Bacon-Tomsons, LTD., BRL Oil and Gas, L.L.C. and Ferrell Edwin Munson v. Chrisjo Energy, Inc., Jack M. Cline and Imperial Petroleum, Inc.

Opinion

ACCEPTED 01-15-00305-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/3/2015 3:09:30 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00305-CV ________________________________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS FOR THE FIRST HOUSTON, TEXAS JUDICIAL DISCTRICT OF TEXAS 8/3/2015 3:09:30 PM ____________________________________CHRISTOPHER Clerk A. PRINE

BACON-TOMSONS, LTD., BRL OIL AND GAS, L.L.C., AND FERRELL EDWIN MUNSON,

Appellants

VS.

CHRISJO ENERGY, INC. AND JACK M. CLINE,

Appellees

APPELLANTS’ UNOPPOSED MOTION TO ABATE APPEAL

Appellants Bacon-Tomsons, Ltd., BRL Oil and Gas, L.L.C. and Ferrell Edwin

Munson (“Appellants’”) file their Motion to Abate this appeal.

1. This is an appeal of a judgment of the 122nd Judicial District Court in

Galveston County, Texas on March 4, 2015, after conventional bench trial on the

merits, resulting in a directed verdict in the appellee defendants’ favor. Appellants’

notice of appeal was filed on April 6, 2015. There were no orders of severance or

separate trials entered by the district court.

2. Appellees did file a timely post-trial motion to have the district court include

in its judgment attorney’s fees pursuant to the Texas Theft Liability Act, but this

motion was not ruled on within 76 days of the date of the district court’s March 4, 2015 judgment, therefore, it was overruled by operation of law on May 18, 2015.

Thirty days after the overruling of Appellee’s lone post-trial motion was June 17,

2015. On July 8, 2015, 21 days after the trial court’s jurisdiction expired, the district

court signed an order granting Appellees attorney’s fees and fees for appeal.

3. The parties dispute, and are presently disputing in the district court, whether

the March 4, 2015 judgment was a final judgment. See Appellee’s Motion to Abate

Appeal, filed herein on May 29, 2015, which is pending for decision. Appellees’

motion maintains that the March 4, 2015 judgment was not final, and that

Appellants’ notice of appeal was prematurely filed. Appellants opposed this motion

claiming, on the grounds set forth in the previous paragraph, that the March 4, 2015

judgment was a final, appealable judgment. See Appellants’ Response to Motion to

Abate, filed herein on June 8, 2015.

4. Appellees are still seeking entry of yet another final judgment from the district

court as of the date of the filing of this motion. See Defendants’ Amended Motion

for Entry of Final Judgment, filed July 8, 2015, attached hereto as Exhibit 1. This

motion is set for submission on August 5, 2015.

5. In the meantime, Appellee has supplemented the clerk’s record to include

actions taken by the district court following entry of what Appellants claim was the

final judgment, as well as actions taken by the district court after what Appellees

claim was the final judgment. Once the district court issues a ruling on Appellees’ motion to enter a final judgment over Appellees’ objection, the clerk’s record will

need to be supplemented yet again.

6. Presently, and based on the assumption that this Court has before it a final,

appealable judgment, Appellants’ brief is due today, August 3, 2015. Appellant does

not want to brief the case if in fact, there is not, as of August 3, 2015, a final,

appealable judgment against it. Nor does Appellant want to file a brief based on an

obviously incomplete clerk’s record, which record will, regardless of the

determination of finality of judgment, be supplemented again.

7. This Court should first resolve the issue of finality of the March 4, 2015

judgment before either party has to file a brief on the merits of the district court’s

directed verdict or its award of attorney’s fees to Appellees. While Appellants stand

by their opposition to Appellees’ motion to abate this appeal, for the reasons set forth

herein, they now separately request abatement to avoid unnecessary expense for the

parties and work for this Court due to a briefing schedule based on presumed finality

of judgment.

8. Accordingly, Appellants request that this Court abate this appeal until 30 days

after this Court issues an order on whether or not the district court’s judgment of

March 4, 2015 is a final, appealable judgment.

9. Appellees are unopposed to this Motion. WHEREFORE, Appellants’ Bacon-Tomsons, Ltd. BRL Oil and Gas, L.L.C.

and Ferrell Edwin Munson respectfully request that the Court grant this motion to

abate this appeal.

Respectfully submitted,

By: _/s/ Chris Di Ferrante____ TBN: 05858800 402 E. 11th Street Houston, Texas 77008 Telephone (713) 868-1919 Facsimile (713) 868-1899 chris@cdflaw.com

ATTORNEY FOR APPELLANTS

CERTIFICATE OF SERVICE

I hereby certify that on this the 3rd day of August, 2015, true and correct copies of the foregoing instrument were forwarded via e-mail, to the attorney listed below.

Robert E. Booth BY E-MAIL rbooth@millsshirley.com Mills Shirley LLP 2228 Mechanic St., Suite 400 Galveston, Texas 77550 Representing appellees Chrisjo Energy, Inc. and Cline

__/s/ Chris Di Ferrante_________ EXHIBIT 1