Horse Hollow Generation Tie, LLC// Whitworth-Kinsey 2, Ltd. v. Whitworth-Kinsey 2, Ltd. Whitworth-Kinsey 3, Ltd. And David Olen Whitworth// Cross-Appellee, Horse Hollow Generation Tie, LLC

Opinion

ACCEPTED 03-13-00599-CV 4473504 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/12/2015 12:10:17 PM JEFFREY D. KYLE CLERK NO. 03-13-00599-CV _______________________________________________ FILED IN In The Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS

For The Third District of Texas 3/12/2015 12:10:17 PM JEFFREY D. KYLE Austin, Texas Clerk

______________________________________________

Horse Hollow Generation Tie LLC, Appellant, v.

Whitworth-Kinsey #2, Ltd., Whitworth-Kinsey #3, Ltd., and David Olen Whitworth, Appellees. ____________________________________________________________ On Appeal from the 119th District Court of Concho County, Texas The Honorable Garland B. Woodward, Presiding Judge (Trial Cause No. DAC-09-04042)

APPELLEE’S UNOPPOSED MOTION TO CLARIFY AND CORRECT THE COUNSEL OF RECORD OF THE APPELLEES

TO THE HONORABLE COURT OF APPEALS:

NOW COMES Appellee Whitworth-Kinsey #3, Ltd. and respectfully moves the

Court to Clarify and Correct the Counsel of Record of the Appellees in this appeal, and

in support thereof, would show the court the following:

1. Attorney Laird Palmer (“Palmer”) represents, and remains counsel of

record for Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.

2. The undersigned, Matthew F. Wymer (“Wymer” or “the undersigned”)

represents, and remains counsel of record for Whitworth-Kinsey #3, Ltd., only.

2134321v.1 IMANAGE 106638 1 3. On November 27, 2013 Palmer filed a Brief for Cross-Appellant

Whitworth-Kinsey #2, Ltd.

4. On December 31, 2013 Renee F. McElhaney Yanta (“Yanta”), Wymer’s

former law partner, filed Brief of Appellee Whitworth-Kinsey #3, Ltd.

5. In 2014 Yanta ran for Judge of the 150th District Court in Bexar County,

Texas, and won said election.

6. In December 2014, Yanta began her transition from her private law

practice to the bench and shifting her caseload. As part of that transition, Yanta filed a

Motion for Substitution of Counsel for Wymer as counsel for Attorney Whitworth-

Kinsey #3, Ltd.

7. The Motion for Substitution of Counsel is unclear that Wymer would only

be substituting as counsel for Whitworth-Kinsey #3, Ltd. As a result, Wymer appeared

on the Court’s docket as counsel of record for all Appellees.

8. The undersigned, received the Court’s notice of the submission and oral

argument set for April 9, 2015. Due to Wymer’s trial schedule, he was unable to attend

the oral argument and attempted to contact Palmer to discuss a continuance, and whether

and why he (Wymer) appeared as counsel of record for all Appellees, but the then

available phone numbers for Palmer were disconnected.

9. Wymer conferred with Appellant’s counsel Jeffrey M. Tillotson, who

agreed to a continuance.

10. On March 6, 2015 the undersigned filed Appellees’ Unopposed First

Motion for Continuance of Submission and Oral Argument. Because Wymer was not

2134321v.1 IMANAGE 106638 2 able to reach Palmer, and unclear whether he had been correctly substituted as counsel

for all Appellees, the undersigned filed his motion on behalf of all three Appellees.

11. Additionally, in order to comply with the Court’s request for three paper

copies of all briefs filed, Wymer submitted briefs filed on behalf of all three Appellees

Whitworth-Kinsey #2, Ltd., David Olen Whitworth and Whitworth-Kinsey #3, Ltd. so

that no party would default on the Court’s request – apparently, Palmer also provided

briefs for all Appellees.

12. As of the date of this Motion, the undersigned has reached and spoken to

Palmer who has clarified and confirmed that he does in fact represent two of the three

Appellees – Whitworth-Kinsey #2, Ltd. and David Olen Whitworth.

13. Palmer stated the following:

a. He represents, and remains counsel of record for Whitworth- Kinsey #2, Ltd. and David Olen Whitworth; and

b. He has no objection to the continuance of the oral argument.

14. The undersigned respectfully requests the Court correct its record to reflect

as follows:

a. Attorney Laird Palmer represents and is counsel of record in this appeal for: Appellees Whitworth-Kinsey #2, Ltd., and David Olen Whitworth;

b. Attorney Matthew F. Wymer represents and is counsel of record in this appeal for: Appellee Whitworth-Kinsey #3, Ltd.

15. The undersigned does not seek this clarification for purposes of delay, but

so that justice may be done and all parties be listed with their proper representation.

2134321v.1 IMANAGE 106638 3 WHEREFORE PREMISES CONSIDERED, Appellee’s counsel respectfully

requests that the representation for the parties be corrected, and that Appellee Whitworth-

Kinsey #3, Ltd. be granted all other relief to which it is justly entitled.

Respectfully submitted,

BEIRNE, MAYNARD & PARSONS, L.L.P.

/s/ Matthew F. Wymer Matthew F. Wymer State Bar No. 24005234 Email – mwymer@bmpllp.com 112 E. Pecan, Suite 2750 San Antonio, Texas 78205 Telephone: (210) 582-0227 Facsimile: (210) 582-0231

COUNSEL FOR APPELLEES WHITWORTH-KINSEY #3, LTD.

CERTIFICATE OF CONFERENCE

Counsel for Appellees conferred with Laird Palmer and with Attorney Christopher J. Schwegmann on March 11, 2015 and March 12, 2015, respectively, regarding the clarification of the parties as set out in detail in this Motion.

/s/ Matthew F. Wymer Matthew F. Wymer

2134321v.1 IMANAGE 106638 4 CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing document was forwarded to all counsel listed below pursuant to the Texas Rules of Civil Procedure and Texas Rules of Appellate Procedure on the 12th day of March, 2015:

Jeffrey M. Tillotson Email jtillotson@lynnllp.com Christopher J. Schwegmann Email cschwegmann@lynnllp.com David S. Coale Email dcoale@lynnllp.com Lynn Tillotson Pinker & Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone No. (214) 981-3800 Telecopier No. (214) 981-3839 Counsel for Appellant Horse Hollow Generation Tie LLC

Laird Palmer Email lplaw@tstar.net Law Offices of Laird Palmer 341 Ft. McKavitt P. O. Box 860 Mason, Texas 76856 Telephone No. (325) 347-6350 Telecopier No. (325) 347-6334 Co-Counsel for Appellees Whitworth-Kinsey #2, Ltd. and David Olen Whitworth

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