsider its order granting Penn Virginia's Motion to Compel Arbitration and to

Abate Claims Filed by Intervenor Emesto Gonzalez, Jr.            Should this Court grant

Intervenor Gonzalez's Motion for Reconsideration, Intervenor Gonzalez would urge the

Court to reverse its decision and issue an order denying Penn Virginia's Motion to

Compel Arbitration and to Abate Claims filed by Intervenor Emesto Gonzalez, Jr.

Intervenor Gonzalez also requests all other and further relief, both special and general, at

law and in equity, to which it may be justly entitled.

                                              Respectfully submitted,

                                              /s/ Ana Laura Gutierrez
                                              Ana Laura Gutierrez
                                              State Bar No. 24069843
                                              ana@gutierrezlawfirm.com
                                              J. Javier Gutierrez
                                              State Bar No.
                                              j avier@gutierrezlawfirm.com
                                              THE GUTIERREZ LAW FIRM
                                              700 E. Third Street
                                              Alice, Texas 78332
                                              (361) 664-7377 Telephone
                                              (361) 664-7245 Facsimile

                                              Attorneys for Intervenor
                                              Emesto Gonzalez, Jr.




                                                                                          5
                                Certificate of Conference

        I certify that I have conferred via email with Alexis B. Hester, counsel for
Defendants Penn Virginia Oil & Gas GP, LLC & Penn Virginia Oil & Gas, L.P ., and she
has stated that they are opposed to this Motion.

                                            /s/ Ana Laura Gutierrez
                                            Ana Laura Gutierrez



                                 Certificate of Service

       The undersigned attorney does hereby certify that a true and correct copy of the
foregoing instrument was forwarded to all counsel of record as listed below, by the
method of service indicated, on this 2nd day of December, 2015.

                                            /s/ Ana Laura Gutierrez
                                            Ana Laura Gutierrez

Via Email
John David Hart
Law Office of John David Hart
Wells Fargo Tower
201 Main St. Ste. 1720
Fort Worth, Texas 76102
Attorney For Plaintiffs

Via Email
Alexis M. Butler
Thomas J. Smith
Galloway Johnson Tompkins Burr & Smith, PLC
1301 McKinney Street
Suite 1400
Houston, Texas 77010
Attorneys for Defendants Penn Virginia, Trifecta Oilfield Services, LLC, Mike Ferguson,
The Oaks Group, and Roywell Services, Inc.

Via Email
Benjamin A. Escobar Jr.
Brit T. Brown
Beirne Maynard & Parsons, LLP
1300 Post Oak Blvd., Ste. 2500
Houston, Texas 77056
Attorneys For Defendant Cudd Pressure Control, Inc.




                                                                                      6
