                                                                                                             ACCEPTED
                                                                                                         12-15-00087-CV
                                                                                            TWELFTH COURT OF APPEALS
                                                                                                          TYLER, TEXAS
                                                                                                    9/15/2015 9:36:33 AM
                                                                                                               Pam Estes
                                                                                                                  CLERK

                                  CAUSE NO. 12-15-00087-CV

EXCO OPERATING COMPANY, LP                             §                       IN THE TWELTH
    Appellant                                          §
                                                       §
VS.                                                    §
                                                       §                 COURT OF APPEALS
                                                       §
                                                       §
MARY K. MCGEE,                                         §
    Appellee                                           §                        TYLER, TEXAS

                APPELLEE MARY K. MCGEE’S RESPONSE TO APPELLANT’S
                    MOTION TO SUPPLEMENT BRIEF OF APPELLANT

       Appellee, Mary K. McGee, files this her Response to Appellant EXCO Operating

Company, LP’s Motion to Supplement its Brief, and, in support thereof, would respectfully show

the Court as follows:

                                  I.   ARGUMENT & AUTHORITIES

       Texas Rule of Appellate Procedure 38.7 allows a party to supplement a brief when justice

requires, “on whatever reasonable terms the court may prescribe.” See Tex. R. App. Pro. 38.7.

Appellant argues that they should be entitled to raise new points of error which were not: (1)

raised at the trial court; (2) raised in their original brief; or, even (3), properly raised in their

Reply. While Rule 38.7 may allow a party to supplement their brief under narrow circumstances,

it does not revive arguments that have been waived by a party’s failure to raise the argument at

the trial court, in compliance with Texas Rule of Appellate Procedure Rule 33.1. Appellant’s

Motion, in addition to its inappropriate use of Rule 38.7, thus fatally misses a required first step. 

       Texas Rule of Appellate Procedure 33.1 states that: 

               (a) As a prerequisite to presenting a complaint for appellate
                   review, the record must show that:

               (1) the complaint was made to the trial court by a timely request,
                   objection or motion that;
               (A) stated the grounds for the ruling that the complaining party
                   sought from the trial court with sufficient specificity to make
                   the trial court aware of the complaint, unless the specific
                   grounds were apparent from the context;

Tex. R. App. Pro. 33.1.  

       Thus, questions, points of error or arguments that are not presented to the trial court are

waived. See id.; see also Hardeman v. Judge, 931 S.W.2d 716, 720 (Tex.App.—Fort Worth

1996) citing Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). Furthermore, an objection based

on one legal theory may not be used to support a different legal theory. See Rogers v. State, 291

S.W.3d 148, 151 (Tex.App.—Texarkana 2009). Of course, Appellant admittedly did not raise

this new grounds and alternative theory with the trial court and no authority is cited by them that

addresses that failure, let alone forgives it and revives an argument that has been waived.

Ignoring the lack of authority and the fact that they must meet the requirements of Rule 33.1,

Appellant offers one single excuse; that they discovered “new law.”  

       That concept, Appellee admits, has some intuitive appeal and, for that reason, Appellee

assumes that the characterization was purposefully chosen. The problem is, the “law” is not

“new” in any way that justifies Appellant’s failure to comply with either Rule 33.1 or 38.7. First,

there is no authority cited by Appellant for the proposition that “new law” revives a claim under

Rule 33.1 or to supplement a brief under Rule 38.7. Second, the “law” that is at issue here is

Texas Civil Practice & Remedies Code § 38.001, which has been the law without any revision

since 1985. See Tex. Civ. Prac. & Rem. Code § 38.001. The Houston Court of Appeal’s

interpretation of that statute in Fleming & Assoc.’s v. Barton may be the law for the trial courts

in the 14th District, but it is not the law here. Thus, Appellant’s argument is in essence: (1) we

discovered an argument made by another party in another case; (2) we would like to make that

argument here; (3) we did not raise that argument at the trial court, because we did not think
about it; (4) however, another party did think about the argument and raised it in their case; (5)

we should, therefore, be permitted to make the argument that we did not make and, therefore, did

not preserve, because another party did preserve the argument in different case in another

jurisdiction. If this argument held water, and a party on appeal could raise new arguments that

are waived based on the arguments made by different parties in sister courts, Rule 33.1 would be

meaningless. Appellant, as mentioned, however, does not address this fatal deficiency in its

motion at all. 

        Instead, Appellant argues that this “new law” should permit them to supplement their

original briefing, to which Appellee has already responded, thus necessitating another round of

briefing, under Rule 38.7. The case cited, Fleming & Assoc.’s v. Barton, however, was issued in

February 2014, or nineteen months ago. This case was tried on February 13, 2014. The issue of

attorney’s fees was briefed after Fleming was decided and the trial court did not issue its

Findings of Facts and Conclusions of Law, deciding the issue of attorney’s fees, until January 7,

2015. Thus, the case upon which Appellant claims “justice” requires supplementation, was

issued almost two years prior Appellant’s motion to supplement, a year and half prior to their

Reply brief, over a year prior to Appellant’s original brief and this appeal. With respect to Rule

33.1, Appellant had almost a year to raise this argument before the trial court. Under Rule 38.7,

Appellant clearly could have raised this case, and this argument, in its original brief. Appellant’s

reason for not raising it is that they did not know about it. “Justice” does not require

supplementation based on a party’s ignorance of a case issued prior to the underlying case being

resolved, prior to appeal, and prior to filing original briefs. In fact, “justice” demands the

opposite. Appellant’s inexcusable ignorance of Fleming and their attempt to overcome their

failure to comply with Rule 33.1 and Rule 38.1 in raising the issue at trial and in their original
brief, has caused and continues to cause Appellee further expense and undue burden. Absent

some extraordinary circumstances, none of which exist here, the trial court and Appellee are

entitled to rely on the arguments Appellant made below; not face newly asserted legal theories

which create a moving target and a perpetual cycle of briefing and re-briefing.  

                                           II.      PRAYER

       For these reasons, Appellee respectfully asks the Court to deny Appellant’s motion 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 15, 2015 I served a copy of Appellee Mary K. McGee’s

Response to Appellant’s Motion to Supplement Brief of Appellant on Appellant EXCO

Operating Company, LP 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
