                                                                                        ACCEPTED
                                                                                   14-14-00788-CV
                                                                     FOURTEENTH COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                              1/19/2015 7:51:10 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK
                             No. 14-14-00788-CV

                         COURT OF APPEALS
                                                                   FILED IN
                    FOURTEENTH DISTRICT OF TEXAS            14th COURT OF APPEALS
                         AT HOUSTON, TEXAS                     HOUSTON, TEXAS
                                                            1/20/2015 8:00:00 AM
                                                            CHRISTOPHER A. PRINE
                                                                     Clerk
   EXERGY DEVELOPMENT GROUP OF IDAHO, LLC and JAMES T.
                      CARKULIS,

                                                   Appellants

                                          v.

 HIGHER POWER ENERGY, LLC, BLUE RENEWABLE ENERGY, LLC
          and BLACK MOUNTAIN FINANCIAL CORP.,

                                                   Appellees.


                 Restricted Appeal from Cause No. 2012-67104
              125th Judicial District Court ofHarris County, Texas
                          Han. Kyle Carter, Presiding


               APPELLEE'S RESPONSE TO APPELLANTS'
                  MOTION TO REINSTATE APPEAL


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Higher Power Energy, LLC, Appellee herein and Plaintiff in Trial Court

Number 2012-67104, respectfully submits this Response to Appellants' Motion to

Reinstate Appeal, and shows as follows:

      1.   · Higher Power Energy, LLC respectfully submits that the Motion to

Reinstate Appeal this proceeding that has been filed by Appellants Exergy

                                    Pagelof4
Development Group of Idaho, LLC and James T. Carkulis should be denied.

Specifically; this Motion should be denied for one or more of the following

reasons:

           a.    Back on October 1, 2014 this Honorable Court advised James

                 Carkulis, by way of letter that he was copied on, that the filing

                 fee that was associated with this Appeal was "due" and that

                 "payment arrangements" concerning this Appeal would need to

                 be made;

           b.    On October 14, 2014 this Honorable Court issued a Notice (to-

                 Carkulis) advising that the filing fee associated with this Appeal

                 had (still) not been paid, and that if this fee was not paid by

                 October 24,2014 the Appeal may be dismissed;

           c.    On October 30, 2014 this Honorable Court issued an Order

                 finding that the filing fee had (still) not been paid;

           d.    On that same date, this Honorable Court issued a Notice (that

                 Carkulis was copied on) specifically referencing payment for

                 the Clerk's Record;

           e.    On October 19, 2014 this Honorable Court sent notice to

                 Carkulis and counsel of record for Appellants (Seth Kretzer,

                 Esq.) advising that arrangements to pay for the Clerk's Record


                                     Page2 of4
                    had not been made, that such arrangements must be made

                    within 15 days from that date, and that proof of payment must

                    be provided to this Court by that date;

             f.     Pursuant to the Notice referenced above, these payment

                    arrangements had to be made - and proof of payment had to be

                    tendered to this Honorable Court - by December 4, 2014.

                    They were not;

             g.     The Appellants did not make arrangements to pay for the

                    Clerk's Record until January 13, 2015 - five (5) weeks after

                    same was to be done (pursuant to the Court's November 19,

                    2014 Notice), and after this Honorable Court had dismissed

                    this Appeal.

      2.     The facts set forth above, and others that will be provided to this

Court (in the unlikely event that this Court elects to grant the Motion to Reinstate

Appeal) illustrate the complete, utter disregard that the Appellants have exhibited

for the parties in this case, the law applicable to this case, rulings made by the trial

court, and Notices/Orders that have been issued by this Honorable Court

throughout the course ofthis matter.

      WHEREFORE, PREMISES CONSIDERED, Appellee Higher Power

Energy, LLC respectfully prays that this Response be received and filed and, upon


                                       Page 3 of4
consideration, that the Appellants' Motion to Reinstate Appeal this case be denied

and for such further relief, both at law and in equity, to which it may show itself

justly entitled.

                                      Respectfully submitted,

                                      FEE, SMITH, SHARP & VITULLO,
                                      L.L.P



                                      HOWARDJ.KLATSKY
                                      State Bar No. 00786024
                                      Three Galleria Tower
                                      13155 Noel Road, Suite 1000
                                      Dallas, Texas 75240
                                      (972) 934-9100
                                      (972) 934-9200 [Fax]
                                      hklatsky@feesmith.com

                                      ATTORNEY FOR APPELLEE
                                      HIGHER POWER ENERGY, LLC


                          CERTIFICATE OF SERVICE

      Tms WILL CERTIFY that a true and correct copy of the foregoing instrument
has been mailed, teleco~i~ or hand delivered to all attorneys of record in this
cause of action on the J ~y ofJanuary, 2015, as follows:

ViaCMRRE                                   Via First Class Mail
James T. Carkulis                          Andrew M. Edison
14 West 40th Street, 4th Floor             Edison, McDowell & Hetherington, LP
Helena, Montana 59601                      3200 Southwest Freeway, Suite 2100
                                           Houston, TX 77027
                                             ~--? >'""'(,..<...<- -
                                      HOWARD J. KLATSKY
                                     Page 4 of4
