Dimock Operating Company, and Joe W. Dimock, D/B/A Dimock Petroleum v. Sutherland Energy Co., LLC

• Court: Texas Supreme Court
• Decided: August 19, 2015
• Docket: 07-15-00297-CV
• Status: Published

Opinion

ACCEPTED 07-15-00297-cv SEVENTH COURT OF APPEALS AMARILLO, TEXAS 8/19/2015 11:31:52 AM Vivian Long, Clerk

No. 07-15-00297-CV FILED IN COURT OF APPEALS 7th COURT OF APPEALS SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS 8/19/2015 11:31:52 AM ________________________ VIVIAN LONG CLERK DIMOCK OPERATING COMPANY, and JOE W. DIMOCK, D/BA DIMOCK PETROLEUM, Appellants, v.

SUTHERLAND ENERGY CO., LLC Appellee. ________________________

On appeal from Cause No. 11,098 th 46 District Court, Hardeman County, Texas Hon. Dan Mike Bird, Judge Presiding

JOINT MOTION TO CORRECT CLERK’S RECORD AND FOR EXTENSION OF TIME

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COME NOW Dimock Operating Company, and Joe W. Dimock, d/b/a

Dimock Petroleum, Appellants, and respectfully state as follows:

1. The Clerk’s Record filed with this Honorable Court fails to contain all

the documents requested and has the following errors:

a. The Index is incorrectly numbered; documents in the Record do not appear on the page indicated on the Index. b. Page 6 - Plaintiff’s Original Petition and Petition for Declaratory Judgment is missing all exhibits.

c. Page 1380 – Plaintiff’s Amended Petition, Petition for Declaratory Judgment and Application for Injunctive Relief is missing all Exhibits.

d. Page 1542 – Temporary Injunction Order is not signed by the judge.

e. Page 1547 - Writ of Injunction is missing the attached Temporary Injunction Order.

f. Page 1560 – Court’s docket sheet – Single page with only one entry (should be multiple pages and multiple entries).

g. Pages 310-376 in the submitted record (a deposition taken in 2015) is not an exhibit to Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Partial MSJ filed on September 22, 2014, and, therefore, should be deleted from the corrected Record.

2. One of the two injunction orders at issue in this appeal is not included

in the submitted record because the Clerk put an unsigned copy of the order in the

submitted Record, and not the signed Order that was sent to the parties.

3. When the Index says documents are on a certain page, and the

documents are, instead, on a different page, it causes confusion to the Court in

locating the documents, and further confusion when the parties’ Briefs cite a

different page number for the same document.

4. Appellee moves this Honorable Court to order the District Clerk to

prepare a new Clerk’s Record in the proper form with all requested documents,

including their exhibits, with both requested signed injunction orders, and with an Index that correctly reflects the page number where each included document is

located.

5. Appellee further moves that the District Clerk be ordered to deliver

the corrected Clerk’s Record to counsel for Appellant (who paid for the Record) at

the Clerk’s expense.

6. Because the Clerk’s Record was not properly prepared and, therefore,

the Appellant’s Brief cannot be prepared timely with appropriate Clerk’s Record

citations, Appellant also moves this Honorable Court to order that the time for

Appellant’s Brief be extended until 20 days after the corrected Clerk’s Record is

filed with the Court and presented to counsel for Appellants.

Dated this 19th day of August, 2015.

Respectfully submitted,

Lovell, Lovell, Newsom & Isern, L.L.P. John H. Lovell, SBN 12609300 (john@lovell-law.net) Barbara A. Bauernfeind, SBN 08190500 (barbara@lovell-law.net) 112 West 8th Avenue, Suite 1000 Amarillo, Texas 79101-2314 Telephone: (806) 373-1515 Facsimile: (806) 379-7176

John H. Lovell John H. Lovell

ATTORNEYS FOR APPELLANT Certificate of Conference I hereby certify that we have conferred with Mr. Chris Lehman, lead counsel for Appellee, and Appellee agrees with this Motion and joins in the Motion.

Certificate of Service I hereby certify that a true and correct copy of the foregoing document was delivered, as certified below, this 19th day of August, 2015 to:

Cornell Curtis Via email: vernonlaw@sbcglobal.net CORNELL D. CURTIS, P.C. 1716 Main Street Vernon, TX 76384

Jerry L. Ewing, Jr. Via email: jerry.ewing@wbclawfirm.com Nathan R. Cash nathan.cash@wbclawfirm.com WALTERS, BALIDO & CRAIN, L.L.P. and via CMRRR #7015 0640 00003 9100 4055 10440 North Central Expressway Dallas, TX 75231

Chris Lehman Via email: clehman@malonelawtx.com MALONE LAW FIRM and via CMRRR #7015 0640 0003 9100 4062 1901 Lamar Street P. O. Box 953 Vernon, TX 76385

Stanley Watson Via email: srwatson1@att.net 307 Main Street P. O. Box 506 Quanah, TX 79252-0506

Mr. Ryan S. Mindell Via email: Ryan.Mindell@texasattorneygeneral.gov Mr. Adam N. Bitter Via email: adam.bitter@texasattorneygeneral.gov Texas Attorney General P. O. Box 12548 Austin, TX 78701 John H. Lovell John H. Lovell