EXCO Operating Company, LP v. Mary K. McGee

Opinion

ACCEPTED 12-15-00087-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/16/2015 10:16:55 AM Pam Estes CLERK

CAUSE NO. 12-15-00087-CV

EXCO OPERATING COMPANY, LP § IN THE TWELTH FILED IN Appellant § 12th COURT OF APPEALS § TYLER, TEXAS VS. § 9/16/2015 10:16:55 AM § COURT OF PAMAPPEALS ESTES § Clerk § MARY K. MCGEE, § Appellee § TYLER, TEXAS

APPELLEE MARY K. MCGEE’S MOTION FOR LEAVE TO FILE A SURREPLY BRIEF

Appellee, Mary K. McGee, files this her Motion for Leave to File a Surreply Brief to

Appellant EXCO Operating Company, LP’s Reply and, in support thereof, would respectfully

show the Court as follows:

I. ARGUMENT & AUTHORITIES

Texas Rule of Appellate Procedure 38 governs the requisites for briefing on appeal. No

portion of Rule 38 addresses or governs the filing of a surreply. Rule 38.3 states that the

“appellant may file a reply brief addressing any matter in the appellee’s brief.” See Tex. R. App.

P. 38.3. Rule 38.7 states that “a brief may be amended or supplemented whenever justice

requires, on whatever reasonable terms the court may prescribe.” See Tex. R. App. P. 38.7.

Appellee does not, in any strict terms, require “supplementation” or “amendment” of her brief.

Appellee does, however, require an opportunity to respond to Appellant’s Reply, for the most

paramount reason that Appellant’s Reply presents a new argument that was not raised in the trial

court below or in the initial briefing to this Court, in violation of Tex. R. App. P. 33.1.

Appellant’s raising of this new argument at the 11th hour in their Reply brief has deprived

Appellee an opportunity to respond and, thus, justice requires that she be permitted leave to file

her Surreply. II. PRAYER

For these reasons, Appellee respectfully asks the Court to grant her Motion for Leave to

File her Surreply and for any and all other relief to which she may be entitled.

Respectfully submitted, SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM

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 101 East Whaley Street P.O. Drawer 2909 Longview, Texas 75606 Telephone: (903) 757-7000 Facsimile: (903) 757-7574

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on September 16, 2015 I served a copy of Appellee Mary K. McGee’s

Motion for Leave to File a Surreply Brief listed below by electronic service, and the electronic

transmission was reported as complete. My e-mail address is jsmith@sloanfirm.com.

___/s/Justin A. Smith___________________ JUSTIN A. SMITH