                                                                                                 ACCEPTED
                                                                                            03-13-00599-CV
                                                                                                   4473504
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                      3/12/2015 12:10:17 PM
                                                                                           JEFFREY D. KYLE
                                                                                                     CLERK
                                NO. 03-13-00599-CV
                 _______________________________________________
                                                                          FILED IN
                         In The Court of Appeals                   3rd COURT OF APPEALS
                                                                        AUSTIN, TEXAS

                       For The Third District of Texas             3/12/2015 12:10:17 PM
                                                                       JEFFREY D. KYLE
                               Austin, Texas                                Clerk

                 ______________________________________________

                            Horse Hollow Generation Tie LLC,
                                                                     Appellant,
                                           v.

                           Whitworth-Kinsey #2, Ltd.,
               Whitworth-Kinsey #3, Ltd., and David Olen Whitworth,
                                                                 Appellees.
        ____________________________________________________________
            On Appeal from the 119th District Court of Concho County, Texas
                The Honorable Garland B. Woodward, Presiding Judge
                          (Trial Cause No. DAC-09-04042)

   APPELLEE’S UNOPPOSED MOTION TO CLARIFY AND CORRECT THE
             COUNSEL OF RECORD OF THE APPELLEES

TO THE HONORABLE COURT OF APPEALS:

       NOW COMES Appellee Whitworth-Kinsey #3, Ltd. and respectfully moves the

Court to Clarify and Correct the Counsel of Record of the Appellees in this appeal, and

in support thereof, would show the court the following:

       1.      Attorney Laird Palmer (“Palmer”) represents, and remains counsel of

record for Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.

       2.      The undersigned, Matthew F. Wymer (“Wymer” or “the undersigned”)

represents, and remains counsel of record for Whitworth-Kinsey #3, Ltd., only.




2134321v.1 IMANAGE 106638                  1
       3.      On November 27, 2013 Palmer filed a Brief for Cross-Appellant

Whitworth-Kinsey #2, Ltd.

       4.      On December 31, 2013 Renee F. McElhaney Yanta (“Yanta”), Wymer’s

former law partner, filed Brief of Appellee Whitworth-Kinsey #3, Ltd.

       5.      In 2014 Yanta ran for Judge of the 150th District Court in Bexar County,

Texas, and won said election.

       6.      In December 2014, Yanta began her transition from her private law

practice to the bench and shifting her caseload. As part of that transition, Yanta filed a

Motion for Substitution of Counsel for Wymer as counsel for Attorney Whitworth-

Kinsey #3, Ltd.

       7.      The Motion for Substitution of Counsel is unclear that Wymer would only

be substituting as counsel for Whitworth-Kinsey #3, Ltd. As a result, Wymer appeared

on the Court’s docket as counsel of record for all Appellees.

       8.      The undersigned, received the Court’s notice of the submission and oral

argument set for April 9, 2015. Due to Wymer’s trial schedule, he was unable to attend

the oral argument and attempted to contact Palmer to discuss a continuance, and whether

and why he (Wymer) appeared as counsel of record for all Appellees, but the then

available phone numbers for Palmer were disconnected.

       9.      Wymer conferred with Appellant’s counsel Jeffrey M. Tillotson, who

agreed to a continuance.

       10.     On March 6, 2015 the undersigned filed Appellees’ Unopposed First

Motion for Continuance of Submission and Oral Argument. Because Wymer was not


2134321v.1 IMANAGE 106638                   2
able to reach Palmer, and unclear whether he had been correctly substituted as counsel

for all Appellees, the undersigned filed his motion on behalf of all three Appellees.

       11.     Additionally, in order to comply with the Court’s request for three paper

copies of all briefs filed, Wymer submitted briefs filed on behalf of all three Appellees

Whitworth-Kinsey #2, Ltd., David Olen Whitworth and Whitworth-Kinsey #3, Ltd. so

that no party would default on the Court’s request – apparently, Palmer also provided

briefs for all Appellees.

       12.     As of the date of this Motion, the undersigned has reached and spoken to

Palmer who has clarified and confirmed that he does in fact represent two of the three

Appellees – Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.

       13.     Palmer stated the following:

               a.     He represents, and remains counsel of record for Whitworth-
                      Kinsey #2, Ltd. and David Olen Whitworth; and

               b.     He has no objection to the continuance of the oral argument.

       14.     The undersigned respectfully requests the Court correct its record to reflect

as follows:

               a.     Attorney Laird Palmer represents and is counsel of record in
                      this appeal for: Appellees Whitworth-Kinsey #2, Ltd., and
                      David Olen Whitworth;

               b.     Attorney Matthew F. Wymer represents and is counsel of
                      record in this appeal for: Appellee Whitworth-Kinsey #3, Ltd.

       15.     The undersigned does not seek this clarification for purposes of delay, but

so that justice may be done and all parties be listed with their proper representation.




2134321v.1 IMANAGE 106638                     3
       WHEREFORE PREMISES CONSIDERED, Appellee’s counsel respectfully

requests that the representation for the parties be corrected, and that Appellee Whitworth-

Kinsey #3, Ltd. be granted all other relief to which it is justly entitled.

                                            Respectfully submitted,

                                            BEIRNE, MAYNARD & PARSONS, L.L.P.


                                            /s/ Matthew F. Wymer
                                            Matthew F. Wymer
                                            State Bar No. 24005234
                                            Email – mwymer@bmpllp.com
                                            112 E. Pecan, Suite 2750
                                            San Antonio, Texas 78205
                                            Telephone: (210) 582-0227
                                            Facsimile: (210) 582-0231

                                            COUNSEL FOR APPELLEES
                                            WHITWORTH-KINSEY #3, LTD.




                            CERTIFICATE OF CONFERENCE

        Counsel for Appellees conferred with Laird Palmer and with Attorney Christopher
J. Schwegmann on March 11, 2015 and March 12, 2015, respectively, regarding the
clarification of the parties as set out in detail in this Motion.


                                                   /s/ Matthew F. Wymer
                                                   Matthew F. Wymer




2134321v.1 IMANAGE 106638                      4
                            CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the above and foregoing
document was forwarded to all counsel listed below pursuant to the Texas Rules of Civil
Procedure and Texas Rules of Appellate Procedure on the 12th day of March, 2015:

       Jeffrey M. Tillotson
       Email jtillotson@lynnllp.com
       Christopher J. Schwegmann
       Email cschwegmann@lynnllp.com
       David S. Coale
       Email dcoale@lynnllp.com
       Lynn Tillotson Pinker & Cox, LLP
       2100 Ross Avenue, Suite 2700
       Dallas, Texas 75201
       Telephone No. (214) 981-3800
       Telecopier No. (214) 981-3839
       Counsel for Appellant
       Horse Hollow Generation Tie LLC

       Laird Palmer
       Email lplaw@tstar.net
       Law Offices of Laird Palmer
       341 Ft. McKavitt
       P. O. Box 860
       Mason, Texas 76856
       Telephone No. (325) 347-6350
       Telecopier No. (325) 347-6334
       Co-Counsel for Appellees
       Whitworth-Kinsey #2, Ltd. and
       David Olen Whitworth

                                               /s/ Matthew F. Wymer
                                               Matthew F. Wymer




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