Preview
•
• CAUSE NO. 017-244547-10
•
MARTHA ROWAN HYDER, § IN THE DISTRICT COURT OF
INDIVIDUALLY and as INDEPENDENT §
EXECUTRIX AND TRUSTEE under the §
WILL OF ELTON M. HYDER, JR., §
DECEASED, and as TRUSTEE under the §
ELTON M. HYDER JR. RESIDUARY §
TRUST, and as TRUSTEE of the ELTON §
M. HYDER JR. MARITAL TRUST, §
HYDER MINERALS, LTD., BRENT §
ROW AN HYDER, INDIVIDUALLY and §
as TRUSTEE under the GEOFFREY §
HYDER TRUST, and as TRUSTEE under §
the CHARLES HYDER TRUST, §
WHITNEY HYDER MORE, §
INDIVIDUALLY and as TRUSTEE under §
the ELTON MATTHEW HYDER IV §
TRUST and as TRUSTEE under the §
SAMUEL DOUGLAS MORE TRUST, and §
as TRUSTEE under the LILI LOWDON §
HYDER TRUST, and as TRUSTEE under §
the PETER ROWAN MORE TRUST, §
§
Plaintiffs/Counter-Defendants, §
§
vs. § TARRANT COUNTY, TEXAS
§
CHESAPEAKE EXPLORATION LLC and §
CHESAPEAKE OPERATING, INC., §
§
Defendants/Counter-Plaintiffs. § 17th JUDICIAL DISTRICT
PLAINTIFFS' RESPONSE TO DEFENDANTS' OBJECTIONS TO PLAINTIFFS'
AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES
AND, ALTERNATIVELY, MOTION TO MODIFY FINAL JUDGMENT
Plaintiffs Martha Rowan Hyder, individually and as independent executrix and trustee
under the Will of Elton M. Hyder Jr., Deceased, and as trustee of the Elton M. Hyder Jr.
Residuary Trust and the Elton M. Hyder Jr. Marital Trust, Hyder Minerals, Ltd., Brent Rowan
Hyder, individually and as trustee of Charles Hyder Trust and Geoffrey Hyder Trust, Whitney
PLAINTIFFS' RESPO:\SE TO llEFE:\DA:\TS' OBJECfiONS TO PLAI:\TIFFS'
AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES
AND. ALTERNATIVELY, MOTION TO MOlliFY FINAL JllllGMENT PAGE I
Hyder More, individually
• and as trustee of Elton Matthew Hyder
• IV Trust, Lili Lowdon Hyder
Trust,• Peter Rowan More Trust, and Samuel Douglas More Trust (collectively, "Plaintiffs" or the
"Hyders"), file this Response to Defendants' Objections to Plaintiffs' Award of Prejudgment
Interest on Overriding Royalty Damages and, Alternatively, Motion to Modify Final Judgment
(the "Response") and respectfully state as follows:
DEFENDANTS FAILED TO TIMELY FILE THEIR MOTION
Texas Rule of Civil Procedure 329b(g) requires that a motion to modify, correct, or
reform an error in the judgment must be filed within thirty days from the date the judgment was
signed. See Tex. R. Civ. P. 329b(a), (g). On June 15,2012 the Court entered its Final Judgment
(the "Judgment"). Accordingly, any motion to modify, correct or reform an error in the
Judgment was due on Monday July 16,2012.
Defendants failed to file their Motion on or before the applicable deadline of July 16,
2012 and in fact did not file their Motion until July 23, 2012. This failure to timely file the
Motion is fatal and renders the Motion null and void. Accordingly, the entirety of the Motion
should be struck and at the very least, denied.
THE INTEREST RATE IN PARAGRAPH 5 APPLIES TO PARAGRAPH 10 AND
PLAINTIFFS PRESENTED EVIDENCE OF SAME AT TRIAL
Should this Court entertain Defendants' untimely Motion, the arguments presented in the
Motion stillfail. Paragraph 5 of the Lease sets forth the applicable default interest rate for the
entirety of the Lease: "Lessee shall pay a late fee and interest for all past due payments at the
rate of one percent (1.0%) per month ....." There is no other interest provision contained in the
Lease. This interest provision is not limited to Paragraph 5 and nowhere else in the Lease does a
provision reserve the application of the default interest of I% to only Paragraph 5. As such, the
interest rate provided in Paragraph 5 is applicable to any default interest arising under the Lease
PLAINTIFFS' RESPO:-;SE TO DEFE:-;D.\:-;TS' OBJECTIONS TO PLAI:-;TJFFS'
AWARD OF PRE.IUDG~IENT INTEREST ON OVERRIDING ROYALTY DAMAGES
AND. AL TERNATI\'ELY. MOTION TO MODIFY FINAL JliDGMENT PAGE2
..
and pursuant to Section
•304.002 of the Finance Code, the
•
Court must apply the contact interest
rate. Therefore Defendants' argument to the contrary fails.
Paragraph 5 of the Lease provides that the monthly 1.0% interest rate accrues beginning
with the first month folloll'ing a past due payment. When a contract provides for a specific rate
of interest, that rate of interest may be awarded as prejudgment interest. See Preston Farm &
Ranch Supply v. Bio-Zyme Ent., 625 S.W.2d 295, 297 (Tex. 1981); Moody v. Main Bank of
Houston, 667 S.W.2d 613, 619 (Tex. App.-Houston [1st Dist.] 1984, ref n.r.e.). As stated
above the Lease clearly provides for a specific rate of interest in the event that there are past due
amounts on any payments due thereunder. The Lease was admitted in evidence at trial as was
the Plaintiffs' damage chart which provided for that same interest. Accordingly, the proper
calculation of the pre-judgment interest is I% per month beginning with the first month when a
past due amount has accrued (as is currently calculated for the prejudgment interest in the
Judgment). Therefore the prejudgment interest rate for the overriding royalty damage should be
1.0% monthly or 12% per annum and should be calculated as of the first month Defendants
defaulted on their payments to Plaintiffs.
REQUEST FOR RELIEF
WHEREFORE, the Hyders request that this Court deny Defendants' Motion in its
entirety and grant the Hyders all other appropriate relief, in law or equity, to which they are
entitled.
PLAINTIFFS' RESPO:O.SE TO DEFEMJA~TS' OBJECTIONS TO PLAI~TIH'S'
AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES
AND. ALTERNATIVELY. MOTION TO MODIFY FINAL JliDGMENT PAGE3
.
• Respectfully submitted,
•
2.LiJ6c:-
State Bar No. 24007127
J. Robert Wills IV
State Bar No. 24070858
WICK PHILLIPS GOULD & MARTIN LLP
I 00 Throckmorton Street, Suite 550
Fort Worth, Texas 76102
Telephone: (817) 332-7788
Telecopier: (817) 332-7789
ATIORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned attorney for Plaintiffs certifies that a true and correct copy of the
foregoing was sent to the following counsel of record in accordance with the Texas Rules of
Civil Procedure:
Len Wade By Facsimile
BartA. Rue
Clark H. Rucker
KELLY HART & HALLMAN LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76102
on thisi-1 day of July, 2012.
David J. Drez III 0
PLAINTIFFS' RESPO:-iSE TO DEFE:-ill.\:-iTS' OBJECTIONS TO PLAI:-iTIFFS'
AWARD OF PREJUDGMENT I~EREST ON OVERRIDING ROYALTY DAMAGES
AND. ALTERNATIVELY. MOTION TO MODIFY FINAL JlJDGMENT PAGE4
mn1 Wick Phillips
D.£J Gould Martin
• •
July 27,2012
By hand delivery
Court Clerk
17'h Judicial Court
401 W. Belknap
Fort Worth, TX 76196
Re: No. 017-244547-1 0; Martha Rowan Hyder, eta/. v.Four Sevens Oil Co., Ltd. eta/.
[Our File No. 1269.01]
Dear Clerk:
Please find the following item to be filed in the above-referenced case.
• Plaintiffs' Response to Defendants Objections to Plaintiffs' Award of
Prejudgment Interest on Overriding Royalty Damages and, Alternatively, Motion
to Modify Final Judgment
Please return a file-stamped copy to the courier for our records.
Susan A. Witt
Paralegal
cc: Len Wade By Facsimile
BartA. Rue
Clark H. Rucker
Kelly Hart & Hallman LLP
Fort Worth- ~DO
100 Throckmmtml, Swte • F11rt WlHth. TexJs 7G102
• 817.332_7788
• 817.337 77H9 Fax
Preview
• • CAUSE NO. 017-244547-10 • MARTHA ROWAN HYDER, § IN THE DISTRICT COURT OF INDIVIDUALLY and as INDEPENDENT § EXECUTRIX AND TRUSTEE under the § WILL OF ELTON M. HYDER, JR., § DECEASED, and as TRUSTEE under the § ELTON M. HYDER JR. RESIDUARY § TRUST, and as TRUSTEE of the ELTON § M. HYDER JR. MARITAL TRUST, § HYDER MINERALS, LTD., BRENT § ROW AN HYDER, INDIVIDUALLY and § as TRUSTEE under the GEOFFREY § HYDER TRUST, and as TRUSTEE under § the CHARLES HYDER TRUST, § WHITNEY HYDER MORE, § INDIVIDUALLY and as TRUSTEE under § the ELTON MATTHEW HYDER IV § TRUST and as TRUSTEE under the § SAMUEL DOUGLAS MORE TRUST, and § as TRUSTEE under the LILI LOWDON § HYDER TRUST, and as TRUSTEE under § the PETER ROWAN MORE TRUST, § § Plaintiffs/Counter-Defendants, § § vs. § TARRANT COUNTY, TEXAS § CHESAPEAKE EXPLORATION LLC and § CHESAPEAKE OPERATING, INC., § § Defendants/Counter-Plaintiffs. § 17th JUDICIAL DISTRICT PLAINTIFFS' RESPONSE TO DEFENDANTS' OBJECTIONS TO PLAINTIFFS' AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES AND, ALTERNATIVELY, MOTION TO MODIFY FINAL JUDGMENT Plaintiffs Martha Rowan Hyder, individually and as independent executrix and trustee under the Will of Elton M. Hyder Jr., Deceased, and as trustee of the Elton M. Hyder Jr. Residuary Trust and the Elton M. Hyder Jr. Marital Trust, Hyder Minerals, Ltd., Brent Rowan Hyder, individually and as trustee of Charles Hyder Trust and Geoffrey Hyder Trust, Whitney PLAINTIFFS' RESPO:\SE TO llEFE:\DA:\TS' OBJECfiONS TO PLAI:\TIFFS' AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES AND. ALTERNATIVELY, MOTION TO MOlliFY FINAL JllllGMENT PAGE I Hyder More, individually • and as trustee of Elton Matthew Hyder • IV Trust, Lili Lowdon Hyder Trust,• Peter Rowan More Trust, and Samuel Douglas More Trust (collectively, "Plaintiffs" or the "Hyders"), file this Response to Defendants' Objections to Plaintiffs' Award of Prejudgment Interest on Overriding Royalty Damages and, Alternatively, Motion to Modify Final Judgment (the "Response") and respectfully state as follows: DEFENDANTS FAILED TO TIMELY FILE THEIR MOTION Texas Rule of Civil Procedure 329b(g) requires that a motion to modify, correct, or reform an error in the judgment must be filed within thirty days from the date the judgment was signed. See Tex. R. Civ. P. 329b(a), (g). On June 15,2012 the Court entered its Final Judgment (the "Judgment"). Accordingly, any motion to modify, correct or reform an error in the Judgment was due on Monday July 16,2012. Defendants failed to file their Motion on or before the applicable deadline of July 16, 2012 and in fact did not file their Motion until July 23, 2012. This failure to timely file the Motion is fatal and renders the Motion null and void. Accordingly, the entirety of the Motion should be struck and at the very least, denied. THE INTEREST RATE IN PARAGRAPH 5 APPLIES TO PARAGRAPH 10 AND PLAINTIFFS PRESENTED EVIDENCE OF SAME AT TRIAL Should this Court entertain Defendants' untimely Motion, the arguments presented in the Motion stillfail. Paragraph 5 of the Lease sets forth the applicable default interest rate for the entirety of the Lease: "Lessee shall pay a late fee and interest for all past due payments at the rate of one percent (1.0%) per month ....." There is no other interest provision contained in the Lease. This interest provision is not limited to Paragraph 5 and nowhere else in the Lease does a provision reserve the application of the default interest of I% to only Paragraph 5. As such, the interest rate provided in Paragraph 5 is applicable to any default interest arising under the Lease PLAINTIFFS' RESPO:-;SE TO DEFE:-;D.\:-;TS' OBJECTIONS TO PLAI:-;TJFFS' AWARD OF PRE.IUDG~IENT INTEREST ON OVERRIDING ROYALTY DAMAGES AND. AL TERNATI\'ELY. MOTION TO MODIFY FINAL JliDGMENT PAGE2 .. and pursuant to Section •304.002 of the Finance Code, the • Court must apply the contact interest rate. Therefore Defendants' argument to the contrary fails. Paragraph 5 of the Lease provides that the monthly 1.0% interest rate accrues beginning with the first month folloll'ing a past due payment. When a contract provides for a specific rate of interest, that rate of interest may be awarded as prejudgment interest. See Preston Farm & Ranch Supply v. Bio-Zyme Ent., 625 S.W.2d 295, 297 (Tex. 1981); Moody v. Main Bank of Houston, 667 S.W.2d 613, 619 (Tex. App.-Houston [1st Dist.] 1984, ref n.r.e.). As stated above the Lease clearly provides for a specific rate of interest in the event that there are past due amounts on any payments due thereunder. The Lease was admitted in evidence at trial as was the Plaintiffs' damage chart which provided for that same interest. Accordingly, the proper calculation of the pre-judgment interest is I% per month beginning with the first month when a past due amount has accrued (as is currently calculated for the prejudgment interest in the Judgment). Therefore the prejudgment interest rate for the overriding royalty damage should be 1.0% monthly or 12% per annum and should be calculated as of the first month Defendants defaulted on their payments to Plaintiffs. REQUEST FOR RELIEF WHEREFORE, the Hyders request that this Court deny Defendants' Motion in its entirety and grant the Hyders all other appropriate relief, in law or equity, to which they are entitled. PLAINTIFFS' RESPO:O.SE TO DEFEMJA~TS' OBJECTIONS TO PLAI~TIH'S' AWARD OF PREJUDGMENT INTEREST ON OVERRIDING ROYALTY DAMAGES AND. ALTERNATIVELY. MOTION TO MODIFY FINAL JliDGMENT PAGE3 . • Respectfully submitted, • 2.LiJ6c:- State Bar No. 24007127 J. Robert Wills IV State Bar No. 24070858 WICK PHILLIPS GOULD & MARTIN LLP I 00 Throckmorton Street, Suite 550 Fort Worth, Texas 76102 Telephone: (817) 332-7788 Telecopier: (817) 332-7789 ATIORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE The undersigned attorney for Plaintiffs certifies that a true and correct copy of the foregoing was sent to the following counsel of record in accordance with the Texas Rules of Civil Procedure: Len Wade By Facsimile BartA. Rue Clark H. Rucker KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 on thisi-1 day of July, 2012. David J. Drez III 0 PLAINTIFFS' RESPO:-iSE TO DEFE:-ill.\:-iTS' OBJECTIONS TO PLAI:-iTIFFS' AWARD OF PREJUDGMENT I~EREST ON OVERRIDING ROYALTY DAMAGES AND. ALTERNATIVELY. MOTION TO MODIFY FINAL JlJDGMENT PAGE4 mn1 Wick Phillips D.£J Gould Martin • • July 27,2012 By hand delivery Court Clerk 17'h Judicial Court 401 W. Belknap Fort Worth, TX 76196 Re: No. 017-244547-1 0; Martha Rowan Hyder, eta/. v.Four Sevens Oil Co., Ltd. eta/. [Our File No. 1269.01] Dear Clerk: Please find the following item to be filed in the above-referenced case. • Plaintiffs' Response to Defendants Objections to Plaintiffs' Award of Prejudgment Interest on Overriding Royalty Damages and, Alternatively, Motion to Modify Final Judgment Please return a file-stamped copy to the courier for our records. Susan A. Witt Paralegal cc: Len Wade By Facsimile BartA. Rue Clark H. Rucker Kelly Hart & Hallman LLP Fort Worth- ~DO 100 Throckmmtml, Swte • F11rt WlHth. TexJs 7G102 • 817.332_7788 • 817.337 77H9 Fax