                                                                              ACCEPTED
                                                                         07-15-00082-CV
                                                            SEVENTH COURT OF APPEALS
                                                                      AMARILLO, TEXAS
                                                                     5/7/2015 2:37:48 PM
                                                                        Vivian Long, Clerk


              CAUSE NO. 07-15-00082-CV

                         IN THE                        FILED IN
                                                7th COURT OF APPEALS
                                                  AMARILLO, TEXAS
                 COURT OF APPEALS               5/6/2015 2:37:48 PM
                                                     VIVIAN LONG
        FOR THE SEVENTH DISTRICT OF         TEXAS       CLERK


                  AMARILLO, TEXAS


           Appealed from the 99th District Court
                Lubbock County, Texas


ROBERT WESTERBURG, ADMINISTRATOR OF THE ESTATE OF
      R.D. WEST a/k/a RANDY DIXON WESTERBURG,
                       Appellants,
                            vs.
             WESTERN ROYALTY CORP.,
                        Appellee.

                 APPELLANT’S BRIEF


                    Steven Thornton
                    State Bar No. 00789678
                    WESTERBURG & THORNTON, P.C.
                    6060 N. Central Expressway, Suite 690
                    Dallas, Texas 75206
                    Phone No.: 214.528.6040
                    Facsimile: 214.528.6170
                    steve@mwtlaw.com

                    ATTORNEY FOR APPELLANT
                    ROBERT WESTERBURG

    APPELLANT REQUESTS ORAL ARGUMENT

                            1
                   IDENTITY OF PARTIES AND COUNSEL


      Appellant certifies that, pursuant to Texas Rule of Appellate Procedure

38.1(a), the following is a complete list of the parties, the attorneys and any other

person who has any interest in the outcome of this lawsuit:

1.    Appellant/Plaintiff, Robert Westerburg, Administrator of the Estate of R.D.
      West a/k/a Randy Dixon Westerburg

      Steven Thornton
      WESTERBURG & THORNTON, P.C.
      6060 N. Central Expressway, Suite 690
      Dallas, Texas 75206
      steve@mwtlaw.com
      Phone No.: 214.528.6040
      Facsimile: 214.528.6170

2.    Appellee/Defendant, Western Royalty Corp.

      Tom H. Whiteside
      Whiteside Law Firm
      P. O. Box 2825
      Lubbock, TX 79408
      thw@whitesidelawfirm.com
      Phone No.: 806.687.9009
      Facsimile: 806.687.9011

      This list is furnished so that members of the Court may at once determine

whether they are disqualified to serve or should recuse themselves from

participating in the decision of the case.




                                             2
                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL …………………………………… 2

TABLE OF CONTENTS …………..…………………………………...….…… 3

TABLE OF AUTHORITIES ………….……………………………...…………                                   5

STATEMENT OF THE CASE …………………………………………………. 7

STATEMENT OF JURISDICTION ……………………….…………………… 8

SUMMARY OF CASE …………………………………………………………                                         9

ISSUES PRESENTED ………………………………….……………………..                                     10

REQUEST FOR ORAL ARGUMENT ………………………………………… 11

STATEMENT OF FACTS ……………………………………………………... 12

SUMMARY OF THE ARGUMENT ..………………………………………..... 14

ARGUMENT AND AUTHORITIES …………...…………………..…………. 15

ISSUE ONE:       Did Judge Sowder err in denying Robert Westerburg’s
             Claim for recovery of attorney’s fees? ………………………… 15

I.    Standard of Review ……………………………………………………… 15

II.   Texas Law Mandates Recovery of Attorney’s Fees ……………..…………. 16

      A.   Westerburg’s Right to Review Books and Records …………..……. 16

      B.   Recovery of Attorney’s Fees is Mandatory …………………………. 18

      C.   Western Royalty’s Contentions on Attorney’s Fees are Meritless …... 20



                                       3
       C.1. Westerburg is Not Pro Se ………………………….....……… 20

       C.2. Western Royalty’s Cited Cases Are Not Applicable
            to this Cause ……………………………………………….                  21

CONCLUSION and PRAYER …………………………………………..…….                    24

CERTIFICATE OF SERVICE ………………………….……………..………                   26

CERTIFICATE OF COMPLIANCE …………………………………………..                   26

APPELLANT’S APPENDIX …………………………….…………………….. 27




                             4
                         TABLE OF AUTHORITIES

                                  Case Law

Baker's Campground, Inc. v. McCalla, 2012 Tex. App. LEXIS 6173
(Tex. App. – Waco 2012, no pet.) ……………………………………………… 15

Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) ………………………… 19, 23

Campbell, Athey & Zukowski v. Thomasson, 863 F.2d 398, 400
(5th Cir. 1989) …………………………………………………………………... 21

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678
(Tex. 1979) ………………………………………………………………………. 16

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ……………..        15

Elwood v. Drescher, 456 F.3d 943 (9th Cir. 2006) …………………………….                22

Erickson v. Board of Education of Baltimore County, 162 F.3d 289
(4th Cir. 1998) …………………………………………………………………… 21

Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991) ……………………….               22

Ray v. U.S. Department of Justice, 87 F.3d 1250 (11th Cir. 1996) …………….      22

Sanchez & Sleeman v. City of Austin, 2013 U.S. Dist. LEXIS 189178
(W.D. Tex. 2013) ………………………………………………………………                                    22

Tesoro Petroleum Corp. v. Coastal Refining and Marketing, Inc., 754 S.W.2d
764, 766-67 (Tex. App. – Houston [1st Dist.] 1988, writ denied) ……………..      21

                              Other Authorities

42 U.S.C. § 1981 ……………………………………………………………….. 22

42 U.S.C. § 1983 ……………………………………………………………….. 22

42 U.S.C. § 1988 ………………………………………………………….… 22, 23



                                       5
California Probate Code § 8800 ………………………………………..….. 12, 17

California Probate Code § 8804 ……………………………….…………….. 12, 17

California Probate Code § 8850 …………………………………………….. 12, 17

Tex. Bus. Orgs. Code § 21.218 …………….…. 7, 9, 12, 13, 14, 16, 17, 18, 19, 23

Tex. Bus. Orgs. Code § 21.222 ……………..…….. 7, 9, 13, 14, 15, 16, 19, 20, 23

Tex. R. Civ. P. 166a …………………………………………………………….                           16

Texas Constitution, Article V, § 6 ………………………………………………. 8

Texas Government Code § 22.220 ……………………………………………… 8




                                     6
                        STATEMENT OF THE CASE


      Appellant Robert Westerburg, Administrator of the Estate of R.D. West

a/k/a Randy Dixon Westerburg (hereinafter “Westerburg”), brought this suit

seeking to examine the books and records of Appellee Western Royalty Corp.

(hereinafter “Western Royalty”) pursuant to section 21.218 of the Texas Business

Organizations Code.    Westerburg also sought to recover his attorney’s fees

pursuant to section 21.222 of the Texas Business Organizations Code.     Western

Royalty objected to Westerburg’s request. The parties filed competing traditional

motions for summary judgment.

      Upon considering these motions, the Honorable William C. Sowder in the 99th

District Court of Lubbock County, Texas, rendered a Final Summary Judgment

which granted Westerburg’s request to examine Western Royalty’s books and

records but denied Westerburg’s requested recovery of his attorney’s fees.

Westerburg appeals only the trial court’s ruling denying him the recovery of his

attorney’s fees.




                                       7
                     STATEMENT OF JURISDICTION



      This Court has jurisdiction to hear this appeal pursuant to Texas

Constitution, Article V, § 6 and Texas Government Code § 22.220.




                                       8
                          SUMMARY OF THE CASE


      In 2013, Westerburg’s brother, R.D. West, died in California. A portion of

the Estate of R.D. West included 350 shares of Western Royalty. Once appointed

as administrator of R.D. West’s estate, Westerburg sought to examine the books

and records of Western Royalty in order to ascertain a valuation of the stock

owned by the Estate and to allow Westerburg to complete an inventory

requirement set by the probate court and California probate law.

      Pursuant to the Texas Business Organizations Code, Westerburg made a

request to Western Royalty for access to the books and records of the company.

Western Royalty refused. Westerburg filed suit against Western Royalty seeking

access to the books and records of the company and recovery of his attorney’s fees,

costs and expenses pursuant to sections 21.218 and 21.222 of the Texas Business

Organizations Code.

      After engaging in some limited discovery, the parties filed competing

traditional motions for summary judgment.         Judge Sowder considered both

motions and ultimately granted Westerburg’s request and ordered Western Royalty

to make available to Westerburg a defined set of books and records for

examination and photocopying. Judge Sowder refused to award Westerburg any

attorney’s fees in this matter but did award him court costs and expenses.

                                         9
                            ISSUES PRESENTED

Issue One: Did Judge Sowder err in denying Robert Westerburg’s claim

            for recovery of attorney’s fees?




                                       10
                     REQUEST FOR ORAL ARGUMENT

      Westerburg requests oral argument in this cause as he believes it would be

helpful to the Court in evaluating these issues. Westerburg believes that given the

nature of the claims he is making and the defenses set forth by Western Royalty,

the Court may have questions for the parties that will be useful in reaching a

decision.




                                        11
                           STATEMENT OF FACTS

      Mr. R.D. West died on August 22, 2013 in California. At the time of his

death, R. D. West was a record holder of 350 shares of Western Royalty. A

California Probate Court appointed Robert Westerburg to administer the Estate of

R.D. West, deceased. Clerk’s Record, Vol. 1 – 95. Westerburg, by and through

R.D. West’s ownership and being a holder of shares of Western Royalty, qualified

to examine the corporate records of Western Royalty pursuant to Texas Business

Organizations Code § 21.218. Clerk’s Record, Vol. 1 – 97.

      On February 19, 2014, Westerburg delivered to Western Royalty a written

demand for examination of sixteen specific categories of books and records.

Clerk’s Record, Vol. 1 – 96. Westerburg’s purpose in seeking the examination of

these documents is to determine the fair market value of the Estate’s interest in

Western Royalty for the purpose of preparing the required Inventory and

Appraisement for filing in the pending probate case in the Superior Court of

California, San Diego, California. Clerk’s Record, Vol. 1 – 97. Pursuant to the

California Probate Code, Westerburg must file with the California Probate Court

Clerk an inventory of the property to be administered in the Decedent’s estate

together with an appraisal.    California Probate Code §§ 8800(a), 8804, and

8850(a); Clerk’s Record, Vol. 1 – 95, 101-103.




                                        12
      As Western Royalty is not a publically traded company and as Western

Royalty does not produce and distribute any information (other than a small

dividend to shareholders and a 1099 federal income tax reporting form) to its

shareholders from which such a calculation can be made, Westerburg has no other

means available to him which would provide the information necessary to comply

with the California Probate Code. Clerk’s Record, Vol. 1 – 97. The only purpose

for which Westerburg sought this information is to meet his obligations under the

California Probate Code. Clerk’s Record, Vol. 1 – 97.

      Western Royalty refused Westerburg’s request. Clerk’s Record, Vol. 1 – 97.

As such, Westerburg brought suit against Western Royalty seeking the right to access

and examine the requested books and records of Western Royalty and to recover his

costs and expenses, including attorney’s fees, pursuant to sections 21.218 and 21.222

of the Texas Business Organizations Code. Clerk’s Record, Vol. 1 – 97. Western

Royalty objected to both of these claims. After conducting some discovery, both

parties filed competing motions for summary judgment. Judge Sowder granted

Westerburg’s request to examine the books and records of Western Royalty and

awarded him court costs and expenses. But, Judge Sowder denied Westerburg’s

request for recovery of his attorney’s fees. Clerk’s Record, Vol. 1 – 256-259.




                                          13
                      SUMMARY OF THE ARGUMENT

      Westerburg contends that Judge Sowder erred when he denied Westerburg’s

request for recovery of his attorney’s fees. Westerburg contends that the plain

language of Section 21.222 of the Texas Business Organizations Code mandates

the recovery of costs and expenses, including attorney’s fees, for a party who seeks

to examine the books and records of a company pursuant to Section 21.218 of the

Texas Business Organizations Code but is denied by that company. Westerburg

contends that the Texas Legislature did not vest discretion within the trial court to

determine whether Westerburg is entitled to recover his attorney’s fees.

Westerburg contends that the arguments set forth by Western Royalty in opposition

to the recovery of Westerburg’s attorney fees are either inappropriate or

inapplicable. Given the evidence produced to the trial court by the parties, this

Court should be able to reverse Judge Sowder’s ruling denying Westerburg’s

recovery of attorney’s fees and render an award for those attorney’s fees to

Westerburg.




                                         14
                         ARGUMENTS AND AUTHORITIES

ISSUE ONE: Did Judge Sowder err in denying Robert Westerburg’s
           claim for recovery of attorney’s fees?

      Westerburg’s Motion for Traditional Summary Judgment sought both to

examine the books and records of Western Royalty and to recover attorney’s fees,

costs and expenses arising from this matter.       Judge Sowder properly granted

Westerburg’s request to examine the books and records of Western Royalty and

awarded court costs and expenses. But, Judge Sowder denied Westerburg’s request

to recover attorney’s fees. Clerk’s Record, Vol. 1 – 256-259. Westerburg contends

that section 21.222 of the Texas Business Organizations Code mandates that Judge

Sowder award Westerburg his attorney’s fees and costs after granting his request to

examine the books and records of Western Royalty. Based on Texas law and on the

evidence presented, Judge Sowder erred by denying Westerburg’s request to recover

attorney’s fees.

I.    Standard of Review

      Texas appellate courts review the grant of a traditional motion for summary

judgment de novo. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005);

Baker's Campground, Inc. v. McCalla, 2012 Tex. App. LEXIS 6173 (Tex. App. –

Waco 2012, no pet.). In a traditional summary judgment proceeding, the issue is

whether the movant met its burden for summary judgment by establishing that no

genuine issue of material fact exists entitling the movant to judgment as a matter of

                                         15
law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589

S.W.2d 671, 678 (Tex. 1979).

II.   Texas Law Mandates Recovery of Attorney’s Fees

      In his ruling on the competing motions for summary judgment, Judge Sowder

held that, pursuant to sections 21.218 and 21.222 of the Texas Business

Organizations Code, Westerburg is entitled to examine the books and records of

Western Royalty and to recover his court costs and expenses. But, Judge Sowder

denied Westerburg’s claim to recovery of any attorney’s fees related to enforcing this

right. Westerburg contends that Judge Sowder erred and that he had no discretion to

deny Westerburg’s claim to recovery of any attorney’s fees in this matter.

      A.     Westerburg’s Right to Review Books and Records

      The Texas Business Organizations Code provides that a holder of shares of a

corporation for at least six months is entitled, upon written demand stating a proper

purpose, to examine and copy the corporation’s relevant books, records of account,

minutes and share transfer records. Tex. Bus. Orgs. Code § 21.218(b). More

broadly, the Texas Business Organizations Code empowers a court, upon proof of

a proper purpose, to compel a corporation to produce such records for examination

by the holder regardless of the period during which the holder was a record holder.

Tex. Bus. Orgs. Code § 21.218(c).




                                          16
      In this case, Westerburg demonstrated to Judge Sowder that he met all of the

requirements of section 21.218 entitling him to examine the books and records of

Western Royalty. First, Westerburg adduced evidence that his brother, Mr. R. D.

West, was a record holder of 350 shares of Western Royalty for over 20 years.

Clerk’s Record, Vol. 1 – 95. Mr. West died on August 22, 2013. Clerk’s Record,

Vol. 1 – 95. Westerburg then described for Judge Sowder how the Superior Court

of California, County of San Diego, appointed Westerburg to administer the Estate

of R.D. West, deceased.     Clerk’s Record, Vol. 1 – 95.      Second, Westerburg

delivered to the Western Royalty a written demand for examination of sixteen

specific categories of books and records on or about February 19, 2014. Clerk’s

Record, Vol. 1 – 96-97. In that demand, Westerburg detailed his need for the

examination. Clerk’s Record, Vol. 1 – 96-97. Western Royalty refused to comply

with that request. Clerk’s Record, Vol. 1 – 97. Western Royalty did not contest any

of these facts in the summary judgment proceedings.

      The only other issue was whether Westerburg had a proper purpose in

requesting the examination of books and records. California probate law requires

an administrator to file with the California Probate Court Clerk an inventory of the

property to be administered in a Decedent’s estate together with an appraisal. Cal.

Prob. Code §§ 8800(a), 8804, and 8850(a); Clerk’s Record, Vol. 1 – 95, 101-103.

In order to satisfy this obligation, Westerburg needed to determine the fair market



                                        17
value of the Estate of R.D. West’s interest in Western Royalty. Western Royalty is

not a publically traded company nor does it produce and distribute any information

to its shareholders from which a determination of the fair market value of the stock

can be made. Clerk’s Record, Vol. 1 – 97. As such, Judge Sowder determined that,

as a matter of law, this need for information constitutes a proper purpose under

section 21.218 of the Texas Business Organizations Code.          With those facts

established, Judge Sowder granted Westerburg’s request and ordered Western

Royalty to make available for examination and copying several specific categories

of documents. Clerk’s Record, Vol. 1 – 256-259.

      B.    Recovery of Attorney’s Fees is Mandatory

      Once Judge Sowder determined that Westerburg is entitled to examine and

copy certain books and records of Western Royalty, the only remaining task is to

determine the amount of attorney’s fees, costs and expenses to award Westerburg.

If a corporation refuses to permit a person who is entitled to examine and make

copies of the books and records of a corporation pursuant to Section 21.218 of the

Texas Business Organizations Code, the corporation becomes liable for the

person’s cost or expenses, including attorney’s fees.      Specifically, the Texas

Legislature mandates that:

            A corporation that refuses to allow a person to examine
            and make copies of account records, minutes, and share
            transfer records under Section 21.218 is liable to the
            shareholder for any cost or expense, including attorney’s

                                        18
             fees, incurred in enforcing the shareholder’s rights under
             Section 21.218.

Tex. Bus. Orgs. Code § 21.222 (highlight added). The Texas Supreme Court has

ruled that statutes which read that a party “may recover”, “shall be awarded”, or “is

entitled to” attorney fees are not discretionary. Bocquet v. Herring, 972 S.W.2d 19,

20 (Tex. 1998).    Conversely, statutes which provide that a court “may” award

attorney fees vest some discretion in the trial court regarding such an award. Id. at

20. By employing the language “is liable” in section 21.222 of the Texas Business

Organizations Code rather than “may award”, the Texas Legislature mandated that

the Trial Court award attorney’s fees, costs and/or expenses to any party that

enforced a shareholder’s rights under Section 21.218 of the Texas Business

Organizations Code. The Trial Court does not have the discretion to refuse to award

such attorney’s fees, costs and/or other expenses.

      In this case, Westerburg incurred $13,487.50 in attorney’s fees and $588.09 in

costs in enforcing the shareholder’s rights under Section 21.218 of the Texas

Business Organizations Code through the summary judgment proceeding at the trial

court level. Clerk’s Record, Vol. 1 – 237-244. Additionally, Westerburg’s cost of

appealing this matter to the Court of Appeals is $5,000. Further, the cost of handling

any post-judgment motions was $1,000. Westerburg offered such evidence through

the affidavits of Steven Thornton and Robert Westerburg. Clerk’s Record, Vol. 1 –




                                          19
237-244. Judge Sowder’s Final Summary Judgment awarded the $588.09 in costs to

Westerburg. Clerk’s Record, Vol. 1 – 256-259.

      Western Royalty wholly failed to put on any evidence as to the reasonableness

of the cost or the necessity of Westerburg’s attorney’s fees at the Trial Court. As

such, Westerburg’s testimony is uncontroverted and can support an award of

attorney’s fees from this Court.

      C.      Western Royalty’s Contentions on Attorney’s Fees are Meritless

      Western Royalty contended at the summary judgment proceeding that, despite

the clear language in Section 21.222 of the Texas Business Organizations Code, the

Trial Court and this Court should not award Westerburg recovery for his attorney’s

fees, costs and expenses. Western Royalty supported this contention by citing to the

Trial Court several federal cases. These cases are a red herring. They do not apply to

the facts of this litigation and none of them reach the conclusion that Western

Royalty is asking this Court to reach: that the Estate of R.D. West is not entitled to

recover its attorney’s fees, costs and expenses. Thus, these cited cases have no

precedential value and should not be considered.

              C.1. Westerburg is Not Pro Se

      In virtually every case that Western Royalty cited to the Trial Court, the

plaintiff is acting as a pro se litigant. That is simply not the case in this cause. First,

Westerburg hired Westerburg & Thornton, P.C. to represent him in this matter.



                                            20
Clerk’s Record, Vol. 1 – 97.         Westerburg’s counsel, Steven Thornton, has

represented him on this matter from the inception of the litigation. Clerk’s Record,

Vol. 1 – 97. Westerburg is not acting as his own personal attorney. Second,

Westerburg is not personally involved in this litigation. Rather, Westerburg is

acting in his capacity as the administrator of the Estate of R.D. West and is seeking to

enforce the Estate’s rights to examine the books and records of Western Royalty.

Clerk’s Record, Vol. 1 – 95-97. Therefore, none of the cases cited by Western

Royalty are on point or have any precedential value.

      Moreover, Texas law provides that an attorney or a law firm may recover its

attorney’s fees when it is represented by a lawyer working for that law firm.

Campbell, Athey & Zukowski v. Thomasson, 863 F.2d 398, 400 (5th Cir. 1989).

Additionally, a company can recover attorney’s fees for services from an in-house

counsel. Tesoro Petroleum Corp. v. Coastal Refining and Marketing, Inc., 754

S.W.2d 764, 766-67 (Tex. App. – Houston [1st Dist.] 1988, writ denied). Since

Westerburg is represented by counsel in this matter, any prohibitions against pro se

recovery of attorney’s fees are not applicable to this cause.

             C.2. Western Royalty’s Cited Cases Are Not Applicable to
                  this Cause

      All but one of the cases that Western Royalty cited to the trial court concern

the attempt to recover attorney’s fees by a pro se attorney in a case involving a

federal statute. Erickson v. Board of Education of Baltimore County, 162 F.3d 289

                                          21
(4th Cir. 1998) (pro se representing his own child for special education and related

services under the Individual with Disabilities Act); Lawrence v. Bowsher, 931

F.2d 1579 (D.C. Cir. 1991)(pro se bringing claims for discrimination against

General Accounting Office under 42 U.S.C. § 1981, 1988); Ray v. U.S.

Department of Justice, 87 F.3d 1250 (11th Cir. 1996)(pro se bringing claims under

the Freedom of Information Act); Elwood v. Drescher, 456 F.3d 943 (9th Cir.

2006)(pro se defendant sought recovery of attorney’s fees arising from a claim

under 42 U.S.C. § 1983, 1988). As Westerburg is not pro se in this matter, these

cases are not applicable and should have no precedential value.

      The only case not involving a pro se litigant was Sanchez & Sleeman v. City

of Austin. That case involved a federal district court deciding against awarding

attorney’s fees to a prevailing party for claim under 42 U.S.C. § 1988. Sanchez &

Sleeman v. City of Austin, 2013 U.S. Dist. LEXIS 189178 (W.D. Tex. 2013).

Congress vested the trial courts with some discretion in awarding attorney’s fees

under section 1988 by writing: “In any action or proceeding to enforce a provision

of sections 1981…, the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as part of the costs…”.

42 U.S.C. § 1988(b). On appeal, the Fifth Circuit reversed that district court in

Sanchez and awarded the prevailing party their attorney’s fees.         Sanchez &

Sleeman v. City of Austin, 774 F.3d 873, 875 (5th Cir. 2014). The Fifth Circuit



                                        22
described that any discretion that the district court had in awarding attorney’s fees

is “exceedingly narrow”. Id. at 878. Moreover, the use of the language “may

allow” in 42 U.S.C. § 1988 is the exact language that the Texas Supreme Court

considers discretionary. Bocquet, 972 S.W.2d at 20.

      However in this case, section 21.222 of the Texas Business Organizations

Code provides no discretion to a trial court for the recovery of attorney’s fees. If a

corporation refuses to allow a person to examine and make copies of its books and

records pursuant to Section 21.218, that corporation is liable for cost and expenses,

including attorney’s fees. Tex. Bus. Orgs. Code § 21.222. As the Texas Legislature

did not vest any discretion with the trial courts, Judge Sowder did not have the power

or discretion to deny Westerburg’s request for attorney’s fees.




                                          23
                         CONCLUSION and PRAYER

      Westerburg contends that Judge Sowder erred when he denied Westerburg’s

request for attorney’s fees after determining that Westerburg was entitled to review

Western Royalty’s books and records pursuant to section 21.218 of the Texas

Business Organizations Code. Westerburg put on evidence of each element of his

claim to access to Western Royalty’s books and records. Judge Sowder held that

there were no genuine issues of material fact regarding those elements and

rendered a summary judgment in favor of Westerburg granting him access to eight

specific categories of documents. Once Judge Sowder made that ruling, section

21.222 of the Texas Business Organizations Code mandated that Judge Sowder

grant Westerburg’s claim for recovery of costs and expenses, including attorney’s

fees. Westerburg put on evidence of his attorney’s fees, costs and expenses.

Western Royalty did not object or put on any evidence to counter the necessity or

reasonableness of those fees, costs and/or expenses.         Judge Sowder granted

Westerburg’s request for costs and expenses. Despite the language in section

21.222 of the Texas Business Organizations Code and his award of access to the

books and records of Western Royalty and for costs and expenses, Judge Sowder

denied Westerburg’s claim for recovery of attorney’s fees.




                                        24
      For the reasons stated herein, Westerburg prays that this Court reverse the

portion of Judge Sowder’s ruling in the Final Summary Judgment which denied

Westerburg’s claim for recovery of attorney’s fees. Given the evidence adduced at

the summary judgment proceeding, Westerburg further prays that this Court render

a judgment in favor of Westerburg for his total attorney’s fees through this appeal.

Finally, Westerburg also prays for all other relief, in law and equity, to which he

may be justly entitled.




                                Respectfully submitted,


                                WESTERBURG & THORNTON, P.C.
                                6060 N. Central Expressway, Suite 690
                                Dallas, Texas 75206
                                Phone No.: 214.528.6040
                                Facsimile: 214.528.6170
                                steve@mwtlaw.com

                                By:   ______________________________
                                      Steven Thornton
                                      State Bar No. 00789678

                                ATTORNEY FOR PLAINTIFF




                                        25
                         CERTIFICATE OF SERVICE
      I certify that a true copy of the above was served on each attorney of record or
party in accordance with the Texas Rules of Civil Procedure and the Texas Rules of
Appellate Procedure on this 6th day of May, 2015.




                                       Steven Thornton




                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief contains 3,136 words (excluding the caption, identity of parties,
table of contents, table of authorities, statement of case, statement of issues
presented, statement of jurisdiction, signature, proof of service, certification,
and certificate of compliance). This is a computer-generated document created
in Microsoft Word, using 14-point typeface for all text, except for footnotes
which are in 12-point typeface. In making this certificate of compliance, I am
relying on the word count provided by the software used to prepare the
document.




                                       Steven Thornton




                                         26
                         APPELLANT’S APPENDIX
                             List of Documents

Final Summary Judgment                           A

California Probate Code § 8800                   B

California Probate Code § 8804                   C

California Probate Code § 8850                   D

Tex. Bus. Orgs. Code § 21.218                    E

Tex. Bus. Orgs. Code § 21.222                    F




                                  27
                                                                    12.W2014 11:15:00 """'--8Uclr
                                  APPENDIX A                                             i"IIMt"CIII*


                                                                                              TB
                                  NO. 2014-510,562


ROBERT WESTERBURG,                        §          IN THE DISTRICT COURT
ADMINISTRATOR OF THE ESTATE OF            §
R.D. WEST a/k/a RANDY DIXON               §
WESTERBURG                                §
                                          §          991H JUDICIAL DISTRICT
\r.S,                                     §
                                          §
WESTERN ROYALTY CORP.                     §          LUBBOCK COUNTY, TEXAS


                             Flnallymmarv Judgmpnt

        On    December 8       2014, the Court considered the following motions by

submission made In the above..ntltled and numbenld cause:

             a.    P/Bintifrs Motion for Summary Judgment; and,

             b.    Defendant Western Royalty ColponJtton's Motion for SumtmJI)'
                   Judgment

Altar consldellng the motions, pleadings, evidence and the appropriate legal authority,
                                                                         In part
this Court Is d the opinion that Plaintiff's motion should be GRANTED and that
                                  in part
Defendanfs motion should be DENIED.

        IT IS, THERFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff Robert

Weetelburg, Administrator of the Estate of R.D. West a/kla Randy Dbcon Weeterburg's

Motion for Summmy Judgment Is GRANTED~" pert

        IT IS FURTHER ORDERED that Dafendant Westem Royalty Corporation's
                                         ·n part
Motion for Summ&Jy Judgment is DENIED~

        IT IS FURTHER ORDERED that the Defendant Weetem Royalty CorporatiOn

shall produce to Plaintiff Robert Westerburg, Administrator of the Estate of R.D. West

8/kJa Randy Dixon Weatetburg the follOWing documents:




                                                                                   256
       1. The records containing the names and addresses of all past and current
          shareholders of the corporation and the number and class or series of shares
          issued by the corporation held by each of them.

       2. The records containing the names and last known mailing addresses of
          shareholders entitled to vote at any shareholders meeting.

       3. The bank statements and cancelled checks for the period January 1, 2009, to
          the present.

       4. The cash flow report(s) and/or check register and/or check stubs reflecting
          the monies received and the expenditures made for the period January 1,
          2009, to the present.

       5. The documents describing the mineral interest and/or legal description of
          each mineral interest presently owned by Western Royalty Corp.

       6. The deeds evidencing Western Royalty Corp.'s ownership of mineral or
          royalty interests.

       7. The documents evidencing ownership, leasehold, or royalty interest in real or
          personal property owned by Western Royalty Corp.

       8. The Division Orders reflecting mineral interests owned by Western Royalty
          Corp.

       IT IS FURTHER ORDERED that Defendant Western Royalty Corporation shall

copy and email the above-described documents to Plaintitrs counsel, Steven Thornton.

Defendant Western Royalty Corporation shall Bates-label the above-described

documents and shall identify which documents are responsive to which categories set

forth in this Order.     Plaintiff shall reimburse Defendant for the reasonable costs of

photocopying the above-described documents.

       IT IS FURTHER ORDERED that Defendant Western Royalty Corporation shall

produce the above-described documents listed in this Order to Plaintitrs counsel,

Steven Thornton, on or before _D_e_ce_m_b_e_r_1_8_th_ _ _ _ _ _ , 2014 at 5:00p.m.




Final Summary Judgment                                                            Page2
                                                                                     257
      IT IS FURTHER ORDERED that Plaintiff have and recover from Defendant
                                        $0.00
Western Royalty Corporation the sum of $13,487.50 as reasonable and necessary

attorney's fees incurred in this cause.

       IT IS FURTHER ORDERED that Plaintiff have and recover from Defendant

Western Royalty Corporation the sum of $588.09 for costs incurred in this cause.

          ·-~URTHER       ORDERED that Plaintiff have and recover from                      t

Western Royalty Corporation                        ve Thousand Dollars ($5,000.00) as




c
       IT IS FURTHER ORDERED that the costs of court are taxed against the

Defendant Western Royalty Corporation for which let execution issue if the same are

not timely paid.

       IT IS FURTHER ORDERED that this judgment carries post-judgment interest at the

rate of 5.00% per annum from the date of this judgment until paid, together with all costs of

court in this behalf expended.

       All writs and processes for the enforcement and collection of this judgment or the

costs of court may issue as necessary.

       All relief requested in this case and not expressly granted herein is denied. This

judgment, disposing of all the parties in the lawsuit and all of the issues, is final and

appealable.

Final Summary Judgment                                                                 Page3
                                                                                         258
       December 8, 2014
SIGNED on-----------"



                          w£&~~&~' -
                          JUDGE PRESIDING




                                            259
..                                                     APPENDIX B
                                                                                                                         Page 1




           ®
               LexisNexis®
     1 of 3 DOCUMENTS

                                             Deering's California Codes Annotated
                                     Copyright <C 20 14 by Matthew Bender & Company, Inc.
                                              a member of the LexisNexis Group.
                                                        All rights reserved .

                                      ... This document is current through Chapter 9 of • • •
                                      the 2014 Regular Session ofthe 2013-2014 Legislature.

                                                        PROBATE CODE
                                        Division 7. Administration of Estates of Decedents
                                                 Part 3. Inventory and Appraisal
                                                  Chapter 1. General Provisions

                                  GO TO CALIFORNIA CODES ARCIDVE DIRECTORY

                                                   Cal Prob Code§ 8800 (2014)

     § 8800. Inventory and appraisal; Certification that tax requirements have been satisfied or a re inapplicable

         (a) The personal representative shall file with the court clerk an inventory of property to be administered in the de-
     cedent's estate together with an appraisal of property in the inventory. An inventory and appraisal shall be combined in a
     single document.
         (b) The inventory and appraisal shall be filed within four months after letters are first issued to a general personal
     representative. The court may allow such further time for filing an inventory and appraisal as is reasonable under the
     circumstances of the particular case.
         (c) The personal representative may tile partial inventories and appraisals where appropriate under the circum-
     stances of the particular case, but all inventories and appraisals shall be tiled before expiration of the time allowed under
     subdivision (b).
          (d) Concurrent with the filing of the inventory and appraisal pursuant to this section, the personal representative
     sbaJJ also file a certification that the requirements of Section 480 of the Revenue and Taxation Code either:
          (1) Are not applicable because the decedent owned no real property in California at the time of death.
          (2) Have been satisfied by the tiling of a change in ownership statement with the county recorder or assessor of
     each county in California in which the decedent owned property at the time of death.

     HISTORY:
         Enacted Stats 1990 ch 79 § 14 (AB 759), operative July 1, 1991. Amended Stats 1992 ch 1180 § 1 (SB 1639).

     NOTES:

     Former Sections:
         Former § 8800, similar to the present section, was added Stats 1988 ch 1199 § 82.5, operative July 1, 1989, and
     repealedStats 1990ch79§ 13, operativeJuly 1, 1991.




                                                                                                                  101
                                                                                                        EXHIBIT "B"
                                                   APPENDIX C
                                                                                                                       Page 5
                                                   Cal Prob Code § 8804




          LexisNexis®
2 of 3 DOCUMENTS

                                         Deering's California Codes Annotated
                                 Copyright 0 2014 by Matthew Bender & Company, Inc.
                                          a member of the LexisNex.is Group.
                                                  All rights reserved.

                                  *** This document is cWTent through Chapter 9 of***
                                  the 2014 Regular Session of the 2013-2014 Legislature.

                                                   PROBATE CODE
                                   Division 7. Administration of Estates ofDecedents
                                            Part 3. Inventory and Appraisal
                                             Chapter 1. General Provisions

                              GO TO CALIFORNIA CODES ARCHIVE DIRECTORY

                                               Cal Prob Code § 8804 (20 14)

§ 8804. Failure to timely file inventory and appraisal

    If the personal representative refuses or negligently fails to file an inventory and appraisal within the time allowed
under this chapter, upon petition of an interested person:
     (a) The court may compel the personal representative to file an inventory and appraisal pursuant to the procedure
prescribed in Chapter 4 (commencing with Section 11 050) of Part 8.
     (b) The court may remove the personal representative from office.
      (c) The court may impose on the personal representative personal liability for injury to the estate or to an inter-
ested person that directly results from the refusal or failure. The liability may include attorney's fees, in the court's dis-
cretion. Damages awarded pursuant to this subdivision are a liability on the bond of the personal representative, if any.

HiSTORY:
     Enacted Stats 1990 ch 79 § 14 (AB 759), operative July 1, 1991.

NOTES:

Former Sections:
    Former § 8804, similar to the present section, was added Stats 1988 ch 1199 § 82.5, operative July 1, 1989, and
repealed Stats 1990 cb 79 § 13, operative July 1, 1991.



Historical Derivation:
     (a) Former Prob C § 610, as amended Stats 1976 ch 922 § 1.
     (b) Former Prob C § 6 11, as amended Stats 1970 ch 1282 § 13.
     (c) Fonner Prob C § 8804, as added Stats 1988 ch 1199 § 82.5.
     (d) Fonner CCP §§ 1450, 1451.



                                                                                                                       102
                                                  APPENDIX D
                                                                                                                    Page 8
                                                  Cal Prob Code § 8850



      e
          LexisNexise
3 of 3 DOCUMENTS

                                        Deering's California Codes Annotated
                                           e
                                Copyright 2014 by Matthew Bender & Company, Inc.
                                         a member of the LexisNexis Group.
                                                 All rights reserved.

                                 •• • This document is current through Chapter 9 of •••
                                 the 20 14 Regular Session of the 2013-2014 Legislature.

                                                    PROBATE CODE
                                   Division 7. Administration of Estates of Decedents
                                             Part 3. Inventory and Appraisal
                                                   Chapter 2. lnventory
                                              Article I . General Provisions

                             GO TO CALTFORNIA CODES ARCHIVE DIRECTORY

                                               Cal Prob Code§ 8850 (2014)

§ 8850. Contents of inventory

     (a) The inventory, including partial and supplemental inventories, shall includt: all property to be administered in
the decedent's estate.
    (b) The inventory shall particularly specify the following property:
     (1) Money owed to the decedent, including debts, bonds, and notes, with the name of each debtor, the date, the
sum originally payable, and the endorsements, if any, with their dates. The inventory shall also specify security for the
payment of money to the decedent, including mortgages and deeds of trust. If security for the payment of money is real
property, the inventory shall include the recording reference or, if not recorded, a legal description of the real property.
     (2) A statement of the interest ofthe decedent in a partnership, appraised as a single item.
     (3) All money and other cash items, as defined in Section 8901 , ofthe decedent.
     (c) The inventory shall show, to the extent ascertainable by the personal representative, the portions of the property
that are community, quasi-community, and separate property of the decedent.

HISTORY:
    Enacted Stats 1990 cb 79 § 14 (AB 759), operative July 1, 1991.

NOTES:

Former Sections:
    Former§ 8850, similar to the present section. was added Stats 1988 ch 1199 § 82.5, operative July l , 1989, and
repealed Stats 1990 ch 79 § 13, operative July 1, 1991.



Historical Derivation:
     (a) Former Prob C § 571, as amended Stats 1971 ch 1648 §I , Stats 1986 ch 14 § 2.



                                                                                                                     103
                                                  APPENDIX E

                             Tex. Business Organizations Code § 21.218
                             This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > BUSINESS ORGANIZATIONS CODE > TITLE 2. CORPORATIONS >
CHAPTER 21. FOR-PROFIT CORPORATIONS > SUBCHAPTER E. SHAREHOLDER RIGHTS AND
RESTRICTIONS

§ 21.218. Examination of Records
  (a) In this section, a holder of a beneficial interest in a voting trust entered into under Section 6.251 is a holder of the
      shares represented by the beneficial interest.
  (b)    Subject to the governing documents and on written demand stating a proper purpose, a holder of shares of a
        corporation for at least six months immediately preceding the holder’s demand, or a holder of at least five percent
        of all of the outstanding shares of a corporation, is entitled to examine and copy, at a reasonable time, the
        corporation’s relevant books, records of account, minutes, and share transfer records. The examination may be
        conducted in person or through an agent, accountant, or attorney.
  (c) This section does not impair the power of a court, on the presentation of proof of proper purpose by a beneficial
      or record holder of shares, to compel the production for examination by the holder of the books and records of
      accounts, minutes, and share transfer records of a corporation, regardless of the period during which the holder was
      a beneficial holder or record holder and regardless of the number of shares held by the person.

History

Enacted by Acts 2003, 78th Leg., ch. 182 (H.B. 1156), § 1, effective January 1, 2006.

Annotations

Notes

Revisor’s Notes. --

 No substantive change is intended.

Case Notes

 Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: General
Overview
Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: Inspection
Rights: Remedies
Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: Inspection
Rights: Shareholders

LexisNexis (R) Notes

 Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:
General Overview
1. Divorced wife, who had beneficial ownership of 10 percent of corporate stock standing on corporate records in the name
of her former husband or a trustee, was entitled to examine the corporate books. Texas Infra-Red Radiant Co. v. Erwin, 397
S.W.2d 491, 1965 Tex. App. LEXIS 2378 (Tex. Civ. App. Eastland 1965).

                                                     Steve Thornton
                                                                                                                Page 2 of 2
                                       Tex. Business Organizations Code § 21.218

 Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:
Inspection Rights: Remedies
2. Attorney’s fees should not have been awarded to a minority shareholder because the evidence did not show that
corporate books and records had been withheld in violation of former Tex. Bus. Corp. Act Ann. art. 2.44(C) (recodified at
Tex. Bus. Orgs. Code Ann. § 21.218(b)). The company was entitled to impose reasonable restrictions for the protection and
integrity of its books and records when it required that certain items be copied on its premises. Ritchie v. Rupe, 339 S.W.3d
275, 2011 Tex. App. LEXIS 2217 (Tex. App. Dallas 2011).

 Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:
Inspection Rights: Shareholders
3. Attorney’s fees should not have been awarded to a minority shareholder because the evidence did not show that
corporate books and records had been withheld in violation of former Tex. Bus. Corp. Act Ann. art. 2.44(C) (recodified at
Tex. Bus. Orgs. Code Ann. § 21.218(b)). The company was entitled to impose reasonable restrictions for the protection and
integrity of its books and records when it required that certain items be copied on its premises. Ritchie v. Rupe, 339 S.W.3d
275, 2011 Tex. App. LEXIS 2217 (Tex. App. Dallas 2011).
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.




                                                     Steve Thornton
                                                  APPENDIX F

                              Tex. Business Organizations Code § 21.222
                              This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > BUSINESS ORGANIZATIONS CODE > TITLE 2. CORPORATIONS >
CHAPTER 21. FOR-PROFIT CORPORATIONS > SUBCHAPTER E. SHAREHOLDER RIGHTS AND
RESTRICTIONS

§ 21.222. Penalty for Refusal to Permit Examination of Certain Records
  (a) A corporation that refuses to allow a person to examine and make copies of account records, minutes, and share
      transfer records under Section 21.218 is liable to the shareholder for any cost or expense, including attorney’s fees,
      incurred in enforcing the shareholder’s rights under Section 21.218. The liability imposed on a corporation under
      this subsection is in addition to any other damages or remedy afforded to the shareholder by law.
  (b) It is a defense to an action brought under this section that the person suing:
       (1) has, within the two years preceding the date the action is brought, sold or offered for sale a list of shareholders
           or of holders of voting trust certificates for shares of the corporation or any other corporation;
       (2) has aided or abetted a person in procuring a list of shareholders or of holders of voting trust certificates for
           the purpose described by Subdivision (1);
       (3) has improperly used information obtained through a prior examination of the books and account records,
           minutes, or share transfer records of the corporation or any other corporation; or
       (4) was not acting in good faith or for a proper purpose in making the person’s request for examination.

History

Enacted by Acts 2003, 78th Leg., ch. 182 (H.B. 1156), § 1, effective January 1, 2006; am. Acts 2011, 82nd Leg., ch.
139 (S.B. 748), § 25, effective September 1, 2011.

Annotations

Notes

Revisor’s Notes. --

 No substantive change is intended.
 2011 amendment,
 deleted ″in consideration″ after ″certificates″ in (b)(1).

Case Notes

Business & Corporate Law: Corporations: Shareholders: Actions Against Corporations: General Overview
Civil Procedure: Remedies: Writs: General Overview

LexisNexis (R) Notes

 Business & Corporate Law: Corporations: Shareholders: Actions Against Corporations: General Overview
1. Shareholder that brought suit against a corporation seeking permission to examine the books and records of the
corporation was entitled to attorney fees because the shareholder was the ″shareholder of record″ even though the shares
were in the name of another pledgee to secure payment of corporate debt. Ft. Worth KJIM, Inc. v. Walke, 604 S.W.2d 362,

                                                      Steve Thornton
                                                  APPENDIX F                                                    Page 2 of 2
                                       Tex. Business Organizations Code § 21.222

1980 Tex. App. LEXIS 3757 (Tex. Civ. App. Fort Worth 1980).

 Civil Procedure: Remedies: Writs: General Overview
2. Where the relators, a company, and certain of its officers, brought a mandamus proceeding before the court to have the
trial court expunge from the record an order for discovery, the court held that the trial court, in granting certain
stockholders’ motion for discovery, had deprived relators of a jury trial on the issue of proper purpose because the
stockholders would have received through the order allowing discovery all of the relief sought in the main suit, and thus
relators were entitled to a writ of mandamus ordering the trial court to expunge its order for discovery. Uvalde Rock Asphalt
Co. v. Loughridge, 425 S.W.2d 818, 1968 Tex. LEXIS 314, 11 Tex. Sup. Ct. J. 268 (Tex. 1968).
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                                                     Steve Thornton
