Hydrogeo, LLC, First Bank & Trust East Texas v. Quitman Independent School District

ACCEPTED 06-15-00007-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/2/2015 9:18:06 AM DEBBIE AUTREY CLERK

No. 06-15-00007-CV

In the Court of Appeals for the FILED IN 6th COURT OF APPEALS Sixth Judicial District of Texas TEXARKANA, TEXAS Texarkana, Texas 7/2/2015 9:18:06 AM DEBBIE AUTREY Clerk

HYDROGEO, LLC AND FIRST BANK & TRUST EAST TEXAS Appellants AND DEBERRY 3 OPERATING COMPANY, LLC, Appellants

v.

QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER SABINE WASTE DISPOSAL DISTRICT, AND Woon COUNTY CENTRAL HOSPITAL DISTRICT, Appellees

On Appeal from the 402nd Judicial District Court Wood County, Texas

BRIEF OF APPELLANTS, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS

J. DON WESTBROOK Texas Bar No. 21215500 COGHLAN CROWSON, LLP 1127 Judson Road, Suite 211 Longview, Texas 75601 (903) 758-5543 (903) 753-6989 (fax) dwestbrook@ccfWw.com ORAL ARGUMENT REQUESTED Attorneys for Hydrogeo, LLC and First Bank & Trust East Texas

Certificate of Interested Persons

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case.

Appellants Counsel for Hydrogeo, LLC and Hydrogeo, LLC and First Bank & Trust East Texas First Bank & Trust East Texas J. Don Westbrook Michael E. Starr Coghlan, Crowson, LLP 1127 Judson Road, Suite 211 P.O. Box 2665 Longview, Texas 75606-2665

Appellant Counsel for DeBerry 3 Operating DeBerry 3 Operating Company, LLC Company, LLC:

Michael L. Dunn Smead, Anderson & Dunn 2110 Horseshoe Lane Longview, Texas 75606

Appellee Counsel for Wood County, Upper Wood County, Upper Sabine Sabine Waste Disposal District and Waste Disposal District and Wood Wood County Central Hospital County Central Hospital District District

Edward J. (Nick) Nicholas Linebarger Goggan Blair & Sampson, LLP 4828 Loop Central Drive, Suite 600 Houston, Texas 77081

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Jim L. Lambeth Alison Wylie Linebarger Goggan Blair & Sampson, LLP 1517 W. Front St. Suite 202 Tyler, Texas 75702

Appellee Counsel for Quitman Independent Quitman Independent School District School District

David Hudson Perdue, Brandon, Fielder, Collins & Mott, LLP POBox2007 Tyler, Texas 75710

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... v, vi STATEMENT OF THE CASE ..................................................................... vii STATEMENT REGARDING ORAL ARGUMENT .................................. viii ISSUES PRESENTED ................................................................................. viii STATEMENT OF FACTS .............................................................................. l

SUMMARY OF THE ARGUMENT .............................................................. 5

ARGUMENT AND AUTHORITIES ............................................................. 7

A. Issue No. 1........................................................................................ 7

B. Issue No. 2 ...................................................................................... 11 CONCLUSION ............................................................................................. 20 PRAYER ....................................................................................................... 21

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

CERTIFICATE OF SERVICE ...................................................................... 22 INDEX OF APPENDICES ........................................................................... 23

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INDEX OF AUTHORITIES

Cases

Interstate Northborough P 'ship v. State, 66 S. W.3d 213 (Tex. 2001) ............................................................................................ 7

Alvarado v. Farah Mfg. Co., 830 S.W.2d 911 (Tex. 1992) ................................................................................... 7, 8, 9

Good v. Baker, 339, S.W.3d 260 (Tex. App.-Texarkana 2011, pet. denied) ...................................... 11

Maro v. State, 168 S.W.2d 510 (Tex. Civ. App.-Amarillo 1943, writ ref'd) .................................... 12

K.R.P., 80 S.W.3d 669 (Tex. App.-Houston [1 ' 1 Dist.] 2002, pet. denied) ........................... 12

Maximum Medical Improvement, Inc. v. County ofDallas, 272 S.W.3d 832 (Tex. Civ. App.-Dallas 2008, no pet.) ................................. 12, 13, 15

Pete Dominguez Enterprises v. County ofDallas, 188 S.W.3d 385 (Tex. Civ. App.-Dallas 2006, no pet.) ............................................. 13

DMV Vacuum Services, Inc. v. Zavala County Appraisal District, 812 S.W.2d 435 (Tex. App.-San Antonio 1991, no writ) .................................... 13, 14

Estates ofElkins v. County ofDallas, 146 S.W.3d 826 (Tex. App.-Dallas 2004, no pet.) ............................................... 14, 15

Sonnier v. Chisholm Ryder Co., 909 S.W.2d 475 (Tex. 1995) ......................................................................................... 18

Logan v. Mullis, 686 S.W.2d, 605 (Tex. 1985) ......................................................................................... 18

Palmer v. Palmer, 831S.W.2d479 (Tex. App.-Texarkana 1992, no writ) ............................................. 19

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University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287 (Tex. 1967) ................................................................................... 19, 20

Taylor v. Rigby, 574 S.W.2d 833 (Tex. App.-1978 writ refd) ............................................................. 20

Goldberg v. R.J Longo Constr. Co., 54 F.3d 243 (5th Cir. 1995) .................................................................................... 20

Shipley v. Biscamp, 580 S.W.2d 52 (Tex. App.-Houston [14th Dist.] 1979, no writ) ............................. 20

Spencer-Sauer Lumber Co. v. Ballard, 98 S.W.2d 1054 (Tex. App.-San Antonio 1936, no writ) .......................................... 20

Other Tex. Bus. & Com. Code Ann. §1.20l(b)(9)(Vernon 1987) ............... 2, 16, 17 Tex. Tax Code Ann. §33.47(a) (Vernon 1992) .................. 2, 6, 11, 13, 14, 19 Tex. Tax Code Ann.§ 32.03 (Vernon 1992) ........................................... 2, 16 TEX. R. CIV. P. 193.6 ............................................................................. 3, 6, 9 TEX. R. CIV. P. 193.6 (b) ..................................................................... 6, 9, 10 TEX. R. CIV. P. 193.6 (a) ..................................................................... 8, 9, 10 TEX. R. CIV. P. 307 ...................................................................................... 12 Tex. Tax Code Ann.§ 33.47 (Vernon 1992) ......................................... 12, 13 Tex. Tax Code Ann.§ 33.05 (Vernon 1992) ............................................... 16 Tex. Tax Code Ann.§ 32.03(a) (Vernon 1992) ........................................... 17 Texas Attorney General Opinion No. DM-438, May 2, 1997 ..................... 16

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No. 06-15-00007-CV

In the Court of Appeals for the Sixth Judicial District of Texas Texarkana, Texas

HYDROGEO, LLC AND FIRST BANK & TRUST EAST TEXAS Appellants

AND

DEBERRY 3 OPERATING COMPANY, LLC, Appellants

v.

QUITMAN INDEPENDENT SCHOOL DISTRICT, Woon COUNTY, UPPER SABINE WASTE DISPOSAL DISTRICT, AND Woon COUNTY CENTRAL HOSPITAL DISTRICT, Appellees

On Appeal from the 40znct Judicial District Court Wood County, Texas

STATEMENT OF THE CASE

Hydrogeo, LLC and First Bank & Trust East Texas, (hereinafter "Hydrogeo"), appellants in the above captioned appeal, file this Brief of Appellants, and respectfully request this Honorable Court of Appeals to reverse the judgment granted in favor of Quitman Independent School District, Wood County, Upper Sabine Waste Disposal District and Wood County Central Hospital District (hereinafter

vii "taxing entities") by the 402°ct Judicial District Court in Wood County, Texas and render judgment that appellees take nothing by this suit.

STATEMENT REGARDING ORAL ARGUMENT

Hydrogeo believes that oral argument will aid in the Court's decision concerning the arguments raised in this appeal.

ISSUES PRESENTED

ISSUEN0.1

Did the trial court commit reversible error by admitting Plaintiffs' Exhibit "A" into evidence when the document had not been produced prior to trial, and when the taxing entities failed to make any showing of good cause for their failure to produce the document.

ISSUE N0.2

Did the trial court err by finding the taxing entities' entire alleged tax lien enforceable against Hydrogeo, when taxing entities failed to segregate that portion of the lien which was unenforceable against Hydrogeo.

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STATEMENT OF FACTS

This appeal is from the trial court's decision granting various taxing entities the authority to foreclose tax liens on two oil and gas leases owned and operated by Hydrogeo. Appellant First Bank & Trust East Texas owns a mortgage lien on the leases, which leases are located in Wood County, Texas.

The taxing entities originally filed suit in July 2012 naming three different owners and listing two leases i.e., the Denton White (Tract One) and the I.E. Robinson (Tract Two), claiming delinquent taxes owed for the years 2009 through 2011, and seeking foreclosure of real and personal property interests. (1 C.R. p.8) 1 At the time of the filing of the lawsuit, taxing entities, although aware ofHydrogeo's leasehold ownership, incorrectly sued three entities who did not own any interest in the Denton White lease. (2 R.R. p. 57, line 21 - p. 58, line 8.) Taxing entities did not sue anyone owning an interest in the Robinson lease for the years 2010 and 2011 (2 R.R. p. 109, line 7 - p. 110, line 18). Even a cursory search of the applicable county clerk's records or their own tax rolls would have revealed the correct owners' names. (2 R.R. p. 25 line 20 - p. 26, line 3). It was not until a year later that they filed a First Amended Petition naming Hydrogeo, LLC and First Bank & Trust East

1 References to the Clerk's Record will be by Arabic numeral indicating the volume, the abbreviation "C.R." and page number. References to the Reporter's Record will be in the same manner using the abbreviation "R.R." References to the appendix will be with the abbreviation "App." and the letter of the referenced appendix tab.

Texas for the first time. (1 C.R. p. 36) They filed a second petition naming a 50% leasehold owner in one of the two leases, DeBerry 3 Operating Company, LLC on March 6, 2014. ( 1 C.R. p. 164) None of appellants received notification of taxing entities' claimed tax liens prior to filing their First Amended Petition. (2 R.R. p. 56, lines 17-19). Hydrogeo, LLC has always been current on its ad valorem taxes since the time it began operations of the two leases in 2012. (2 R.R. p. 56, lines 13-16).

As mentioned, Hydrogeo, LLC purchased the two leases in question in 2012, meaning they did not own the properties on January 1' 1 of either 2009, 2010 or 2011, which is significant because Hydrogeo alleges they are buyers in ordinary course as defined by Tex. Bus. Com. Code §1.201 (b) (9) (Vernon 1987). (2 R.R. p. 55, line 19-p. 56, line 5.) Hydrogeo filed verified denials and obtained response to requests for admissions confirming no ownership, lack of prior notice, and questioning the validity of the amount of the lien. (1 C.R. p. 54, 58, 78). As such, Hydrogeo contends they effectively rebutted the presumption given to taxing authorities under Tex. Tax Code Ann. §33.47(a) (Vernon 1992). Additionally, Hydrogeo as a buyer in ordinary course, believe they are protected against enforcement of the taxing authorities' tax lien as it relates to any personalty located on the two oil and gas leases. (Tex. Tax Code § 32.03, App. G).

The enforceability of the tax lien was tried as a bench trial before the court on September 18, 2014. The taxing entities offered Plaintiffs' Exhibit "A", labeled *3 "Certified Copy of Tax Records'', dated August 22, 2014. (2 R.R. p. 7 line 15-20). Hydrogeo objected to the offer of Exhibit "A" for admission. (2 R.R. p. 8, line 1 -line 7). The objection dealt with the potential violation of TEX. R. CIV. P. 193.6, in that Exhibit "A" had not been provided to Hydrogeo prior to trial. (2 R.R. p. 8 line 20 - p. 9, line 1). Hydrogeo believes the trial court erred by admitting Exhibit "A" even though taxing entities made no showing of good cause or lack of unfair surprise and/or prejudice. The questionable Exhibit "A" was the only evidence offered by taxing entities, who then rested. (2 R.R. p. 9, line 10-16). Hydrogeo moved for directed verdict, which was overruled. (2 R.R. p. 19, line 15-18 and 2 R.R. p. 22, line 3).

Exhibit "A" is a seven page document regarding the two leases, and is attached as Appendix A. Page one describes a 0.83335 royalty interest in the Denton White lease for the year 2009. (emphasis added). (2 R.R. p. 40, line 9 -p. 41, line 9). The owners of the leases on Exhibit "A" are listed as "Black Diamond Operating Co. LLC" for year 2009 and "Rheata Resources LLC" for years 2011 and 2012. (3 C.R. p. 7-9 and App. A). The trial court subsequently ruled that Rheata Resources LLC never owned an interest in either of the two oil and gas leases for the years in question and issued a directed verdict confirming its ruling. (2 R.R. p. 109, line 7 -p. 110, line 18, and App. B). Subsequently, evidence at trial revealed the owner and operator of both leases during all three years in question was "Steelman Investments, *4 Inc." (Defendants Black Diamond and Rheata Exhibit Nos. 3 and 5). The taxing entities have never sued "Steelman Investments, Inc." for collection of the delinquent taxes.

In addition to listing the wrong owners, Plaintiffs' Exhibit "A" describes, on page one, the interest being taxed as a "royalty interest". (App. A). Page one of Exhibit "A" is taxing entities' sole evidentiary support for its claim for delinquent taxes for year 2009 regarding the Denton White lease. (2 R.R. p. 7, line 15 - 20). Subsequent testimony during trial revealed that taxing entities' claim for taxes on a royalty interest was incorrect. (2 R.R. p. 40, line 9 - p. 41, line 9). A royalty interest comes from the lessor side of an oil and gas lease, while taxing entities' intended lien is for a working interest, which comes from the lessee side. (2 R.R. p. 40, line 9, - p. 41, line 9). Despite taxing entities' Exhibit "A" listing the wrong owners and describing the wrong interest, the trial court ultimately ruled in favor of taxing entities on January 14, 2015, granting their request for foreclosure on tax liens on Hydrogeo's two leases. (App. B).

Hydrogeo requested Findings of Fact and Conclusions of Law on January 21, 2015. (App. C). The trial court issued Findings of Fact and Conclusions of Law on February 4, 2015. (App. D). Hydrogeo objected to the trial court's findings by requesting Additional Findings of Fact and Conclusions of Law on February 13, 2015, and by listing specific findings and conclusions. (App. E). The trial court *5 denied Hydrogeo' s requests by re-issuing the same Findings of Fact and Conclusions of Law on February 23, 2015. (App. F). Hydrogeo filed its Notice of Appeal on January 27, 2015. (App. I).

SUMMARY OF ARGUMENT

Hydrogeo's two leases should be free from the taxing entities' efforts to foreclose because:

1) the one piece of evidence (App. A) was incorrectly admitted by the trial court, in that it had not been provided to opponents prior to trial and good cause was not shown by taxing entities to allow admission;

2) even if Exhibit "A" was properly admitted, it does not prove taxing entities' claims because it lists the wrong owners, describes the wrong properties, and does not distinguish between the values given to the leases' personalty from the values given to the realty;

3) taxing entities' reliance on its rebuttable presumption is misplaced because Hydrogeo effectively rebutted the presumption, forcing the taxing entities to prove each element of their cause of action, which they failed to do;

4) failure by the taxing entities to prove the valid amount of the underlying tax claims is critical because without a valid debt, there can be no valid lien on which to foreclose.

Regarding the evidentiary question, the taxing entities offered one document (Exhibit "A") into the evidence and then rested. (2 R.R. p. 7, line 15 - p. 7, line 20); (2 R.R. p. 9, line 10 - p. 9, line 16). Exhibit "A" constitutes the entire proof offered by taxing entities. Since Exhibit "A" had not been provided to opponents prior to trial in direct violation of TEX. R. CIV. P. 193.6, the trial court had no discretion to admit Exhibit "A" unless taxing entities were able to make a showing of good cause for not complying with discovery requests. TEX. R. CIV. P. 193.6 (b). The record is silent on this issue; no showing was made by the taxing entities. There can be no doubt that since Exhibit "A" constitutes the entire proof offered by taxing entities, that the trial court's decision to improperly admit it constitutes harmful error.

Even if Exhibit "A" was properly admitted, it contains incorrect information such as listing the wrong owners, describing the wrong property and failing to distinguish between realty and personalty. (App. A).

Exhibit "A" is a certified copy of the delinquent tax rolls regarding the alleged tax lien. Under §33.47a of the Tax Code, taxing entities are entitled to a rebuttable presumption unless Hydrogeo is able to offer sufficient evidence to rebut that presumption. Hydrogeo offered verified pleadings, responses to requests for admissions, documents and testimony sufficient to rebut the taxing entities' presumption. Since the burden of going forward with evidence shifted back to them, the taxing entities were required to prove their case; they offered no additional proof.

The failure by the taxing entities to prove the valid amount of the underlying tax claims is critical because without a valid debt, there can be no valid lien on which to foreclose. A lien is incident to and inseparable from the debt. Since no attempt was made by the taxing entities to segregate those taxes assessed for personalty, there is no evidence of the valid amount of taxes owed. Thus, there is no evidence of a valid lien.

Since taxing entities offered less than a scintilla of admissible evidence supporting their underlying tax claim, their alleged lien is also invalid. Thus, the trial court's judgment permitting foreclosure ofHydrogeo's property was in error.

ARGUMENT AND AUTHORITIES ISSUES PRESENTED ISSUEN0.1

Did the trial court commit reversible error by admitting Plaintiffs' Exhibit "A" into evidence when the document had not been timely produced prior to trial, and when taxing entities failed to show good cause for its failure to timely supplement discovery responses.

Regarding the standard of review for the evidentiary objection presented in Issue No. 1, the trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001 ). However, the trial court had no discretion to admit Exhibit "A" without taxing entities making a showing of good cause. Alvarado v. Farah Mfg. Co., 830 *8 S.W.2d 911, 914. Since taxing entities made no effort, and there is no record of good cause being shown, the trial court committed error.

Taxing entities offered Plaintiffs' Exhibit "A" to be admitted. (2 R.R. p. 7, line 15-20). Hydrogeo objected on the grounds that the document being proffered had not been provided to Hydrogeo prior to the trial, even though a specific request for production had been made. (2 R.R. p. 8, line 1-p. 9, line 8). Specifically, in request for production No. 8, taxing entities were asked to produce, "each and every tangible piece of evidence you plan to use at the trial of this cause." (2 R.R. p. 8, line 21-23). Taxing entities acknowledged the proposed Exhibit "A" had not been provided prior to trial but argued that the proposed exhibit was an updated version ofa document produced in year 2013 without offering any evidence of how Exhibit "A" differed from the earlier production. (2 R.R. p 9, line 2 - 4.)

TEX. R. CIV. P. 193.6 (a) states that "a party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness other than a named party who was not timely identified unless the court finds that: "l) there was good cause for the failure to timely make, amend or supplement the discovery response; or 2) the failure to timely make, amend or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties." (App. J).

The burden of proving good cause and/or a lack of unfair prejudice rests on taxing entities as the party introducing the evidence. TEX. R. CIV. P. 193.6 (b). Taxing entities failed to offer any reason why they did not timely produced the exhibit in question. (2 R.R. p. 9, line 2-4). The Supreme Court considered this issue in Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992), and held that TEX. R. CIV. P. 193.6 is mandatory, and its sole sanction- exclusion of evidence-is automatic, unless there is good cause to excuse its imposition. The good cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances. The trial court has discretion to determine whether the offering party has met his burden of showing good cause to admit the testimony; but the trial court has no discretion to admit testimony excluded by the rule without a showing of good cause. Id. (emphasis added). As the court stated, "It is both reasonable and just that a party expect that the rules he has attempted to comply with will be enforced equally against his adversary. To excuse noncompliance without a showing of good cause frustrates that expectation." Id. at 914.

Simply put, good cause did not exist for failing to comply with the applicable discovery rules. The trial court erred by admitting the evidence without requiring taxing entities to make a showing of good cause. The next question is whether the taxing entities proved a showing oflack of unfair surprise or unfair prejudice, TEX. *10 R. CIV. P. 193.6(a). The burden of proving lack of unfair surprise and prejudice is on taxing entities and must be supported by the record. TEX. R. CIV. P. 193.6(b). The following quote constitutes taxing entities' entire showing and is recorded at (2 R.R. p. 8, line 16-19 and p. 9, line 2-4).

"Your Honor, we did provide them tax statements. We also gave them the

calculations for taxes under the Texas Property Tax Code.

The Court: So this is simply the updated tax rolls?

Mr. Lambeth: Yes, your Honor."

There is no record of what tax statements, if any, were provided or what calculations if any, were ever given to Hydrogeo. In fact, taxing entities point out the proposed Exhibit "A" is not the same document which might have been provided back in 2013, and by its nature, could not have been produced back in 2013 since it is dated in 2014. (2 R.R. p. 8, line 20-p. 9, line 1.) Since the document in question was not produced back in 2013, taxing entities' discovery responses necessarily needed to be supplemented prior to trial. Clearly it is a different document. As the record indicates, no other explanation is offered by taxing entities.

Finally, since no showing of good cause, lack of unfair surprise and/or prejudice is shown, the only remaining question for the Court of Appeals is whether the trial court's error is harmful. To obtain reversal for any error arising from an erroneous admission of evidence, Hydrogeo must show that the error probably *11 resulted in an improper judgment. Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.-Texarkana 2011, pet. denied).

As shown in the record, the only document offered by taxing entities to support their allegations in the entire case is Exhibit "A". (2 R.R. p. 9, line 10-16.) An alleged certified copy of the tax rolls regarding the property in question allows the taxing authorities a rebuttable presumption to establish its prima facia case as to every material fact necessary to establish its cause of action. Tex. Tax Code §33.47(a). In fact, Exhibit "A" constitutes taxing entities' entire prima facia case. So if this document was improperly admitted, taxing entities produced no evidence to support any of their allegations. There can be no question therefore that the trial court's error in improperly admitting Exhibit "A" constitutes harmful error. Clearly, the trial court's judgment should be reversed and rendered.

ISSUE NO. 2

Did the trial court err by holding taxing entities' entire alleged tax lien enforceable against Hydrogeo, LLC, and First Bank & Trust East Texas when taxing entities failed to segregate that portion of the lien which was unenforceable against Hydrogeo.

Regarding the standard of review, Hydrogeo objected and excepted to the findings of fact of the trial court and asked for further findings consistent with its theory of the case. Thus, the court of appeals may review the findings of the trial court and is not bound by the trial court's findings unless such are supported by the *12 evidence in the case. TEX. R. CIV. P. 307; Maro v. State, 168 S.W.2d 510 (Tex. Civ. App.-Amarillo 1943, writ refd). The trial court's conclusions of law are not binding on the court of appeals and are reviewed de nova. In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

In a suit to collect delinquent taxes, the taxing units offering of a certified copy of delinquent tax rolls showing the property and the amount of the tax and penalties imposed and the interest accrued, constitutes prima facia evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent against the property and the amount of penalties and interest due on that tax as listed are the correct amounts. Tex. Tax Code Ann. § 33.47 (Vernon 1992). This is a rebuttable presumption. Maximum Medical Improvement, Inc. v. County ofDallas, 272 S.W.3d 832, 836-837 (Tex. Civ. App.-Dallas 2008, no pet.). As this court held, once the presumption is rebutted, the taxing authorities are required to prove each and every element of its cause of action. Id.

Here, Hydrogeo filed an affirmative defense and verified denial in its First Amended Answer on August 8, 2013. (1 C.R. p. 54, 58) The only documents offered into evidence by taxing entities did not list Hydrogeo as the delinquent tax payer. Plaintiffs' Exhibit "A" (2 R.R. p. 7 line 15-19 and App. A). Additionally, Hydrogeo offered two request for admission responses in which taxing entities acknowledged *13 not providing notice to Hydrogeo prior to serving them with the amended petition. (1 C.R. p. 78). Because these facts were undisputed at trial, no presumption existed under Tex. Tax Code Ann.§ 33.47 (Vernon 1992) and taxing entities were required to prove each and every element of their case. Maximum Medical Improvement, Inc. v. County of Dallas, 272 S.W.3d 832, 836-837 (Tex. Civ. App.-Dallas 2008, no pet.). Since the trial court did not apply the proper burden of proof, this case should be reversed and rendered.

THE BURDEN OF PROOF IS ON THE TAXING ENTITIES

According to Pete Dominguez Enterprises v. County of Dallas, 188 S.W.3d 385 (Tex. Civ. App.-Dallas 2006 no pet.), the evidentiary presumption envisioned by §33.47(a) is rooted in part on the reliability of taxing authorities' processes and records. (citing DMV Vacuum Services, Inc. v. Zavala County Appraisal District, 812, S.W.2d 435, 437-38 (Tex. App.-San Antonio 1991, no writ). However, ifthe party named in the certified tax roll is incorrect, the court cannot rely on the accuracy of the tax records. Id. As stated by Dominguez, "if the identity of the entity named as owner of the property on that tax roll does not match the identity of the defendant sued for non-payment, then no presumption arises and no prima facia case is established by the taxing authority." Id. ·

While Dominguez is an ownership issue case, it is not the only case dealing with the sufficiency of the rebuttable presumption referenced in §33.47(a). For *14 instance, Estates ofElkins v. County ofDallas, 146 S.W.3d 826 (Tex. App.-Dallas 2004, no pet.), states that after the taxing authority makes its prima facia case by introducing the tax records required by Tex. Tax Code Ann. § 33.47(a) (Vernon 1992), the burden then shifts to the taxpayer to show, by introducing competent evidence, that he has paid the full amount of taxes, penalties and interest, or that there is some other defense that applies to his case. (Emphasis added).

In this case the defense is not misidentification of the party, but rather lack of ownership, failure to prove the amount of taxes due on the underlying debt, failure to correctly identify the interest on which the lien was claimed and lack of enforceability of the tax lien. On these issues Hydrogeo offered competent evidence rebutting the presumption set out in §33.47(a). Once that happened, taxing entities were required to establish sufficient evidence to support their alleged claims. As stated in the Estates of Elkins case, if the taxing authorities' evidence did, in fact, create a legal presumption, that presumption disappeared when the Estates offered evidence rebutting the taxing authorities' evidence. See also DMV Vacuum Services, Inc. v. Zavala County Appraisal District (explaining the presumption under §33.47(a)). As the DMV court explains, ifthe taxpayer offers evidence sufficient to justify a finding against a presumed fact, the presumption disappears as to that element of the taxing authorities' cause of action. The taxing authorities' evidence then has to stand on its own to prove that particular element. Id.

The Estate of Elkins case did not consider misidentification as the issue, but instead considered whether of the full amount of taxes, penalties and interest was due, and the court found that the evidence offered by the taxing authorities, (in effect only the certified copy of tax rolls), did not constitute more than a mere scintilla of evidence. Therefore, the court of appeals reversed and rendered judgment in favor of the appellant.

Another case, Maximum Medical Improvement, Inc. v. County ofDallas, 272 S.W.3d 832, (Tex. App.-Dallas 2008, no pet.) found that "when a taxing authority's prima facia case is rebutted, the presumption disappears ... " As in our case, the taxpayer filed a verified denial that it was improperly sued, claiming that another entity was a proper party. Dallas County attempted, as in this case, to argue that the prima facia presumption still applies. The court of appeals disagreed, reversed the judgment and rendered a take nothing judgment on Dallas County's claims.

Hydrogeo is an oil and gas operator, and the property sought to be foreclosed on by taxing entities is two producing oil and gas leases. As it relates to ad valorem taxes, these properties are taxed in at least two different categories: 1) the leasehold estate itself, which is the oil and gas in the ground, including the legal right to operate the well; 2) the actual production equipment, such as casing, tubing, pump jacks, tanks, and surface pipelines.

According to their Second Amended Petition, at least a portion of taxing entities' judgment sought was due to taxes on Hydrogeo's personalty. (1 C.R. p. 164). Its petition states that "the value of any personal property that may be described above, and which the tax lien is sought to be enforced, is in excess of FIVE HUNDRED AND NO 100/ DOLLARS ($500.00)". Taxing entities clearly seek to foreclose on a tax lien against both personal and real property.

As stated in a 1997 Texas Attorney General Opinion, "irrespective of whether production equipment is real or personal property, it must be appraised separately from its corresponding mineral leasehold interest. Opinion No. DM-438, May 2, 1997. As the opinion also recognizes, the classification of property as real or personal is material to such matters as the statute of limitations because the statute treats real and personal property differently. Tex. Tax Code Ann.§ 33.05 (Vernon 1992).

The statute of limitations is not the only issue the legislature uses to treat real and personal property differently. In our case, Hydrogeo, because of the undisputed evidence offered at trial, is exempt from having any lien foreclosed on their personalty. Tex. Tax Code Ann. § 32.03 (Vernon 1992), and Tex. Bus. & Com. Code Ann. §1.201(b)(9)(Vernon 1987). Since Hydrogeo filed a verified denial contesting ownership of the property during the applicable years in question and questioning the sufficiency of the lien on the property both real and personal, the *17 burden of proof to plead and prove all of the elements of taxing entities' claim shifted to them. They offered no evidence distinguishing between the amounts of the lien claimed for real property compared to the amount claimed for personalty. Thus, taxing entities failed, as a matter of law, to meet their burden of proof.

Tex. Tax Code Ann §32.03(a) states in part "[E]xcept as provided by Subsection (a-1), a tax lien may not be enforced against personal property transferred to a buyer in ordinary course of business as defined by § 1.201 (9) of the Business and Commerce Code for value who does not have actual notice of the existence of the lien." (App. G). The exception listed in Subsection a-1 applies only to manufactured homes, and has no application to our case. According to § 1.201 (b)(9), a "buyer in ordinary course of business" essentially means a person that buys in good faith, without knowledge that the sale violates the rights of another person. (App. H). Thus, combining the elements of §32.03(a) and §1.20l(b)(9), Hydrogeo needs to show they paid value for their personalty, without notice of the lien, in an arm's length transaction, and in the normal course of business.

The undisputed evidence presented at trial is that Hydrogeo was a buyer in ordinary course of business as defined. Bill Godsey testified he had no knowledge of a previous tax lien. (2 R.R. p. 55, line 11-15). He testified Hydrogeo paid value for the leases. (2 R.R. p. 55, line 19-21). He testified Hydrogeo comported with the usual and customary practices of a buyer in the industry, in an arm's length *18 transaction. (2 R.R. p. 55, line 22-p. 56, line 5). No effort was made by taxing entities to rebut this line of testimony.

Once Hydrogeo established itself as a buyer in the ordinary course of business, the taxing entities' claim for a tax lien regarding Hydrogeo's personalty is not enforceable. (App G.). The next question is whether taxing entities segregated that portion of its unenforceable lien from the enforceable part. In order to answer this question, the trial court should have determined what portion of the taxes were assessed for the personalty, compared to that portion assessed for the realty. The personalty is that portion of the leases which is not fixed to the realty.

In determining whether oil and gas equipment is a fixture to real estate, courts consider primarily the intention of the party making the annexation. Sonnier v. Chisholm Ryder Co., 909 S.W.2d 475, 479, (Tex. 1995); Logan v. Mullis, 686 S.W.2d, 605, 607-08 (Tex. 1985). In the trial of this case Bill Godsey, president of Hydrogeo, testified he can and will remove any and all production equipment from the two leases in question. (2 R.R., p. 62, line 10 - p. 64, line 3.) Loretta Ward, landman for Hydrogeo also testified that the equipment can and will be removed. (2 R.R. p. 26, line 7 - p. 26, line 17.) Since the testimony offers undisputed evidence regarding the intent of the owner of the equipment in question, the only decision supported by the evidence is that all of the production equipment on the two oil and gas leases is personalty. This distinction is important because Hydrogeo as a buyer *19 in ordinary course as defined in Tex. Tax Code Ann. § 32.03 (a) (Vernon 1992), is exempt from enforcement of any part of the taxing entities' alleged lien against their personalty. (Id.)

Because at least a portion of the lien is unenforceable, it was incumbent on taxing entities to prove at trial how much of their alleged lien was due to the personalty on the two well locations. This the taxing entities failed to do. (2 R.R. p. 88, line 7- 14.) In fact, the only testimony regarding the value of the personalty was provided by Bill Godsey, President ofHydrogeo, (2 R.R. p. 59, line 10 - p. 61, line 16, and Exhibit HB-9), showing that the value of the personalty actually exceeds the total appraised value of the leases.

Since taxing entities' lien is based on a total value of the taxes due for both realty and personalty, and because that portion of the lien for personalty is unenforceable, and since the value of the personalty exceeds the value of taxing entities' entire alleged lien, the underlying basis for the alleged lien fails as a matter of law. The taxing entities' claim of right to foreclose on Hydrogeo's two leases also fails.

Taxing entities must prove the amount of the underlying debt on the real property. A lien is an incident of, and is inseparable from, the debt. Palmer v. Palmer, 831 S.W.2d 479, 482, (Tex. App.-Texarkana 1992, no writ); citing University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287 (Tex. *20 1967); See also Taylor v. Rigby, 574 S.W.2d 833, 839 (Tex. App.-1978 writ refd); As the court stated in Taylor v. Rigby: "where there is ... a debt secured by a lien, the lien is an incident of and inseparable from the debt. When one sues on the debt, the lien is thereby necessarily implicated, and both must be put in issue ... ". Goldberg v. R.J. Longo Constr. Co., 54 F.3d 243, 246 (5th Cir. 1995); citing Taylor v. Rigby, 574 S.W.2d 833, 839 (Tex. App. 1978 writ refd).

In Shipley v. Biscamp, 580 S.W.2d 52, 54 (Tex. App.-Houston [14th Dist.] 1979, no writ), the plaintiff failed to prove a current debt to support a lien. The issue before the court was whether there was any debt in existence upon which foreclosure of the contractual lien could be predicated at the time of trial, since it is fundamental that without a debt there can be no lien. Id. The court states "that the general rule seems to be universal that a lien is but an accessory to, or mere incident of, the debt secured by it, and is discharged and extinguished, ipso facto et eo instante, by payment of the debt." Id. citing Spencer-Sauer Lumber Co. v. Ballard, 98 S.W.2d 1054 (Tex. App.-San Antonio 1936, no writ). The court held that it was plaintiffs burden to prove a debt in existence at the time of trial.

CONCLUSION

As shown herein, the one piece of evidence offered by taxing entities was improperly admitted because it had not been provided to opponents prior to trial and no effort was made by taxing entities to prove good cause which would allow *21 admission. By definition, as the one document proffered by taxing entities, the trial court's error was harmful.

Even if the document was properly admitted, it does not prove the essential elements of taxing entities' claims and the rebuttable presumption relied upon by them and the trial court was misplaced. Hydrogeo effectively rebutted the presumption requiring taxing entities to offer admissible evidence to prove their cause of action. Since no evidence was offered, their claims fail.

The only document relied upon by taxing entities 1s fraught with misinformation, such as listing the wrong owners, listing the interest as a "royalty interest" and failing to segregate the amount of taxes assessed for personalty. Segregating the portion of the taxes assessed for personalty was essential because the amount of the tax lien for personalty was unenforceable against a buyer in the ordinary course of business, such as Hydrogeo. Taxing entities made no attempt to segregate. As such, the evidence cannot support taxing entities' desire to foreclose on the entire claimed lien on the two oil and gas leases in question. The trial court's judgment therefore should be reversed and rendered.

PRAYER

Wherefore Premises Considered, the Court should reverse the trial court's judgment, and render judgment in favor of appellants Hydrogeo, LLC and First Bank and Trust East Texas and hold that the taxing entities take nothing against appellants.

Respectfully submitted,

Isl J. Don Westbrook J. Don Westbrook Texas Bar No. 21215500 COGHLAN CROWSON, L.L.P. 1127 Judson Road, Ste. 211 Longview, Texas 75605 (903) 758-5543 (903) 753-6989 Facsimile email: dwestbrook@ccfww.com Attorneys for Appellants Hydrogeo, LLC and First Bank & Trust East Texas

CERTIFICATE OF COMPLIANCE

Counsel certifies that this brief contains, as counted by Microsoft Word, 5,644 words. It was typed in 14-point Times New Roman.

Dated: July 2, 2015 Isl J. Don Westbrook J. Don Westbrook

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing Brief of Appellants has been served on all counsel of record in this appeal in accordance with the Texas Rules of Appellate Procedure on July 2, 2015.

Isl J. Don Westbrook J. Don Westbrook

Index of Appendices

A. Plaintiffs' Exhibit "A", Certified Copy of Tax Records, dated August 22, 2014 (7 pages).

B. Trial court's Judgment dated January 14, 2015 (C.R. p. 199-203)

C. Hydrogeo, LLC and First Bank & Trust East Texas' Request for Findings of Fact and Conclusions of Law, dated January 21, 2015. (C.R. p. 207 - 208).

D. Court's Findings of Fact and Conclusions of Law, dated February 4, 2015. (C.R. p. 217 - 221).

E. Hydrogeo, LLC and First Bank & Trust East Texas' Request for Additional Findings of Fact and Conclusions of Law, dated February 13, 2015. (C.R. p. 222-226).

F. Court's Findings of Fact and Conclusions of Law, dated February 23, 2015. (C.R. p. 227 - 231 ).

G. Tex. Tax Code §32.03 (a) (Vernon 1992). H. Tex. Bus. & Com. Code Ann. §1.201(b)(9) (Vernon 1987).

I. Hydrogeo, LLC and First Bank & Trust East Texas' Notice of Appeal, dated January 27, 2015. (C.R. p. 204 - 205).

J. Tex. R. Civ. P. 193.6(a) & (b). Appendix A

.. CERTIFIED COPY OF TAX RECORDS FOR QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER SABINE WASTE DISPOSAL DISTRICT AND WOOD COUNTY CENTRAL HOSPITAL DISTRICT

SUIT NO. T-3625

QUITMAN INDEPENDENT SCHOOL DISTRICT, ET AL VS. BLACK DIAMOND OPERATING CO LLC, ET AL

THE STATE OF TEXAS x WOOD COUNTY x

I hereby certify that the following exhibit (ensuing page(s)) is a true and correct copy of entries in the tax records of my office. The penalty and interest amounts were calculated according to Section 33.01 and 33.07 of the Texas Property Tax Code. r..&l In testimony whereof, witness my hand and seal of office this O? ~ day of_-'~~_,,'--"='----' 20.l!f__.

Carol Taylor Tax Assessor-Collector and Custodian of the Tax Records for: QUITMAN INDEPENDENT SCHOOL DIS1RICT, WOOD COUNTY, UPPER SABINE WASTE DISPOSAL DIS1RICT and WOOD COUNTY CENTRAL HOSPITAL DIS1RICT

EXHIBIT "A"

Suit No. T-3625 Suit Key No. 2137912

Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: (903)763-2261 Fax: (903)763-5753

Property: 0154550-0001055-5-RI Quick Ref ID: N355851 Owner: BLACK DIAMOND OPERATING CO LLC Legal Description: 0.833335 0154550 WHITE DENTON BLACK DIAMOND OPER RI (ROYALTY INTERESl)

BLACK DIAMOND OPERATING CO LLC 4420 VALLEY RANCH RD LONGVIEW, TX 75602-6671

Tax Bill (Effective Date: 09/15/2014) Balance Due if Paid By September 30, 2014: 29,131.29 Bill Levy Disc/Credi Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance 2009 Quitman lsd 10,679.32 10,305.12 7,082.29 2,664.25 0.00 09/2212010 516.38 19,909.48 Waste Disposal District 169.36 163.42 112.33 42.24 0.00 09/2212010 8.20 315.73 Wood county 4,375.23 4,221.93 2,901.57 1,455.37 0.00 09/2212010 220.76 8,511.41 yyao~. ~unty Central 211.70 204.28 140.39 52.82 0.00 09/2212010 10.24 394.67 Totals 15,435.61 14,894.75 10,236.58 4,214.68 0.00 755.58 29,131.29

Totals 15,435.61 14,894.75 10,236.58 4,214.68 0.00 755.58 29,131.29

Balance Due if Paid By September 30, 2014: 29,131.29

Pay By Total Due October 31, 2014 29,304.68 November 30, 2014 29,478.09 December 31, 2014 29,651.50

PrintedonB/2212014 11:43AM Page 1 of 1

Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: {903)763-2261 Fax: (903)763-5753

Property: 0154550-0715543-WI Quick Ref ID: N357528 Owner: RHEATA RESOURCES LLC Legal Description: 0.833335 0154550 WHITE DENTON BLACK DIAMOND OPER WI

RHEATA RESOURCES LLC PO BOX921 KILGORE, TX 75663

Tax Bill (Effective Date: 09/10/2014) Balance Due if Paid By September 30, 2014: 22,099.47 Bill Levy Disc/Credi Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance 2010 Quitman lsd 5,309.68 5,309.68 2,973.42 1.242.47 0.00 0.00 9,525.57 Waste Disposal District 89.10 89.10 49.89 20.85 0.00 0.00 159.84 Wood County 2,415.20 2.415.20 1,352.51 753.54 0.00 0.00 4,521.25 ~oo_~. saunty Central 104.58 104.58 58.57 24.47 0.00 0.00 187.62 Totals 7,918.56 7,918.56 4,434.39 2,041.33 0.00 0.00 14,394.28 2011 Quitman lsd 3,070.38 3,070.38 1,350.97 663.20 0.00 0.00 5,084.55 waste Disposal District 53.48 53.48 23.53 11.55 0.00 0.00 88.56 Wood County 1,405.18 1,405.18 618.28 404.69 0.00 0.00 2,428.15

........ Wood County Central Totals 62.76 4,591.80 62.76 4,591.80 27.61 2,020.39 13.56 1,093.00 0.00 0.00 0.00 0.00 103.93 7,705.19

Totals 12,510.36 12,510.36 6,454.78 3,134.33 0.00 0.00 22,099.47

Balance Due if Paid By September 30, 2014: 22,099.47

Pay By Total Due October 31, 2014 22,245.25 November 30, 2014 22,391.03 December 31, 2014 22,536.79

Printedon8/22/2014 11:44AM Page 1 of 1

Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: (903)763-2261 Fax: (903)763-5753 Property: 0154550-0716237-WI Quick Ref ID: N366493 ONner. HYDROGEO LLC legal Description: 0.833335 0154550 WHITE DENTON HYDROGEO LLCWI

HYDROGEO LLC PO BOX 921 KILGORE, TX 75663

Tax Bill (Effective Date: 08/22/2014) Balance Due if Paid By August 31, 2014: 0.00 Bill Levy Disc/Credi Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance 2012 Quitman lsd 473.88 0.00 0.00 0.00 0.00 01/03/2013 473.88 0.00 Waste Disposal District 8.12 0.00 0.00 0.00 0.00 01/03/2013 8.12 0.00 Wood County 213.14 0.00 0.00 0.00 0.00 01/0312013 213.14 0.00 yyood. sounty Central 8.88 0.00 0.00 0.00 0.00 01/0312013 8.88 0.00 Totals 704.02 o.oo 0.00 0.00 o.oo 704.02 0.00 2013 Quitman lsd 3,086.91 0.00 0.00 0.00 0.00 02/06/2014 3,086.91 0.00 Waste Disposal District 53.67 0.00 0.00 0.00 0.00 02/06/2014 53.67 0.00 Wood County 1,394.67 0.00 0.00 0.00 0.00 02/0612014 1,394.67 0.00 Wood County Central 56.18 0.00 0.00 0.00 0.00 02/06/2014 56.18 0.00 " ....... Totals 4,591.43 0.00 0.00 0.00 0.00 '. 4,591.43 0.00

Totals 5,295.45 0.00 0.00 0.00 0.00 5,295.45 0.00

Balance Due if Paid By August 31, 2014: 0.00 Printed on 8122/2014 11:44 AM Page 1 of 1

Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400.0713907-WI Quick Ref ID: N310883 Owner. BLACK DIAMOND OPERATING CO LLC legal Description: 0.875000 0133400 ROBINSON IE BLACK DIAMOND OPER WI

BLACK DIAMOND OPERATING CO LLC 4420 VALLEY RANCH RD LONGVIEW, TX 75602-6671

Tax Bill (Effective Date: 09/23/2014) Balance Due if Paid By September 30, 2014: 9,423.15 Bill levy Disc/Credi Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance 2007 Quitman lsd 5,187.91 0.00 933.82 918.26 0.00 0712212008 7,039.99 0.00 Waste Disposal District 77.36 0.00 18.84 14.41 0.00 0512112009 110.61 0.00 Wood County 2,138.87 0.00 520.67 531.91 0.00 05/2112009 3,191.45 0.00 ~od. c,ounty Central 112.40 0.00 27.35 20.98 0.00 05/21/2009 160.73 0.00 Totafs 7,516.54 0.00 1,500.68 1,485.56 0.00 10,502.78 0.00 2008 Quitman lsd 92.43 0.00 12.02 0.00 0.00 05121/2009 104.45 0.00 Waste Disposal District 1.32 0.00 0.17 0.00 0.00 05/21/2009 1.49 0.00 Wood County 37:17 0.00 4.83· 0.00 0.00 05/21/2009 42.00 0.00 Wood County Central 1.78 0.00 0.23 0.00 0.00 05121/2009 2.01 0.00 " ....... Totals 132.70 0.00 17.25 0.00 0.00 149.95 0.00 2009 Quitman lsd 3,704.18 3,333.42 2,338.38 906.37 0.00 09/2212010 508.76 6,440.17 Waste Disposal District 58.74 52.86 37.07 14.37 0.00 0912212010 8.06 102.12 Wood County 1,517.57 1,365.67 958.02 495.12 0.00 0912212010 217.51 2,753.20 ~oOO.. c,ounty Central 73.43 66.08 46.35 17.97 0.00 09/22/2010 10.09 127.66 Totals 5,353.92 4,818.03 3,379.82 1,433.83 o.oo 744.42 9,423.15

Totals 13,003.16 4,818.03 4,897.75 2,919.39 0.00 11,397.15 9,423.15

Balance Due if Paid By September 30, 2014: 9,423.15

Pay By Total Due October 31, 2014 9,479.25 November 30, 2014 9,535.33 December31,2014 9,591.43

Printed on 8/22/2014 11:42 AM Page 1 of 1

.. Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400-0715543-VVI Quick Ref ID: N357525 owner: RHEATA RESOURCES LLC Legal Description: 0.875000 0133400 ROBINSON IE BLACK DIAMOND OPER WI

RHEATA RESOURCES LLC PO BOX921 KILGORE, TX 75663

Tax Bill (Effective Date: 09/10/2014) Balance Due if Paid By September 30, 2014: 21,750.06 Bill Levy Disc/Credi Levy Balance P&I Atty Fees t Date Paid Amt Paid Balance 2010 Quitman lsd 4,480.57 4,480.57 2,509.11 1,048.45 0.00 0.00 8,038.13 Waste Disposal District 75.19 75.19 42.10 17.59 0.00 0.00 134.88 Wood County 2,038.06 2,038.06 1,141,32 635.88 0.00 0.00 3,815.26 '!'!".°":.~aunty Central 88.25 88.25 49.42 20.65 0.00 0.00 158.32 Totals 6,682.07 6,682.Ql 3,741.95 1,722.57 0.00 0.00 12,146.59 2011 Quitman lsd 3,826.81 3,826.81 1,683.80 826.59 0.00 0.00 6,337.20 Waste Disposal District 66.65 66.65 29.33 14.40 0.00 0.00 110.38 Wocx! County 1,751.36 1,751.36 no.60 504.39 0.00 0.00 3,026:35 'f'!".od. ~unty Central 78.22 78.22 34.42 16.90 0.00 0.00 129.54 Totals 5,723.04 5,723,04 2,518.15 1,362.28 o.oo 0.00 9,603.47

Totals 12,405.11 12,405.11 6,260.10 3,084.85 0.00 0.00 21,750.06

Balance Due if Paid By September 30, 2014: 21,750.06

Pay By Total Due October 31, 2014 21,894.61 November 30, 2014 22,039.17 December 31, 2014 22,183.73

Printed on 812212014 11:42 AM Page 1 of 1

.. Account Summary Carol Taylor, Tax Collector Wood County Tax Office P.O. BOX 1919 Quitman, TX 75783 Ph: (903)763-2261 Fax: (903)763-5753

Property: 0133400-0716237-WI Quick Ref ID: N366491 Owner: HYDROGEO LLC Legal Description: 0.875000 0133400 ROBINSON I E HYDROGEO LLCWI

HYDROGEO LLC POBOX921 KILGORE, TX 75663

Tax Bill (Effective Date: 08/2212014) Balance Due if Paid By August 31, 2014: 0.00 Bill Levy Disc/Credi Levy Balance P & I Atty Fees t Date Paid Amt Paid Balance 2012 Quitman lsd 1,376.69 0.00 0.00 0.00 0.00 01/03/2013 1,376.6~ 0.00 Waste Disposal District 23.58 0.00 0.00 0.00 0.00 01103/2013 23.58 0.00 Wood County 619.20 0.00 0.00 0.00 0.00 01/03/2013 619.20 0.00 y:ro_o~. scunty Central 25.81 0.00 O.DD 0.00 0.DD 01/03/2013 25.81 0.00 Totals 2,045.28 0.00 0.00 0.00 0.00 2,045.28 o.oo 2013 Quitman lsd 4,142.30 0.DD 0.00 0.00 0.00 02106/2014 4,142.30 0.00 Waste Disposal District 72.02 0.00 0.00 0.DD 0.00 02/06/2014 72.02 0.00 Wood County 1,871.50 0.00 0.00 0.00 0.00 02/06/2014 1,871.50 O.DD ~"<!. scunty Central 75.38 0.00 O.DD 0.00 O.DD 02/06/2014 75.38 0.00 Totals 6,161.20 0.00 0.00 0.00 0.00 6,161.20 o.oo Totals 8,206.48 0.00 0.00 0.00 0.00 8,206.48 0.00

Balance Due if Paid By August 31, 2014: 0.00

Printed on 812212014 11:43 AM Page 1 of 1 AppendixB

• • SUIT NO. T-3625 ,. ' ; i • .~::..~ i '-·- L- ; i.. •c_ Ll COPY NINDEPENDENTSCHOOL § Zil/5 JAN 14 A~~T~ DISTRICT COURT CT,ET AL

vs. : ,;_ '?{;'~:'.;§~.~~~}hDICIAL DISTRICT § DIAMOND OPERATING CO LLC, § WOOD COUNTY, TEXAS

JUDGMENT

BE IT REMEMBERED that on the 18 day of September, 2014 came on to be considered in regular order the above numbered and entitled cause wherein QUITMAN INDEPENDENT SCHO L DISTRICT, WOOD COUNTY, UPPER SABINE WASTE DISPOSAL DISTRICT AND OOD COUNTY CENTRAL HOSPITAL DISTRICT are the Plaintiffs;

nd wherein the Defendants are Black Diamond Operating Co LLC; Rheata Resources, LLC; ydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank & Trust East Texas who were duly served with process as required by law, and who answered herein by and thron his or her attorneys and were duly notified of this setting; l d Plaintiffs having moved the Court to dismiss from this suit any parties not named above, it rdered; and the parties submitted all matters of controversy, both of fact and of Jaw, to the I Court "thout the intervention of a jury, and the Court, having heard the pleadings, the evidence, and argume t of counsel, is of the opinion and fmds that the law and the facts are with the Plaintiffs and I I who are entitled to judgment as follows: !! T IS ORDERED ADWDGED AND DECREED that Plaintiffs take nothing against Defendant ! Rheata esources LLC, and all references to Defendants hereafter shall not include Rheata Resour es LLC. but shall refer to all other Defendants. !I I IS THEREFORE ORDERED, ADJUDGED, and DECREED that there is due, owing, and unpaid t Plaintiffs the following amounts of delinquent taices, accrued penalties, interest, attorney fees and cost for all delinquent years upon the following described property as set out below, together with I! addition 1 penalties and interest at the rates prescribed by Subchapters A and C of Chapter 33, TEX. TAX C DE, which accrue hereafter on all of said taices from date of judgment until paid.

PROPE TY AND AMOUNTS OWED

Tract N .1: ACCT. 0. N355851 (N357528 and N366493); 0.833335 Interest in the White Denton Lease #154550 Abstract 588, the D Townsend Survey, being assessed on the tax rolls of Wood County in then me ofBJackDiamond Operating Co.

D001S9 I Suit No. T- 625 Page I Suit Key No. 2137912 i i" l

Adju ged value: $201,090.00 • • QUIT AN INDEPENDENT SCHOOL DISTRICT Year( ) Due: 2009 - 2011 $34,519.61

COUNTY Due: 2009 - 2011 $15,460.81

SABINE WASTE DISPOSAL DISTRICT Year(s Due: 2009 - 2011 $564.14

WOO COUNTY CENTRAL HOSPITAL DISTRICT Year(s Due: 2009 - 2011 $686.20

TOT $51,230.76

Tract o. 2: ACCT NO. N310883 (N357525 and N366491); 0.875 Working Interest in the IE Robinson Lease 133400, Abstract 588, the D Townsend Survey, being assessed on the tax rolls of Wood Coun in the name of Black Diamond Operating Company, Inc.

QUIT INDEPENDENT SCHOOL DISTRICT Year(s) .Due: 2009 - 2011 $20,815.51

WOO COUNTY Year(s) Due: 2009- 2011 $9,594.79

UPPE SABINE WASTE DISPOSAL DISTRICT Year(s) Due: 2009 - 2011 $347.40

WOOD COUNTY CENTRAL HOSPITAL DISTRICT Year(s) ue: 2009 - 2011 $415.51

$31,173.21 TOT

I IS FURTHER ORDERED, ADJUDGED, and DECREED: $82,403.97

hat Plaintiffs also recover(s) judgment for all costs of suit and sale now or hereafter incurred, I !,, ' includin abstractor's fees incurred in securing data and information as to the name, identity, and location f necessary parties and legal description of the above described property, in the total amount of $875. 0 provided, however, that no personal money judgment is granted against any Defendant named h rein unless otherwise provided below. The proceeds of any foreclosure sale in this cause I I shall be pplied first to the payment of all accrued costs of suit and sale, and any residue shall be distribut d as provided by law. I '1G0200 I Suit No. T- 625 Page 2 Suit Key No. 2137912 r I

• That QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER • SAB WASTE DISPOSAL DISTRICT and WOOD COUNTY CENTRAL HOSPITAL DISTRICT of and from the following named Defendant, a personal money judgment in the amount of nalties, interest, attorneys fees, and costs shown above: Black Diamond Operating Co LLC ract No. I for tax year 2009 only in the amount of $29,131.29 plus post judgment interest as herein rovided;

That QUITMAN INDEPENDENT SCHOOL DISTRICT, WOOD COUNTY, UPPER SAB WASTE DISPOSAL DISTRICT and WOOD COUNTY CENTRAL HOSPITAL DISTRICT recove of and from the following named Defendants, if any, an in rem judgment in the amount of taxes, nalties, interest, attorneys fees, and costs shown above: Hydrogeo, LLC; DeBerry 3 Opera ·ng Company, LLC; and First Bank & Trust East Texas;

That a lien exists against each of the lots, tracts, or parcels of land, for the amount of the taxes, interes penalties, abstractor's fees and costs of court found to be due on each particular lot, tract, or parcel f land, which lien is prior and superior to all claims, right, title, interest, or liens asserted by any De endant(s), and that Plaintiffs have foreclosure of their liens on each of the lots, tracts, or parcels of Ian as against the Defendant(s) or any person claiming under the Defendant(s) by any right acquire during the pendency of this suit;

at, upon the request of any Plaintiff or Intervening taxing unit, an order of sale be issued by the Cle k directed to the Constable or any Sheriff of this County, commanding such officer to seize, levy up n, and advertise the sale of each of the tracts of land, and sell them to the highest bidder for cash, al to be done as under execution except as otherwise provided by Subchapter A of Chapter 34, TEX. CODE, such order to have all the force and effect of a writ of possession as between the parties o this suit and any person claiming under the defendant(s) by any right acquired pending this suit;

at such order of sale provide that the property may be sold to a taxing unit that is a party to this suit or to any other person, other than a person owning an interest in the property or any party to this suit that is not a taxing unit, for (I) the adjudged value of the property as set by this Court in the

II ari:tount hown above, or (2) the aggregate amount of the judgments against the property, whichever is less;

at such order of sale also specify that the property may not be sold to a person owning an n the property or to a person who is a party to the suit other than a taxing unit unless: (I) that f the highest bidder at the tax sale, and (2) the amount bid by that person is equal to or greater ggregate amount of the judgments against the property, including all costs of suit and sale; I at the net proceeds of any sale of such property made hereunder to any purchaser other than a taxing unit who is a party to this suit shall be applied to satisfy the judgment and liens foreclosed herein, t any excess in the proceeds of sale over the amount of judgment, the costs of suit and sale I ; f; and othe expenses chargeable against the property, shall be paid into the registry of the court and ' disburse therefrom as provided by law;

T at the owner of such property, or anyone having an interest therein, or their heirs, assigns, or '' legal rep esentatives, may redeem such property in the time and manner prescribed by law;

Suit No. T- 25 Page J ~]00201. Suit Key No. 2137912 I j

!

• • • That the officer executing the order of sale shall make proper conveyance to the purchaser(s) of the 1 d, as prescribed by law, subject to such right of redemption, and shall proceed to place the er(s) of said land in possession thereof within thirty days after the day of sale; and that the clerk Court issue a Writ of Possession to the purchaser at the sale or to the purchaser's assigns no soone than 20 days following the date on which the purchaser's deed from the officer making the sale is file ofrecord.

All relief prayed for in any of the pleadings in this cause which is not specifically granted by this ju gment is hereby denied. This judgment finally disposes of all parties and all claims and is appeal ble.

SIGNEDonthe_fl_dayof ~Y/ ,2015 .

, ~ ~~ .

-Judge Presiding APPR VEDAS TO FORM:

Grego W. Neeley State B No. 14861425 Altom for: Defendants Black Diamond Operati g Co LLC And Rheata Resources, LLC

J. Don estbrook State B No. 21215500 Attome for: Defendants Hydrogeo, LLC And Fir t Bank & Trust East Texas

I I I Michael L. Dunn State B No. 06246900 I I Attome for: Defendant DeBerry 3 Operati g Company, LLC

800202 ! Suit No. T 625 Pagc4 Suit Key No. 2137912 I' l

• • • Jim L. Lambeth State ar No. 00793047 Attom y for: Plaintiffs Quitman Independent Schoo District, Wood County, Upper Sabine Waste isposal District and Wood County Centra Hospital District

I I I

I 1

! ! '' t I l I ' .. I .. __,.._ . ~- ..... ~ - .. ---···· ~ ·~

Suit No. T- 625 Page5 Suit Key No_ 2137912 I1

Appendix C

....... -- SillT NO. T-3625

Q TMAN INDEPENDENT SCHOOL § DI TRICT, ET AL § § VS. § WOOD COUNTY, TEXAS § BL CK DIAMOND OPERATING CO § LL ,ETAL § 402ND JUDICIAL DISTRICT

REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO HE HONORABLE JUDGE OF SAID COURT: I COMES NOW, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS,

Defi dants in the above styled and numbered cause, and request this Court to file Findings of Fact

and onclusions of Law.

1. The Court signed a judgment on January 14, 2015.

2. Defendant's HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS ask

urt to file Findings of Fact and Conclusions of Law and require the clerk to mail copies to all

parti s, pursuant to Rules 296 and 297 of the Texas Rules of Civil Procedure.

3. HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS file this request

wi twenty days of the date the Court signed the judgment.

Defend nts, Hydrogeo, LLC and First Bank & Trust East Texas Request for Findings ofFact and Co clusions ofLaw Page 1

000207

·- Respectfully submitted,

COGHLAN CROWSON, LLP P.O. Box 2665 Longview, Texas 75606 Phone: 903-758-5543 Fax: 903-753-6989

By:_~+-'-=·~~w~~=--- ~on Westbrook Sta e Bar No. 21215500 Sharon J. Wright State Bar No. 24073362

ATTORNEYS FOR DEFENDANT, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the forgoing document was forwarded to Jim . Lambeth, Linebarger Goggan Blair & Sampson, LLP, 1517 W. Front St. Suite 202, Tyler, TX 5702, Longview, Texas 75606, Gregory Neeley, 428 N. Fredonia Street, Longview, Texas 756 I, and Michael L. Dunn, Smead, Anderson & Dunn, 2110 Horseshoe Lane, Longview, Tex 75606, David Hudson, Perdue, Brandon, Fielder, Collins & Mott, LLP, PO Box 2007 Tyle , Texas 75710, by facsimile this I 6th day of January, 2015.

I Defen ants, Hydrogeo, LLC and First Bank & Trust East Texas Request for Findings of Fact and C nclusions ofLaw Page2 I ------ ""0 9 08 . '• J~

AppendixD

.. • , • I ~ SUIT NO. T-3625' ''" ' 1; ',., • Llcopy QUITMAN INDEPENDENT SCHOOL DISTRICT, ET AL

vs. LACK DIAMOND OPERATING CO x WOOD COUNTY, TEXAS LC, ET AL

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 14, 2015 the Court entered judgment on the above captioned cause. fter considering the pleadings, the evidence, the argument and briefs from counse~ the ourt, in response to request from Defendant, makes findings of fact and conclusions of aw as follows:

Findings of Fact

There are two properties that are the subject of this delinquent tax suit. Tract 1 is a .833335 Interest in the Denton White Lease #154550, Abstract 588, the D Townsend urvey, Wood County, Texas. Tract 2 is a 0.875 Working Interest in the IE Robinson ease #133400, Abstract 588, the D Townsend Survey, Wood County, Texas. There are es, penalties and interest due and owing on these two properties for tax years 2009- 011 in the amount of$82,403.97 as of the date of trial.

. Defendants Black Diamond Operating Co LLC and DeBerry 3 Operating Company, LC were the owners as of January 1, 2009, of certain property described as a 0.833335 I terest in the Denton White Lease #154550, Abstract 588, the D Townsend Survey, corded in Volume 2319, Page 32, official Deed Records of Wood County, which is the s bject of Tract 1 tax account number N35585 l .

. The appraisal roll and tax roll of Wood County names Black Diamond Operating Co LC as the owner ofa 0.833335 Interest in the Denton White Lease #154550, Abstract 8, the D Townsend Survey, which is the subject of Tract 1 tax account number 355851 for the tax year 2009.

Taxes, penalties and interest are due and owing on Tract 1 tax account number 355851 to Quitman Independent School District, Wood County, Upper Sabine Waste· isposal District and Wood County Central Hospital District for the tax year 2009 in the a ount of$29, 131.29 as of the date of trial, after all credits and offsets have been p operly posted to the account.

5 Defendant DeBerry 3 Operating Company, LLC and Steelman Investments, Inc were t e owners as ofJanuary 1, 2010 and January 1, 2011, of certain property described as a

000217

• • • 0.833335 Interest in the Denton White Lease #154550, Abstract 588, the D Townsend Survey, recorded in Document No. 2009-00009144, official Deed Records of Wood County, which is the subject of Tract 1 tax account number N357528.

6. The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources LC as the owner ofa 0.833335 Interest in the Denton White Lease #154550, Abstract 88, the D Townsend Survey, which is the subject of Tract 1 tax account number 357528 for the tax years 2010-2011 .

. Taxes, penalties and interest are due and owing on Tract I tax account number 357528 to Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District for the tax years 2010 and 011 in the amount of$22,099.47 as of the date of trial, after all credits and offsets have een properly posted to the account .

. Defendants Hydrogeo, LLC and DeBerry 3 Operating Company, LLC are the current wners as of the date of the trial of certain property described as 0.833335 Interest in the enton White Lease #154550, Abstract 588, the D Townsend Survey, recorded in ocument No. 2012-00004176, official Deed Records of Wood County, which is the ubject of Tract l's current tax account number N366493 and Tract l's prior tax account umbers N35581 and N357528 .

. Defendant First Bank & Trust East Texas is a lienholder on certain property described a 0.833335 Interest in the Denton White Lease #154550, Abstract 588, the D ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of ood County, which is the subject of Tract l's current tax account number N366493 and ract l's prior tax account numbers N35581 and N357528.

I 0. The total amount of taxes, penalties and interest that are due for Tract I, comprised of t e tax accounts N355851 and N357528, to Quitman Independent School District, Wood ounty, Upper Sabine Waste Disposal District and Wood County Central Hospital istrict forthe tax years 2009-2011 is $51,230.76 as of the date of trial, after all credits a d offsets have been properly posted to the accounts.

l l. Steelman Investments, Inc was the owner as of January I, 2009, ofcertain.property d scribed as a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, t e D Townsend Survey, Wood County, which is the subject of Tract 2 tax account n mber N3 I 0883. 1 ! I . The appraisal roll and tax roll of Wood County incorrectly names Black Diamond I f. perating Co LLC as the owner of a 0.875 Working ln\erest in the IE Robinson Lease # 33400, Abstract 588, the D Townsend Survey which is the subject of Tract 2 tax f a count number N3 l 0883 for the tax year 2009. f

I . Taxes, penalties and interest are due and owing on Tract 2 tax account number ! N I0883 to Quitman Independent School District, Wood County, Upper Sabine Waste I ()00218

• • • Disposal District and Wood County Central Hospital District for the tax year 2009 in the amount of$9,423.15 as of the date of trial, after all credits and offsets have been properly posted to the account.

14. Steelman Investments, Inc was the owner as of January I, 2010 and January 1, 2011, fcertain property described as a 0.875 Working Interest in the IE Robinson Lease 133400, Abstract 588, the D Townsend Survey, Wood County, which is the subject of ract 2 tax account number N357525.

15. The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources LC as the owner of a 0.875 Working Interest in the IE Robinson Lease #133400, bstract 588, the D Townsend Survey, Wood County, which is the subject of Tract 2 tax ccount number N357525 for the tax years 2010-201 I.

6. Taxes, penalties and interest are due and owing on Tract 2 tax account number 357525 to Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District for the tax years 2010-2011 the amount of$2 l, 750.06 as of the date of trial, after all credits and offsets have been roperly posted to the account.

7. Defendant Hydrogec, LLC is the current owner as of the date of trial of certain roperty described as a 0.875 Working Interest in the IE Robinson Lease #133400, bstract 588, the D Townsend Survey, recorded in Document No. 2012-00004176, · fficial Deed Records of Wood County, which is the subject of Tract 2's current tax ccount number N366491 and Tract 2's prior tax account numbers N3 I 0883 and j 357525.

8. Defendant First Bank & Trust East Texas is a lienholder on certain property described a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, the D ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of ood County, which is the subject of Tract 2's current tax account number N366491 and ract 2's prior tax account numbers N310883 and N357525.

I . The total amount of taxes, penalties and interest that are due for Tract 2, comprised of t e tax accounts N3 I 0883 and N357525, to Quitman Independent School District, Wood ounty, Upper Sabine Waste Disposal District and Wood County Central Hospital istrict for the tax years 2009-2011 is $31, 173.21 as of the date of trial, after all credits a d offsets have been properly posted to the accounts. ( 2 . Defendant Rheata Resources LLC is not a past owner, nor a current owner, for neither act l nor Tract 2 and therefore is not liable, whether in rem or in personam, for any of t e tax amounts set forth. I '1·'t

I! I 000219 II

• • • Conclusions of Law

I. The Court had personal jurisdiction over all parties necessary to the judgment entered erein and had jurisdiction over the subject matter before the Court .

. Delinquent taxes, penalties and interest are due and owing on Tract I, comprised of he tax accounts N355851 and N357528, for the tax years 2009-2011 in the amount of 51,230.76, as shown in the delinquent tax statement submitted by Quitman Independent chool District, Wood County, Upper Sabine Waste Disposal District and Wood County entral Hospital District as Plaintiffs' Exhibit "A'', under Chapter 33, TEX.TAX CODE

. Delinquent taxes, penalties and interest are due and owing on Tract 2, comprised of the ax accounts N310883 and N357525, for the tax years 2009-2011 in the amount of 31,173.21, as shown in the delinquent tax statement submitted by Quitman Independent chool District, Wood County, Upper Sabine Waste Disposal District and Wood County entral Hospital District as Plaintiffs' Exhibit "A", under Chapter 33, TEX. TAX CODE .

. Quitman Independent School District, Wood County, and Wood County Central ospital District are further entitled to additional penalties and interest for unpaid taxes n Tract I and Tract 2 at the rates prescribed by Subchapters A and C of Chapter 33, EX.TAX CODE which accrues from the date ofjudgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from efendant Black Diamond Operating Co LLC, a personal money judgment as to Tract l, ccount numberN355851 for tax year 2009 only in the amount of$29,131.29 plus post J dgment interest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE hich accrues from the date of judgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from efendants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank & rust East Texas, an in rem judgment as to Tract 1, account numbers N355851 and 357528 for tax years 2009-2011 in the amount of$5l,230.76 plus post judgment i terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which ccrues from the date of judgment until paid.

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from efendants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank & rust East Texas, an in rem judgment as to Tract 2, account numbers N310883 and '357525 for tax years 2009-2011 in the amount of$3 l,l 73.21 plus post judgment · terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which ccrues from the date of judgment until paid.

• • • 18. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste ,I Disposal District and Wood County Central Hospital District shall recover nothing from Defendant Rheata Resources LLC.

9. A tax lien has attached to the properties which are the subject of Tract 1 tax account numbers N35585 l, N357528, and N366493; and Tract 2 tax account numbers N3 l 0883, N357525, and N366491 securing payment of the amounts set forth above.

10. Quitman Independent School District, Wood County, Upper Sabine Waste Disposal istrict and Wood County Central Hospital District are entitled to a fmal judgment oreclosing the tax lien attached to the property, which is the subject of Tract 1 tax ccount numbers N355851, N357528, and N366493; and Tract 2 tax account numbers 310883, N357525, and N366491.

I. Costs of Suit, including Costs of Court and Abstract Fees, are assessed against efendants Black Diamond Operating Co LLC, in personam; and Hydrogeo, LLC; eBerry 3 Operating Company, LLC; First Bank & Trust East Texas, in rem.

2. An Order of Sale shall be issued by the Clerk upon the request of any Plaintiff or I ntervening taxing unit and any sale shall be done as prescribed by Subchapter A of apter 34, TEX. TAX CODE.

3. All relief not granted is denied.

"""'<h>ilio 'i__myof ;:-dg~ ,, Judge Presiding

I lt f I I I f l I .II ,,_ . • •·:....: ·: ~~;. .;. . ·~ .

I Appendix E

,.. 02/13/2015 FRI 14:33 . PAX 903~989 Cognlan Cro,,.on

• • iZJOOS/013

SUIT NO. T-3625 ~ v 'c:l- Q ITMAN INDEPENDENT SCHOOL § IN THE DISTRICT COURT ~ ~ ~O:'('> ~ DI TRI CT, ET AL § ·:/ .:'.);.r, <;.,,T / "T7

§ <> ~-2:, O> § WOOD COUNTY, TEXAS ~~ ~ § ;;,>, c>\<! --!-- ~'A . .-;-: B ACK DIAMOND OPERATING CO § .A~<'

L C,ETAL § 402ND JUDICIAL DISTRICT ~G-;. ,.- •;c ~' ,- 7. :::'i:. <fl /

REQUEST FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS,

De ndants in the above styled and numbered cause, files this its request for the Court to make

Ad itional Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

I. There are two properties that are the subject of this delinquent tax suit. Tract One is a

.833 3 interest in the Denton White Lease No. 154550, Abstract 588, located in the D. Townsend I S ey, Wood County, Texas. Taxes are owed on Tract One for the years 2009, 2010 and 2011 and

are 1 sted as follows:

2009 $14,894.75 2010 $7,918.56 2011 $4.591.80

TOTAL $27,405.11 f 2. Tract Two is a .875 interest in the I.E. Robinson Lease No. 133400; Abstract 588, I .. ! t Iocat din the D. Townsend Survey, Wood County, Texas. Taxes are owed on Tract 2 for the years ' Z009 20 I 0, and 2011 and are listed as follows:

De/en ants, Hydrogeo, LlC and First Bank & Trust East Texas Request for Additional Findings of Fact and C nclusions ofLaw Page 1 !' fI I i [

02/13/2015 FRI 14• 34

' FAX 90.371989 Coghlan Crowson

• • llJ006/0l3

2009 $4,818.03 2010 $6,682.07 2011 $5.723.04

TOTAL $17,223.14

3. Total taxes owed for Tract One and Tract Two, before penalties, interest and

att mey's fees are $44,628.25.

4. Penalty and interest assessed against Tract One for the years 2009, 2010 and 2011

tot l $23,825.65, as of the date of the Judgment.

5. Penalty and interest assessed against Tract Two for the years 2009, 2010 and 2011

tot $13,950.07, as of the date of the Judgment.

6. Defendants Hydrogeo, LLC and First Bank & Trust East Texas did not own or claim

an terest in the Denton White Lease or the I.E. Robinson Lease during the entire years of 2009,

201 or 201 !. These Defendants acquired their interest in these prope1ties in the year 2012.

7. Defendants Hydrogeo, LLC and First Bank & Trust East Texas never received tax

stat ments or delinquent tax notices on these leases, nor did Plaintiffs notify Hydrogeo, LLC or First

B & Trust East Texas of Plaintiffs' claim for taxes owed prior to Plaintiffs' filing its First

Am nded Petition on July 22, 2013.

8. The only tax statements and delinquent tax notices sent by Plaintiffs were sent to

Rhe ta Resources, LLC, who was not an owner of the leases during the years in question. The Court

ente ed a take nothing judgment against Rheata Resources, LLC at the conclusion of the trial.

9. The assessed value for the Denton White Lease No. 154550 on the Wood County tax

rolls is $201,090.00. ! I

ants, Hydrogeo, lLC and First Bank & Trust East Texas Request/or Additional Findings ofFact I I t and nc/usions o/Law Page2 i l '•,i(:~ 23 ·;rHl" I' [

• • • 02/13/2015 FRI 14•35 FAX 9037536989 Coghlan Crowson ilJ007/0l3

10. The assessed value for the I.E. Robinson Lease No. I 33400 on the Wood County tax

ro ls is $268,330.00.

11. The Wood County Tax Assessor assessed both real prope1ty and personalty in

essing the mruket value of the Denton White and the I.E. Robinson Leases.

I 2. Plaintiffs in their First Amended Petition, sought a judgment for delinquent taxes

ag inst both realty and personalty against Defendants in the Denton White and I.E. Robinson Leases,

sta 'ng that "the value of any personal property... and against which the tax lien is wught to be

en reed, is in excess of FIVE HUNDRED AND N0/100 DOLLARS ($500.00)".

I 3. Plaintiffs never segregated taxes owed for personalty and taxes owed against realty.

14. Court's Judgment lumps together any taxes claimed against Defendru1ts for personalty

and realty on both the Denton White and the I.E. Robinson Leases.

15. Defendants Hydrogeo and First Bank & Trust East Texas filed a verified denial stating

th did not own the property made the basis of the lawsuit on the first day of January in the years of

200 , 2010 and 2011.

CONCLUSION OF LAW

16. Defendants Hydrogeo and First Bank's affirmative defense of non-ownership is

app cable in this case, under Section 42.09 of the Texas Tax Code.

17. The undisputed testimony at the trial proved that the value of the personalty for both

the enton White Lease and the J.E. Robinson Lease exceeded the assessed value of the leases. I' l 18. Defendants rebutted the Texas Tax Code Section 33 .47(a) Plaintiffs' presumption of l' [ suffi ient evidence. I I i I Defe ants, Hydrogeo, lLC and First Bank & Trust East Texas Request for Additional Findings ofFact and nclusions ofLaw Page 3 I I f '_;0022~ I[

• 02/13/2015 FRI 14:36 FAX 9037~989 Coghlan Crowson ilJOOB/013

19. Under Section 32.03 of the Texas Tax Code, a tax lien may not be enforced against

nal property transfelTed to a buyer for value in the ordinary course of business as defined by

B iness and Commerce Code Section 1.201 (9), if the buyer does not have actual notice of the

20. Personalty, in the context of an oil and gas lease, includes all equipment and matetials

lo ted above the ground, including oil and gas already produced and stored, as well as casing, wells,

ps and pipe located below the ground.

21. Defendants Hydrogeo and First Bank & Trust East Texas were buyers in the "ordinary

co rse of business" as that telTn is defined by Section 1.201(9) of the Business and Commerce Code.

22. Plaintiffs' alleged tax lien may not be enforced against personalty transfe!1'ed to a

in the ordinary course of business.

23. Because Defendants filed a proper verified denial, Plaintiffs are not entitled to the

umption of evidence under Texas Tax Code §42.09.

24. Section 33.47(a) provides a rebuttal presumption, ifthe identity of the entity receiving

the ax notices does not match the identity of the Defendant sued for non-payment. i 25. The Section 33.47(a) presumption is rebutted if Defendants allege an affirmative r I defi se under Texas Rules of Civil Procedure 94.

26. Once the Section 33.47(a) presumption is rebutted, the burden of proof shifts to the ' Plai tiffs.

27. The Plaintiffs' alleged tax lien on personalty was in the amount of. t t

$___,f-------· I r i • i ! l Defi dants. Hydrogeo, LLC and First Bank & Trust East Texas Request for AddUional Findings ofFact and onc/usions ofLaw Page4 !I 000225 I i '

• 02/13/2015 FRI 14:37 FAX 9037~989 Coghlan Crowson ll!009/0l3

28. The Plaintiffs' alleged tax lien on real property was in the amount of:

$--+------·

Respectfully submitted,

COGHLAN CROWSON, LLP P.O. Box 2665 Longview, Texas 75606 Phone: 903-758-5543 Fax: 903-753-6989

By:~~ J. Don Westbrook State Bar No. 21215500 Michael E. Starr - BtateBar-No.-1-9078400--

AITORNEYS FOR DEFENDANT, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the forgoing document was forwarded to all arties in accordance with the Texas Rules of Civil Procedure, by facsimile, this t3'h day of Feb uary, 2015.

I MICHAELE. STARR i i

I Defe dants, Hydrogeo, LLC and First Bank & Trust East Texas Request for Additional Findings ofFact and ondusion.rofLaw Page 5 II r·f1t . ~--:·.. 1 ···: :; ~ 000226 ! !

Appendix F

II • • -- <-- ,._.) I SUIT NO. T-3625 ;-~ ~ c;:J

~~:~ § =n DITMAN INDEPENDENT SCHOOL X IN THE tl~cu:;oUR.-r --- - ; .. - !STRICT, ET AL -;-~ -:-] ~. . ::> i'71 & x 402ND JUJR~it - ' ;,T~er ''

LACK DIAMOND OPERATING CO X WOOD ~oakTtTEXAS. LC, ETAL

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 14, 2015 the Court entered judgment on the above captioned cause. fter considering the pleadings, the evidence, the argument and briefs from counsel, the ourt, in response to request from Defendant, makes findings of fact and conclusions of aw as follows:

Findings of Fact

There are two properties that are the subject of this delinquent tax suit. Tract 1 is a .833335 Interest in the Denton White Lease # 154550, Abstract 588, the D Townsend urvey, Wood Coiinty, Texas. Tract 2 is a 0.875 Working Interest in the IE Robinson ease #133400, Abstract 588, the D Townsend Survey, Wood County, Texas. There are es, penalties and interest due and owing on these two properties for tax years 2009- 011 in the amount of$82,403.97 as of the date of trial.

. Defendants Black Diamond Operating Co LLC and DeBerry 3 Operating Company, LC were the owners as of January l, 2009, of certain property described as a 0.833335 terest in the Denton White Lease #154550, Abstract 588, the D Townsend Survey, corded in Volume 23 l 9, Page 32, official Deed Records of Wood County, which is the ubject of Tract I tax account number N35585 l .

. The appraisal roll and tax roll of Wood County names Black Diamond Operating Co LC as the owner of a 0.833335 Interest in the Denton White Lease #154550, Abstract 88, the D Townsend Survey, which is the subject of Tract 1 tax account number 355851 for the tax year 2009 .

. Taxes, penalties and interest are due and owing on Tract 1 tax account number 355851 to Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District for the tax year 2009 in the ount of $29,131.29 as of the date of trial, after all credits and offsets have been f roperly posted to the account. r . Defendant DeBerry 3 Operating Company, LLC and Steelman Investments, Inc were

II t e owners as of January l, 2010 and January 1, 2011, of certain property described as a

"00227

I l • • I .833335 Interest in the Denton White Lease #154550, Abstract 588, the D Townsend j urvey, recorded in Document No. 2009-00009144, official Deed Records of Wood ounty, which is the subject of Tract I tax account number N357528 .

I 1 . The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources LC as the owner of a 0.833335 Interest in the Denton White Lease #154550, Abstract 88, the D Townsend Survey, which is the subject of Tract I tax account number 357528 for the tax years 2010-2011.

. Taxes, penalties and interest are due and owing on Tract I tax account number 357528 to Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District for the tax years 20 I 0 and 011 in the amount of $22,099 .47 as of the date of trial, after all credits and offsets have een properly posted to the account.

. Defendants Hydrogeo, LLC and DeBerry 3 Operating Company, LLC are the current wners as of the date of the trial of certain property described as 0.833335 Interest in the enton White Lease #154550, Abstract 588, the D Townsend Survey, recorded in acumen! No. 2012-00004176, official Deed Records of Wood County, which is the ubject of Tract l's current tax account number N366493 and Tract l's prior tax account umbers N3558 i and N357528 .

. Defendant First Bank & Trust East Texas is a lienholder on certain property described s a 0.833335 Interest in the Denton White Lease #154550, Abstract 588, the D

I ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of ood County, which is the subject of Tract l's current tax account number N366493 and ract I's prior tax account numbers N3558 l and N357528.

0. The total amount of taxes, penalties and interest that are due for Tract 1, comprised of he tax accounts N35585 l and N357528, to Quitman Independent School District, Wood aunty, Upper Sabine Waste Disposal District and Wood County Central Hospital istrict for the tax years 2009-2011 is $51,230.76 as of the date of trial, after all credits nd offsets have been properly posted to the accounts.

I. Steelman Investments, Inc was the owner as of January 1, 2009, of certain property escribed as a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, f

I he D Townsend Survey, Wood County, which is the subject of Tract 2 tax account umber N310883.

2. The appraisal roll and tax roll of Wood County incorrectly names Black Diamond perating Co LLC as the owner of a 0.875 Working Interest in the IE Robinson Lease f 133400, Abstract 588, the D Townsend Survey which is the subject of Tract 2 tax f ccount number N310883 for the tax year 2009.

3. Taxes, penalties and interest are due and owing on Tract 2 tax account number 310883 to Quitman Independent School District, Wood County, Upper Sabine Waste I "fl0228 . ··' l I f l

• • • Disposal District and Wood County Central Hospital District for the tax year 2009 in the amount of $9,423.15 as of the date of trial, after all credits and offsets have been properly osted to the account.

14. Steelman Investments, Inc was the owner as of January 1, 20 I 0 and January I, 2011, f certain property described as a 0.875 Working Interest in the IE Robinson Lease 133400, Abstract 588, the D Townsend Survey, Wood County, which is the subject of ract 2 tax account number N357525.

15. The appraisal roll and tax roll of Wood County incorrectly names Rheata Resources LC as the owner of a 0.875 Working Interest in the IE Robinson Lease #133400, bstract 588, the D Townsend Survey, Wood County, which is the subject of Tract 2 tax ccount number N357525 for the tax years 20 I 0-20 ! I.

6. Taxes, penalties and interest are due and owing on Tract 2 tax account number 357525 to Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District for the tax years 2010-2011 n the amount of $21,750.06 as of the date of trial, after all credits and offsets have been roperly posted to the account.

7. Defendant Hydrogeo, LLC is the current o\vner as of the date of trial of certain roperty described as a 0.875 Working Interest in the IE Robinson Lease #133400, bstract 588, the D Townsend Survey, recorded in Document No. 2012-00004176, fficial Deed Records of Wood County, which is the subject of Tract 2's current tax ccount number ' N36649 l and Tract 2' s · prior tax account numbers N3 l 0883 and 357525.

8. Defendant First Bank & Trust East Texas is a lienholder on certain property described s a 0.875 Working Interest in the IE Robinson Lease #133400, Abstract 588, the D ownsend Survey, recorded in Document No. 2013-00002376, official Deed Records of ood County, which is the subject of Tract 2's current tax account number N366491 and ract 2's prior tax account numbers N310883 and N357525.

I . The total amount of taxes, penalties and interest that are due for Tract 2, comprised of e tax accounts N310883 and N357525, to Quitman Independent School District, Wood ounty, Upper Sabine Waste Disposal District and Wood County Central Hospital istrict for the tax years 2009-2011 is $31,173.21 as of the date of trial, after all credits I d offsets have been properly posted to the accounts. ! 2 . Defendant Rheata Resources LLC is not a past owner, nor a current owner, for neither act I nor Tract 2 and therefore is not liable, whether in rem or in personam, for any of r t e tax amounts set forth. f I

00022.9 I I

• • • Conclusions of Law

I. The Court had personal jurisdiction over all parties necessary to the judgment entered erein and had jurisdiction over the subject matter before the Court .

. Delinquent taxes, penalties and interest are due and owing on Tract I, comprised of he tax accounts N35585 l and N357528, for the tax years 2009-2011 in the amount of 51,230.76, as shown in the delinquent tax statement submitted by Quitman Independent chool District, Wood County, Upper Sabine Waste Disposal District and Wood County entral Hospital District as Plaintiffs' Exhibit "A", under Chapter 33, TEX. TAX CODE

. Delinquent taxes, penalties and interest are due and owing on Tract 2, comprised of the ax accounts N3 l 0883 and N357525, for the tax years 2009-2011 in the amount of 31,173.21, as shown in the delinquent tax statement submitted by Quitman Independent chool District, Wood County, Upper Sabine Waste Disposal District and Wood County entral Hospital District as Plaintiffs' Exhibit "A", under Chapter 33, TEX. TAX CODE.

. Quitman Independent School District, Wood County, and Wood County Central ospital District are further entitled to additional· penalties and interest for unpaid taxes n Tract 1 and Tract 2 at the rates prescribed by Subchapters A and C of Chapter 33, EX. TAX CODE which accrues from the date of judgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from efendant Black Diamond Operating Co LLC, a personal money judgment as to Tract 1, ccount number N355851 for tax year 2009 only in the amount of$29,131.29 plus post j dgment interest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE hich accrues from the date of judgment until paid .

. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from fondants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank & rust East Texas, an in rem judgment as to Tract 1, account numbers N355851 and I 357528 for tax years 2009-2011 in the amount of $51,230.76 plus post judgment i terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which f a crues from the date of judgment until paid. I[ 7 Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover of and from d fondants Hydrogeo, LLC; DeBerry 3 Operating Company, LLC; and First Bank & Ii st East Texas, an in rem judgment as to Tract 2, account numbers NJ I 0883 and 357525 for tax years 2009-2011 in the amount of $31,173.21 plus post judgment i terest as provided by Subchapters A and C of Chapter 33, TEX. TAX CODE which li a crues from the date of judgment until paid.

800230 l I !

• • • 8. Plaintiffs Quitman Independent School District, Wood County, Upper Sabine Waste isposal District and Wood County Central Hospital District shall recover nothing from efendant Rheata Resources LLC.

. A tax lien has attached to the properties which are the subject of Tract l tax account umbers N355851, N357528, and N366493; and Tract 2 tax account numbers N310883, 357525, and N366491 securing payment of the amounts set forth above.

0. Quitman Independent School District, Wood County, Upper Sabine Waste Disposal istrict and Wood County Central Hospital District are entitled to a final judgment oreclosing the tax lien attached to the property, which is the subject of Tract 1 tax ccount numbers N355851, N357528, and N366493; and Tract 2 tax account numbers 310883, N357525, and N366491.

l. Costs of Suit, including Costs of Court and Abstract Fees, are assessed against efendants Black Diamond Operating Co LLC, in personam; and Hydrogeo, LLC; eBerry 3 Operating Company, LLC; First Bank & Trust East Texas, in rem.

2. An Order of Sale shall be issued by the Clerk upon the request of any Plaintiff or tervening taxing unit and any sale shall be done as prescribed by Subchapter A of hapter 34, TEX. TAX CODE.

3. All relief not granted is denied. igned this the ;2. tf day of ;;;;;-4 '2015.

Judge Presiding

I! t;: ~

']{)0231 Appendix G 711/2015 Tex. TaxCode§32.03

~ r~~;;~.~ci~"· ~ v ~ ~) II Document: Tex. Tax Code§ 32.03 r·§ i Aotiom•

• • Previous Next • Tex. Tax Code § 32.03

Citation

This document Is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S,B, 459, S.B. 529 (ch. 37), S.B. 835 (ch, 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch, 4).

Texas Statutes&. Codes Annotated by LexisNexis® Occupations Code Title 1 Property Tax Code Subtitle E Collections and Delinguencv Chapter 32 Tax Liens and Personal Liabilitv

Sec. 32.03. Restrictions on Personal Property Tax Lien. (a) Except as provided by Subsection (a-1), a tax lien may not be enforced against personal property transferred to a buyer in ordinary course of business as defined by Section 1.201(9) of the Business & Commerce Code for value who does not have actual notice of the existence of the lien, (a-1} With regard to a manufactured home, a tax lien may be recorded at any time not later than six months after the end of the year for which the tax was owed. A tax lien on a manufactured home may be enforced if it has been recorded in accordance with the laws in effect at the time of the recordation of the lien, A properly recorded tax lien may not be enforced against a new manufactured home that is owned by a person who acquired the manufactured home from a retailer as a buyer in the ordinary course of business. (a-2) A person may not transfer ownership of a manufactured home until all tax liens perfected on the home that have been timely filed with the Texas Department of Housing and Community Affairs have been extinguished or satisfied and released and any personal property taxes. on the manufactured home which accrued on each January 1 that falls within the 18 months preceding the date of the sale have been paid. This subsection does not apply to the sale of a manufactured home in inventory. (b) A bona fide purchaser for value or the holder of a lien recorded on a manufactured home statement of ownership and location is not required to pay any taxes that have not been recorded with the Texas Department of Housing and Community Affairs. Jn this section, manufactured home has the meaning assigned by Section 32.015(b), Unless a tax lien has been filed timely with the Texas Department of Housing and Community Affairs, no taxing unit, nor anyone acting on its behalf, may use a tax warrant or any other method to attempt to execute or foreclose on the manufactured home. (c) A taxpayer may designate in writing which tax year will be credited with a particular payment. If a taxpayer pays all the amounts owing for a given year, the taxing unit shall issue a receipt for the payment of the taxes for the des·1gnated year. {d} Notwithstanding any other provision of this section, if a manufactured home was omitted from the tax roll for either or both of the two preceding tax years, the taxing unit may file a tax lien within the 150-day period following the date on which the tax becomes delinquent. (e) If personal property taxes on a manufactured home have not been levied by the taxing unit, the taxing unit shall provide, upon request, an estimated amount of taxes computed by multiplying the taxable value of the manufactured home, according to the most recent certified appraisal roll for the taxing unit, by the taxing unit's adopted tax rate for the preceding tax year. In order to enable the transfer of the manufactured home, the tax collector shall accept the payment of the estimated personal property taxes and issue a certification to the Texas Department of Housing and Community Affairs that the estimated taxes are being held in escrow until the taxes are levied. Once the taxes are levied, the tax collector shall apply the escrowed sums to the levied taxes. At the time the tax collector accepts the payment of the taxes, the tax collector shall provide notice that the payment of the estimated taxes is an estimate that may be raised once the appraisal rolls for the year are certified and that the new owner may be liable for the payment of any difference between the tax established by the certified appraisal roll and the estimate actually paid.

History

Enacted by Acts 1979, 66th Leg., ch. 841 (S.B. 621), § 1, effective January l, 1982; am. Acts 1985, 69th Leg., ch, 846 (S.S. 1267), § 16, effective September 1, 1985; am. Acts 1991, 72nd Leg., ch. 617 (S.S. 1539), § 12, effective August 26, 1991; am. Acts 1991, 72nd Leg., ch, 836 (S.S. 772), § 5.2, effective August 26, 1991; am. Acts

https://advance.lexis.com/document/?pdmfid=1000516&crid=d6eb2d6f-1192-4c27-a7b6-a9e00cf1a466&pddocfullpath=%2Fshared%2Fdocument%2Fstatutes-le.. 1/4 AppendixH 711/2015 Tex. Bus. & Com. Code§ 1.201

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i Previous Next• Tex. Bus. & Com. Code § 1.201

Citation

This document is current through the 2015 regular session, 84th legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901(ch.54), S.B. 903 (ch. 3), S.B.1749 (ch. 29), and s.B. 1985 (ch.4).

Texas Statutes and Codes BUSINESS AND'COMMERCE CODE TITLE 1. UNIFORM COMMERCIAL CODE CHAPTER 1. GENERAL

PROVISIONS SUBCHAPTER B. GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION

§ 1.201. General Definitions (a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other chapters of this title that apply to

Document: Tex. Bus. & Com. Code§ 1.201 r"'·s~ Actions ... -~--fli)~so·cJe-ctl6~det1tilt10hs-tohta·1n·ecri11othm-n-apters··orthlS-nt1e·i:rraca-pp1y·!:'cfpan:1cular chapters or parts thereof: ( 1) "Action," in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined.

(2) "Aggrieved party" means a party entitled to pursue a remedy. (3) "Agreement," as distinguished from "contract," means the bargain of the parties In fact, as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in Section 1.303. { 4) "Bank" means a person engaged in the business of banking and includes a savings bank, savings and Joan association, credit union, and trust company. {5) "Bearer'' means a person in control of a negotiable electronic document of title or a person in possession of a negotiable instrument, a negotiable tangible document of

title, or a certificated security that is payable to bearer or indorsed in blank, {6) MBlll of lading" means a document of title evidencing the receipt of goods for shipment issued by a person engaged in the business of directly or indirectly transporting or foiwarding goods. The term does not include a warehouse receipt. (7) "Branch" includes a separately incorporated foreign branch of a bank, (8) "Burden of establlshing" a fact means the burden of persuading the trier of fact that the existence of the fact is more probable than its nonexistence.

(9) "Buyer in ordinary course of business" means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the

person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices. A person

that sells oil, gas, or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. A buyer in ordinary course of business may buy for cash, by exchange of other property, or on secured or unsecured credit, and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that

takes possession r.f the goods or has a right to recover the goods from the seller under Chapter 2 may be a buyer in ordinary course of business. "Buyer in ordinary course of business" does not include a person that acquires goods in a transfer in bulk or as security for or In total or partial satisfaction of a money debt. (10) "Conspicuous," with reference to a term, means so wrltten, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language tn the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language. (11) "Consumer" means an individual who enters into a transaction primarily for personal, family, or household purposes.

(12) "Contract," as distinguished from "agreement," means the total legal obligation that results from the parties' agreement as determined by this title as supplemented by any other applicable laws. (13) "Creditor" includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee In bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor's or assignor's estate. (14) "Defendant" includes a person in the position of defendant in a counterclaim, cross-claim, or third-party claim.

(15) "Delivery," with respect to an electronic document of title, means voluntary transfer of control, and with respect to an instrument, a tangible document of title, or

chattel paper, means voluntary transfer of possession. Q (16) "Document of title" means a record that in the regular course of b L J r financing is treated as adequately evidencing that the person in possession or control of the record is entitled to receive, control, hold, and dispose of the record and the goods the record covers, and purports to be issued by or addressed to a bailee and to cover

goods in the bailee's possession which are either identified or are fungible portions of an Identified mass. The term Includes a bill of lading, transport document, dock warrant, dock receipt, warehouse receipt, and order for delivery of goods. An electronic document of title is evidenced by a record consisting of information stored in an electronic medium. A tangible document of title is evidenced by a record consisting of lnforrnation that is inscribed on a tangible medium. (17) "Fault" means a default, breach, or wrongful act or omission. (18) "Fungible goods" means: (A) goods of which any unit, by nature or usage of trade, is the equivalent cl any other like unit; or

(B) goods that by agreement are treated as equivalent. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=9b0ef5c9-bfe8-4164-bbb4-9bf069c3da2f&pddocfullpath=%2Fshared%2Fdocument.. 1131 Appendix I

... ;. l' / / ;,:'- 'L '·· SUIT NO. T-3625 "·· J,·· , "' C: · ·,

Q TMAN INDEPENDENT SCHOOL § IN THE DISTRICT <t«v~!'; :~I ":~!//: r- • DI TRICT, ET AL § . "",-'. '""·, "(;

VS. § § WOOD COUNTY, TEXAS . ·/~:.";\ , , .. .;· § .... BL CK DIAMOND OPERATING CO § LL , ET AL § 402ND JUDICIAL DISTRICT

NOTICE OF APPEAL

TO HONORABLE JUDGE OF SAID COURT:

COMES NOW HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS, two of the efendants in the above captioned cause, and gives notice of intent to appeal from the Judgment rend red in this cause on Januruy 14, 2015, and files this Notice of Appeal from that Judgment to the . Co of Appeals for the Sixth Court of Appeals District of Texas.

I. HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS are appealing

from Cause No. T-3625; Quitman Independent School District et al vs. Black Diamond Operating Co. LC, et al; In the District Court 402"d District, Wood County, Texas.

Co 2. HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS appeal from this

's Final Judgment of Januruy 14, 2015. I t i 3. This appeal is taken to the Sixth Court of Appeals in Texarkana, Texas,

Dated Januruy 16, 2015. I I I! ~ t\ I I ! I f Defen nts, Hydrogeo, LLC and First Bank & Trust East Texas Notice ofAppeal Page 1 ' t

Respectfully submitted,

COGHLAN CROWSON, LLP P.O. Box 2665 Longview, Texas 75606 Phone: 903-758-5543 Fax: 903-753-6989

By: _ __,d...._b_e.,,-..._~-----~----- :::Ubon WeStbTOOk State Bar No. 2 I 2 I 5500 Sharon J. Wright State Bar No. 24073362

ATTORNEYS FOR DEFENDANT, HYDROGEO, LLC and FIRST BANK & TRUST EAST TEXAS

CERTIFICATE OF SERVICE f This is to certify that a true and correct copy of the forgoing document was forwarded to t Jim . Lambeth, Linebarger Goggan Blair & Sampson, LLP, 1517 W. Front St. Suite 202, Tyler, TX 5702, Longview, Texas 75606, Gregory Neeley, 428 N. Fredonia Street, Longview, Texas 7560 , and Michael L. Dunn, Smead, Anderson & Dunn, 2110 Horseshoe Lane, Longview, Texas 7560 , David Hudson, Perdue, Brandon, Fielder, Collins & Mott, LLP, PO Box 2007 Tyle Texas 75710 by facsimile this 16th day of January, 2015. I f 'r t I f r l ( l

Defen nls, Hydrogeo, LLC and First Bank & Trust East Texas Notice ofAppeal Page2 !' I ~- 000205 I !

Appendix J

TEXAS RULES OF CIVIL PROCEDURE EVIDENCE & DISCOVERY TRCP 193

supplemental response must be in the same form as the ~oet~ no~ affe~ tht~ autariyhenticity of the remainder.\[ ob. initial response and must be verified by the pariy if the iec ton ts ma e, e p attempting to use th original response was required to be verified by the ment should be given a reasonable opportuni; doeu. party, but the failure to comply with this requirement tablish its authenticity. to es. does not make the amended or supplemental response Comments to 1999 change: untimely unless the party making the response refuses l. This rule imposes a duly upon parties to make a cmn let written discovery based upon all information reasonably av~ia:i ~­ to correct the defect within a reasonable time after it is objections and privileges. e, subjeci ll pointed out. 2. An objection to written discovery does not excuse the res d' from complying with the request to the extent no objection is ma:i; mg~ Em Failing to Timely Respond-Effect on may object to a request for ~a11 documents relevant to the lawsu~- uta~ Trial. broad and not in compliance~~ the ~le requiring specific requ~ts:.~ men ts and refuse to comply with 1t entirely. See Loftin v. Martin 7iGS \\' • (a) Exclusion of evidence and exceptions. A (fex.1989). A party may also object to a request for a litigaiion fi~ .U 16 ground th~t it is overly broad .~d may assert ~at on its face the req~esi. • 00 party who fails to make, amend, or supplement a dis- only matenals protected by pnvilege. SeeNatwnal Union Fire Ins. C-0. r 1: covery response)n a timely manner may not introduce 863 S.W.2d 458 (fex.1993). A party who objects to production or d · from a remote time period should produce documents from a more~ in evidence the material or information that was not riod unless that production would be burdensome and duplicative shGUJd: timely disclosed, or offer the testimony of a witness objection be overruled. (other than a named party) who was not timely identi- 3. This rule governs the presentation of all privileges includingl'rOrtpM.: uct. It di~pe~ses wit~ objections ~o written discovery requests on the basii6;1( fied, unless the court finds that r:sponsive infonnabon or mate.nals are. protected by a specific pri\ilege ' - (I) there was good cause for the failure to timely d1scovery. Instead, the rule requires parties to state that information ornWtrl-

make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supple- ment the discovery response will not unfairly surprise als have been withheld and to identify the privilege upon which thepartyJdiea. The statement should not be made prophylactically, but only when sperificS. fonnation and materials have been withheld. The party must amend ment the statement if additional privileged infonnation or material i' f~ subsequent to the initial response. Thus, when large numbers of documera or. or unfairly prejudice the other parties. are being produced, a party may amend the initial response when dOCU!llClb are found as to which the party claims privilege. Aparty need not state Lhat• (b) Burden of establishing exception. The bur- terial created by or for lawyers for the litigation has been withheld as it wk assumed that such material will be withheld from virtually any request oolll den of establishing good cause or the lack of unfair sur- grounds of attorney-client privilege or work product However, the rule docs~ prise or unfair prejudice is on the party seeking to in- prohibit a party from specifically requesting the material or infonnation if~ party has a good faith basis for asserting that it is discoverable. An eX111f1! troduce the evidence or call the witness. A finding of would be material or infonnation described by Rule 503(d}(l) of the Rules. good cause or of the lack of unfair surprise or unfair Evidence. - prejudice must be supported by the record. 4. Rule 193.3(d) is a new provision that allows a party to assert a daiat privilege to material or infonnation produced inadvertently without int~ (c) Continuance. Even if the party seeking to in- to waive the privilege. The provision is commonly used in complex c~lolt troduce the evidence or call the witness fails to carry duce costs and risks in large document productions. The focus is on !ht iald to waive the privilege, not the intent to produce the material or informatillLj the burden under paragraph (b), the court may grant a party who fails to diligently screen documents before producing them does• continuance or temporarily postpone the trial to allow a waive a claim of privilege. This rule is thus broader than TRE51 l and<MIUd Granada Corp. v. First Court ofAppeals, 844 S.W.2d 223 (Tex.1992), tolht~ response to be made, amended, or supplemented, and the two conflict The ten-day period (which may be shortened by the cow1)• to allow opposing parties to conduct discovery regard- lowed for an amended response does not run from the production oflht mil rial or infonnation but from the party's first awareness of the mistake..Tollti ing any new information presented by that response. complications at trial, a party may identify prior to trial the documents intcafi! D Production of Docnments Self-Authenti- cating. Aparty's production of a document in response to be offered, thereby triggering the obligation to assert any overloom!prit lege under this rule. Atrial court may also order this procedure. 5. This rule imposes no duty to supplement or ame~d de~siu~ Ill mony. The only duty to supplement deposition testimony 1s pra11derl 111 } ....·

to written discovery authenticates the document for 195.6. use against that party in any pretrial proceeding or at 6. Any party can request a hearing in which the court wi1! re~~ trial unless-within ten days or a longer or shorter brought up in objections or withholding statements. The party seeking Ill ·,1 time ordered by the court, after the producing party has discovery has the burden of proving the objection or privilege. . c.i 7. The self-authenticating provision is new. Authenticat~on 1 ~ actual notice that the document will be used-the pariy but a condition precedent to admissibility and does not establish a ~ See .TRE 9~l(a). The ten-day period all~wed for ~bject~on to ~)~ objects to the authenticity of the document, or any part (which period may be altered by the court m appropnate c1rcmn ~pill 5 of it, stating the specific basis for objection. An objec- not run from the production of the material or infonnation ~ut f~~~ tion must be either on the record or in writing and must actual awareness that the document will be used. To avoid co Ptiec6c!l trial, a party may identify prior to trial the docume~~ inten~~ to rt a•ili have a good faith factual and legal basis. An objection thereby triggering the obligation to object to authenticity. Atn ~u~fij made to the authenticity of only part of a document order this procedure. An objection to authenticity must be made rn

1018 O'CONNOR'S TEXAS RULES