NO. 04-15-00118-CV

_____________________________________________________________________________

IN THE FOURTH COURT OF APPEALS

AT SAN ANTONIO, TEXAS

___________________________________________________________________________________________________________________

SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST 

JASIK, WILLIAM ALBERT HERBST, HELEN HERBST AND R. MAY 

OIL & GAS COMPANY, LTD.,

Appellants

V.

MURPHY EXPLORATION & PRODUCTION CO. - USA,

A DELAWARE CORPORATION,

 Appellee

__________________________________________________________________

On Appeal from the 218TH District Court of Atascosa County, Texas

Honorable Stella Saxon, Presiding

________________________________________________________________

APPELLANTS' SECOND UNOPPOSED MOTION

FOR EXTENSION OF TIME TO FILE APPELLANTS' BRIEF

________________________________________________________________

TO THE HONORABLE FOURTH COURT OF APPEALS:

1. Appellants Shirley Adams, Charlene Burgess, Willie Mae Herbst 

Jasik, William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd.

request an extension of time to file Appellants' Brief. Appellants' Brief is currently 

due on Wednesday, May 13, 2015. Appellants seek an extension to 30 days after a 

complete Clerk’s Record is filed.

ACCEPTED

04-15-00118-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

5/5/2015 11:48:57 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 5/5/2015 11:48:57 AM KEITH E. HOTTLE Clerk
2

2. CERTIFICATE OF CONFERENCE: Counsel for Appellants has

conferred with Macey Stokes, Lead Counsel for Appellee, who has represented

that Appellee does not oppose this motion.

3. Appellants’ Brief is currently due on May 13, 2015. Counsel 

responsible for drafting and filing Appellants' Brief began work on the record cites 

for the brief this week and learned, for the first time, that the Clerk’s Record 

omitted numerous attachments to the petition, the motions for partial summary 

judgment and responses thereto filed by both Appellants and Appellee. In other 

words, the body of these filings were included in the Clerk’s Record but their 

attachments were not. 

4. Appellants have conferred with the deputy district clerk responsible 

for preparing the record and, pursuant to her instructions, have sent her and 

Margaret Littleton, the district clerk, a letter detailing the missing items and 

requesting a corrected/supplemental record. A copy of that letter is attached as 

Exhibit A.

5. This extension is necessary to provide the Court with an accurate 

record of what was before the district court and to afford counsel for Appellants

adequate time to prepare the Appellants' Brief with cites to that record. 

5. Appellants have previously requested one extension of time to file 

Appellants' Brief in this case.
3

WHEREFORE, premises considered, Appellants Shirley Adams, Charlene 

Burgess, Willie Mae Herbst Jasik, William Albert Herbst, Helen Herbst and R. 

May Oil & Gas Company, Ltd. request that the Court set as the deadline for 

Appellants to file Appellants' Brief in this case 30 days from the filing of the

district clerk’s corrected/supplemental record. In the alternative, Appellants 

request a 30-day extension to June 13, 2015 or such other relief that the Court 

considers appropriate.

Respectfully submitted,

GRAVES DOUGHERTY HEARON & 

MOODY, P.C.

By: /s/ Mary A. Keeney

Mary A. Keeney

State Bar No. 11170300

mkeeney@gdhm.com

John B. McFarland

State Bar No. 13598500

jmcfarland@gdhm.com

401 Congress Ave., Suite 2200

Austin, Texas 78701

Telephone: (512) 480-5682

Facsimile: (512) 480-5882

ATTORNEYS FOR APPELLANTS

SHIRLEY ADAMS, CHARLENE 

BURGESS, WILLIE MAE 

HERBST JASIK, WILLIAM 

ALBERT HERBST, HELEN 

HERBST AND R. MAY OIL & 

GAS COMPANY, LTD.
4

CERTIFICATE OF SERVICE

I hereby certify that on May 5, 2015, a true and correct copy of the foregoing 

was served on counsel for Appellee via email and/or electronic service as shown 

below:

Macey Reasoner Stokes

Jason A. Newman

Baker Botts L.L.P.

One Shell Plaza

910 Louisiana Street

Houston, Texas 77002-4995

ATTORNEYS FOR APPELLEE MURPHY EXPLORATION &

PRODUCTION COMPANY - USA

Macey.stokes@bakerbotts.com

Jason.newman@bakerbotts.com

 /s/ Mary A. Keeney

 Mary A. Keeney
GD 

HM 

GRAVES DOUGHERTY HEARON & MOODY 

A PROFESSIONAL CORPORATION 

Mary A. Keeney 

Board Certified, Civil Appellate Law 

Texas Board of Legal Specialization 

512.480.5682 

512.480.5882 (fax) 

mkeeney@gdhm.com 

MAILING ADDRESS: 

P.O. Box 98 

Austin, TX 78767-9998 

May 5, 2015 

Ms. Margaret E. Littleton 

Atascosa County District Clerk 

Ms. Cris Benavidez 

Deputy Clerk 

#1 Courthouse Circle Drive Suite 4-B 

Jourdanton, Texas 78026 

Via Facsimile: (830) 769-1332 

Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration 

& Production Co. - USA, a Delaware Corporation; In the 218th Judicial 

District of Atascosa County, Texas 

Fourth Court of Appeals Case No. 04-15-00118-CV 

Dear Ms. Littleton and Ms. Benavidez: 

Pursuant to my telephone conversation with deputy clerk Cris Benavidez and her 

instructions, I am providing a list of the documents missing from the Clerk's Record in 

the above-described and numbered cause. Ms. Benavidez further instructed that this 

communication be provided to the fax number provided above. I am also providing a 

copy of the letter of February 24, 2015, I sent to your office designating the matters to be 

included in the record. The numbering provided below coincides with the numbers of the 

items designated in that February 24 letter. The main documents missing are attachments 

to the petition and to motions and responses to motions. The main body of the petition 

and the motions and responses themselves were included in the clerk's record but the 

attachments were omitted. The attachments, however, are part of the petition, the 

motions and the responses and should have been made a part of the record. In addition, 

in one instance some but not all of the attachments were included — three pages were 

missing. The court of appeals cannot properly review this case under the current state of 

the clerk's record because it does not accurately reflect what was before the district court. 

EXHIBIT 1 

401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com 
May 5, 2015 

Page 2 

This letter is a request for a corrected/supplemental record that would include the 

pleadings, motions, and responses with all of their attachments. In order to facilitate the 

court of appeals' review of the record, I am requesting that you redo the record in its 

entirety. In other words, the documents in the original clerk's record should be included 

in the order you prepared them before but should now include all of these missing 

attachments. This will require a renumbering of the record. In addition, please add to the 

record my original letter of February 24, 2015 designating the record as well as this letter 

so that there will be no confusion about what has been and is now being requested. 

Please notify this office of the cost of preparing this 'corrected/supplemental record, and 

we will forward a check to you in payment of that amount. I request that your office 

credit my clients with the $217 we paid on their behalf for the original record. 

1. The main body of the Plaintiffs' Original Petition was included. Missing from the 

petition are the following exhibits, which were attached to and filed with the petition: 

Exhibit A - Shirley Adams Oil, Gas & Mineral Lease 

Exhibit B - William Herbst Oil, Gas & Mineral Lease 

Exhibit C - Plat of lease and unit boundaries 

3. The main body of the Plaintiffs' Motion for Partial Summary Judgment was 

included. Missing from the motion are the following exhibits, which were attached to 

and filed with the motion: 

Exhibit A - Sworn declaration of Shirley Mae Herbst Adams 

Exhibit B - Sworn declaration of William Albert Herbst 

Exhibit C - Murphy's Response to Plaintiffs' Request for Disclosure 

Exhibit D - Sworn Declaration of Mary Keeney 

7. The main body of Murphy's Motion for Partial Summary Judgment was included. 

Missing from the motion are the following exhibits, which were attached to and filed 

with the motion: 

Exhibit A - Affidavit of Barry Kane Heinen 

Exhibit B - Oil Gas & Mineral Lease signed by Shirley Adams 

Exhibit C - Oil, Gas & Mineral Lease signed by William Herbst 

Exhibit D - Affidavit of John C. McBeath, P.E. with affidavit exhibits 
May 5, 2015 

Page 3 

9. The main body of Plaintiffs' Response to Murphy's Motion for Partial Summary 

Judgment was included. Missing from the response are the following exhibits, which 

were attached to and filed with the motion: 

Exhibit A - Affidavit of Gregg Robertson 

Exhibit B - Railroad Commission of Texas Form H-1 

Exhibit C - Docket No. 01-01249550-Examiner's Report 

Exhibit D - Rule 37 Case No. 0213270 

Exhibit E - Rule 37 Case No. 0240684 

Exhibit F Rule 37 Case No. 0211820 

Exhibit G - Rule 37 Case No. 0245869 

10. The main body of Murphy's Response to Plaintiffs' Motion for Partial Summary 

Judgment was included. Missing from the response are the following exhibits, which 

were attached to and filed with the motion: 

Exhibit A - Affidavit of Gregg Robertson 

Exhibit B - Transcript of Deposition of Shirley Adams 

Exhibit C - Transcript of Deposition of William Albert Herbst 

Exhibit D - William Herbst's Responses to Defendant's First Set of Interrogatories 

and Shirley Adam's Responses to Defendant's First Set of 

Interrogatories 

15. The main body and most of the attachments to Plaintiffs' Motion for New 

Trial, Motion to Vacate or Modify the Judgment and Motion to Reconsider the Court's 

Decision on Partial Summary Judgment Motions were included. Missing are the 

following portions of the attachments: 

Last page of letter dated December 19, 2014 from Mary Keeney to Judge Saxon 

Letter dated November 12, 2014 from Judge Saxon, which should have 

immediately followed the December 19, 2014 letter 

Please file the Corrected/Supplemental Record with the Clerk of the Court of 

Appeals for the Fourth District in San Antonio, Texas in accordance with Rule 35 of the 

Texas Rules of Appellate Procedure. 
By: y61, 

M• ry A. eney 

A orneys Plainti ifs 

May 5, 2015 

Page 4 

Thank you for your attention to this matter. Please contact me if you have any 

questions. 

Yours truly, 

GRAVES, DOUGHERTY, HEARON & 

MOODY 

A Professional Corporation 

MAK/cfc 

cc: 

Macey Reasoner Stokes 

Jason A. Newman 

Baker Botts L.L.P. 

One Shell Plaza 

910 Louisiana Street 

Houston, Texas 77002-4995 

ATTORNEYS FOR APPELLEE MURPHY EXPLORATION & 

PRODUCTION COMPANY - USA 

Macey.stokes !,bakerbotts.com 

Jason.newman@bakerbotts.com 

Keith E. Hottle 

Fourth Court of Appeals Clerk 

Cadena-Reeves Justice Center 

300 Dolorosa, Suite 3200 

San Antonio, Texas 78205-3037 
Mary A. Keeney 

Board Certified, Civil Appellate Law 

Texas Board of Legal Specialization 

612.480.5882 

512.480.5882 (fax) 

mkeeneyegdhm.com 

MAILING ADDRESS: 

P.O. _Box 98 

Austin, TX 78787-9998 

GO 

MM 

GRAVES DOUGHERTY HEARON & MOODY 

. A PROFESSIONAL CORPORATION 

February 24, 2015 

Ms. Margaret. E. Littleton Via: Federal Express 

Atascosa County District Clerk 

#1 Courthouse Circle Drive Suite 4-B 

Jourdanton, Texas 78026 

Re: Cause No. 13-05-0466-CVA; Shirley Adams, et al v. Murphy Exploration 

& Production Co. - USA, a Delaware Corporation; In the 218th Judicial 

District of Atascosa County, Texas 

Dear Ms. Littleton: 

Enclosed for filing in the above-described and numbered cause is Plaintiffs' 

Notice of Appeal pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, 

giving notice that they desire to appeal the Order Setting Asicle Final Judgment In Part 

and Entering Amended Final Judgment entered on February 10, 2015 in the captioned 

cause. 

Plaintiffs respectfully request that you prepare the Clerk's Record for the 

captioned cause in accordance with Rule 34 of the Texas Rules of Appellate Procedure. 

Please notify this office Of the cost of preparing the Clerk's Record, and we will forward 

a check to you in payment of that amount. 

Please include in the Clerk's Record the following, as well as any other items 

required by Rule 34.5(a) of the Texas Rules of Appellate Procedure: 

401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.corn 
February 24, 2015 

Page 2 

DESCRIPTION DATE 

1. Original Petition 5-24-13 

2. Defendant's Original Answer and Jury Demand 7-1-13 

3. Plaintiffs' Motion for Partial Summary Judgment 9-6-13 

4. Defendant Murphy Exploration's Counterclaim 9-16-13 

5. Murphy Exploration's First Amended Answer 1-22-14 

6. Murphy Exploration's First Amended Counterclaims 1-22-14 

7. Murphy Exploration's Motion for Partial Summary Judgment 1-24-14 

8. Rule 11 - Deadlines for Responses and Replies to Motion for 6-4-14 

Summary Judgment 

9. Plaintiffs' Response to Murphy's Motion for Partial Summary 8-12-14 

Judgment 

10. Murphy Response to Plaintiffs' Motion for Partial. Summary 8-12-14 

Judgment 

11. Murphy's Reply in Support of its Partial Motion for Summary 8-26-14 

Judgment and Motion to Strike 

12, Plaintiffs' Reply to Murphy's Response to Plaintiffs' Motion for 

Partial Summary Judgment 

8-28-14 

13. Murphy's Motion for Entry of Final Judgment 12-05-14 

14, Final Judgment 12-15-14 

15. Plaintiffs' Motion For New Trial, Motion To Vacate Or Modify The 1-02-15 

Judgment, And Motion To Reconsider 

The Court's Decision On Partial Summary Judgment Motions 

16. Steinle Amicus Ltr 1-21-15 

17. Murphy Response to Motion for New Trial 1-27-15 

18. Order Setting Aside Final Judgment In Part and Entering Amended 2-10-15 

Final Judgment 
By; 

M A. Feeney 

At ► rn or. Plain 'ifs 

February 24, 2015 

Page 3 

Please file the Clerk's Record with the Clerk of the Court of Appeals for the 

Fourth District in San Antonio, Texas in accordance with Rule 35 of the Texas Rules of 

Appellate Procedure. 

Thank you for your attention to this matter. Please contact me if you have any 

questions. 

Yours truly, 

GRAVES, DOUGHERTY, HEARON & 

MOODY 

A Professional Corporation 

MAK/cfc 

cc: Jason A. Newman 
CAUSE NO. 13-05-0466-CVA 

SHIRLEY ADAMS, CHARLENE § IN THE DISTRICT COURT 

BURGESS, WILLIE MAE HERBST § 

JASIK, WILLIAM ALBERT HERBST, § 

HELEN HERBST and R. MAY OIL & § 

GAS COMPANY, LTD., 

Plaintiffs, 

vs. § 218th JUDICIAL DISTRICT 

MURPFIY EXPLORATION & 

PRODUCTION CO.-USA, 

A DELAWARE CORPORATION, § 

Defendant. 

§ ATASCOSA COUNTY, TEXAS 

PLAINTIFFS' NOTICE OF APPEAL 

Pursuant to Texas Rule of Appellate Procedure 25.1, PLAINTIFFS 

SHIRLEY ADAMS, CHARLENE BURGESS, WILLIE MAE HERBST JASIK, 

WILLIAM ALBERT HERBST, HELEN HERBST, AND R. MAY OIL. & GAS 

COMPANY, LTD hereby give notice of their desire to appeal from the Order 

Setting Aside Final Judgment In Part and Entering Amended Final Judgment, 

which was signed and entered on February 10 2015, in Civil Cause Number 13-

05-0466-CVA, Shirley Adams, Charlene Burgess, Willie Mae Herbst Jasik, 

William Albert Herbst, Helen Herbst and R. May Oil & Gas Company, Ltd. vs. 

Murphy Exploration & Production Co. USA, a Delaware Corporation, in the 

218th Judicial District Court of Atascosa County, Texas. The appeal is to the 

1 
Fourth Court of Appeals in San Antonio, Texas. A copy of the February 10, 2015 

Order Setting Aside Final Judgment and Entering Amended Final Judgment In Part 

of the Court is attached hereto as Exhibit A. To the extent necessary, Plaintiffs 

also appeal any adverse portions of the Final Judgment signed on December I5, 

2014 that remain in effect. 

Dated: r4 Respectfully submitted, 

„ez 

Jo B. M Farland 

Sta Bar o. 13598 00 

jmekland@gdlun.com Mary A. Keeney 

State Bar No. 11170300 

mkeeney@gdhin.com 

GRAVES, DOUGHERTY, HEARON & 

MOODY, P.C. 

401 Congress Avenue, Suite 2200 

Austin, Texas 78701-3744 

(512) 480-5682 Telephone 

(512) 480-4882 Telecopier 

ATTORNEYS FOR PLAINTIFFS 

2 
CERTIFICATE OF SERVICE 

I hereby certify that on February 24, 2015, a true and correct copy of the 

foregoing was served on counsel for Defendant via email as shown below: 

Bill Kroger 

Jason A. Newman 

Benjamin Sweet 

Baker Botts L.L.P. 

One Shell Plaza 

910 Louisiana Street 

Houston, Texas 77002-4995 

ATTORNEYS FOR DEFENDANT MURPHY EXPLORATION & 

PRODUCTION COMPANY - USA 

Jason.newman@bakerbotts.com 

3 
CAUSE NO. 13-05-0466-C'VA 

SHIRLEY ADAMS, CHARLENE BURGESS, 

WILLIE MAE HERBST.JASIK, 

WILLIAM ALBERT HERBST, 

•HELEN HERBST and 

R. MAY OIL & GAS COMPANY, LTD., 

Plaintiffs, 

vs. 

MURPHY EXPLORATION & 

PRODUCTION CO.-USA, 

A DELAWARE CORPORATION, 

Defendant 

IN THE DISTRICT COURTI 

FILED47% Tv O'CLOCICLM 

MARGARET E. UTTLETON, DISTRICT CLERK 

FEB 1 0 2 315 

218th JUDICIAL 

§ ATASCOSACOUNTY WS 

iv M 

ORDER SETTING ASIDE FINAL JUDGMENT AND ENTERING 

AMENDED FINAL JUDGMENT 

On February 2, 2015, came on to be considered the Motion for New Thal, Motion to 

Vacate or Modify the Judgment, and Motion to Reconsider the Court'S Decision on 'Partial 

Summary Judgmmt Motions, filed by Plaintiffs Shirley Adams, Charlene Burgess, Willie Mae 

Herbst Jul., William Albert. Herbst, Helen Herbst, and R. May Oil & Gas Company, Lid. The 

Court has condidered the.motions, the response filed by Murphy Exploration & Production Co.-

USA, and the arguments presented by counsel and is of the opinion tli:1;Laintiffs' motions . 

avut wool i'-ge ck; A 

should be granted in part efid•denied in partYor the following retrons: 

r57201.4-Firrai-Judgment-was-presenteil-te-Ithe-Cougt-Wttiout— 

.4iopez.notiee.to4zisintifkin-vivi 

2. The December 15, 2014 Final Judgment improperly awards appellate attorney's 

fees to Murphy. .1tas-C,Curt-farids-that-these-fees-afe-not-rable-unflerweither-ehapters-31-or--

-Chapter..alLotthe-Texas-Givil-Praetiee-&-Remediee-Goile,-Ilze-Geart-furtherftrOs-thatitwoutel. 

-,ba-neitIterequi+able:aer-jest-te-awaril-these-fees7—The-eourtfertiter-finds-that-those-fees-are-net72501624 
LLA SAXON, Judge Presiding 

Rod& 1.454444.4* 

The Court vacates and modifies its ertlei► in part with regard to the award of appellate fees to 

Murphy. The Court modifies paragraph 3 of its December 15, 2014 final judgment in this matter 

and finds that should Plaintiffs appeal this Final Judgment, Murphy will expend reasonable and 

necessary attorneys' fees in the amount of $25,000 for defending the matter in the Court of 

Appeals, $7500 for responding to a petition for review, and $20,000 in the event the Supreme 

Court orders briefing n the mels and grants the petition. Therefore, should Plaintiffs 

. unsuccessfully appeal thisAtinal Judgment, they are ordered to pay Murphy's reasonable and 

necessary attorney's fees on appeal as directed in this judgment. 

3, The Court finds that its rulings on Plaintiffs' Motion for Partial Summary 

Judgment and Defendant's Motion for Partial Summary Judgment should stand. 

IT IS THEREFORE ORDERED THAT Plaintiffs' Motion for New Trial, Motion to 

ekt 

Vacate or Modify the Judgment, and Motion to Reconsider the Court's Decision 4P Partial 

Summary Judgment Motions is denied, except that the December 15, 2014 Final Judgment in 

this ease is vacated and modified solely with regard to paragraph 3 as reflected in this order. 

Fr IS FURTHER ORDERED THAT Plaintiffs' Motion for Partial Summary Judgment is 

DENIED AND Defendants Motion for Partial Summary Judgment is GRANTED. 

Costs are taxed against Plaintiffs. 

IT IS FURTHER ORDERED that all other relief requested in this cause is DENIED. 

SIGNED this 10thday of February, 2015. 
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401 Congress Ave., Suite 2200 

Austin, TX 76701 

612.480.5600 

512-480-5662(Wriler's Direct No.) 

512-480-5882(Direct Fax) 

www.gdhm.com 

MAILING ADDRESS: 

P.O. Box 98 

Austin, TX 78767-9996 

CFI D 

MM 

GRAVES DOUGHERTY HEARON & MOODY 

A Professional Corporation 

FAX TRANSMITTAL 

TO: Margaret E. Littleton Fax: (830) 769-1332 

Cris Benavidez 

FROM: Mary A. Keeney 

RE: Cause No. 13-05-0466-CVA - Letter regarding Clerk's Record 

DATE: May 5, 2015 

TOTAL PAGES 

TIME: INCLUDING COVER: 13 

Notes, comments, special instructions: