                                                    FILED
                                                    14-0804
                                                    8/27/2015 4:12:30 PM
                                                    tex-6687976
                                                    SUPREME COURT OF TEXAS
                                                    BLAKE A. HAWTHORNE, CLERK


                    NO. 14-0804


                   In the
            Supreme Court of Texas

      IN RE SENECA RESOURCES CORPORATION,

                                         Relator.


           Original Proceeding from the
     234th District Court, Harris County, Texas
               Cause No. 2013-01325

        PETITION FOR WRIT OF MANDAMUS
                  REPLY BRIEF


             BAKER & HOSTETLER LLP

W. Ray Whitman                    Alexander D. Burch
rwhitman@bakerlaw.com             aburch@bakerlaw.com
State Bar No. 21379000            State Bar No. 24073975
Douglas D. D’Arche                Jordan A. Sinclair
ddarche@bakerlaw.com              jsinclair@bakerlaw.com
State Bar No. 00793582            State Bar No. 24079341

              811 Main St., Suite 1100
                Houston, TX 77002
             (713) 751-1600 Telephone
             (713) 751-1717 Facsimile

          ATTORNEYS FOR RELATOR SENECA
             RESOURCES CORPORATION




            ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS

Table of Contents ...................................................................................... 1

Table of Authorities ................................................................................... 2

Reply .......................................................................................................... 5

        I.       Introduction. ............................................................................ 5

        II.      Seneca has no burden to negate the Pennywells’ legally
                 invalid construction of Rule 329b(e). ...................................... 9

                 A.       The Pennywells’ motion for new trial negated
                          their standing as a “party” under Rule 329b(e). ........... 9

                 B.       The Pennywells have the burden to prove their
                          alleged Rule 329b(e) “party” status. ............................ 13

                 C.       The term “party” in Rule 329b(e) refers only to
                          parties of record. .......................................................... 15

        III.     The Wrongful Death Act does not automatically confer
                 “party” status to beneficiaries that do not sue. .................... 22

        IV.      The     Pennywells’           post-judgment                  intervention
                 arguments fail under this Court’s opinion in State of
                 Texas v. Naylor. ..................................................................... 25

Conclusion & Prayer ............................................................................... 31

Certification of Factual Statements........................................................ 33

Certificate of Compliance ........................................................................ 33

Certificate of Service ............................................................................... 34




                                                        1
                                     TABLE OF AUTHORITIES
                                                                                                      Page(s)

Cases
Avila v. St. Luke’s Lutheran Hosp.,
   948 S.W.2d 841 (Tex. App.—San Antonio 1997, no pet.) ..........................23, 24
Brantley v. Boone,
   34 S.W.2d 409 (Tex. App.—Eastland 1931, no writ) ........................................24

In re Brookshire Grocery Co.,
    250 S.W.3d 66 (Tex. 2008)...........................................................................14, 15

City of San Benito v. Rio Grande Valley Gas Co.,
   109 S.W.3d 750 (Tex. 2003) ..................................................................16, 17, 18
Dennis v. Gulf, C. & S.F. Ry. Co.,
  224 S.W.2d 704 (Tex. 1949) ................................................................................ 6

First Alief Bank v. While,
   682 S.W.2d 251 (Tex. 1984) ..............................................................................26
Galveston, H. & S.A. Ry. Co. v. Pennington,
  166 S.W. 464 (Tex. 1914).....................................................................................6
Heckman v. Williamson Cnty.,
  369 S.W.3d 137 (Tex. 2012) ........................................................................13, 20

Long v. Knox,
  291 S.W.2d 292 (Tex. 1956) ................................................................................ 8

In re Lovito-Nelson,
    278 S.W.3d 773 (Tex. 2009) (per curiam) ...................................................15, 20
In re Lumbermens Mut. Cas. Ins. Co.,
    184 S.W.3d 718 (Tex, 2006) ..............................................................................26

Nelson v. Galveston,
   14 S.W. 1021 (Tex. 1890).............................................................................23, 24

Pleasant Glade Assembly of God v. Schubert,
   264 S.W.3d 1 (Tex. 2008).....................................................................................8
                                                       2
Presdio Indep. Sch. Dist. v. Scott,
   309 S.W.3d 927 (Tex. 2010) ........................................................................15, 17

In re State & $15,975.85,
    221 S.W.3d 713 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..........16, 20, 30

State Mut. Ins. v. Kelly,
   915 S.W.2d 224 (Tex. App.—Austin 1996, no pet.) ..............................16, 20, 30

State of Texas v. Naylor,
   __ S.W.3d __, Nos. 11-0114 & 11-0222, 2015 WL 3852284 (Tex.
   June 19, 2015) ..............................................................................................passim

Tex. Dep’t of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ..............................................................................14

Tex. Mut. Ins. Co. v. Ledbetter,
   251 S.W.3d 31 (Tex. 2008)...........................................................................26, 29

In re Union Carbide,
   273 S.W.3d 152 (Tex. 2008) ..............................................................................14
Walker v. Packer,
  827 S.W.2d 833 (Tex. 1992) ..............................................................................14

Zanchi v. Lane,
  408 S.W.3d 373 (Tex. 2013) ........................................................................15, 17

Zorilla v. Aypco Constr. II, LLC,
   __ S.W.3d __, No. 14-0067, 2015 WL 3641299
   (Tex. June 12, 2015) ...........................................................................................15

Statutes
TEX. CIV. PRAC. & REM. CODE § 16.003(b) .............................................................10

TEX. CIV. PRAC. & REM. CODE § 71.004......................................................10, 22, 23

TEX. CIV. PRAC. & REM. CODE § 154.002.................................................................. 5

Rules
TEX. R. CIV. P. 193.6 ..........................................................................................18, 19

                                                         3
TEX. R. CIV. P. 329b ..........................................................................................passim

TEX. R. CIV. P. 39 .....................................................................................................19

TEX. R. CIV. P. 39, 40 ...............................................................................................16

TEX. R. CIV. P. 60 .....................................................................................................26

TEX. R. CIV. P. 93 .....................................................................................................12




                                                           4
                                      REPLY

I.    Introduction.

      This Court should grant Seneca mandamus relief from the trial

court’s void orders entered after its plenary power expired and reinforce

the well-settled practice of courts encouraging peaceable resolutions of

disputes. See, e.g., TEX. CIV. PRAC. & REM. CODE § 154.002 (“It is the

policy of this state to encourage the peaceable resolution of disputes . . .

and the early settlement of pending litigation through voluntary

settlement procedures.”). Requiring the trial court to set aside its void

orders in the underlying action will prevent nonparties to a lawsuit, like

the Pennywells, who failed to timely assert their own rights under the

Wrongful Death Act, if any, from interfering with the parties’

agreement to resolve their dispute and voluntarily dismiss the suit.

      The Pennywells seek to force the parties of record in the

underlying action into further undesired litigation in a court that lacks

jurisdiction over the case because “of the prospect that the judgment

would bind [the Pennywells]” despite claiming in the trial court that the

judgment was not binding on them. (Response1 at 11) (emphasis added);


1The Pennywells’ brief filed in this Court on July 20, 2015, and titled “Real Party in
Interest’s Brief on the Merits” is referred to herein as the “Response.”

                                          5
(MR0136). The Pennywells also attempt to characterize the underlying

proceeding as shrouded in secrecy in an apparent effort to shift the

Court’s focus away from the fact that they did not bring their own

lawsuit. (Response at 3-5). However, no “party” in the underlying action

had any obligation to provide notice to the Pennywells. See, e.g., TEX.

CIV. PRAC. & REM. CODE 71.001-.012 (lacking notice requirements under

the Wrongful Death Act for potential beneficiaries that do not bring

suit); Dennis v. Gulf, C. & S.F. Ry. Co., 224 S.W.2d 704, 705 (Tex. 1949)

(recognizing that a beneficiary may bring a wrongful death action

without the knowledge or consent of other beneficiaries); Galveston, H.

& S.A. Ry. Co. v. Pennington, 166 S.W. 464, 470 (Tex. 1914) (holding

that, although the Wrongful Death Act “is subject to criticism for not

providing some kind of legal notice [to] those not bringing suit,” the Act

is not unconstitutional on that ground).

     Substantively, the Pennywells try to argue that their motion for

new trial extended the trial court’s plenary power period over the case

because they each obtained “party” status under Rule 329b(e) of the




                                    6
Texas Rules of Civil Procedure 2 either through the Wrongful Death Act

or the rules governing post-judgment intervention. (Response at 15, 31).

As a result, they wrongfully contend that the trial court’s orders

granting their motion for new trial and setting aside its final judgment

were not void.

      To fabricate their “party” status theories, the Pennywells simply

make up their own rule regarding Rule 329b “party” status without

offering any supporting basis for it. They contend that “party” status for

a nonparty under Rule 329b(e) “focuses on the suit’s capacity to bind”

the nonparty. (Id. at 13-14). Based on this unsupported and fictitious

theory, the Pennywells argue that Seneca’s refusal to take a position on

the binding effect of the agreed judgment in the underlying action

precludes mandamus relief in this Court.

      No court has ever construed Rule 329b(e) as requiring a trial court

to engage in an advisory res-judicata-type analysis when determining

whether it has jurisdiction to act on a nonparty’s motion for new trial.

In any event, as shown below, the question of whether the subject

2 Rule 329b(e) provides that “[i]f a motion for new trial is timely filed by any part,
the trial court . . . has plenary power to grant a new trial or to vacate, modify, or
correct, or reform the judgment until thirty days after all such timely-filed motions
are overruled . . . .” TEX. R. CIV. P. 329b(e).

                                          7
agreed judgment in the underlying case is, or is not, binding on the

Pennywells is irrelevant and does not change the fact that the

Pennywells did not possess Rule 329b(e) “party” status when they filed

their motion for new trial. Therefore, regardless of which self-

contradicting position the Pennywells now take regarding the binding

effect of the subject judgment—in the trial court they argued the

judgment was not binding on them, but argue the exact opposite in this

Court 3—Seneca had no burden to prove the Pennywells lacked standing

as a Rule 329b(e) party.

      The Pennywells’ two Rule 329b(e) “party” status theories also lack

merit. As shown below, their first theory under the Wrongful Death Act

is not supported by the Act and the second, post-judgment intervention

theory has been repeatedly rejected, most recently by this Court in


3  Judicial estoppel would ordinarily preclude the Pennywells from taking one
position in the underlying proceeding and a diametrically opposite position in this
original proceeding. Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956) (“Under the
doctrine of judicial estoppel, as distinguished from equitable estoppel by
inconsistency, a party is estopped merely by the fact of having alleged or admitted
in his pleadings in a former proceeding under oath the contrary to the assertion
sought to be made.”). But since the binding effect of the judgment in the underlying
action is not relevant to a court’s Rule 329b(e) “party” status analysis, this Court
need not concern itself with the Pennywells’ attempt to use self-contradiction as a
means of obtaining unfair advantage. See Pleasant Glade Assembly of God v.
Schubert, 264 S.W.3d 1, 6 (Tex. 2008) (recognizing the function of judicial estoppel
“is to prevent the use of intentional self-contradiction as a means of obtaining unfair
advantage”).

                                          8
State of Texas v. Naylor, __ S.W.3d at __, Nos. 11-0114 & 11-0222, 2015

WL 3852284 (Tex. June 19, 2015).

II.   Seneca has no burden to negate the Pennywells’ legally
      invalid construction of Rule 329b(e).

      The Pennywells first contend that Seneca cannot prevail in this

mandamus proceeding because it has not taken a position on whether

the agreed final judgment is binding on the Pennywells. This argument

stems from the Pennywells’ faulty premise that Rule 329b(e) “party”

status depends on whether the trial court’s signing of the agreed final

judgment was binding on the Pennywells. (Response at 14). Contrary to

the Pennywells’ assertions, Seneca has no burden in this original

proceeding to negate the Pennywells’ legally invalid arguments,

including their incorrect construction of Rule 329b(e).

      A.   The Pennywells’ motion for new trial negated their
           standing as a “party” under Rule 329b(e).

      The Pennywells’ motion for new trial in the underlying action

actually negates their alleged Rule 329b(e) “party” status. As the

Pennywells observe, the underlying wrongful death action was brought

against Seneca and others in September of 2012 by Tammi McCoy,

individually and on behalf of the surviving heirs of Brandon Pennywell,

seeking to recover damages for Brandon Pennywell’s April 5, 2012
                                    9
death at a drilling rig site. (MR0003). Pursuant to an agreed motion,

the trial court dismissed “all claims of Plaintiff” on March 26, 2014,

(MR0117), and on April 3, 2014, entered its final judgment dismissing

all remaining claims, (MR0131). The Pennywells filed a motion for new

trial 26 days after the statute of limitations had run on any wrongful

death claims, and just four days before the trial court’s plenary power

period expired under Rule 329b. (MR0131, 0134); see also TEX. CIV.

PRAC. & REM. CODE § 16.003(b) (establishing a two-year limitations on

an action for injuries causing death); TEX. R. CIV. P. 329b(d) (providing a

plenary power period of thirty days for a trial court to vacate or modify

its judgment). The Pennywells did not attach an affidavit or any other

evidence to their motion.

      In their motion, the Pennywells described themselves as “Joyce

Ann Pennywell and Alana Pennywell, wife and daughter, of Brandon

Pennywell, deceased, Curly and Rachel Pennywell, mother and father,[4]

of Brandon Pennywell, deceased, and interested parties.” (MR0134).

Notably, the Pennywells alleged in their motion in numerous ways that


4The Pennywells clarify in this Court that, contrary to their trial court allegations,
Curly and Rachel Pennywell are actually the grandparents of Brandon Pennywell,
not his mother and father. (Response at 2 & 4n.1).

                                         10
they were not actually parties to the underlying action. For example,

the Pennywells alleged the underlying suit was “filed and settled

without any notice to the Pennywell[s]” and that the “Pennywell[s] and

their counsel did not know of this lawsuit’s existence until after the

Order of Dismissal was signed.” (MR0135) (emphasis added). They also

alleged that “[n]either Plaintiff McCoy nor her counsel had legal

authority to bind the Pennywell[s],” the court’s judgment “will not be

binding on the Pennywell[s],” and that “McCoy already has received

settlement funds, but she has not done so on behalf of the Pennywell[s].”

(MR0135-36) (emphasis added).

     Based on the Pennywells’ allegations in their motion for new trial,

one or all of the following facts must be true: (1) the Pennywells are not

surviving heirs of Brandon Pennywell whom McCoy had prosecuted the

underlying action on behalf of; (2) the Pennywells are not within the

class of persons protected under the Wrongful Death Act; (3) the

underlying action was not prosecuted for their benefit; and/or (4) McCoy

and her counsel lacked the authority to bring the suit on behalf of the




                                   11
Pennywells. 5 Each of these facts raises significant concerns regarding

the Pennywells’ standing as a party in the underlying action. None of

them, however, confer “party” status on the Pennywells to extend the

trial court’s plenary power period under Rule 329b(e). Therefore, in

response to the Pennywells’ motion for new trial, Seneca argued that

the Pennywells lacked standing as a “party” to the underlying action

and, thus, their motion for new trial did not extend the trial court’s

plenary power period under Rule 329b(e). (MR0150-51).

      In their reply filed in the underlying action, the Pennywells again

did not include evidence to support their position and again distanced

themselves from “party” status in the underlying action by arguing as

follows: “The motion should be granted because of the Pennywell[s] total

exclusion from the proceedings that led to the April 1 dismissal order.”

(MR0162). Although they claim they were totally excluded from the

underlying action, they now present two alternative legal arguments

which they assert establishes their “party” status (i.e., standing) under

Rule 329b(e): (1) the Wrongful Death Act automatically conferred upon

5 A challenge to a plaintiff’s legal capacity to sue must be raised by a verified
pleading. TEX. R. CIV. P. 93(1)-(2). The Pennywells did not file a verified pleading
and did not challenge McCoy’s capacity to sue on behalf of the estate of Brandon
Pennywell under the Wrongful Death Act.

                                        12
each of them Rule 329b(e) “party” status; and (2) they timely intervened

post judgment. (MR0163-65).

     Seneca first addresses the Pennywells’ incorrect assertion that it

has the burden to prove the Pennywells are not bound by the judgment

in the underlying action and then shows that the Pennywells’ Wrongful

Death Act and post-judgment intervention arguments lack merit.

     B.    The Pennywells have the burden to prove their
           alleged Rule 329b(e) “party” status.

     The Pennywells had the burden to establish their purported Rule

329b(e) “party” status in the underlying action since their motion and

Seneca’s response raised the issue of the Pennywells’ standing as a Rule

329b(e) “party” in the trial court. They did not meet this burden in the

underlying action and their legal arguments in this proceeding are

unavailing.

     “Standing is a component of subject matter jurisdiction and

appellate standing is typically afforded ‘only to parties of record.’”

Naylor, 2015 WL 3852284, at *2 (citations omitted). The burden of proof

to establish standing rests with the party asserting it. See, e.g.,

Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) (“The burden

is on the plaintiff to affirmatively demonstrate the trial court’s

                                  13
jurisdiction.”); see also In re Union Carbide, 273 S.W.3d 152, 155 (Tex.

2008) (providing that, when standing to intervene is challenged, “the

intervenors have the burden to show a justiciable interest in the

pending suit”); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004) (establishing summary judgment like standards

regarding evidence of standing). This Court always has jurisdiction to

resolve questions of standing and jurisdiction and resolves those

questions via de novo review. Naylor, 2015 WL 3852284, at *2.

     Seneca seeks relief in this original proceeding from void orders

entered by a trial court that lacked plenary power—i.e., jurisdiction—

over the case. In re Brookshire Grocery Co., 250 S.W.3d 66, 68-69 (Tex.

2008) (“Mandamus relief is appropriate when a trial court issues an

order after its plenary power has expired.”). To determine whether the

trial court had jurisdiction to set aside its final judgment when it did

requires an interpretation of Rule 329b of the Texas Rules of Civil

Procedure and an application of the law to the facts. Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) (“A trial court has no ‘discretion’ in

determining what the law is or applying law to facts.”). Specifically, this

case centers on whether a motion for new trial filed by nonparties, like


                                    14
the Pennywells, extends the trial court’s plenary power period under

Rule 329b(e). Thus, the initial focus of this Court is the proper

construction of Rule 329b. “The scope of a procedural rule is a question

of law, . . . review[ed] de novo by applying the same cannons of

construction applicable to statutes.” Zorilla v. Aypco Constr. II, LLC, __

S.W.3d __, No. 14-0067, 2015 WL 3641299, at *10 (Tex. June 12, 2015));

see, e.g., In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009) (per

curiam) (construing Rule 329b); In re Brookshire Grocery Co., 250

S.W.3d at 68-69 (same).

     C.    The term “party” in Rule 329b(e) refers only to parties
           of record.

     As set forth in Seneca’s brief on the merits, the term “party” for

purposes of Rule 329b(e) refers to the parties of record (i.e., named

parties in the lawsuit). (Seneca’s Brief on the Merits at p. 23) (citing

Zanchi v. Lane, 408 S.W.3d 373, 378 (Tex. 2013); Presdio Indep. Sch.

Dist. v. Scott, 309 S.W.3d 927, 929-30 (Tex. 2010); BLACK LAW

DICTIONARY 1232 (9th ed. 2009)). The rules of procedure provide many

avenues by which a person can obtain party-of-record status; none of

which apply to the Pennywells, who contend they were totally excluded

from the underlying action. See, e.g., TEX. R. CIV. P. 39, 40 (providing

                                   15
mechanisms for joinder of persons to lawsuits as parties of record); see

also (MR0162). Thus, the Pennywells’ motion for new trial had no effect

on the trial court’s jurisdiction to enter further orders in the case

because they were not made parties to the underlying lawsuit prior to

the expiration of the court’s plenary power period. See TEX. R. CIV.

P. 329b (providing that only motions for new trial filed by “any party”

operates to extend the trial court’s plenary power period); see also In re

State & $15,975.85, 221 S.W.3d 713, 715 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (“As a nonparty, his motion for new trial could not

extend the trial court’s plenary power.”); State Mut. Ins. v. Kelly, 915

S.W.2d 224, 227 (Tex. App.—Austin 1996, no pet.) (“[O]nly a motion for

new trial filed by a party of record automatically extends the trial

court’s plenary power.”).

     The    Pennywells’     present   this   Court   with   an   erroneous

construction of Rule 329b(e) “party” status. Relying on this Court’s

decision in City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d

750 (Tex. 2003), the Pennywells contend a trial court’s analysis of Rule

329b(e) “party” status for a nonparty that files a motion for new trial

focuses on whether the complained-of judgment is binding on the


                                      16
moving nonparty. (Response at 13). Neither the City of San Benito

opinion nor any other court opinion supports the Pennywells’

construction of Rule 329b. Indeed, City of San Benito does not even

mention Rule 329b 6 and was limited to “the procedural rules governing

class actions” and the common law rule that unnamed class members

are “deemed” parties for purposes of appeal under the virtual

representation doctrine. 109 S.W.3d at 754-55. Specifically, that case

addressed whether unnamed class members who opted out of a class

action lawsuit and objected to settlement were required to first

intervene in the trial court to be considered “parties for purposes of

appeal.” Id. at 755-56 (emphasis added) (holding that unnamed class

members who “opted out and objected to settlement” had standing to

appeal; but those class members that did not opt out or object to the

settlement did not).




6 Ironically, this is the sole basis for the Pennywells’ attempt to distinguish the
Court’s more recent opinions in Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) and
Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010), both of which
analyze a litigant’s “party” status. (Response at 23-24). Yet, the Pennywells offer no
explanation why the Court’s pronouncement in Zanchi—that construing the term
“party” to mean a party of record “is consistent with the definition of the term party
in the Texas Rules of Civil Procedure”—does not apply to Rule 329b. See Zanchi,
408 S.W. 3d at 379.

                                         17
      The underlying wrongful death suit is not a class action and this

proceeding is not an appeal from the trial court’s judgment. Thus, the

City of San Benito opinion simply has no bearing on any issue presented

in this original proceeding or in the underlying case.

      The Pennywells also cite to Rule 193.6 of the Texas Rules of Civil

Procedure 7 relating to discovery and argue that, if this Court wanted to

limit Rule 329b(e) “party” status to named parties, the Court would

have explicitly stated “any named party” in the rule. (Response at 22-

23). For this argument to advance the Pennywells’ position in any

meaningful way, the argument requires the Court to read the absence

of the term “named” between the terms “any” and “party” in Rule

329b(e) to mean that the term “any party” in the rule means “any

person.” There is no basis to conclude the Court used the term “party” in

Rule 329b(e) to mean “person.” This Court clearly treats these terms

differently throughout the Rules of Civil Procedure to distinguish

7 Not only do the Pennywells contradict their position in the trial court by arguing
in the trial court they are not bound by the judgment in the underlying action and
then arguing here the exact opposite, e.g., infra at 27, but they contradict
themselves within the same page of their Response brief by citing to discovery rules
to support their position and then contending it is inappropriate to look to discovery
rules to inform this Court’s analysis of “party” status under Rule 329b. Compare
Response at 22 (“Discovery rules do not define “any party” in Rule 329b) with id. at
22 (citing Rule 193.6 to argue that this “[c]ourts knows what to look for in a rule
that applies named parties”).

                                         18
between those who are parties of record and those who are not. See, e.g.,

TEX. R. CIV. P. 39 (“A person who is subject to process shall be joined as

a party in the action if . . . .” (emphasis added)); see also id. 40 (“Persons

having claims against the plaintiff may be joined as defendants . . . .”).

Accordingly, the Pennywells reference to Rule 193.6 does not help their

cause.

      The Pennywells’ erroneous construction of “any party” in Rule

329b(e) would also require a trial court to engage in an analysis of the

binding effect of its prior judgment entered in the case on the nonparty

that files a motion under Rule 329b. (Response at 13). Such a

construction of Rule 329b(e) injects unnecessary uncertainty into the

rule leaving parties of record at risk of not knowing when a judgment is

final, or when the deadline for filing a notice of appeal has run in the

event a nonparty files a motion for new trial. In addition, the

Pennywells’ argument that trial courts should determine whether a

judgment is binding on a nonparty to ascertain if the nonparty is a

“party” under Rule 329b(e) impermissibly authorizes an advisory res-

judicata-type analysis into the binding effect of the court’s final

judgment on nonparties in the context of a motion for new trial.


                                     19
Heckman, 369 S.W.3d at 147 (recognizing that the Texas Constitution

prohibits courts from rendering advisory opinions); see also (Response

at 20) (arguing that “[r]es judicata precedents support the judgment’s

binding effect as well”).

     The Pennywells’ construction of Rule 329b(e) attempts to blur the

clarity of the rule regarding who may extend the trial court’s plenary

power period over a particular case with a construction that contradicts

its plain language. Such a construction also conflicts with this Court’s

prior precedent providing that Rule 329b should establish bright-line

rules for litigants because uncertainty in the rule “would carry over to

appellate deadlines and possibly give rise to mandamus proceedings,

like this one.” In re Brookshire, 278 S.W.3d at 775-76. This Court should

grant review of this case to reaffirm the bright line rule of construction

for Rule 329b and hold that the term “party” in Rule 329b(e) refers only

to parties of record and, therefore, a nonparty’s motion for new trial

does not extend a trial court’s plenary power period. See, e.g., In re State

& $15,975.85, 221 S.W.3d at 715 (“As a nonparty, his motion for new

trial could not extend the trial court’s plenary power.”); Kelly,




                                    20
915 S.W.2d at 227 (“[O]nly a motion for new trial filed by a party of

record automatically extends the trial court’s plenary power.”).

     As shown above and in Seneca’s brief on the merits, Rule 329b(e)

makes clear that only parties of record may extend a trial court’s

plenary power period by filing a motion for new trial. TEX. R. CIV.

P. 329b(e). The rule does not independently confer “party” status on

nonparties and does not require trial court’s to perform an analysis of

the binding effect of its judgment on a nonparty to assess its jurisdiction

to set aside or modify its final judgment.

     Thus, contrary to the Pennywells’ arguments, Seneca had no

burden in the trial court to establish the Pennywells’ lack of standing

and likewise has no burden to do so in this original proceeding.

Similarly, Seneca has no burden to negate the Pennywells’ legally

incorrect construction of Rule 329b. And, as shown below, neither the

Wrongful    Death    Act   nor   the     rules   governing   post-judgment

interventions conferred the necessary party-of-record status on the

Pennywells in the underlying action that Rule 329b(e) requires.




                                    21
III. The Wrongful Death Act does not automatically confer
     “party” status to beneficiaries that do not sue.

     The   Pennywells’    theory   that   they   automatically   obtained

Rule 329b(e) “party” status in the underlying action through the

Wrongful Death Act lacks merit. The Wrongful Death Act does not

provide a person with Rule 329b(e) “party” status in a suit the person

did not bring. The Act merely provides who may “benefit” from a

wrongful death suit and who may “bring” such a suit. TEX. CIV. PRAC. &

REM. CODE § 71.004(a), (b). Nevertheless, the Pennywells contend that

the Wrongful Death Act automatically made each of them Rule 329b(e)

parties to the underlying action since the suit’s inception. (Response at

15-17). Nothing in the Act supports the Pennywells’ theory.

     Lacking express language in the Act to support their automatic

Rule 329b “party” argument, the Pennywells invoke the Wrongful

Death Act’s one-suit policy as the basis for their purported “party”

status in the underlying action. (Response at 15-16) (arguing section

71.004(a) of the Act’s use of the term “exclusive benefit” codified the

common law one-suit rule for wrongful death actions). Specifically, they

argue that the Legislature’s use of the term “exclusive benefit” in




                                   22
section 71.004(a) of the Act 8 conferred “party” status on beneficiaries to

challenge a judgment in a wrongful death action under Rule 329b.

(Response at 16) (“Because the Legislature mandates that a single

action exist for the Pennywell Family’s ‘exclusive benefit,’ the

Pennywell[s] [each] constitute a ‘party’ for purposes of challenging the

resulting judgment.”). The Pennywell’s reliance on the Wrongful Death

Act’s one-suit policy is misplaced.

      The Wrongful Death Act’s one-suit policy was first announced in

1890 by the Texas Supreme Court in Nelson v. Galveston, 14 S.W. 1021

(Tex. 1890) and has remained unchanged since then. See, e.g., Avila v.

St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 850-51 (Tex. App.—San

Antonio 1997, no pet.) (discussing the Act’s one-suit policy and

observing     that    “[a]lthough     the     act   has   undergone       numerous

recodifications, the import of the act has remained the same”). The

Nelson opinion expressly recognized that the Act does not mandate only

one suit; rather the Act’s one-suit policy mandates only one recovery for

beneficiaries: “If the mother and one child sue, and recover only the


8Section 71.004(a) provides that “[a]n action to recover damages as provided by this
subchapter is for the exclusive benefit of the surviving spouse, children, and parents
of the deceased.” TEX. CIV. PRAC. & REM. CODE § 71.004(a).

                                         23
compensation awarded them by a verdict, and, as in this case, another

child sues, it cannot be precluded [from also suing] on the ground that

one action has been brought by all the beneficiaries, or that one

beneficiary has brought the action for all, because no such action has

been brought.” Id. Notably, the Court also observed in the Nelson case

that the Act’s contemplation of only one suit operates “to prevent the

defendant, the company, from being subjected to a double payment to

any one beneficiary.” Id.; see also Avila, 948 S.W.2d at 850-51 (providing

that the one-suit policy of the Act is for the benefit of the defendant)

Brantley v. Boone, 34 S.W.2d 409, 411 (Tex. App.—Eastland 1931, no

writ) (same). Thus, the Act’s one-suit policy bars subsequent actions

only where full recovery occurred in the first action. Again, the

Pennywells did not file their own suit. Therefore, Seneca and the other

defendants in the underlying action had no reason to invoke the double-

recovery protections of the Wrongful Death Act’s one-suit policy. More

importantly, the one-suit policy does not confer “party” status of any

sort to Wrongful Death Act beneficiaries, like the Pennywells, who did

not bring suit and were not otherwise joined in a wrongful death action

initiated by others.


                                   24
      In an effort to save their unmeritorious arguments under the

Wrongful Death Act, the Pennywells assert that McCoy’s use of the

term “on behalf of” “makes up for any work the statute itself does not do

in binding the Pennywell[s] to the judgment.” (Response at 11). Again,

whether the subject judgment is binding on the Pennywells has no

bearing on their status as Rule 329b(e) parties. Moreover, the

Pennywells cannot escape their own allegations in the trial court, which

as shown above, provide that the underlying action totally excluded

them, it was not brought on their behalf, and the complained-of

judgment is not binding on them. (MR0135, 162). In any event, the

Pennywells failed to provide the trial court with any affidavit or other

evidence that would have established their purported standing under

the Wrongful Death Act or as a Rule 329b(e) party. Accordingly, neither

the Wrongful Death Act nor the record in this proceeding establishes

the Pennywells’ party-of-record status under Rule 329b(e).

IV.   The Pennywells’ post-judgment intervention arguments
      fail under this Court’s opinion in State of Texas v. Naylor.

      The Pennywells’ attempt to intervene post-judgment also did not

provide them with Rule 329b(e) “party” status. The Pennywells do not

dispute the legal rule prohibiting trial courts from considering post-

                                   25
judgment requests to intervene in a case unless and until the trial court

first sets aside its judgment. See Naylor, 2015 WL 3852284, at *2

(“[O]ur common law dictates that a party may not intervene post-

judgment unless the trial court first sets aside the judgment.”); First

Alief Bank v. While, 682 S.W.2d 251, 252 (Tex. 1984) (“[A] plea in

intervention comes too late if filed after judgment and may not be

considered unless and until the judgment has been set aside.”). Instead,

they claim an exception to this well-settled rule applies to them.

       The Pennywells contend they obtained automatic Rule 329b(e)

“party” status through their post-judgment intervention under Rule 60

of the Texas Rules of Civil Procedure. (Response at 31). They reason

that    extraordinary   circumstances    allowed   their   post-judgment

intervention request to circumvent the legal rule barring intervention

post-judgment until the judgment is set aside. (Response at 32). For

support, the Pennywells rely on virtual-representation-doctrine cases,

which provide a limited exception to the general rule that only parties

of record may appeal a judgment. (Id. at 32-33) (citing Tex. Mut. Ins. Co.

v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008); In re Lumbermens Mut.

Cas. Ins. Co., 184 S.W.3d 718 (Tex, 2006)).


                                   26
     This Court recently rejected arguments similar to those made by

the Pennywells. In Naylor, the State of Texas argued it had standing to

intervene and pursue an appeal from a same-sex divorce action based

on the State’s post-judgment intervention request or alternatively based

on equitable principles under the virtual representation doctrine.

2015 WL 3852284, at *2. Before addressing these arguments, the Court

recognized that Texas’s intervention doctrine is expansive “but not

without limits” and affirmed the legal rule that a person may not

intervene post-judgment unless and until the trial court first sets aside

its judgment. Id. The Court then found that the State’s post-judgment

petition in intervention filed the day after the judgment was entered

was untimely as the trial court never set aside its judgment to entertain

the State’s arguments. Id. at *3. Therefore, the Court held, “as a simple

matter of fact and record, the State is not a party to the case.” Id. As

shown above, the same is true for the Pennywells in the underlying

action.

     The Naylor Court next addressed the State’s equitable arguments,

which the State contended supplied the State’s standing on appeal.

First, the Court rejected the State’s attempt to invoke the virtual


                                   27
representation doctrine as a basis for appellate standing. Id. In doing

so, the Court first recognized that “a third party may file an appeal

where the prospective appellant is ‘deemed to be a party’ under the

doctrine of virtual representation.” Id. at *3 (emphasis added). The

Court then observed, however, that this limited equitable doctrine does

not empower courts to create standing where none exists. Id. at *5.

     The State next argued for a separate “equitable basis for appellate

standing in light of the unusual importance of the issues presented.” Id.

at *4. The Supreme Court acknowledged the significant constitutional

issues involved in the same-sex divorce action, but refused to create an

additional exception to the post-judgment intervention rules. Id. at *4

(“[A]ny challenge to our marriage laws is an affront not only to the laws

themselves, but also to the people of Texas.”). In doing so, the Court

observed that, “before [courts] can evaluate the equity of intervention,

the prospective intervenor must establish its standing to present its

arguments on appeal.” Id. at 5. The Pennywells find themselves in a

similar scenario in this proceeding in that they argue equity

considerations without establishing their standing to extend the trial

court’s plenary power period under Rule 329b(e).


                                   28
      In this Court, the Pennywells attempt to fit their situation into

the virtual representation doctrine line of cases by taking the opposite

position they asserted in the trial court. The Pennywells claim in their

brief that McCoy abandoned their rights and, therefore, sufficient

exceptional circumstances exist to circumvent the general rule barring

post-judgment intervention. (Response at 32) (citing Ledbetter, 251

S.W.3d at 36). 9 But the Pennywells did not claim in the trial court that

McCoy abandoned their interests. Instead, the Pennywells argued that

their interests were not represented by McCoy at all. Specifically, they

provided in their motion for new trial that they had independent

counsel and were not represented by McCoy’s counsel, they were totally

excluded from the underlying suit and had no notice of the suit, McCoy

had no authority to represent their interests, and the trial court’s

judgment was not binding on them. (MR0135-36, 162). Thus, the trial

court had no basis to apply the virtual representation doctrine in the

manner proposed by the Pennywells in this Court. Moreover, no Court




9The Pennywells’ attempt to characterize the underlying action as being pursued in
secrecy strains credulity given that lawsuits are public proceedings and the
underlying action is based in the largest county by population in the State.

                                       29
has applied the virtual representation doctrine to confer “party” status

under Rule 329b(e) to extend a trial court’s plenary power period.

     As a matter of equity, fairness, and consistency, if the State of

Texas’s important interest in protecting its marriage laws from attack

cannot   support   an   equitable   exception   to   the   post-judgment

intervention rules, see Naylor, 2015 WL 3852284, at *5-*6, the

Pennywells cannot equitably intervene post-judgment in a case they

contend they were totally excluded from to protect purported wrongful

death rights they did not assert until after the statute of limitations

expired from an agreed judgment they claim is not binding on them,

(MR0135-36, 162). Thus, even if equity could confer upon the

Pennywells Rule 329b(e) “party” status to support their post-judgment

intervention efforts, which it cannot, the Pennywells offered the trial

court no equitable basis to do so. Therefore, as nonparties, the

Pennywells motion for new trial did not operate to extend the trial

court’s plenary power period under Rule 329b(e) beyond May 5, 2014,

and the trial court was without jurisdiction to set aside its judgment

when it did on June 23, 2014. TEX. R. CIV. P. 329b(e); see, e.g., In re

State & $15,975.85, 221 S.W.3d at 715; Kelly, 915 S.W.2d at 227.


                                    30
                        CONCLUSION & PRAYER

     As shown above and in Seneca’s brief on the merits, neither the

Wrongful Death Act, the post-judgment intervention rules, Rule 329b,

the record, nor equity conferred Rule 329b(e) “party” status on the

Pennywells. As a result, the Pennywells’ motion for new trial—filed four

days before the trial court’s plenary power period expired—did not

operate to extend the trial court’s plenary power period over the

underlying action under Rule 329b(e).

     Accordingly, the trial court’s plenary power period in the

underlying case expired on May 5, 2014. The trial court, therefore, had

no power to enter further orders after that date. As a result, the trial

court’s orders entered in the underlying case after May 5, 2014, are

void, of no force and effect, and require the exercise of this Court’s

extraordinary writ powers to correct.

     For these reasons, Relator Seneca Resources Corporation requests

this Court to grant this Petition and issue a Writ of Mandamus ordering

the trial court to vacate its orders entered in the underlying action after

May 5, 2014, reinstate its orders of April 1 and April 4, 2014, dismissing

all claims with prejudice, and remove this case from its trial docket.


                                    31
Relator further requests such other and further relief to which it may

be entitled.

                                   Respectfully submitted,


                                   By: /s/ Alexander D. Burch
                                      W. Ray Whitman
                                      rwhitman@bakerlaw.com
                                      State Bar No. 21379000
                                      Douglas D. D’Arche
                                      ddarche@bakerlaw.com
                                      State Bar No. 00793582
                                      Alexander D. Burch
                                      aburch@bakerlaw.com
                                      State Bar No. 24073975
                                      Jordan A. Sinclair
                                      jsinclair@bakerlaw.com
                                      State Bar No. 24079341
                                      Baker & Hostetler LLP
                                      811 Main St., Suite 1100
                                      Houston, TX 77002
                                      (713) 751-1600 Telephone
                                      (713) 751-1717 Facsimile

                                   ATTORNEYS FOR RELATOR SENECA
                                   RESOURCES CORPORATION




                                 32
              CERTIFICATION OF FACTUAL STATEMENTS

     Pursuant to Rule 52.3(j) of the Texas Rules of Appellate
Procedure, I have reviewed this Petition and concluded that every
factual statement in the Petition is supported by competent evidence in
the appendix or record.

                                   /s/ Alexander D. Burch
                                   Alexander D. Burch




                    CERTIFICATE OF COMPLIANCE

     Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate
Procedure and relying on the word-count function of the computer
program used to prepare this document, I certify that the total number
of words in this document is 5819.

                                   /s/ Alexander D. Burch
                                   Alexander D. Burch




                                  33
                        CERTIFICATE OF SERVICE

      I hereby certify that the foregoing Reply Brief has been served in
accordance with the Texas Rules of Appellate Procedure via electronic
filing service and/or certified mail, return receipt requested on this 27th
day of August, 2015.
The Honorable Judge Wesley Ward          Baxter W. Banowsky
Presiding Judge,                         bwb@banowsky.com
234th Judicial District Court            Banowsky & Levine, P.C.
Harris County, Texas                     12801 N. Central Expressway
Harris County Civil Courthouse           Suite 1700
201 Caroline, 13th Floor                 Dallas, Texas 75243
Houston, Texas 77002
Telephone No.: (713) 368-6350            Counsel for Tammi McCoy
Chad Flores                              Frank A. Piazza, Jr.
cflores@beckredden.com                   fpiazza@brothers-law.com
1221 McKinney, Suite 4500                Two Memorial City Plaza
Houston, Texas 77010                     820 Gessner, Suite 1075
Telephone: 713.951.3700                  Houston, Texas 77024
Facsimile: 713.951.3720
                                         Counsel for Patterson UTI-
-and-                                    Drilling Company LLC
                                         James Watkins
Harold Eisenman                          james.watkins@roystonlaw.com
Harold@eisenmanlaw.com                   Royston Rayzor
2603 Augusta Dr., Ste. 1025              The Hunter Building
Houston, Texas 77057                     306 22nd Street, Suite 301
Telephone No.: 713.840.7180              Galveston, Texas 77550
Facsimile No: 713.840.9620
                                         Counsel for Cenergy
Counsel for Joyce Ann Pennywell,         International Services, LLC
Alana Pennywell, Rachel
Pennywell, and Curly Pennywell

                                     /s/ Alexander D. Burch
                                     Alexander D. Burch


                                    34
