CASE NO. 12-15-00087-CV 

IN THE 

TWELFTH COURT OF APPEALS 

at Tyler 

_______________ 

EXCO OPERATING COMPANY, LP 

Appellant, 

V. 

MARY K. MCGEE 

Appellee. 

_______________ 

Appeal from Cause No. 369-09 

115th District Court, Upshur County, Texas 

Honorable Lauren Parish Presiding 

 _________ 

SURREPLY BRIEF OF APPELLEE MARY K. MCGEE 

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 

Sloan, Bagley, Hatcher & Perry Law 

Firm 

101 East Whaley Street 

P.O. Drawer 2909 

Longview, Texas 75606 

Telephone: 903-757-7000 

Telecopier: 903-757-7574 

ATTORNEYS FOR APPELLEE 

MARY K. MCGEE 

ORAL ARGUMENT REQUESTED

ACCEPTED

12-15-00087-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

9/15/2015 9:36:33 AM

Pam Estes

CLERK

 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 9/15/2015 9:36:33 AM PAM ESTES Clerk
i 

 

TABLE OF CONTENTS 

Table of Contents. ...................................................................... i 

Index of Authorities. .................................................................. ii 

Terminology. ............................................................................... iv 

Argument and Authorities. ....................................................... 1 

Prayer. ........................................................................................ 14 

Certificate of Service. ................................................................. 15 

Certificate of Compliance. ......................................................... 16 

 
ii 

INDEX OF AUTHORITIES

CASES PAGE(S) 

Barker v. Eckman, 213 S.W.3d 306 

 (Tex. 2006) ............................................................................ 11 

Findlay v. Cave, 611 S.W.2d 57 (Tex. 1981) ................................. 6

Fleming & Assocs. v. Barton, 425 S.W.3d 560 

 (Tex. App.—Houston [14th Dist.], Feb. 27, 2014, 

 pet. denied May 1, 2015) .................................... , 12, 14, 15, 16 

In the Interest of C.H., 2014 Lex. App. LEXIS 8675 

 (Tex. App.—Fort Worth 2014, no pet.) ................................ 12 

Kupchynsky v. Nardiello, 230 S.W.3d 685 

 (Tex. App.—Dallas 2007, pet. denied) .................................... 7 

 

McNamara v. Fulks, 855 S.W.2d 782 

 (Tex. App.—El Paso 1993, orig. proceeding) ....................... 10 

Outdoor Sys., Inc. v. BBE, LLC, 105 S.W.3d 66 

 (Tex. App.—Eastland 2003, pet. denied) ........................... 4-5 

 

Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 

 3 S.W.3d 112 

 (Tex. App.––Corpus Christi 1999, pet. denied) ........ 7, 8, 10 

 

Ragsdale v. Progressive Voters League, 801 S.W.2d 880 

 (Tex. 1990) ............................................................................. 8 

Smith v. Patrick W.Y. Tam Trust, 

 296 S.W.3d 545 (Tex. 2009) ....................................... 8, 9, 10 

Tatum v. Preston Carter Co., 702 S.W.2d 186 

 (Tex. 1986) ........................................................................... 11 
iii 

Texas Gen. Indem. Co. v. Speakman, 736 S.W.2d 874 

 (Tex. App.—Dallas 1987, no writ) ........................................ 7 

Wayne v. A.V.A. Vending, Inc., 32 S.W.3d 412, 418 

 (Tex. App.––Corpus Christi 2001, pet. denied) ............... 2, 6 

Weaver v. Jamar, 383 S.W.3d 805 

 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ................. 9 

Whole Foods Mkt. Southwest, Inc. v. Tijerina, 979 S.W.2d 768

 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ........ 13 

 

Texas Rules and Statutes 

Tex. Civ. Prac. & Rem. Code § 38.001 ........................................... 15 

 

Tex. Civ. Prac. & Rem. Code § 38.005 ........................................... 15 

Tex. R. App. P. 33. .......................................................................... 12 

Tex. R. Civ. P. 166a(i). ..................................................................... 7 

Tex. R. Civ. P. 301 ........................................................................... 8 

 

 

 

 

 

 

 

 

 
iv 

TERMINOLOGY 

“EXCO” or “Appellant” Appellant/Defendant, EXCO Operating 

Company, LP 

“McGee” or “Appellee” Appellee/Plaintiff, Mary K. McGee 

“Judge Parish” Honorable Lauren Parish, 115th 

Judicial District Court, Upshur 

County, Texas 

The “Lease” The Oil, Gas and Mineral Lease Dated 

February 21, 1996, originally between 

Curtis Webb and Wife Mary K. McGee, 

as lessors, and Amoco Production 

Company, as lessee. (5 R.R. Pl. Ex. 1) 

The “Property” The 93.9 acres of land, more or less, a 

part of the David Meredith Survey, A315, subject to the Lease and made the 

basis of the underlying lawsuit brought 

by McGee. 

 

 
1 

ARGUMENT AND AUTHORITIES 

 

A. EXCO has failed to demonstrate that McGee’s demands were 

excessive. 

 EXCO raises several new arguments regarding excessive 

demand in its Reply Brief. Of note, EXCO now argues that: (1) it 

performed under the Lease; (2) McGee’s unliquidated demands 

were excessive; and (3) McGee’s offers at mediation should not be 

considered. (EXCO’s Reply at 2, 6, 8). The remainder of EXCO’s 

excessive demand arguments echo its original brief. McGee will 

not belabor those points, having addressed them in Appellee’s 

Brief. 

1. EXCO’s failure to perform under the Lease justified 

McGee’s belief that her demands were reasonable. 

 EXCO argues that “[t]he jury verdict further demonstrates 

that McGee’s demands sought amounts to which she was not 

entitled, and that they were therefore excessive.” (EXCO’s Reply 

at 3-4). Though presented in a new package, this is little more 
2 

than a reiteration of EXCO’s mantra in this appeal: “Foresight is 

20/20.” 

 To evidence this, EXCO asserts that the jury did not 

ultimately find McGee entitled to the full measure of damages she 

sought, and that its verdict is indisputable evidence of that fact. 

(EXCO’s Reply at 3). This circular argument misses the point. The 

proper question is not whether the jury ultimately found McGee 

entitled to the full measure of damages she sought; the proper 

question is whether she acted reasonably when she made her 

demands. Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 418 (Tex. 

App.—Corpus Christi 2001, pet. denied). 

 Prior to litigating the Lease and based upon its plain 

language, McGee had every reason to believe that she was legally 

entitled to recover damages for her land. (Appellant’s App. Tab 4); 

(5 R.R. D.’s Ex. 6). EXCO alleges that McGee’s attempt to enforce 

that right was unreasonable because the jury did not ultimately 

award her damages for that point at trial. (EXCO’s Reply at 9) 

(“...EXCO did restore the well site to its proper state... [t]his is 

confirmed by the jury verdict, which awarded nothing to McGee 
3 

for loss of property value, a finding that McGee has not 

appealed.”). This reasoning would make sense if Appellee had 

made demands for her land after the jury held she was not 

entitled to it; because that is not the factual scenario here, the 

reasoning is mystifying. Prior to a jury’s verdict, there are nothing 

but fact questions existing regarding the elements of a cause of 

action and damages. If a party believes that no fact questions 

existing regarding these causes of action or elements of damages, 

they can file a motion for summary judgment and, if they are 

right, the trial court must grant that relief. Note, and this is 

important, that EXCO does not assert in either their brief or reply 

that they believed there was no fact question regarding Appellee’s 

entitlement to damages for her land and therefore filed a motion 

for summary judgment, which, being right in their assessment, 

was granted. 

Appellant’s argument that a jury’s verdict conclusively 

precludes a party’s reasonable belief that they are entitled to 

certain damages based on certain claims before that jury’s verdict 

is rendered cannot be credited. Such reasoning undermines the 
4 

entire point of a jury trial. Though certainly not for a lack of effort, 

EXCO has failed to identify any authority charging a litigant with 

knowledge of the eventual outcome of their case.1 

2. McGee acted reasonably when making her settlement 

demands. 

 EXCO discusses Outdoor Sys., Inc. v. BBE, LLC at some 

length, analogizing it to the case at bar. (EXCO’s Reply at 6-7); 

citing 105 S.W.3d 66 (Tex. App.—Eastland 2003, pet. denied). 

While that case does address an unreasonable unliquidated 

demand, it bears little similarity to this case. Notably, Outdoor

hinged on a landlord’s demand for an unliquidated sum, under 

threat of forfeiture of the tenant’s lease. Id. “As a general rule, the 

demand for rent, for the nonpayment of which the lessor may 

declare the lease forfeited, must be for the precise amount of rent 

due, and if an excessive amount is demanded the demand will be 

ineffectual.” Id. at 71 (emphasis added). The case here differs 

																																																													

1	With	respect	to	the	photographs,	it	is	clear	that	the	land	had	not	been	restored	at	

the	 time	 they	 were	 taken,	 regardless	 of	 when	 that	 took	 place.	 Appellee’s	 counsel	

relied	on	the	metadata	 for	the	photographs	and	the	dates	on	 the	electronic	 folders	

they	 were	 contained	 in	 to	 determine	 those	 dates,	 as	 the	 attorney	 representing	

Appellee	 below	 is	 no	 longer	 with	 the	 firm.	 If	 those	 dates	 are	 in	 error,	 Appellee’s	

counsel	apologizes	for	the	mistake,	which	was	unintentional.		
5 

markedly—if nothing else, EXCO is not the sort of tenant that 

pays rent. Moreover, the Outdoor Systems court took specific issue 

with the fact that the demand was unliquidated: rent is a 

necessarily liquidated sum, rendering such a demand wholly 

improper. Id. at 73 (“BBE’s demand was not for a specific 

liquidated sum.”). 

3. EXCO’s arguments do not warrant the remedy it seeks. 

 EXCO attempts to justify its mischaracterization of the facts 

below by asserting that there is no evidence of McGee’s lowered 

settlement offers in the record, and that any communications it 

made in mediation is confidential. (EXCO’s Reply at 8). It is worth 

noting that EXCO offers only excuses for its mischaracterization, 

not a denial thereof. (EXCO’s Reply at 8). While EXCO is correct 

that no evidence of lowered settlement offers directly appears in 

the Reporter’s Record, the motions on attorney’s fees filed by both 

parties in the trial court reference their existence, and have gone 

without objection. (Appellee’s App. Tab 2, p. 2 & Tab 3, p. 3). 

Additionally, while EXCO correctly notes that statements a party 

makes in an ADR proceeding cannot be offered against them, 
6 

McGee has not offered any of EXCO’s statements from the 

proceeding; only her own. 

 EXCO concludes that McGee’s demands were unreasonable 

and led directly to a jury trial, thus depriving her of the right to 

recover attorney’s fees. In arriving at this conclusion, it takes a 

few wrong turns. It does correctly note that the dispositive inquiry 

for determining whether a demand is excessive is whether the 

claimant acted unreasonably or in bad faith. (EXCO’s Reply at 1 

(citing Wayne, 52 S.W.3d at 418 (Tex. App.—Corpus Christi 2001, 

pet. denied) (citing Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 

1981))). However, it continually fails to acknowledge the difference 

between an amount to which one reasonably believes herself 

entitled under the unliquidated and unlitigated terms of a 

breached agreement, and the amount to which a jury eventually 

finds her entitled. (EXCO’s Reply at 3-4, 7, 8, 9). Under the 

holding that EXCO seeks, a litigant must let the jury verdict guide 

her settlement demands—never mind the fact that a trial may 

come years after the demands are made. The notion is 

insupportable. 
7 

B. EXCO has failed to demonstrate that McGee’s attorney’s fees 

were excessive. 

 After parroting a handful of excessive fee arguments from its 

original brief, EXCO correctly notes that by putting on 

controverting evidence of attorney’s fees, it created a fact issue. 

(EXCO’s Reply at 11-12) (citing Texas Gen. Indem. Co. v. 

Speakman, 736 S.W.2d 874, 885-86 (Tex. App.—Dallas 1987, no 

writ)). Unfortunately for EXCO, merely creating a fact issue does 

not establish an abuse of discretion sufficient to overturn a 

factfinder’s award of attorney’s fees. Pegasus Energy Group, Inc. 

v. Cheyenne Petroleum Co., 3 S.W.3d 112, 132 (Tex. App.—Corpus 

Christi 1999, pet. denied). Such a fact issue would certainly 

preclude a no-evidence summary judgment, directed verdict, or 

judgment notwithstanding the verdict; it has no effect, however, 

on an issue submitted to the trial judge for factfinding. See Tex. R. 

Civ. P. 166a(i) (“The court must grant the motion unless the 

respondent . . . rais[es] a genuine issue of material fact.”); 

Kupchynsky v. Nardiello, 230 S.W.3d 685, 688 (Tex. App.—Dallas 
8 

2007, pet. denied) (“A directed verdict is proper . . . when the 

evidence is insufficient to raise a material fact issue.”); Tex. R. 

Civ. P. 301 (“[T]he court may render judgment non obstante 

veredicto if a directed verdict would have been proper”); but see

Pegasus Energy Group, Inc., 3 S.W.3d at 132.2 

1. EXCO asks this Court to apply an incorrect standard. 

 Despite EXCO’s contentions, McGee does not cite Smith v. 

Patrick W.Y. Tam Trust in support of the trial court’s fee award. 

(EXCO’s Reply at 13). Quite the contrary. Smith offers little—if 

any—direct guidance in this dispute. Smith v. Patrick W.Y. Tam 

Trust, 296 S.W.3d at 548 (“But the jury’s fee award is not at issue 

here”). Smith addressed a procedural and evidentiary doctrine, 

similar to summary judgment or judgment as a matter of law, 

where uncontroverted evidence of attorney’s fees established those 

fees as a matter of law, without submission to a factfinder. See id. 

(citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 

																																																													

2 “The trial court’s award of attorney’s fees will not be disturbed absent an 

abuse of discretion. A trial court may be reversed for abusing its discretion 

only when the court of appeals finds the court acted in an unreasonable, 

arbitrary manner, or acted without reference to any guiding rules and 

principles.” (internal citations omitted). 
9 

882 (Tex. 1990)). 3 It did not purport to provide guidance to courts 

evaluating attorney’s fees awarded by a factfinder after reviewing 

controverted evidence. Smith, 296 S.W.3d at 547-48. 

 EXCO does correctly note that whether a jury acts as factfinder on attorney’s fees or the trial court does, a reviewing court 

applies the same standard. (EXCO’s Reply at 15-16);Weaver v. 

Jamar, 383 S.W.3d 805, 814 (Tex. App.—Houston [14th Dist.] 

2012, no pet.). However, while fee awards determined by trial 

courts and juries are reviewed under the same legal standard, 

they necessitate different considerations. “Generally, the trial 

court enjoys wide discretion in awarding attorney’s fees, and this 

[c]ourt will not overturn its decision absent abuse of that 

																																																													

3 “It is the general rule that the testimony of an interested witness, such as a 

party to the suit, though not contradicted, does no more than raise a fact 

issue to be determined by the jury. But there is an exception to this rule, 

which is that where the testimony of an interested witness is not contradicted 

by any other witness, or attendant circumstances, and the same is clear, 

direct and positive, and free from contradiction, inaccuracies, and 

circumstances tending to cast suspicion thereon, it is taken as true, as a 

matter of law. . . . While the present case fits the exception to the general 

rule, we do not mean to imply that in every case when uncontradicted 

testimony is offered it mandates an award of the amount claimed. For 

example, even though the evidence might be uncontradicted, if it is 

unreasonable, incredible, or its belief is questionable, then such evidence 

would only raise a fact issue to be determined by the trier of fact.”
10 

discretion.” Id. (citing McNamara v. Fulks, 855 S.W.2d 782, 784 

(Tex. App.—El Paso 1993, orig. proceeding)). 

2. A reviewing court generally may not substitute its 

judgment for that of the factfinder. 

 A trial judge has the duty to reduce a jury’s award of 

attorney’s fees if she finds a fee award, based upon uncontroverted 

evidence, excessive. See, e.g., Thomas v. Bobby D. Assocs., 2008 

Tex. App. LEXIS 5881 at *12. When, as here, a trial judge acting 

as factfinder awards attorney’s fees after receiving evidence and 

argument from both sides, she enjoys considerable latitude in 

making her decision. See Pegasus Energy Group, Inc., 3 S.W.3d at 

132 (“The determination of the amount to be awarded as a 

reasonable attorney’s fee is a question for the trier of fact, but the 

award must be supported by competent evidence.”); see also Smith 

v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (“The 

reasonableness of attorney’s fees is ordinarily left to the factfinder, 

and a reviewing court may not substitute its judgment for the 

jury’s.”). 

 Regarding proportionality between fees and damages, the 
11 

Texas Supreme Court has spoken. In Barker v. Eckman, the 

Texas Supreme Court rejected the premise underlying EXCO’s 

argument. See 213 S.W.3d 306, 314 (Tex. 2006). There, the Court 

remanded an award of attorney’s fees for further proceedings after 

reducing the award of actual damages upon which the fees were 

based. Id. In doing so, it declined to substitute its judgment for 

that of the fact finder. Id. It also declined to impose a 

“presumptive proportionality” legal construct, under which a 

reviewing court would presume that an attorney’s fee award is to 

be reduced in proportion to any reduction in actual damages. Id. It 

reasoned that such an approach would require a presumption that 

the fact finder “awarded attorney’s fees on some proportionality 

basis to actual damages.” Id. at 314-15 (emphasis added). It 

declined to impose such a remedy. Id. (citing Tatum v. Preston 

Carter Co., 702 S.W.2d 186, 188 (Tex. 1986) (holding that court of 

appeals erred in proportionally reducing exemplary damages in 

the exact ratio as the actual damages were reduced)). 

 The record before this Court allows a single conclusion: that 

Judge Parish, having reviewed the evidence submitted to her and 
12 

the circumstances of the case, concluded that McGee was entitled 

to the amount of attorney’s fees ultimately awarded. (Appellant’s 

App. Tab 2). The fact that EXCO disagrees with the weight that 

Judge Parish gave to each party’s evidence does not constitute an 

abuse of discretion. 

C. The recent Fleming decision does not relieve EXCO of 

liability for McGee’s attorney’s fees. 

 EXCO asserts that the recent Fleming & Assocs. v. Barton

decision from the Fourteenth District shields it from liability for 

McGee’s attorney’s fees. (EXCO’s Reply at 17); 425 S.W.3d 560, 

575 (Tex. App.—Houston [14th Dist.], Feb. 27, 2014, pet. denied 

May 1, 2015). As a threshold matter, EXCO has waived this 

argument. To preserve an error for appeal, a litigant must object 

to the error and obtain a ruling denying it. Tex. R. App. P. 33. 

EXCO did neither, despite filing a Motion for New Trial on the 

sole issue of attorney’s fees over a year after the Fleming decision 

was issued. (C.R. 263-269). Generally speaking, any issue not 

raised at trial or in a motion for new trial is waived on appeal. In 

the Interest of C.H., 2014 Lex. App. LEXIS 8675, *4 (Tex. App.—
13 

Fort Worth 2014, no pet.) This holds true even if a new opinion is 

issued while the case is pending. See Whole Foods Mkt. 

Southwest, Inc. v. Tijerina, 979 S.W.2d 768, 773 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied). Tijerina involved an 

appeal from a jury verdict finding the appellant liable for 

retaliatory discharge under the Labor Code. See id. at 772. The 

appellant raised for the first time on appeal the argument that, as 

a non-subscriber to the Worker’s Compensation Act, they could 

not be held liable for retaliatory discharge under the Labor Code. 

See id. This argument was based upon a Texas Supreme Court 

opinion, Texas Mexican Railroad. Co. v. Bouchet, issued after a 

jury rendered a verdict in favor of the plaintiff. See id. at 772. The 

appellee asserted that the argument was waived because it had 

not been raised to the trial court. See id. at 773. The appellant, in 

response, claimed that it could not have raised the argument 

because two sister court had held, and dicta from the Texas 

Supreme Court suggested, that the argument was precluded. See 

id. Holding that the argument was waived because it was not 

raised below, the court found that nothing precluded the appellant 
14 

from making argument at the trial court. See id. First, none of the 

existing authority was binding on the trial court. See id. “After all, 

[the appellant in Bouchet] objected during the trial, and having 

preserved the issue for appeal, raised the issue with the court of 

appeals in spite of [the contrary authority.” See id. Moreover, even 

if there had been binding contrary authority, there was still “no 

reason why [appellant] could not have made [the] argument,” for 

purposes of preserving it for appeal. See id. 

 Here, of course, Appellant does not even assert that there 

was any contrary authority; rather, they simply argue that 

Fleming is “new law.” It is not, however, new law, as Fleming was 

decided in February 27, 2014, almost a year prior to the trial court 

issuing her Findings of Fact and Conclusions of Law on attorney’s 

fees, in January 2015, and Appellant had ample opportunity to 

raise the argument below. Nor is Fleming “new law,” because 

Fleming is only binding authority for trial courts in the 14th

District Court of Appeals. Appellant has less excuse than those 

put forward in Tijerina, and their attempt to raise Fleming at the 

11th hour is improper and should be precluded. 
15 

 Assuming arguendo that EXCO may still raise its Fleming

argument, this Court should decline to adopt the holding. The 

opinion put great weight on the plain text and legislative history 

of Texas Civil Practice and Remedies Code § 38.001, but 

nonetheless came to the flawed conclusion that only individuals 

and corporations may be held liable for attorney’s fees under 

Chapter 38. Fleming & Assocs. v. Barton, 425 S.W.3d at 575. As 

noted in the Fleming opinion, the legislative intent behind 

Chapter 38’s change of wording was to eliminate governmental

liability. Id. There is simply no logical reason for Chapter 38 to 

apply to individuals and corporations, but not partnerships or 

other business entities. Assuming that the Chapter’s underlying 

purpose is to encourage certain classes of aggrieved parties to 

pursue judicial remedies for their harms, such an arbitrary 

construction would surely impair the underlying purpose, rather 

than further it. See Tex. Civ. Prac. & Rem. Code § 38.005 (“This 

chapter shall be liberally construed to promote its underlying 

purposes”). Absent a binding decision from the Texas Supreme 

Court holding to the contrary, this Court should reject the 
16 

Fleming argument as contrary to public policy. 

PRAYER 

 Appellee Mary K. McGee respectfully prays that this Court 

affirm the trial court’s judgment awarding her the reasonable 

attorney’s fees that she incurred while prosecuting this action. 

 Respectfully submitted, 

Sloan, Bagley, Hatcher & Perry Law 

Firm 

101 East Whaley Street 

P.O. Drawer 2909 

Longview, Texas 75606 

Telephone: 903-757-7000 

Telecopier: 903-757-7574 

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 

ATTORNEYS FOR APPELLEE 

MARY K. MCGEE 
17 

CERTIFICATE OF SERVICE 

I hereby certify that pursuant to Rule 9.5, Texas Rules of 

Appellate Procedure, that a true and correct copy of the foregoing 

brief was served upon the following counsel electronically, through 

the electronic filing manager, and via certified mail, return receipt 

requested, on this the 15th day of September, 2015: 

Jennifer Parker Ainsworth 

E-mail: jainsworth@wilsonlawfirm.com 

Matthew T. Milam 

E-mail: mmilam@wilsonlawfirm.com 

[Attorneys for Appellee EXCO Operating Company, LP] 

Wilson, Robertson, and 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 

________________ 
18 

 

CERTIFICATE OF COMPLIANCE 

I, JUSTIN SMITH, attorney for Appellee Mary K. McGee, 

hereby certify, pursuant to Texas Rule of Appellate Procedure 

9.4(i)(3), that there are 5906 words in the foregoing Appellant’s 

Brief. I am making this certification based upon reliance on the 

word count of the computer program used to create Appellee’s 

Brief.