                                                                                                                ACCEPTED
                                                                                                            04-16-00200-CV
                                                                                                FOURTH COURT OF APPEALS
                                                                                                     SAN ANTONIO, TEXAS
                                                                                                       5/31/2016 7:57:41 AM
                                                                                                             KEITH HOTTLE
                                                                                                                     CLERK
                                         NO. 04-16-00200-CV


               V. Keith Dullye, Managing Member of MAXON ENTERPRISES, LLC,
                                                                       FILED IN
                                            Appellant            4th COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                                     v.                          05/31/2016 7:57:41 AM
                                                                                    KEITH E. HOTTLE
                                                                                          Clerk
                              GUME TRANSPORT & STORAGE, INC.
                                         Appellee

                       From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2014-CVF-001744 D2
                            Honorable Monica Z. Notzon, Judge Presiding

              APPELLANT'S RESPONSE TO COURT ORDER DATED MAY 16, 2016


       TO THE HONORABLE JUDGES OF SAID COURT, V. Keith Dullye, in his capacity as
Managing Member of Maxon Enterprises, LLC, hereby files Appellant's response to this Honorable
Court's Order dated May 16, 2016, and would respectfully show the Court as follows:

1. The Trial Court's Final Judgment dated January 07, 2016, states on its face that it is, in fact, a “Final
Judgment” and further states that “All relief not expressly granted therein in connection with all claims
made in this lawsuit by any and all parties is DENIED”. As such, the awarding of attorney's fees to
Appellee as well as all other issues were deemed by the Trial Court to be final, and thus, appealable to
this Court which has jurisdiction thereon.

2. The Trial Court's Order dated April 12, 2016, both vacated the award of attorney's fees to Appellee
and granted a motion for new trial on this same issue. In addition, the Trial Court clearly denied the
Appellant's motion for new trial on all other points raised in Appellant's motion, thereby rendering the
Trial Court's ruling on all other issues to be deemed final, and thus, appealable to this Court which has
jurisdiction thereon.

3. The awarding of attorney's fees under to Texas law has long been to the “prevailing party” of a civil
dispute. In order to be a “prevailing party”, a party must (1) prevail on a cause of action for which
attorney's fees are recoverable (in this instant case, Tex. Civ. Prac. & Rem Code Section 38.001) and,
(2) recover damages. Green Int'l, Inc., v. Solis, 951 S.W. 2d 384, 390 (Tex. 1997). Further, In this case,
Appellee cannot be deemed to be a “prevailing party” under Section 38.001 as Section 38.001 provides
no statutory provision allowing for the awarding of attorney's fees against a limited liability company
(an “LLC”), including the Appellant. Thus, the Trial Court vacating of the award of attorney's fees
against Appellant was in accordance with the Opinion referenced below as the awarding of attorney's is
prohibited by such Opinion. This Memorandum Opinion and Order was issued by the United States
Federal District Court for the Northern District of Texas on March 06, 2015. Hoffman v. L & M Arts,
LLC, 774 F. Supp. 2D 826, 2011 WL 778592 and 2015 WL 1000838, at *8.

4. The vacating of the award of attorney's fees to Appellee by the Trial Court in this instant case has no
bearing as to the finality of the other issues set forth in the Final Judgment and in the Order Denying
Appellant's motion for new trial. The United States Supreme Court issued an Opinion on January 14,
2014, stating in summary: “In Budinich v. Becton Dickinson & Co., 486 U. S. 196 (1988), this Court
held that a decision on the merits is a “final decision” under §1291 even if the award or amount of
attorney’s fees for the litigation remains to be determined. The issue in this case is whether a different
result obtains if the unresolved claim for attorney’s fees is based on a contract rather than, or in
addition to, a statute. The answer here, for purposes of §1291 and the Federal Rules of Civil Procedure,
is that the result is not different. Whether the claim for attorney’s fees is based on a statute, a contract,
or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the
merits judgment from becoming final for purposes of appeal.” Appellant could find no case law
wherein the Texas Supreme Court has issued an opinion contrary to the above referenced Opinion
issued by the United States Supreme Court. 571 U. S. No. 12-992 (2014), RAY HALUCH GRAVEL
COMPANY, ET AL., PETITIONERS v. CENTRAL PENSION FUND OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS AND PARTICI-PATING EMPLOYERS ET AL. ON WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.


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Based upon the above, Appellant respectfully asks that this Court allow this appeal to go forward and
not be dismissed for want of jurisdiction.


                                                    Respectfully submitted,

                                                    THE MORSI LAW FIRM
                                                    Tamer F. Morsi, Esq.

                                            ___
                                                    Attorney for Appellant
                                                    State Bar # 24041530
                                                    5150 Broadway #411
                                                    San Antonio, Texas 78209
                                                    Telephone: (210) 370-7541
                                                    Facsimile (210) 693-1258
                                                    Email: TMorsi@MyLocaLawyer.com



                                   CERTIFICATE OF SERVICE

       I certify that on May__, 2016, a true and correct copy of this Appellant's Response To Court
Order Dated May 16, 2016, was delivered to Mr. Louis P. LaVaude, Attorney for Appellee, as follows:
VIA EMAIL AT: loulavaude@cs.com

Louis P. LaVaude
Law Office of Louis P. LaVaude
1119 San Dario Avenue
Laredo, Texas 78040




                                            Tamer F. Morsi




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