1

CAUSE NO. 07-15-00082-CV

IN THE 

COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AMARILLO, TEXAS

 

Appealed from the 99th District Court 

Lubbock County, Texas

 

ROBERT WESTERBURG, ADMINISTRATOR OF THE ESTATE OF 

R.D. WEST a/k/a RANDY DIXON WESTERBURG, 

Appellants/Cross-Appellee,

vs. 

WESTERN ROYALTY CORP., 

Appellee/Cross-Appellant.

 

CROSS-APPELLEE’S BRIEF

 

 

 Steven Thornton 

 State Bar No. 00789678 

 WESTERBURG & THORNTON, P.C. 

6060 N. Central Expressway, Suite 690 

 Dallas, Texas 75206 

 Phone No.: 214.528.6040 

 Facsimile: 214.528.6170 

 steve@mwtlaw.com

 ATTORNEY FOR APPELLANT 

 ROBERT WESTERBURG 

CROSS-APPELLEE REQUESTS ORAL ARGUMENT 

ACCEPTED

07-15-00082-CV

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

6/4/2015 4:40:36 PM

Vivian Long, Clerk
2

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................. 2

TABLE OF AUTHORITIES ............................................................. 3

SUMMARY OF CASE .................................................................. 4

REQUEST FOR ORAL ARGUMENT ................................................ 5

STATEMENT OF FACTS ............................................................... 6

SUMMARY OF THE ARGUMENT .................................................... 10

ARGUMENT AND AUTHORITIES ................................................... 11

I. Standard of Review .............................................................. 11

II. Judge Sowder Properly Ordered Western Royalty to Produce Records .... 12

A. Texas Law Regarding Corporate Records ............................... 12

B. Judge Sowder Properly Granted Westerburg Access to Western

Royalty’s Books and Records ............................................. 13

C. Western Royalty’s Point of Error is Meritless ................................. 14

C.1. Western Royalty Failed to Properly Preserve Error Regarding

the California Probate Court and Prevented Westerburg from

Completing his Reporting Requirement ........................... 15

C.2. Judge Sowder’s Order Limited to Documents that Satisfy

Westerburg’s Proper Purpose ...................................... 16

C.3. Western Royalty Incorrectly Represents the Effect of

IRS Ruling ............................................................ 18

CONCLUSION and PRAYER ........................................................... 20

CERTIFICATE OF SERVICE ........................................................... 21

CERTIFICATE OF COMPLIANCE ................................................... 22

CROSS-APPELLEE’S APPENDIX .................................................... 23
3

TABLE OF AUTHORITIES

Case Law

Baker's Campground, Inc. v. McCalla, 2012 Tex. App. LEXIS 6173

(Tex. App. – Waco 2012, no pet.) ...................................................... 11

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678

(Tex. 1979) .................................................................................. 12

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) .................... 11

Other Authorities

California Probate Code § 8800 ................................................. 6, 14, 23

California Probate Code § 8804 ................................................. 6, 14, 23

California Probate Code § 8850 ................................................. 6, 14, 23

Tex. Bus. Orgs. Code § 21.218 .................. 4, 6, 7, 10, 11, 12, 13, 14, 19, 20, 23

Tex. Bus. Orgs. Code § 21.222 .................................................... 4, 7, 23

Tex. R. Civ. P. 166a ........................................................................ 12
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SUMMARY OF THE CASE

In 2013, Robert Westerburg’s brother, R.D. West, died in California. A 

portion of the Estate of R.D. West included 350 shares of Western Royalty 

Corporation (hereinafter “Western Royalty”). Once appointed as administrator of 

R.D. West’s estate and acting solely in that capacity, Robert Westerburg 

(hereinafter “Westerburg”) sought to examine the books and records of Western 

Royalty in order to ascertain a valuation of the stock owned by the Estate and to 

allow Westerburg to complete an inventory requirement set by the probate court 

and California probate law. 

Pursuant to the Texas Business Organizations Code, Westerburg made a 

request to Western Royalty for access to the books and records of the company. 

Western Royalty refused. Westerburg filed suit against Western Royalty seeking 

access to the books and records of the company and recovery of his attorney’s fees, 

costs and expenses pursuant to sections 21.218 and 21.222 of the Texas Business 

Organizations Code.

After engaging in some limited discovery, the parties filed competing 

traditional motions for summary judgment. Judge Sowder considered both 

motions and ultimately granted Westerburg’s request and ordered Western Royalty 

to make available to Westerburg a defined set of books and records for 

examination and photocopying. Judge Sowder refused to award Westerburg any 

attorney’s fees in this matter but did award him court costs and expenses. 
5

REQUEST FOR ORAL ARGUMENT

Westerburg requests oral argument in this cause as he believes it would be 

helpful to the Court in evaluating these issues. Westerburg believes that given the 

nature of the claims he is making and the defenses set forth by Western Royalty, 

the Court may have questions for the parties that will be useful in reaching a 

decision. 
6

STATEMENT OF FACTS

Mr. R.D. West died on August 22, 2013 in California. At the time of his 

death, R. D. West was a record holder of 350 shares of Western Royalty. A 

California Probate Court appointed Robert Westerburg to administer the Estate of 

R.D. West, deceased. Clerk’s Record, Vol. 1 – 95. Westerburg, by and through 

R.D. West’s ownership and being a holder of shares of Western Royalty, qualified 

to examine the corporate records of Western Royalty pursuant to Texas Business 

Organizations Code § 21.218. Clerk’s Record, Vol. 1 – 97. 

On February 19, 2014, Westerburg delivered to Western Royalty a written 

demand for examination of sixteen specific categories of books and records. 

Clerk’s Record, Vol. 1 – 96. Westerburg’s purpose in seeking the examination of 

these documents is to determine the fair market value of the Estate’s interest in 

Western Royalty for the purpose of preparing the required Inventory and 

Appraisement for filing in the pending probate case in the Superior Court of 

California, San Diego, California. Clerk’s Record, Vol. 1 – 97. Pursuant to the 

California Probate Code, Westerburg must file with the California Probate Court 

Clerk an inventory of the property to be administered in the Decedent’s estate 

together with an appraisal. California Probate Code §§ 8800(a), 8804, and 

8850(a); Clerk’s Record, Vol. 1 – 95, 101-103. 

As Western Royalty is not a publically traded company and as Western 

Royalty does not produce and distribute any information (other than a small 
7

dividend to shareholders and a 1099 federal income tax reporting form) to its 

shareholders from which such a calculation can be made, Westerburg has no other 

means available to him which would provide the information necessary to comply 

with the California Probate Code. Clerk’s Record, Vol. 1 – 97. The only purpose 

for which Westerburg sought this information is to meet his obligations under the 

California Probate Code. Clerk’s Record, Vol. 1 – 97. 

Western Royalty refused Westerburg’s request. Clerk’s Record, Vol. 1 – 97. 

As such, Westerburg brought suit against Western Royalty seeking the right to access 

and examine the requested books and records of Western Royalty and to recover his 

costs and expenses, including attorney’s fees, pursuant to sections 21.218 and 21.222 

of the Texas Business Organizations Code. Clerk’s Record, Vol. 1 – 97. Western 

Royalty objected to both of these claims. 

During the proceedings, Judge Sowder ordered Western Royalty to produce to 

Westerburg: 1) financial documents detailing the book value of the stock; 2) any 

financial statements from the last four years; 3) profit or loss statements from the 

last four years; 4) loan applications made by Western Royalty from the last four 

years; 5) federal and state tax returns submitted by Western Royalty from the last 

four years; 6) all existing oil and gas leases and corresponding division orders and 

royalty payments for the last four years; 7) a sworn statement from Tom 

Whiteside, President of Western Royalty, that the company has no good will or 

intangible value; and, 8) any details of any stock sold, including purchase price and 
8

amount of stock, that has occurred in the last seven years. Clerk’s Record, Vol. 1 –

75.

In response to the Court’s order, Western Royalty produced no financial 

documentation detailing the book value of the corporation’s stock. Western 

Royalty did produce 105 pages of documents. Those documents consisted of 2010 

- 2013 tax returns, 3 leases and a sworn statement that the company has no good 

will or intangible value. Clerk’s Record, Vol. 1 – 107-220. Western Royalty 

answered that it had no financial documents detailing the book value of the stock, 

no financial statements from the last four years and no profit or loss statements 

from the last four years. Clerk’s Record, Vol. 1 – 107-220. Based on this 

production, Westerburg was unable to determine the share value for Western 

Royalty and, consequently, was unable to fulfill his reporting obligation to the 

California Probate Court.

Following this order and limited production of documents, the parties filed 

competing motions for summary judgment. In his motion, Westerburg detailed the 

problems with Western Royalty’s prior record production and the need for 

additional documents to satisfy his purpose of determining the value of the Estate’s 

shares in Western Royalty. 

After considering the motions and evidence adduced by both parties, Judge 

Sowder granted Westerburg’s request and ordered Western Royalty to produce 

documents in eight defined categories. Judge Sowder also awarded Westerburg court 
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costs and expenses. But, Judge Sowder denied Westerburg’s request for recovery of 

his attorney’s fees. Clerk’s Record, Vol. 1 – 256-259. 
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SUMMARY OF THE ARGUMENT

Westerburg contends that Judge Sowder properly granted his Motion for 

Summary Judgment and ordered Western Royalty to produce a specific category of 

books and records for examination pursuant to Section 21.218 of the Texas 

Business Organizations Code. Western Royalty’s production following Judge 

Sowder’s first order was insufficient to allow Westerburg to determine the value of 

the shares of Western Royalty. Given the evidence produced to the trial court by 

the parties, this Court should affirm Judge Sowder’s ruling ordering Western 

Royalty to produce a specific category of books and records for Westerburg’s 

examination. 
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ARGUMENTS AND AUTHORITIES

Western Royalty contends in this appeal that Judge Sowder improperly 

ordered Western Royalty to produce specific categories of books and records for 

Westerburg’s examination. Western Royalty relies on an IRS regulation and a prior 

order from Judge Sowder in its argument that it fulfilled its obligations under section 

21.218 of the Texas Business Organizations Code, thus leaving Westerburg without a 

proper purpose for requesting additional information. But, the material that Western 

Royalty produced was insufficient to meet Westerburg’s needs for ascertaining a 

value for the shares of Western Royalty. Further, Western Royalty only produced a 

fraction of the material that the IRS regulation and Judge Sowder’s original order 

required. Finally, even if this Court determines that Western Royalty’s original 

production was sufficient to meet Westerburg’s needs, Western Royalty still violated 

section 21.218 of the Texas Business Organizations Code by refusing Westerburg’s 

original, pre-litigation request for access to the documents and forcing Westerburg to 

file the lawsuit. 

I. Standard of Review

Texas appellate courts review the grant of a traditional motion for summary 

judgment de novo. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005); 

Baker's Campground, Inc. v. McCalla, 2012 Tex. App. LEXIS 6173 (Tex. App. –

Waco 2012, no pet.). In a traditional summary judgment proceeding, the issue is 

whether the movant met its burden for summary judgment by establishing that no 
12

genuine issue of material fact exists entitling the movant to judgment as a matter of 

law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589 

S.W.2d 671, 678 (Tex. 1979). 

II. Judge Sowder Properly Ordered Western Royalty to Produce Records

In both his prior ruling and in his ruling on the competing motions for 

summary judgment, Judge Sowder held that, pursuant to section 21.218 of the Texas 

Business Organizations Code, Westerburg is entitled to examine the books and 

records of Western Royalty and has a proper purpose for doing so. The central issue 

for Western Royalty’s appeal is that Western Royalty contends that it has already 

produced sufficient documentation to allow Westerburg to determine the share value 

for the company. Westerburg contended, and Judge Sowder ruled, that Western 

Royalty had not met its obligations under section 21.218 of the Texas Business 

Organizations Code.

A. Texas Law Regarding Corporate Records

The Texas Business Organizations Code provides that a holder of shares of a 

corporation for at least six months is entitled, upon written demand stating a proper 

purpose, to examine and copy the corporation’s relevant books, records of account, 

minutes and share transfer records. Tex. Bus. Orgs. Code § 21.218(b). More 

broadly, the Texas Business Organizations Code empowers a court, upon proof of 

a proper purpose, to compel a corporation to produce such records for examination 
13

by the holder regardless of the period during which the holder was a record holder. 

Tex. Bus. Orgs. Code § 21.218(c). 

B. Judge Sowder Properly Granted Westerburg Access to Western 

Royalty’s Books and Records

In this case, Westerburg demonstrated to Judge Sowder that he met all of the 

requirements of section 21.218 entitling him to examine the books and records of 

Western Royalty. First, Westerburg adduced evidence that his brother, Mr. R. D. 

West, was a record holder of 350 shares of Western Royalty for over 20 years. 

Clerk’s Record, Vol. 1 – 95. Mr. West died on August 22, 2013. Clerk’s Record,

Vol. 1 – 95. Westerburg then described for Judge Sowder how the Superior Court 

of California, County of San Diego, appointed Westerburg to administer the Estate 

of R.D. West, deceased. Clerk’s Record, Vol. 1 – 95. Second, Westerburg 

delivered to the Western Royalty a written demand for examination of sixteen 

specific categories of books and records on or about February 19, 2014. Clerk’s 

Record, Vol. 1 – 96-97. In that demand, Westerburg detailed his need for the 

examination. Clerk’s Record, Vol. 1 – 96-97. Western Royalty refused to comply 

with that request. Clerk’s Record, Vol. 1 – 97. Western Royalty did not contest any 

of these facts in the summary judgment proceedings.

The only other issue was whether Westerburg had a proper purpose in 

requesting the examination of books and records. California probate law requires 

an administrator to file with the California Probate Court Clerk an inventory of the 
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property to be administered in a Decedent’s estate together with an appraisal. Cal. 

Prob. Code §§ 8800(a), 8804, and 8850(a); Clerk’s Record, Vol. 1 – 95, 101-103. 

In order to satisfy this obligation, Westerburg needed to determine the fair market 

value of the Estate of R.D. West’s interest in Western Royalty. Western Royalty is 

not a publically traded company nor does it produce and distribute any information 

to its shareholders from which a determination of the fair market value of the stock 

can be made. Clerk’s Record, Vol. 1 – 97. As such, Judge Sowder determined that, 

as a matter of law, this need for information constitutes a proper purpose under 

section 21.218 of the Texas Business Organizations Code. With those facts 

established, Judge Sowder granted Westerburg’s request and ordered Western 

Royalty to make available for examination and copying several specific categories 

of documents. Clerk’s Record, Vol. 1 – 256-259. 

C. Western Royalty’s Point of Error is Meritless

Western Royalty makes three arguments that no proper purpose exists 

regarding Westerburg’s request for access to Western Royalty’s books and records. 

First, Western Royalty alleges that Westerburg did not request a finding from the 

California Probate Court as to the value of the Western Royalty shares. Second, 

Western Royalty argues that four of Westerburg’s requests are not made in good 

faith to determine the value of the shares or for a proper purpose. Third, Western 

Royalty contends the only acceptable order would be to follow an Internal 

Revenue Service ruling regarding valuation of shares. All of these arguments are 
15

without merit and were properly rejected by Judge Sowder.

C.1. Western Royalty Failed to Properly Preserve Error

Regarding the California Probate Court and Prevented

Westerburg from Completing his Reporting Requirement

Western Royalty argues that Westerburg’s alleged failure to request the 

California Probate Court to determine the value of the shares somehow impugns 

Westerburg’s proper purpose in this matter. Assuming that Western Royalty 

intended to cite Appendix L instead of Appendix K on this issue (Appendix K is the 

Final Summary Judgment), Western Royalty is citing to a document that it neither 

attached to its Motion for Summary Judgment nor provided to the trial court. 

Further, this document is not authenticated and contains multiple evidentiary failings 

including hearsay. As Western Royalty did not include this document at the trial 

court level and deprived Westerburg of an opportunity to refute it, Western Royalty 

has failed to properly preserve any error regarding Appendix L and Westerburg’s 

alleged actions before the California Probate Court.

But, even if this Court allowed Western Royalty to proceed with this argument 

using this document, this argument is ineffective to refute Westerburg’s proper 

purpose. As set forth in Westerburg’s affidavit, Western Royalty’s conduct has 

stymied Westerburg’s ability to meet his reporting requirements under the California 

Probate Code. Clerk’s Record, Vol. 1 – 95-100. Westerburg specifically described 

why he cannot meet that obligation with Western Royalty’s current disclosures and 

what additional evidence he will need to do so. Clerk’s Record, Vol. 1 – 98-100. 
16

Further, Westerburg’s affidavit states that he will complete his reporting requirement 

once he has sufficient information. Clerk’s Record, Vol. 1 – 97. Essentially, the 

document that Western Royalty improperly cites to this Court is preliminary and will 

be amended once this Court affirms the Trial Court’s ruling and Western Royalty 

makes available the required documents.

C.2. Judge Sowder’s Order Limited to Documents that Satisfy 

Westerburg’s Proper Purpose

Western Royalty’s second argument claims that four of the document

categories ordered by Judge Sowder do not meet Westerburg’s “Proper Purpose” of 

determining share value. These categories include the identities of shareholders, 

bank statements and cancelled checks for a 5 year period and cash flow reports and 

other documents reflecting monies received and expenditures made for the same five 

year period. Western Royalty simply asserts that these requests were not made in 

good faith to determine the value of the shares. Western Royalty offers no analysis 

or precedential authority to substantiate its criticism of Judge Sowder’s order. 

Western Royalty just says it.

In fact, there is a very good reason that Judge Sowder included those four 

categories in the eight total categories of documents set forth in the Final Summary 

Judgment. Initially, Judge Sowder’s ordered Western Royalty to make available for 

inspection seven specific categories of documents and provide a sworn statement that 

Western Royalty had no good will or intangible value. Clerk’s Record, Vol. 1 – 75. 
17

Western Royalty responded by producing four years of tax returns, three leases and 

a sworn statement that the company has no good will or intangible value. Western 

Royalty affirmatively stated that it had no financial documents detailing the book 

value of the stock, no financial statements from the last four years and no profit or 

loss statements from the last four years.1 Clerk’s Record, Vol. 1 – 107-220. 

This document production did not approach the level necessary to allow 

Westerburg to determine the share value for Western Royalty. Specifically, 

Westerburg was unable to determine the book value of the stock as he did not 

know the total number of shares issued and outstanding and the cash or cash 

equivalent of each and every asset of Western Royalty, including, but not limited 

to, the value of mineral interests owned by Western Royalty. Clerk’s Record, Vol. 

1 – 98-100. Other information that would bear on this issue would be the dates, 

prices and numbers of shares and parties to prior transfers of any shares. Clerk’s 

Record, Vol. 1 – 98-100.

Given that it would be impossible for Western Royalty to manage the 

company without such financial documentation, Westerburg pointed out that 

documents such as a stock registry, profit and loss statements, balance sheets or 

any other basic accounting information are critical to determining what the values 

 

1 In an email to the Trial Court dated June 25, 2014, Mr. Tom Whiteside, President and 

attorney for Western Royalty, stated that the company had three Certificates of Deposit with a 

total value of approximately $103,000. Clerk’s Record, Vol. 1 – 221-222.Western Royalty did 

not produce a balance sheet evidencing $103,000 cash or an equivalent asset (such as a 

Certificate of Deposit) nor is there a document reflecting any expenditure of the $103,000. 
18

of the Estate’s shares in Western Royalty are. Clerk’s Record, Vol. 1 – 97-100. 

Even if Western Royalty had given all of its financial information sufficient to 

determine the value of the business (which it did not), Westerburg still cannot 

evaluate the per share value without knowing how many shares are issued and 

outstanding. Clerk’s Record, Vol. 1 – 97-100. Since the Estate only owned 350 

shares, the per-share value is the critical issue for California Probate Court – not 

the total value for Western Royalty.

Consequently, Westerburg filed his motion for summary judgment and 

asked the trial court to expand the original order. After reviewing the affidavit of 

Robert Westerburg and the previous documents that Western Royalty produced, 

Judge Sowder ordered Western Royalty to produce eight specific categories of 

documents. 

C.3. Western Royalty Incorrectly Represents the Effect of

IRS Ruling

Western Royalty’s last argument against Judge Sowder’s Final Summary 

Judgment is that an IRS ruling determines how shares of a closely-held corporation 

are valued and that Western Royalty has complied with this ruling. Western 

Royalty has overstated both the language in and the effect of this ruling. The 

ruling includes the caveat that “The following factors, although not inclusive are 

fundamental and require careful analysis in each case:”. (Cross-Appellant Brief, 

Appendix G, emphasis added). By that very language, the IRS acknowledged that 
19

the listed factors are not an exhaustive list of the issues which may be considered. 

Further, no language exists in this Ruling which reads that it is binding or preemptive on any court in any jurisdiction. While the IRS may consider it their own 

policy, Western Royalty failed to show how expanding beyond the categories set 

under this ruling constitutes any breach of law or a reversible error.

Moreover, even if this Court were to hold that this ruling was conclusive and 

pre-empted any Texas law or judicial determinations, Western Royalty failed to 

comply with the requirements of the ruling. As set forth in C.3., Western 

Royalty’s production was wholly insufficient to meet Westerburg’s proper 

purpose, the requirements of the IRS ruling or Judge Sowder’s first order.2 

Western Royalty is asking this Court to reverse Judge Sowder and hold that since 

Western Royalty says it does not have the kind of documents that IRS ruling 

identified, Western Royalty is absolved from its obligations under 21.218 of the 

Texas Business Organizations Code. Given Western Royalty’s conduct, Judge 

Sowder had no other option but to grant Westerburg’s Motion for Summary 

Judgment and to order Western Royalty to produce additional documents to satisfy 

Westerburg’s proper purpose.

 

2 Western Royalty wrote that the trial court accepted the IRS ruling as “a good, common 

sense approach to use”. (Cross Appellant’s Brief, p. 15). That language appears nowhere in the 

trial court’s prior order and Western Royalty failed to cite where and when that statement was 

allegedly made. 
20

CONCLUSION and PRAYER

Westerburg contends that Judge Sowder correctly granted his motion for 

summary judgment in that Westerburg is entitled to review Western Royalty’s 

books and records pursuant to section 21.218 of the Texas Business Organizations 

Code. Westerburg put on evidence of each element of his claim to access to 

Western Royalty’s books and records as set forth in that section. Judge Sowder 

held that there were no genuine issues of material fact regarding those elements 

and rendered a summary judgment in favor of Westerburg granting him access to 

eight specific categories of documents. Western Royalty contends that it has 

produced sufficient documents to satisfy Westerburg’s purpose. Based on the 

uncontroverted evidence before the trial court, Judge Sowder determined as a 

matter of law that Western Royalty had failed to produce the documents necessary 

for Westerburg to meet his obligation to the California Probate Court. Nothing in 

Western Royalty’s brief points to any contradiction in the evidence before Judge 

Sowder. As such, Judge Sowder properly granted Westerburg’s Motion for 

Summary Judgment.

For the reasons stated herein, Westerburg prays that this Court affirm the 

portion of Judge Sowder’s ruling in the Final Summary Judgment in which he 

ordered Western Royalty to produce corporate books and records in eight specific 

categories. Given the evidence adduced at the summary judgment proceeding, 

Westerburg further prays that this Court render a judgment in favor of Westerburg 
21

for his total attorney’s fees through this appeal. Finally, Westerburg also prays for 

all other relief, in law and equity, to which he may be justly entitled. 

Respectfully submitted,

WESTERBURG & THORNTON, P.C.

6060 N. Central Expressway, Suite 690

Dallas, Texas 75206

Phone No.: 214.528.6040

Facsimile: 214.528.6170

steve@mwtlaw.com

By: ______________________________

Steven Thornton

State Bar No. 00789678

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on each attorney of record or 

party in accordance with the Texas Rules of Civil Procedure and the Texas Rules of 

Appellate Procedure on this 4th day of June, 2015.

Steven Thornton
22

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify

that this brief contains 3,456 words (excluding the caption, identity of parties, 

table of contents, table of authorities, statement of case, statement of issues 

presented, statement of jurisdiction, signature, proof of service, certification, 

and certificate of compliance). This is a computer-generated document created

in Microsoft Word, using 14-point typeface for all text, except for footnotes

which are in 12-point typeface. In making this certificate of compliance, I am 

relying on the word count provided by the software used to prepare the

document.

Steven Thornton
23

CROSS- APPELLEE’S APPENDIX

List of Documents

Final Summary Judgment A

California Probate Code § 8800 B

California Probate Code § 8804 C

California Probate Code § 8850 D

Tex. Bus. Orgs. Code § 21.218 E 

Tex. Bus. Orgs. Code § 21.222 F
256

12.W2014 11:15:00 """'--8Uclr 

i"IIMt"CIII* 

NO. 2014-510,562 

ROBERT WESTERBURG, § 

ADMINISTRATOR OF THE ESTATE OF § 

R.D. WEST a/k/a RANDY DIXON § 

WESTERBURG § 

§ 

\r.S, § 

§ 

WESTERN ROYALTY CORP. § 

IN THE DISTRICT COURT 

991H JUDICIAL DISTRICT 

LUBBOCK COUNTY, TEXAS 

Flnallymmarv Judgmpnt 

On December 8 2014, the Court considered the following motions by 

submission made In the above .. ntltled and numbenld cause: 

a. P/Bintifrs Motion for Summary Judgment; and, 

b. Defendant Western Royalty ColponJtton's Motion for SumtmJI)' 

Judgment 

Altar consldellng the motions, pleadings, evidence and the appropriate legal authority, 

In part 

this Court Is d the opinion that Plaintiff's motion should be GRANTED and that 

in part Defendanfs motion should be DENIED. 

IT IS, THERFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff Robert 

Weetelburg, Administrator of the Estate of R.D. West a/kla Randy Dbcon Weeterburg's 

Motion for Summmy Judgment Is GRANTED~" pert 

IT IS FURTHER ORDERED that Dafendant Westem Royalty Corporation's 

·n part Motion for Summ&Jy Judgment is DENIED~ 

IT IS FURTHER ORDERED that the Defendant Weetem Royalty CorporatiOn 

shall produce to Plaintiff Robert Westerburg, Administrator of the Estate of R.D. West 

8/kJa Randy Dixon Weatetburg the follOWing documents: 

TB 

APPENDIX A
257

1. The records containing the names and addresses of all past and current 

shareholders of the corporation and the number and class or series of shares 

issued by the corporation held by each of them. 

2. The records containing the names and last known mailing addresses of 

shareholders entitled to vote at any shareholders meeting. 

3. The bank statements and cancelled checks for the period January 1, 2009, to 

the present. 

4. The cash flow report(s) and/or check register and/or check stubs reflecting 

the monies received and the expenditures made for the period January 1, 

2009, to the present. 

5. The documents describing the mineral interest and/or legal description of 

each mineral interest presently owned by Western Royalty Corp. 

6. The deeds evidencing Western Royalty Corp.'s ownership of mineral or 

royalty interests. 

7. The documents evidencing ownership, leasehold, or royalty interest in real or 

personal property owned by Western Royalty Corp. 

8. The Division Orders reflecting mineral interests owned by Western Royalty 

Corp. 

IT IS FURTHER ORDERED that Defendant Western Royalty Corporation shall 

copy and email the above-described documents to Plaintitrs counsel, Steven Thornton. 

Defendant Western Royalty Corporation shall Bates-label the above-described 

documents and shall identify which documents are responsive to which categories set 

forth in this Order. Plaintiff shall reimburse Defendant for the reasonable costs of 

photocopying the above-described documents. 

IT IS FURTHER ORDERED that Defendant Western Royalty Corporation shall 

produce the above-described documents listed in this Order to Plaintitrs counsel, 

Steven Thornton, on or before _D_e_ce_m_b_e_r_1

_

8_th ______ ,, 2014 at 5:00p.m. 

Final Summary Judgment Page2 
258

IT IS FURTHER ORDERED that Plaintiff have and recover from Defendant 

$0.00 

Western Royalty Corporation the sum of $13,487.50 as reasonable and necessary 

attorney's fees incurred in this cause. 

IT IS FURTHER ORDERED that Plaintiff have and recover from Defendant 

Western Royalty Corporation the sum of $588.09 for costs incurred in this cause. 

·-~URTHER ORDERED that Plaintiff have and recover from t 

Western Royalty Corporation ve Thousand Dollars ($5,000.00) as 

c 

IT IS FURTHER ORDERED that the costs of court are taxed against the 

Defendant Western Royalty Corporation for which let execution issue if the same are 

not timely paid. 

IT IS FURTHER ORDERED that this judgment carries post-judgment interest at the 

rate of 5.00% per annum from the date of this judgment until paid, together with all costs of 

court in this behalf expended. 

All writs and processes for the enforcement and collection of this judgment or the 

costs of court may issue as necessary. 

All relief requested in this case and not expressly granted herein is denied. This 

judgment, disposing of all the parties in the lawsuit and all of the issues, is final and 

appealable. 

Final Summary Judgment Page3 
259

December 8, 2014 

SIGNED on-----------" 

JUDGE 

w£&~~&~' PRESIDING 
101

.. 

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... This document is current through Chapter 9 of • • • 

the 2014 Regular Session ofthe 2013-2014 Legislature. 

PROBATE CODE 

Division 7. Administration of Estates of Decedents 

Part 3. Inventory and Appraisal 

Chapter 1. General Provisions 

GO TO CALIFORNIA CODES ARCIDVE DIRECTORY 

Cal Prob Code§ 8800 (2014) 

Page 1 

§ 8800. Inventory and appraisal; Certification that tax requirements have been satisfied or a re inapplicable 

(a) The personal representative shall file with the court clerk an inventory of property to be administered in the decedent's estate together with an appraisal of property in the inventory. An inventory and appraisal shall be combined in a 

single document. 

(b) The inventory and appraisal shall be filed within four months after letters are first issued to a general personal 

representative. The court may allow such further time for filing an inventory and appraisal as is reasonable under the 

circumstances of the particular case. 

(c) The personal representative may tile partial inventories and appraisals where appropriate under the circumstances of the particular case, but all inventories and appraisals shall be tiled before expiration of the time allowed under 

subdivision (b). 

(d) Concurrent with the filing of the inventory and appraisal pursuant to this section, the personal representative 

sbaJJ also file a certification that the requirements of Section 480 of the Revenue and Taxation Code either: 

(1) Are not applicable because the decedent owned no real property in California at the time of death. 

(2) Have been satisfied by the tiling of a change in ownership statement with the county recorder or assessor of 

each county in California in which the decedent owned property at the time of death. 

HISTORY: 

Enacted Stats 1990 ch 79 § 14 (AB 759), operative July 1, 1991. Amended Stats 1992 ch 1180 § 1 (SB 1639). 

NOTES: 

Former Sections: 

Former § 8800, similar to the present section, was added Stats 1988 ch 1199 § 82.5, operative July 1, 1989, and 

repealedStats 1990ch79§ 13, operativeJuly 1, 1991. 

EXHIBIT "B" 

APPENDIX B
102

Cal Prob Code § 8804 

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*** This document is cWTent through Chapter 9 of*** 

the 2014 Regular Session of the 2013-2014 Legislature. 

PROBATE CODE 

Division 7. Administration of Estates ofDecedents 

Part 3. Inventory and Appraisal 

Chapter 1. General Provisions 

GO TO CALIFORNIA CODES ARCHIVE DIRECTORY 

Cal Prob Code § 8804 (20 14) 

§ 8804. Failure to timely file inventory and appraisal 

Page 5 

If the personal representative refuses or negligently fails to file an inventory and appraisal within the time allowed 

under this chapter, upon petition of an interested person: 

(a) The court may compel the personal representative to file an inventory and appraisal pursuant to the procedure 

prescribed in Chapter 4 (commencing with Section 11 050) of Part 8. 

(b) The court may remove the personal representative from office. 

(c) The court may impose on the personal representative personal liability for injury to the estate or to an interested person that directly results from the refusal or failure. The liability may include attorney's fees, in the court's discretion. Damages awarded pursuant to this subdivision are a liability on the bond of the personal representative, if any. 

HiSTORY: 

Enacted Stats 1990 ch 79 § 14 (AB 759), operative July 1, 1991. 

NOTES: 

Former Sections: 

Former § 8804, similar to the present section, was added Stats 1988 ch 1199 § 82.5, operative July 1, 1989, and 

repealed Stats 1990 cb 79 § 13, operative July 1, 1991. 

Historical Derivation: 

(a) Former Prob C § 610, as amended Stats 1976 ch 922 § 1. 

(b) Former Prob C § 6 11, as amended Stats 1970 ch 1282 § 13. 

(c) Fonner Prob C § 8804, as added Stats 1988 ch 1199 § 82.5. 

(d) Fonner CCP §§ 1450, 1451. 

APPENDIX C
103

Cal Prob Code § 8850 

e 

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•• • This document is current through Chapter 9 of ••• 

the 20 14 Regular Session of the 2013-2014 Legislature. 

PROBATE CODE 

Division 7. Administration of Estates of Decedents 

Part 3. Inventory and Appraisal 

Chapter 2. lnventory 

Article I . General Provisions 

GO TO CALTFORNIA CODES ARCHIVE DIRECTORY 

Cal Prob Code§ 8850 (2014) 

§ 8850. Contents of inventory 

Page 8 

(a) The inventory, including partial and supplemental inventories, shall includt: all property to be administered in 

the decedent's estate. 

(b) The inventory shall particularly specify the following property: 

(1) Money owed to the decedent, including debts, bonds, and notes, with the name of each debtor, the date, the 

sum originally payable, and the endorsements, if any, with their dates. The inventory shall also specify security for the 

payment of money to the decedent, including mortgages and deeds of trust. If security for the payment of money is real 

property, the inventory shall include the recording reference or, if not recorded, a legal description of the real property. 

(2) A statement of the interest ofthe decedent in a partnership, appraised as a single item. 

(3) All money and other cash items, as defined in Section 8901, ofthe decedent. 

(c) The inventory shall show, to the extent ascertainable by the personal representative, the portions of the property 

that are community, quasi-community, and separate property of the decedent. 

HISTORY: 

Enacted Stats 1990 cb 79 § 14 (AB 759), operative July 1, 1991. 

NOTES: 

Former Sections: 

Former§ 8850, similar to the present section. was added Stats 1988 ch 1199 § 82.5, operative July l, 1989, and 

repealed Stats 1990 ch 79 § 13, operative July 1, 1991. 

Historical Derivation: 

(a) Former Prob C § 571, as amended Stats 1971 ch 1648 §I, Stats 1986 ch 14 § 2. 

APPENDIX D
Tex. Business Organizations Code § 21.218

This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > BUSINESS ORGANIZATIONS CODE > TITLE 2. CORPORATIONS >

CHAPTER 21. FOR-PROFIT CORPORATIONS > SUBCHAPTER E. SHAREHOLDER RIGHTS AND

RESTRICTIONS

§ 21.218. Examination of Records

(a) In this section, a holder of a beneficial interest in a voting trust entered into under Section 6.251 is a holder of the

shares represented by the beneficial interest.

(b) Subject to the governing documents and on written demand stating a proper purpose, a holder of shares of a

corporation for at least six months immediately preceding the holder’s demand, or a holder of at least five percent

of all of the outstanding shares of a corporation, is entitled to examine and copy, at a reasonable time, the

corporation’s relevant books, records of account, minutes, and share transfer records. The examination may be

conducted in person or through an agent, accountant, or attorney.

(c) This section does not impair the power of a court, on the presentation of proof of proper purpose by a beneficial

or record holder of shares, to compel the production for examination by the holder of the books and records of

accounts, minutes, and share transfer records of a corporation, regardless of the period during which the holder was

a beneficial holder or record holder and regardless of the number of shares held by the person.

History

Enacted by Acts 2003, 78th Leg., ch. 182 (H.B. 1156), § 1, effective January 1, 2006.

Annotations

Notes

Revisor’s Notes. --

No substantive change is intended.

Case Notes

Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: General

Overview

Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: Inspection

Rights: Remedies

Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights: Inspection

Rights: Shareholders

LexisNexis (R) Notes

Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:

General Overview

1. Divorced wife, who had beneficial ownership of 10 percent of corporate stock standing on corporate records in the name

of her former husband or a trustee, was entitled to examine the corporate books. Texas Infra-Red Radiant Co. v. Erwin, 397

S.W.2d 491, 1965 Tex. App. LEXIS 2378 (Tex. Civ. App. Eastland 1965).

Steve Thornton

APPENDIX E
Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:

Inspection Rights: Remedies

2. Attorney’s fees should not have been awarded to a minority shareholder because the evidence did not show that

corporate books and records had been withheld in violation of former Tex. Bus. Corp. Act Ann. art. 2.44(C) (recodified at

Tex. Bus. Orgs. Code Ann. § 21.218(b)). The company was entitled to impose reasonable restrictions for the protection and

integrity of its books and records when it required that certain items be copied on its premises. Ritchie v. Rupe, 339 S.W.3d

275, 2011 Tex. App. LEXIS 2217 (Tex. App. Dallas 2011).

Business & Corporate Law: Corporations: Governing Documents & Procedures: Records & Inspection Rights:

Inspection Rights: Shareholders

3. Attorney’s fees should not have been awarded to a minority shareholder because the evidence did not show that

corporate books and records had been withheld in violation of former Tex. Bus. Corp. Act Ann. art. 2.44(C) (recodified at

Tex. Bus. Orgs. Code Ann. § 21.218(b)). The company was entitled to impose reasonable restrictions for the protection and

integrity of its books and records when it required that certain items be copied on its premises. Ritchie v. Rupe, 339 S.W.3d

275, 2011 Tex. App. LEXIS 2217 (Tex. App. Dallas 2011).

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Page 2 of 2

Tex. Business Organizations Code § 21.218

Steve Thornton
Tex. Business Organizations Code § 21.222

This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > BUSINESS ORGANIZATIONS CODE > TITLE 2. CORPORATIONS >

CHAPTER 21. FOR-PROFIT CORPORATIONS > SUBCHAPTER E. SHAREHOLDER RIGHTS AND

RESTRICTIONS

§ 21.222. Penalty for Refusal to Permit Examination of Certain Records

(a) A corporation that refuses to allow a person to examine and make copies of account records, minutes, and share

transfer records under Section 21.218 is liable to the shareholder for any cost or expense, including attorney’s fees,

incurred in enforcing the shareholder’s rights under Section 21.218. The liability imposed on a corporation under

this subsection is in addition to any other damages or remedy afforded to the shareholder by law.

(b) It is a defense to an action brought under this section that the person suing:

(1) has, within the two years preceding the date the action is brought, sold or offered for sale a list of shareholders

or of holders of voting trust certificates for shares of the corporation or any other corporation;

(2) has aided or abetted a person in procuring a list of shareholders or of holders of voting trust certificates for

the purpose described by Subdivision (1);

(3) has improperly used information obtained through a prior examination of the books and account records,

minutes, or share transfer records of the corporation or any other corporation; or

(4) was not acting in good faith or for a proper purpose in making the person’s request for examination.

History

Enacted by Acts 2003, 78th Leg., ch. 182 (H.B. 1156), § 1, effective January 1, 2006; am. Acts 2011, 82nd Leg., ch.

139 (S.B. 748), § 25, effective September 1, 2011.

Annotations

Notes

Revisor’s Notes. --

No substantive change is intended.

2011 amendment,

deleted ′′in consideration′′ after ′′certificates′′ in (b)(1).

Case Notes

Business & Corporate Law: Corporations: Shareholders: Actions Against Corporations: General Overview

Civil Procedure: Remedies: Writs: General Overview

LexisNexis (R) Notes

Business & Corporate Law: Corporations: Shareholders: Actions Against Corporations: General Overview

1. Shareholder that brought suit against a corporation seeking permission to examine the books and records of the

corporation was entitled to attorney fees because the shareholder was the ′′shareholder of record′′ even though the shares

were in the name of another pledgee to secure payment of corporate debt. Ft. Worth KJIM, Inc. v. Walke, 604 S.W.2d 362,

Steve Thornton

APPENDIX F
1980 Tex. App. LEXIS 3757 (Tex. Civ. App. Fort Worth 1980).

Civil Procedure: Remedies: Writs: General Overview

2. Where the relators, a company, and certain of its officers, brought a mandamus proceeding before the court to have the

trial court expunge from the record an order for discovery, the court held that the trial court, in granting certain

stockholders’ motion for discovery, had deprived relators of a jury trial on the issue of proper purpose because the

stockholders would have received through the order allowing discovery all of the relief sought in the main suit, and thus

relators were entitled to a writ of mandamus ordering the trial court to expunge its order for discovery. Uvalde Rock Asphalt

Co. v. Loughridge, 425 S.W.2d 818, 1968 Tex. LEXIS 314, 11 Tex. Sup. Ct. J. 268 (Tex. 1968).

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Tex. Business Organizations Code § 21.222

Steve Thornton

APPENDIX F