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CASE NO. 12-15-00087-CV 

EXCO OPERATING COMPANY, § IN THE TWELFTH

LP, Appellant, §

§

v. § COURT OF APPEALS

§

MARY K. MCGEE, §

Appellee. § TYLER, TEXAS

APPELLANT EXCO OPERATING COMPANY, 

LP’S, MOTION TO SUPPLEMENT BRIEF OF 

APPELLANT EXCO OPERATING COMPANY, LP 

EXCO Operating Company, LP, (“EXCO” or “Appellant”) asks the Court to 

permit it to supplement its Brief of Appellant EXCO Operating Company, LP 

(EXCO’s “Brief”). 

A. INTRODUCTION 

1. Appellant is EXCO Operating Company, LP; Appellee is Mary K. 

McGee (“McGee”). 

B. ARGUMENTS AND AUTHORITIES

2. A Court of Appeals may permit a party to supplement a brief 

whenever justice requires under Texas Rule of Appellate Procedure 38.7. 

3. While preparing its Reply Brief in this appeal, EXCO discovered new 

Texas case law which was issued after the trial of this case. In a matter of first 

impression in the 14th Court of Appeals, the court addressed whether attorney’s 

fees may be recovered against a partnership under Texas Civil Practice Remedies 

ACCEPTED

12-15-00087-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

9/2/2015 4:40:39 PM

Pam Estes

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 9/2/2015 4:40:39 PM PAM ESTES Clerk
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Code § 38.001. Fleming & Assocs. v. Barton, 425 S.W.3d 560 (Tex. App.–

Houston [14th Dist.]), Feb. 27, 2014, pet. denied May 1, 2015). In doing so, the 

court held that a “trial court erred by awarding statutory attorney’s fees . . . under 

section 38.001 because a limited liability partnership is neither an individual nor a 

corporation.” Fleming & Assocs. v. Barton, 425 S.W.3d at 562 (emphasis added). 

More specifically, the court stated, “under the plain language of section 38.001(8), 

a person may not recover attorney's fees against a partnership.” Id. at 576. 

Accordingly, the court modified the trial court’s judgment, “to remove all portions 

awarding attorney’s fees.” Id. at 562. The Texas Supreme Court in May of this 

year, over a year after the trial of the case which is the subject of this appeal,

declined review of the holding in Fleming. 

5. EXCO included this newly developed case law in its Reply Brief. 

However, to ensure that the matter is properly before this Court, EXCO seeks to 

supplement its original Brief, as well. EXCO’s proposed Supplemental Brief is 

being filed contemporaneously with this Motion.

6. The Court should allow EXCO to file a supplemental brief. EXCO’s 

supplemental brief addresses a matter previously brought to Appellee’s attention 

and briefed in EXCO’s Reply Brief. Additionally, although the issue raised therein

is significant, it is limited in scope as it focuses on the recent opinion in Fleming & 

Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 574 (Tex. App.– Houston[14th Dist.] 
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2014, no pet.). Lastly, filing of a supplemental brief will not delay the submission 

of the appeal. This matter has been set for oral argument and submission on 

October 22, 2015. Accordingly, there is sufficient time for Appellee to file a 

response, if any, prior to oral argument and submission. 

7. The Court should allow EXCO to file a supplemental brief because no 

prejudice will result to McGee if the Court permits the supplementation. 

8. Justice requires the supplementation of EXCO’s Brief so that newly 

developed, relevant case law may be briefed and presented to this Court. 

C. CONCLUSION

9. EXCO files this Motion for consideration by the honorable Court for 

permission to supplement its Brief in the interest of justice to address the recently 

developed case law directly relating to the issues presented in the subject appeal. 

EXCO’s proposed Supplemental Brief has been filed contemporaneously with this 

Motion.

D. PRAYER

10. For these reasons, EXCO asks the Court to grant this Motion to 

Supplement Brief of Appellant EXCO Operating Company, LP.
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Respectfully submitted,

WILSON, ROBERTSON & CORNELIUS, P.C.

One American Center

909 ESE Loop 323, Suite 400 [01]

P.O. Box 7339

Tyler, Texas 75711-7339

Telephone: 903/509-5000

Telecopier: 903/509-5091

By: /s/ Matthew T. Milam

 JENNIFER PARKER AINSWORTH

 Texas Bar No. 00784720

 jainsworth@wilsonlawfirm.com

 MATTHEW T. MILAM

 Texas Bar No. 24065746

 mmilam@wilsonlawfirm.com

ATTORNEYS FOR APPELLANT

EXCO OPERATING COMPANY, LP

CERTIFICATE OF CONFERENCE

I certify that I have conferred with opposing counsel by telephone and have 

attempted in good faith to reach an agreement about this Motion to Supplement. 

We have been unable to reach an agreement. Appellee opposes this Motion to 

Supplement.

 /s/ Matthew T. Milam

Matthew T. Milam

CERTIFICATE OF SERVICE

I certify that on September 2, 2015, I served a copy of the foregoing Motion 

to Supplement Brief of Appellant EXCO Operating Company, LP, on the party 

listed below by electronic service and that the electronic transmission was reported 

as complete. My email address is mmilam@wilsonlawfirm.com.

 /s/ Matthew T. Milam

Matthew T. Milam