                                                                              ACCEPTED
                                                                         07-15-00082-CV
                                                            SEVENTH COURT OF APPEALS
                                                                      AMARILLO, TEXAS
                                                                     6/4/2015 4:40:36 PM
                                                                        Vivian Long, Clerk

              CAUSE NO. 07-15-00082-CV

                         IN THE

                 COURT OF APPEALS

        FOR THE SEVENTH DISTRICT OF TEXAS

                  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/Cross-Appellee,

                            vs.

             WESTERN ROYALTY CORP.,

                Appellee/Cross-Appellant.

              CROSS-APPELLEE’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

    CROSS-APPELLEE REQUESTS ORAL ARGUMENT


                            1
                            TABLE OF CONTENTS

TABLE OF CONTENTS …………..……………………………...……….…… 2
TABLE OF AUTHORITIES ………….……………………………...…………                                          3
SUMMARY OF CASE …………………………………………………………                                                4
REQUEST FOR ORAL ARGUMENT …………………………………………                                            5
STATEMENT OF FACTS ……………………………………………………...                                            6
SUMMARY OF THE ARGUMENT ..………………………………………..... 10
ARGUMENT AND AUTHORITIES …………...…………………..…………. 11
I.    Standard of Review …………………………………………..…………                                      11
II.   Judge Sowder Properly Ordered Western Royalty to Produce Records ….            12
      A.    Texas Law Regarding Corporate Records …………...……………. 12
      B.    Judge Sowder Properly Granted Westerburg Access to Western
            Royalty’s Books and Records ……………………………………… 13
      C.    Western Royalty’s Point of Error is Meritless ………........................ 14
            C.1. Western Royalty Failed to Properly Preserve Error Regarding
                 the California Probate Court and Prevented Westerburg from
                 Completing his Reporting Requirement …….………….....… 15
            C.2. Judge Sowder’s Order Limited to Documents that Satisfy
                 Westerburg’s Proper Purpose ……………………………….. 16
            C.3. Western Royalty Incorrectly Represents the Effect of
                 IRS Ruling …………………………………………………… 18
CONCLUSION and PRAYER …………………………………………..……… 20
CERTIFICATE OF SERVICE ………………………….…………………….… 21
CERTIFICATE OF COMPLIANCE ……………………………………..……. 22
CROSS-APPELLEE’S APPENDIX ………………….…………………….….. 23



                                          2
                        TABLE OF AUTHORITIES

                                  Case Law

Baker's Campground, Inc. v. McCalla, 2012 Tex. App. LEXIS 6173
(Tex. App. – Waco 2012, no pet.) ……………………………………………… 11

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678
(Tex. 1979) ………………………………………………………………………. 12

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ……………….. 11


                               Other Authorities
California Probate Code § 8800 …………………………………………. 6, 14, 23

California Probate Code § 8804 ……………………………….………… 6, 14, 23

California Probate Code § 8850 …………………………………………. 6, 14, 23

Tex. Bus. Orgs. Code § 21.218 …………..…. 4, 6, 7, 10, 11, 12, 13, 14, 19, 20, 23

Tex. Bus. Orgs. Code § 21.222 ……………………………………………. 4, 7, 23

Tex. R. Civ. P. 166a ……………………………………………………………… 12




                                      3
                          SUMMARY OF THE CASE

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

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

Corporation (hereinafter “Western Royalty”). Once appointed as administrator of

R.D. West’s estate and acting solely in that capacity, Robert Westerburg

(hereinafter “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.

                                         4
                     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.




                                         5
                           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.

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

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

                                         6
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.

      During the proceedings, Judge Sowder ordered Western Royalty to produce to

Westerburg: 1) financial documents detailing the book value of the stock; 2) any

financial statements from the last four years; 3) profit or loss statements from the

last four years; 4) loan applications made by Western Royalty from the last four

years; 5) federal and state tax returns submitted by Western Royalty from the last

four years; 6) all existing oil and gas leases and corresponding division orders and

royalty payments for the last four years; 7) a sworn statement from Tom

Whiteside, President of Western Royalty, that the company has no good will or

intangible value; and, 8) any details of any stock sold, including purchase price and

                                            7
amount of stock, that has occurred in the last seven years. Clerk’s Record, Vol. 1 –

75.

      In response to the Court’s order, Western Royalty produced no financial

documentation detailing the book value of the corporation’s stock.         Western

Royalty did produce 105 pages of documents. Those documents consisted of 2010

- 2013 tax returns, 3 leases and a sworn statement that the company has no good

will or intangible value. Clerk’s Record, Vol. 1 – 107-220. Western Royalty

answered that it had no financial documents detailing the book value of the stock,

no financial statements from the last four years and no profit or loss statements

from the last four years. Clerk’s Record, Vol. 1 – 107-220.         Based on this

production, Westerburg was unable to determine the share value for Western

Royalty and, consequently, was unable to fulfill his reporting obligation to the

California Probate Court.

      Following this order and limited production of documents, the parties filed

competing motions for summary judgment. In his motion, Westerburg detailed the

problems with Western Royalty’s prior record production and the need for

additional documents to satisfy his purpose of determining the value of the Estate’s

shares in Western Royalty.

      After considering the motions and evidence adduced by both parties, Judge

Sowder granted Westerburg’s request and ordered Western Royalty to produce

documents in eight defined categories. Judge Sowder also awarded Westerburg court

                                         8
costs and expenses. But, Judge Sowder denied Westerburg’s request for recovery of

his attorney’s fees. Clerk’s Record, Vol. 1 – 256-259.




                                          9
                      SUMMARY OF THE ARGUMENT

      Westerburg contends that Judge Sowder properly granted his Motion for

Summary Judgment and ordered Western Royalty to produce a specific category of

books and records for examination pursuant to Section 21.218 of the Texas

Business Organizations Code.     Western Royalty’s production following Judge

Sowder’s first order was insufficient to allow Westerburg to determine the value of

the shares of Western Royalty. Given the evidence produced to the trial court by

the parties, this Court should affirm Judge Sowder’s ruling ordering Western

Royalty to produce a specific category of books and records for Westerburg’s

examination.




                                        10
                      ARGUMENTS AND AUTHORITIES

       Western Royalty contends in this appeal that Judge Sowder improperly

ordered Western Royalty to produce specific categories of books and records for

Westerburg’s examination. Western Royalty relies on an IRS regulation and a prior

order from Judge Sowder in its argument that it fulfilled its obligations under section

21.218 of the Texas Business Organizations Code, thus leaving Westerburg without a

proper purpose for requesting additional information. But, the material that Western

Royalty produced was insufficient to meet Westerburg’s needs for ascertaining a

value for the shares of Western Royalty. Further, Western Royalty only produced a

fraction of the material that the IRS regulation and Judge Sowder’s original order

required. Finally, even if this Court determines that Western Royalty’s original

production was sufficient to meet Westerburg’s needs, Western Royalty still violated

section 21.218 of the Texas Business Organizations Code by refusing Westerburg’s

original, pre-litigation request for access to the documents and forcing Westerburg to

file the lawsuit.

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

                                          11
genuine issue of material fact exists entitling the movant to judgment as a matter of

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

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

II.   Judge Sowder Properly Ordered Western Royalty to Produce Records

      In both his prior ruling and in his ruling on the competing motions for

summary judgment, Judge Sowder held that, pursuant to section 21.218 of the Texas

Business Organizations Code, Westerburg is entitled to examine the books and

records of Western Royalty and has a proper purpose for doing so. The central issue

for Western Royalty’s appeal is that Western Royalty contends that it has already

produced sufficient documentation to allow Westerburg to determine the share value

for the company. Westerburg contended, and Judge Sowder ruled, that Western

Royalty had not met its obligations under section 21.218 of the Texas Business

Organizations Code.

      A.     Texas Law Regarding Corporate 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




                                         12
by the holder regardless of the period during which the holder was a record holder.

Tex. Bus. Orgs. Code § 21.218(c).

      B.    Judge Sowder Properly Granted Westerburg Access to Western
            Royalty’s Books and Records

      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


                                        13
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

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.

      C.    Western Royalty’s Point of Error is Meritless

      Western Royalty makes three arguments that no proper purpose exists

regarding Westerburg’s request for access to Western Royalty’s books and records.

First, Western Royalty alleges that Westerburg did not request a finding from the

California Probate Court as to the value of the Western Royalty shares. Second,

Western Royalty argues that four of Westerburg’s requests are not made in good

faith to determine the value of the shares or for a proper purpose. Third, Western

Royalty contends the only acceptable order would be to follow an Internal

Revenue Service ruling regarding valuation of shares. All of these arguments are

                                        14
without merit and were properly rejected by Judge Sowder.

             C.1. Western Royalty Failed to Properly Preserve Error
                  Regarding the California Probate Court and Prevented
                  Westerburg from Completing his Reporting Requirement

      Western Royalty argues that Westerburg’s alleged failure to request the

California Probate Court to determine the value of the shares somehow impugns

Westerburg’s proper purpose in this matter.        Assuming that Western Royalty

intended to cite Appendix L instead of Appendix K on this issue (Appendix K is the

Final Summary Judgment), Western Royalty is citing to a document that it neither

attached to its Motion for Summary Judgment nor provided to the trial court.

Further, this document is not authenticated and contains multiple evidentiary failings

including hearsay. As Western Royalty did not include this document at the trial

court level and deprived Westerburg of an opportunity to refute it, Western Royalty

has failed to properly preserve any error regarding Appendix L and Westerburg’s

alleged actions before the California Probate Court.

      But, even if this Court allowed Western Royalty to proceed with this argument

using this document, this argument is ineffective to refute Westerburg’s proper

purpose. As set forth in Westerburg’s affidavit, Western Royalty’s conduct has

stymied Westerburg’s ability to meet his reporting requirements under the California

Probate Code. Clerk’s Record, Vol. 1 – 95-100. Westerburg specifically described

why he cannot meet that obligation with Western Royalty’s current disclosures and

what additional evidence he will need to do so. Clerk’s Record, Vol. 1 – 98-100.

                                          15
Further, Westerburg’s affidavit states that he will complete his reporting requirement

once he has sufficient information. Clerk’s Record, Vol. 1 – 97. Essentially, the

document that Western Royalty improperly cites to this Court is preliminary and will

be amended once this Court affirms the Trial Court’s ruling and Western Royalty

makes available the required documents.

             C.2. Judge Sowder’s Order Limited to Documents that Satisfy
                  Westerburg’s Proper Purpose

      Western Royalty’s second argument claims that four of the document

categories ordered by Judge Sowder do not meet Westerburg’s “Proper Purpose” of

determining share value. These categories include the identities of shareholders,

bank statements and cancelled checks for a 5 year period and cash flow reports and

other documents reflecting monies received and expenditures made for the same five

year period. Western Royalty simply asserts that these requests were not made in

good faith to determine the value of the shares. Western Royalty offers no analysis

or precedential authority to substantiate its criticism of Judge Sowder’s order.

Western Royalty just says it.

      In fact, there is a very good reason that Judge Sowder included those four

categories in the eight total categories of documents set forth in the Final Summary

Judgment. Initially, Judge Sowder’s ordered Western Royalty to make available for

inspection seven specific categories of documents and provide a sworn statement that

Western Royalty had no good will or intangible value. Clerk’s Record, Vol. 1 – 75.


                                          16
Western Royalty responded by producing four years of tax returns, three leases and

a sworn statement that the company has no good will or intangible value. Western

Royalty affirmatively stated that it had no financial documents detailing the book

value of the stock, no financial statements from the last four years and no profit or

loss statements from the last four years.1 Clerk’s Record, Vol. 1 – 107-220.

       This document production did not approach the level necessary to allow

Westerburg to determine the share value for Western Royalty.                   Specifically,

Westerburg was unable to determine the book value of the stock as he did not

know the total number of shares issued and outstanding and the cash or cash

equivalent of each and every asset of Western Royalty, including, but not limited

to, the value of mineral interests owned by Western Royalty. Clerk’s Record, Vol.

1 – 98-100. Other information that would bear on this issue would be the dates,

prices and numbers of shares and parties to prior transfers of any shares. Clerk’s

Record, Vol. 1 – 98-100.

       Given that it would be impossible for Western Royalty to manage the

company without such financial documentation, Westerburg pointed out that

documents such as a stock registry, profit and loss statements, balance sheets or

any other basic accounting information are critical to determining what the values



1       In an email to the Trial Court dated June 25, 2014, Mr. Tom Whiteside, President and
attorney for Western Royalty, stated that the company had three Certificates of Deposit with a
total value of approximately $103,000. Clerk’s Record, Vol. 1 – 221-222.Western Royalty did
not produce a balance sheet evidencing $103,000 cash or an equivalent asset (such as a
Certificate of Deposit) nor is there a document reflecting any expenditure of the $103,000.
                                             17
of the Estate’s shares in Western Royalty are. Clerk’s Record, Vol. 1 – 97-100.

Even if Western Royalty had given all of its financial information sufficient to

determine the value of the business (which it did not), Westerburg still cannot

evaluate the per share value without knowing how many shares are issued and

outstanding. Clerk’s Record, Vol. 1 – 97-100. Since the Estate only owned 350

shares, the per-share value is the critical issue for California Probate Court – not

the total value for Western Royalty.

      Consequently, Westerburg filed his motion for summary judgment and

asked the trial court to expand the original order. After reviewing the affidavit of

Robert Westerburg and the previous documents that Western Royalty produced,

Judge Sowder ordered Western Royalty to produce eight specific categories of

documents.

             C.3. Western Royalty Incorrectly Represents the Effect of
                  IRS Ruling

      Western Royalty’s last argument against Judge Sowder’s Final Summary

Judgment is that an IRS ruling determines how shares of a closely-held corporation

are valued and that Western Royalty has complied with this ruling. Western

Royalty has overstated both the language in and the effect of this ruling. The

ruling includes the caveat that “The following factors, although not inclusive are

fundamental and require careful analysis in each case:”. (Cross-Appellant Brief,

Appendix G, emphasis added). By that very language, the IRS acknowledged that


                                        18
the listed factors are not an exhaustive list of the issues which may be considered.

Further, no language exists in this Ruling which reads that it is binding or pre-

emptive on any court in any jurisdiction. While the IRS may consider it their own

policy, Western Royalty failed to show how expanding beyond the categories set

under this ruling constitutes any breach of law or a reversible error.

       Moreover, even if this Court were to hold that this ruling was conclusive and

pre-empted any Texas law or judicial determinations, Western Royalty failed to

comply with the requirements of the ruling.               As set forth in C.3., Western

Royalty’s production was wholly insufficient to meet Westerburg’s proper

purpose, the requirements of the IRS ruling or Judge Sowder’s first order. 2

Western Royalty is asking this Court to reverse Judge Sowder and hold that since

Western Royalty says it does not have the kind of documents that IRS ruling

identified, Western Royalty is absolved from its obligations under 21.218 of the

Texas Business Organizations Code.            Given Western Royalty’s conduct, Judge

Sowder had no other option but to grant Westerburg’s Motion for Summary

Judgment and to order Western Royalty to produce additional documents to satisfy

Westerburg’s proper purpose.




2       Western Royalty wrote that the trial court accepted the IRS ruling as “a good, common
sense approach to use”. (Cross Appellant’s Brief, p. 15). That language appears nowhere in the
trial court’s prior order and Western Royalty failed to cite where and when that statement was
allegedly made.
                                              19
                        CONCLUSION and PRAYER

      Westerburg contends that Judge Sowder correctly granted his motion for

summary judgment in that Westerburg is 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 as set forth in that section. 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.     Western Royalty contends that it has

produced sufficient documents to satisfy Westerburg’s purpose. Based on the

uncontroverted evidence before the trial court, Judge Sowder determined as a

matter of law that Western Royalty had failed to produce the documents necessary

for Westerburg to meet his obligation to the California Probate Court. Nothing in

Western Royalty’s brief points to any contradiction in the evidence before Judge

Sowder.   As such, Judge Sowder properly granted Westerburg’s Motion for

Summary Judgment.

      For the reasons stated herein, Westerburg prays that this Court affirm the

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

ordered Western Royalty to produce corporate books and records in eight specific

categories. Given the evidence adduced at the summary judgment proceeding,

Westerburg further prays that this Court render a judgment in favor of Westerburg

                                       20
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




                          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 4th day of June, 2015.




                                        Steven Thornton




                                          21
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief contains 3,456 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




                                         22
                     CROSS- APPELLEE’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




                                        23
                                                                    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
