                                                                                           ACCEPTED
                                                                                       12-15-00087-CV
                                                                          TWELFTH COURT OF APPEALS
                                                                                        TYLER, TEXAS
                                                                                   9/2/2015 4:40:39 PM
                                                                                             Pam Estes
                                                                                                CLERK

                          CASE NO. 12-15-00087-CV

EXCO OPERATING COMPANY,                 §                    IN THE  TWELFTH
                                                                  FILED IN
                                                            12th COURT OF APPEALS
LP, Appellant,                          §                        TYLER, TEXAS
                                        §                    9/2/2015 4:40:39 PM
v.                                      §                 COURT OF PAMAPPEALS
                                                                        ESTES
                                        §                            Clerk
MARY K. MCGEE,                          §
Appellee.                               §                       TYLER, TEXAS

              APPELLANT EXCO OPERATING COMPANY,
               LP’S, MOTION TO SUPPLEMENT BRIEF OF
             APPELLANT EXCO OPERATING COMPANY, LP

      EXCO Operating Company, LP, (“EXCO” or “Appellant”) asks the Court to

permit it to supplement its Brief of Appellant EXCO Operating Company, LP

(EXCO’s “Brief”).

                             A. INTRODUCTION

      1.    Appellant is EXCO Operating Company, LP; Appellee is Mary K.

McGee (“McGee”).

                    B. ARGUMENTS AND AUTHORITIES

      2.    A Court of Appeals may permit a party to supplement a brief

whenever justice requires under Texas Rule of Appellate Procedure 38.7.

      3.    While preparing its Reply Brief in this appeal, EXCO discovered new

Texas case law which was issued after the trial of this case. In a matter of first

impression in the 14th Court of Appeals, the court addressed whether attorney’s

fees may be recovered against a partnership under Texas Civil Practice Remedies


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Code § 38.001.     Fleming & Assocs. v. Barton, 425 S.W.3d 560 (Tex. App.–

Houston [14th Dist.]), Feb. 27, 2014, pet. denied May 1, 2015). In doing so, the

court held that a “trial court erred by awarding statutory attorney’s fees . . . under

section 38.001 because a limited liability partnership is neither an individual nor a

corporation.” Fleming & Assocs. v. Barton, 425 S.W.3d at 562 (emphasis added).

More specifically, the court stated, “under the plain language of section 38.001(8),

a person may not recover attorney's fees against a partnership.”          Id. at 576.

Accordingly, the court modified the trial court’s judgment, “to remove all portions

awarding attorney’s fees.” Id. at 562. The Texas Supreme Court in May of this

year, over a year after the trial of the case which is the subject of this appeal,

declined review of the holding in Fleming.

      5.     EXCO included this newly developed case law in its Reply Brief.

However, to ensure that the matter is properly before this Court, EXCO seeks to

supplement its original Brief, as well. EXCO’s proposed Supplemental Brief is

being filed contemporaneously with this Motion.

      6.     The Court should allow EXCO to file a supplemental brief. EXCO’s

supplemental brief addresses a matter previously brought to Appellee’s attention

and briefed in EXCO’s Reply Brief. Additionally, although the issue raised therein

is significant, it is limited in scope as it focuses on the recent opinion in Fleming &

Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 574 (Tex. App.– Houston[14th Dist.]


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2014, no pet.). Lastly, filing of a supplemental brief will not delay the submission

of the appeal. This matter has been set for oral argument and submission on

October 22, 2015. Accordingly, there is sufficient time for Appellee to file a

response, if any, prior to oral argument and submission.

      7.     The Court should allow EXCO to file a supplemental brief because no

prejudice will result to McGee if the Court permits the supplementation.

      8.     Justice requires the supplementation of EXCO’s Brief so that newly

developed, relevant case law may be briefed and presented to this Court.

                               C. CONCLUSION

      9.     EXCO files this Motion for consideration by the honorable Court for

permission to supplement its Brief in the interest of justice to address the recently

developed case law directly relating to the issues presented in the subject appeal.

EXCO’s proposed Supplemental Brief has been filed contemporaneously with this

Motion.

                                   D. PRAYER

      10.    For these reasons, EXCO asks the Court to grant this Motion to

Supplement Brief of Appellant EXCO Operating Company, LP.




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                                      Respectfully submitted,

                                      WILSON, ROBERTSON & CORNELIUS, P.C.
                                      One American Center
                                      909 ESE Loop 323, Suite 400 [01]
                                      P.O. Box 7339
                                      Tyler, Texas 75711-7339
                                      Telephone: 903/509-5000
                                      Telecopier: 903/509-5091

                                      By: /s/ Matthew T. Milam
                                         JENNIFER PARKER AINSWORTH
                                         Texas Bar No. 00784720
                                         jainsworth@wilsonlawfirm.com
                                         MATTHEW T. MILAM
                                         Texas Bar No. 24065746
                                         mmilam@wilsonlawfirm.com

                                      ATTORNEYS FOR APPELLANT
                                      EXCO OPERATING COMPANY, LP

                      CERTIFICATE OF CONFERENCE

      I certify that I have conferred with opposing counsel by telephone and have
attempted in good faith to reach an agreement about this Motion to Supplement.
We have been unable to reach an agreement. Appellee opposes this Motion to
Supplement.

                                       /s/ Matthew T. Milam
                                      Matthew T. Milam

                         CERTIFICATE OF SERVICE

       I certify that on September 2, 2015, I served a copy of the foregoing Motion
to Supplement Brief of Appellant EXCO Operating Company, LP, on the party
listed below by electronic service and that the electronic transmission was reported
as complete. My email address is mmilam@wilsonlawfirm.com.

                                       /s/ Matthew T. Milam
                                      Matthew T. Milam

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