                                                                          ACCEPTED
                                                                      12-15-00087-CV
                                                         TWELFTH COURT OF APPEALS
                                                                       TYLER, TEXAS
                                                                 9/15/2015 9:36:33 AM
                                                                            Pam Estes
                                                                               CLERK

          CASE NO. 12-15-00087-CV

                 IN THE                              RECEIVED IN
       TWELFTH COURT OF APPEALS                12th COURT OF APPEALS
                 at Tyler                           TYLER, TEXAS
             _______________                   9/15/2015 9:36:33 AM
                                                      PAM ESTES
                                                        Clerk
      EXCO OPERATING COMPANY, LP
                          Appellant,
                  V.

               MARY K. MCGEE                             9/15/2015
                                   Appellee.
                _______________

         Appeal from Cause No. 369-09
   115th District Court, Upshur County, Texas
       Honorable Lauren Parish Presiding
                    _________

SURREPLY BRIEF OF APPELLEE MARY K. MCGEE


                    JOHN D. SLOAN, JR.
                    Texas Bar No. 18505100
                    E-mail: jsloan@sloanfirm.com
                    JUSTIN A. SMITH
                    Texas Bar No. 24058357
                    E-mail: jsmith@sloanfirm.com
                    Sloan, Bagley, Hatcher & Perry Law
                    Firm
                    101 East Whaley Street
                    P.O. Drawer 2909
                    Longview, Texas 75606
                    Telephone: 903-757-7000
                    Telecopier: 903-757-7574


                    ATTORNEYS FOR APPELLEE
                    MARY K. MCGEE


       ORAL ARGUMENT REQUESTED
                                 TABLE OF CONTENTS

Table of Contents. ......................................................................          i

Index of Authorities. ..................................................................           ii

Terminology................................................................................        iv

Argument and Authorities. .......................................................                  1

Prayer. ........................................................................................   14

Certificate of Service. .................................................................          15

Certificate of Compliance. .........................................................               16




                                                    i
                           INDEX OF AUTHORITIES
CASES                                                                             PAGE(S)

Barker v. Eckman, 213 S.W.3d 306
       (Tex. 2006) ............................................................................ 11

Findlay v. Cave, 611 S.W.2d 57 (Tex. 1981) ................................. 6

Fleming & Assocs. v. Barton, 425 S.W.3d 560
      (Tex. App.—Houston [14th Dist.], Feb. 27, 2014,
      pet. denied May 1, 2015) .................................... , 12, 14, 15, 16

In the Interest of C.H., 2014 Lex. App. LEXIS 8675
       (Tex. App.—Fort Worth 2014, no pet.) ................................ 12

Kupchynsky v. Nardiello, 230 S.W.3d 685
      (Tex. App.—Dallas 2007, pet. denied) .................................... 7

McNamara v. Fulks, 855 S.W.2d 782
       (Tex. App.—El Paso 1993, orig. proceeding) ....................... 10

Outdoor Sys., Inc. v. BBE, LLC, 105 S.W.3d 66
       (Tex. App.—Eastland 2003, pet. denied) ........................... 4-5

Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co.,
       3 S.W.3d 112
       (Tex. App.––Corpus Christi 1999, pet. denied) ........ 7, 8, 10

Ragsdale v. Progressive Voters League, 801 S.W.2d 880
       (Tex. 1990) ............................................................................. 8

Smith v. Patrick W.Y. Tam Trust,
        296 S.W.3d 545 (Tex. 2009) ....................................... 8, 9, 10

Tatum v. Preston Carter Co., 702 S.W.2d 186
       (Tex. 1986) ........................................................................... 11




                                               ii
Texas Gen. Indem. Co. v. Speakman, 736 S.W.2d 874
         (Tex. App.—Dallas 1987, no writ) ........................................ 7

Wayne v. A.V.A. Vending, Inc., 32 S.W.3d 412, 418
         (Tex. App.––Corpus Christi 2001, pet. denied) ............... 2, 6

Weaver v. Jamar, 383 S.W.3d 805
         (Tex. App.—Houston [14th Dist.] 2012, no pet.) ................. 9

Whole Foods Mkt. Southwest, Inc. v. Tijerina, 979 S.W.2d 768
         (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ........ 13

Texas Rules and Statutes

Tex. Civ. Prac. & Rem. Code § 38.001........................................... 15

Tex. Civ. Prac. & Rem. Code § 38.005........................................... 15

Tex. R. App. P. 33. .......................................................................... 12

Tex. R. Civ. P. 166a(i). ..................................................................... 7

Tex. R. Civ. P. 301 ........................................................................... 8




                                               iii
                        TERMINOLOGY


“EXCO” or “Appellant”    Appellant/Defendant, EXCO Operating
                         Company, LP
“McGee” or “Appellee”    Appellee/Plaintiff, Mary K. McGee
“Judge Parish”           Honorable Lauren Parish, 115th
                         Judicial District Court, Upshur
                         County, Texas
The “Lease”              The Oil, Gas and Mineral Lease Dated
                         February 21, 1996, originally between
                         Curtis Webb and Wife Mary K. McGee,
                         as lessors, and Amoco Production
                         Company, as lessee. (5 R.R. Pl. Ex. 1)
The “Property”           The 93.9 acres of land, more or less, a
                         part of the David Meredith Survey, A-
                         315, subject to the Lease and made the
                         basis of the underlying lawsuit brought
                         by McGee.




                              iv
               ARGUMENT AND AUTHORITIES


A. EXCO has failed to demonstrate that McGee’s demands were

excessive.

     EXCO raises several new arguments regarding excessive

demand in its Reply Brief. Of note, EXCO now argues that: (1) it

performed under the Lease; (2) McGee’s unliquidated demands

were excessive; and (3) McGee’s offers at mediation should not be

considered. (EXCO’s Reply at 2, 6, 8). The remainder of EXCO’s

excessive demand arguments echo its original brief. McGee will

not belabor those points, having addressed them in Appellee’s

Brief.

     1. EXCO’s failure to perform under the Lease justified

     McGee’s belief that her demands were reasonable.

     EXCO argues that “[t]he jury verdict further demonstrates

that McGee’s demands sought amounts to which she was not

entitled, and that they were therefore excessive.” (EXCO’s Reply

at 3-4). Though presented in a new package, this is little more




                               1
than a reiteration of EXCO’s mantra in this appeal: “Foresight is

20/20.”

     To evidence this, EXCO asserts that the jury did not

ultimately find McGee entitled to the full measure of damages she

sought, and that its verdict is indisputable evidence of that fact.

(EXCO’s Reply at 3). This circular argument misses the point. The

proper question is not whether the jury ultimately found McGee

entitled to the full measure of damages she sought; the proper

question is whether she acted reasonably when she made her

demands. Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 418 (Tex.

App.—Corpus Christi 2001, pet. denied).

     Prior to litigating the Lease and based upon its plain

language, McGee had every reason to believe that she was legally

entitled to recover damages for her land. (Appellant’s App. Tab 4);

(5 R.R. D.’s Ex. 6). EXCO alleges that McGee’s attempt to enforce

that right was unreasonable because the jury did not ultimately

award her damages for that point at trial. (EXCO’s Reply at 9)

(“…EXCO did restore the well site to its proper state… [t]his is

confirmed by the jury verdict, which awarded nothing to McGee




                                2
for loss of property value, a finding that McGee has not

appealed.”). This reasoning would make sense if Appellee had

made demands for her land after the jury held she was not

entitled to it; because that is not the factual scenario here, the

reasoning is mystifying. Prior to a jury’s verdict, there are nothing

but fact questions existing regarding the elements of a cause of

action and damages. If a party believes that no fact questions

existing regarding these causes of action or elements of damages,

they can file a motion for summary judgment and, if they are

right, the trial court must grant that relief. Note, and this is

important, that EXCO does not assert in either their brief or reply

that they believed there was no fact question regarding Appellee’s

entitlement to damages for her land and therefore filed a motion

for summary judgment, which, being right in their assessment,

was granted.

     Appellant’s argument that a jury’s verdict conclusively

precludes a party’s reasonable belief that they are entitled to

certain damages based on certain claims before that jury’s verdict

is rendered cannot be credited. Such reasoning undermines the




                                 3
entire point of a jury trial. Though certainly not for a lack of effort,

EXCO has failed to identify any authority charging a litigant with

knowledge of the eventual outcome of their case.1

               2. McGee acted reasonably when making her settlement

               demands.

               EXCO discusses Outdoor Sys., Inc. v. BBE, LLC at some

length, analogizing it to the case at bar. (EXCO’s Reply at 6-7);

citing 105 S.W.3d 66 (Tex. App.—Eastland 2003, pet. denied).

While that case does address an unreasonable unliquidated

demand, it bears little similarity to this case. Notably, Outdoor

hinged on a landlord’s demand for an unliquidated sum, under

threat of forfeiture of the tenant’s lease. Id. “As a general rule, the

demand for rent, for the nonpayment of which the lessor may

declare the lease forfeited, must be for the precise amount of rent

due, and if an excessive amount is demanded the demand will be

ineffectual.” Id. at 71 (emphasis added). The case here differs
																																																													
1	With	respect	to	the	photographs,	it	is	clear	that	the	land	had	not	been	restored	at	

the	 time	 they	 were	 taken,	 regardless	 of	 when	 that	 took	 place.	 Appellee’s	 counsel	
relied	on	the	metadata	for	the	photographs	and	the	dates	on	the	electronic	folders	
they	 were	 contained	 in	 to	 determine	 those	 dates,	 as	 the	 attorney	 representing	
Appellee	 below	 is	 no	 longer	 with	 the	 firm.	 If	 those	 dates	 are	 in	 error,	 Appellee’s	
counsel	apologizes	for	the	mistake,	which	was	unintentional.		



                                                                4
markedly—if nothing else, EXCO is not the sort of tenant that

pays rent. Moreover, the Outdoor Systems court took specific issue

with the fact that the demand was unliquidated: rent is a

necessarily liquidated sum, rendering such a demand wholly

improper. Id. at 73 (“BBE’s demand was not for a specific

liquidated sum.”).

     3. EXCO’s arguments do not warrant the remedy it seeks.

     EXCO attempts to justify its mischaracterization of the facts

below by asserting that there is no evidence of McGee’s lowered

settlement offers in the record, and that any communications it

made in mediation is confidential. (EXCO’s Reply at 8). It is worth

noting that EXCO offers only excuses for its mischaracterization,

not a denial thereof. (EXCO’s Reply at 8). While EXCO is correct

that no evidence of lowered settlement offers directly appears in

the Reporter’s Record, the motions on attorney’s fees filed by both

parties in the trial court reference their existence, and have gone

without objection. (Appellee’s App. Tab 2, p. 2 & Tab 3, p. 3).

Additionally, while EXCO correctly notes that statements a party

makes in an ADR proceeding cannot be offered against them,



                                5
McGee has not offered any of EXCO’s statements from the

proceeding; only her own.

     EXCO concludes that McGee’s demands were unreasonable

and led directly to a jury trial, thus depriving her of the right to

recover attorney’s fees. In arriving at this conclusion, it takes a

few wrong turns. It does correctly note that the dispositive inquiry

for determining whether a demand is excessive is whether the

claimant acted unreasonably or in bad faith. (EXCO’s Reply at 1

(citing Wayne, 52 S.W.3d at 418 (Tex. App.—Corpus Christi 2001,

pet. denied) (citing Findlay v. Cave, 611 S.W.2d 57, 58 (Tex.

1981))). However, it continually fails to acknowledge the difference

between an amount to which one reasonably believes herself

entitled under the unliquidated and unlitigated terms of a

breached agreement, and the amount to which a jury eventually

finds her entitled. (EXCO’s Reply at 3-4, 7, 8, 9). Under the

holding that EXCO seeks, a litigant must let the jury verdict guide

her settlement demands—never mind the fact that a trial may

come years after the demands are made. The notion is

insupportable.



                                 6
B. EXCO has failed to demonstrate that McGee’s attorney’s fees

were excessive.

     After parroting a handful of excessive fee arguments from its

original brief, EXCO correctly notes that by putting on

controverting evidence of attorney’s fees, it created a fact issue.

(EXCO’s Reply at 11-12) (citing Texas Gen. Indem. Co. v.

Speakman, 736 S.W.2d 874, 885-86 (Tex. App.—Dallas 1987, no

writ)). Unfortunately for EXCO, merely creating a fact issue does

not establish an abuse of discretion sufficient to overturn a

factfinder’s award of attorney’s fees. Pegasus Energy Group, Inc.

v. Cheyenne Petroleum Co., 3 S.W.3d 112, 132 (Tex. App.—Corpus

Christi 1999, pet. denied). Such a fact issue would certainly

preclude a no-evidence summary judgment, directed verdict, or

judgment notwithstanding the verdict; it has no effect, however,

on an issue submitted to the trial judge for factfinding. See Tex. R.

Civ. P. 166a(i) (“The court must grant the motion unless the

respondent . . . rais[es] a genuine issue of material fact.”);

Kupchynsky v. Nardiello, 230 S.W.3d 685, 688 (Tex. App.—Dallas



                                 7
2007, pet. denied) (“A directed verdict is proper . . . when the

evidence is insufficient to raise a material fact issue.”); Tex. R.

Civ. P. 301 (“[T]he court may render judgment non obstante

veredicto if a directed verdict would have been proper”); but see

Pegasus Energy Group, Inc., 3 S.W.3d at 132.2

               1. EXCO asks this Court to apply an incorrect standard.

               Despite EXCO’s contentions, McGee does not cite Smith v.

Patrick W.Y. Tam Trust in support of the trial court’s fee award.

(EXCO’s Reply at 13). Quite the contrary. Smith offers little—if

any—direct guidance in this dispute. Smith v. Patrick W.Y. Tam

Trust, 296 S.W.3d at 548 (“But the jury’s fee award is not at issue

here”). Smith addressed a procedural and evidentiary doctrine,

similar to summary judgment or judgment as a matter of law,

where uncontroverted evidence of attorney’s fees established those

fees as a matter of law, without submission to a factfinder. See id.

(citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880,

																																																													
2“The trial court’s award of attorney’s fees will not be disturbed absent an
abuse of discretion. A trial court may be reversed for abusing its discretion
only when the court of appeals finds the court acted in an unreasonable,
arbitrary manner, or acted without reference to any guiding rules and
principles.” (internal citations omitted).



                                                                8
882 (Tex. 1990)). 3 It did not purport to provide guidance to courts

evaluating attorney’s fees awarded by a factfinder after reviewing

controverted evidence. Smith, 296 S.W.3d at 547-48.

               EXCO does correctly note that whether a jury acts as fact-

finder on attorney’s fees or the trial court does, a reviewing court

applies the same standard. (EXCO’s Reply at 15-16);Weaver v.

Jamar, 383 S.W.3d 805, 814 (Tex. App.—Houston [14th Dist.]

2012, no pet.). However, while fee awards determined by trial

courts and juries are reviewed under the same legal standard,

they necessitate different considerations. “Generally, the trial

court enjoys wide discretion in awarding attorney’s fees, and this

[c]ourt will not overturn its decision absent abuse of that



																																																													
3
  “It is the general rule that the testimony of an interested witness, such as a
party to the suit, though not contradicted, does no more than raise a fact
issue to be determined by the jury. But there is an exception to this rule,
which is that where the testimony of an interested witness is not contradicted
by any other witness, or attendant circumstances, and the same is clear,
direct and positive, and free from contradiction, inaccuracies, and
circumstances tending to cast suspicion thereon, it is taken as true, as a
matter of law. . . . While the present case fits the exception to the general
rule, we do not mean to imply that in every case when uncontradicted
testimony is offered it mandates an award of the amount claimed. For
example, even though the evidence might be uncontradicted, if it is
unreasonable, incredible, or its belief is questionable, then such evidence
would only raise a fact issue to be determined by the trier of fact.”



                                                                9
discretion.” Id. (citing McNamara v. Fulks, 855 S.W.2d 782, 784

(Tex. App.—El Paso 1993, orig. proceeding)).

      2. A reviewing court generally may not substitute its

      judgment for that of the factfinder.

      A trial judge has the duty to reduce a jury’s award of

attorney’s fees if she finds a fee award, based upon uncontroverted

evidence, excessive. See, e.g., Thomas v. Bobby D. Assocs., 2008

Tex. App. LEXIS 5881 at *12. When, as here, a trial judge acting

as factfinder awards attorney’s fees after receiving evidence and

argument from both sides, she enjoys considerable latitude in

making her decision. See Pegasus Energy Group, Inc., 3 S.W.3d at

132 (“The determination of the amount to be awarded as a

reasonable attorney’s fee is a question for the trier of fact, but the

award must be supported by competent evidence.”); see also Smith

v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (“The

reasonableness of attorney’s fees is ordinarily left to the factfinder,

and a reviewing court may not substitute its judgment for the

jury’s.”).

      Regarding proportionality between fees and damages, the



                                  10
Texas Supreme Court has spoken. In Barker v. Eckman, the

Texas Supreme Court rejected the premise underlying EXCO’s

argument. See 213 S.W.3d 306, 314 (Tex. 2006). There, the Court

remanded an award of attorney’s fees for further proceedings after

reducing the award of actual damages upon which the fees were

based. Id. In doing so, it declined to substitute its judgment for

that of the fact finder. Id. It also declined to impose a

“presumptive proportionality” legal construct, under which a

reviewing court would presume that an attorney’s fee award is to

be reduced in proportion to any reduction in actual damages. Id. It

reasoned that such an approach would require a presumption that

the fact finder “awarded attorney’s fees on some proportionality

basis to actual damages.” Id. at 314-15 (emphasis added). It

declined to impose such a remedy. Id. (citing Tatum v. Preston

Carter Co., 702 S.W.2d 186, 188 (Tex. 1986) (holding that court of

appeals erred in proportionally reducing exemplary damages in

the exact ratio as the actual damages were reduced)).

     The record before this Court allows a single conclusion: that

Judge Parish, having reviewed the evidence submitted to her and




                                11
the circumstances of the case, concluded that McGee was entitled

to the amount of attorney’s fees ultimately awarded. (Appellant’s

App. Tab 2). The fact that EXCO disagrees with the weight that

Judge Parish gave to each party’s evidence does not constitute an

abuse of discretion.


     C. The recent Fleming decision does not relieve EXCO of

     liability for McGee’s attorney’s fees.


     EXCO asserts that the recent Fleming & Assocs. v. Barton

decision from the Fourteenth District shields it from liability for

McGee’s attorney’s fees. (EXCO’s Reply at 17); 425 S.W.3d 560,

575 (Tex. App.—Houston [14th Dist.], Feb. 27, 2014, pet. denied

May 1, 2015). As a threshold matter, EXCO has waived this

argument. To preserve an error for appeal, a litigant must object

to the error and obtain a ruling denying it. Tex. R. App. P. 33.

EXCO did neither, despite filing a Motion for New Trial on the

sole issue of attorney’s fees over a year after the Fleming decision

was issued. (C.R. 263-269). Generally speaking, any issue not

raised at trial or in a motion for new trial is waived on appeal. In

the Interest of C.H., 2014 Lex. App. LEXIS 8675, *4 (Tex. App.—


                                 12
Fort Worth 2014, no pet.) This holds true even if a new opinion is

issued while the case is pending. See Whole Foods Mkt.

Southwest, Inc. v. Tijerina, 979 S.W.2d 768, 773 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied). Tijerina involved an

appeal from a jury verdict finding the appellant liable for

retaliatory discharge under the Labor Code. See id. at 772. The

appellant raised for the first time on appeal the argument that, as

a non-subscriber to the Worker’s Compensation Act, they could

not be held liable for retaliatory discharge under the Labor Code.

See id. This argument was based upon a Texas Supreme Court

opinion, Texas Mexican Railroad. Co. v. Bouchet, issued after a

jury rendered a verdict in favor of the plaintiff. See id. at 772. The

appellee asserted that the argument was waived because it had

not been raised to the trial court. See id. at 773. The appellant, in

response, claimed that it could not have raised the argument

because two sister court had held, and dicta from the Texas

Supreme Court suggested, that the argument was precluded. See

id. Holding that the argument was waived because it was not

raised below, the court found that nothing precluded the appellant




                                 13
from making argument at the trial court. See id. First, none of the

existing authority was binding on the trial court. See id. “After all,

[the appellant in Bouchet] objected during the trial, and having

preserved the issue for appeal, raised the issue with the court of

appeals in spite of [the contrary authority.” See id. Moreover, even

if there had been binding contrary authority, there was still “no

reason why [appellant] could not have made [the] argument,” for

purposes of preserving it for appeal. See id.

     Here, of course, Appellant does not even assert that there

was any contrary authority; rather, they simply argue that

Fleming is “new law.” It is not, however, new law, as Fleming was

decided in February 27, 2014, almost a year prior to the trial court

issuing her Findings of Fact and Conclusions of Law on attorney’s

fees, in January 2015, and Appellant had ample opportunity to

raise the argument below. Nor is Fleming “new law,” because

Fleming is only binding authority for trial courts in the 14th

District Court of Appeals. Appellant has less excuse than those

put forward in Tijerina, and their attempt to raise Fleming at the

11th hour is improper and should be precluded.




                                 14
     Assuming arguendo that EXCO may still raise its Fleming

argument, this Court should decline to adopt the holding. The

opinion put great weight on the plain text and legislative history

of Texas Civil Practice and Remedies Code § 38.001, but

nonetheless came to the flawed conclusion that only individuals

and corporations may be held liable for attorney’s fees under

Chapter 38. Fleming & Assocs. v. Barton, 425 S.W.3d at 575. As

noted in the Fleming opinion, the legislative intent behind

Chapter 38’s change of wording was to eliminate governmental

liability. Id. There is simply no logical reason for Chapter 38 to

apply to individuals and corporations, but not partnerships or

other business entities. Assuming that the Chapter’s underlying

purpose is to encourage certain classes of aggrieved parties to

pursue judicial remedies for their harms, such an arbitrary

construction would surely impair the underlying purpose, rather

than further it. See Tex. Civ. Prac. & Rem. Code § 38.005 (“This

chapter shall be liberally construed to promote its underlying

purposes”). Absent a binding decision from the Texas Supreme

Court holding to the contrary, this Court should reject the




                               15
Fleming argument as contrary to public policy.


                            PRAYER


      Appellee Mary K. McGee respectfully prays that this Court
affirm the trial court’s judgment awarding her the reasonable
attorney’s fees that she incurred while prosecuting this action.


                        Respectfully submitted,
                          Sloan, Bagley, Hatcher & Perry Law
                          Firm
                          101 East Whaley Street
                          P.O. Drawer 2909
                          Longview, Texas 75606
                          Telephone: 903-757-7000
                          Telecopier: 903-757-7574




                     By:__/s/Justin A. Smith_____________
                          JOHN D. SLOAN, JR.
                          Texas Bar No. 18505100
                          E-mail: jsloan@sloanfirm.com
                          JUSTIN A. SMITH
                          Texas Bar No. 24058357
                          E-mail: jsmith@sloanfirm.com

                           ATTORNEYS FOR APPELLEE
                           MARY K. MCGEE




                               16
                   CERTIFICATE OF SERVICE



I hereby certify that pursuant to Rule 9.5, Texas Rules of

Appellate Procedure, that a true and correct copy of the foregoing

brief was served upon the following counsel electronically, through

the electronic filing manager, and via certified mail, return receipt

requested, on this the 15th day of September, 2015:

     Jennifer Parker Ainsworth
     E-mail: jainsworth@wilsonlawfirm.com
     Matthew T. Milam
     E-mail: mmilam@wilsonlawfirm.com

     [Attorneys for Appellee EXCO Operating Company, LP]

     Wilson, Robertson, and 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




                                                   ________________




                                 17
               CERTIFICATE OF COMPLIANCE


       I, JUSTIN SMITH, attorney for Appellee Mary K. McGee,
hereby certify, pursuant to Texas Rule of Appellate Procedure
9.4(i)(3), that there are 5906 words in the foregoing Appellant’s
Brief. I am making this certification based upon reliance on the
word count of the computer program used to create Appellee’s
Brief.




                               18
