Preview
CLERK’S RECORD
Appellate Court Case Number 01‐24‐00110‐CV
Volume ___1________ of ______4_____
Trial Court Cause No. 20‐CV‐0301
In the Court 56th District Court
of Galveston County, Texas
Honorable Lonnie Cox Judge Presiding
_________________________________________________________________
Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company
_________________________________________________________________
Appealed to the Court of Appeals for the First District of Texas, at, Houston, Texas
Attorney for Appellants(s): Cooke Kelsey
Address: Parker & Sanchez PLLC
700 Louisiana St Ste 2700
Houston TX 77002
Telephone Number: 713‐659‐7200
Fax Number: 713‐659‐7203
E‐Mail Address: cooke@parkersanchez.com
State Bar of Texas Number: 24081467
Name of Appellant/s: Weems & Kelsey Management Company No. 2, Ltd.
Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas
By /s/ : Lisa Kelly
1
Case Number 20‐CV‐0301 ‐ 56th District Court
Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company
Date Filed and Document Name Page#
Volume 1
2024‐04‐15_Title Page 1
2024‐04‐15_Index 2
2024‐04‐15_Caption 6
2021‐04‐08_Disclaimer‐Disclaimer of Union Pacific Railroad Company 7
2021‐04‐08_Rule 11 Agreement 9
2021‐04‐08_Response‐Union Pacific Railroad Company's Response to Motion for Declaratory Judgment 18
and Request to Enter Judgment
2021‐10‐21_Petition in Intervention‐Marathon and Blanchard's Petition in Intervention 39
2022‐01‐21_Motion to Consolidate‐Plaintiff's and Intervenors' Joint Unopposed Motion to Consolidate 46
2022‐04‐21_Reply‐Weems & Kelsey's Reply to Defendants and intervenors' Response to Plaintiff's 52
Motion for Leave to File Amended Pleading
2022‐05‐20_Proposed Order (unsigned)‐Order on the State of Texas's Special Exception and Plea to the 64
Jurisdiction
2022‐07‐20_Motion‐Weems & Kelsey's Motion for Declaratory Judgment and Rule 166 Motion for 67
Pretrial Ruling on Issues of Law
2022‐07‐20_Exhibits ‐ Exhibit 2‐20 to Motion for Declaratory Judgment 110
2024‐04‐30_Clerk's Certificate 623
Volume 2
2024‐04‐15_Title Page 624
2
Case Number 20‐CV‐0301 ‐ Index on Appeal Continued
2024‐04‐15_Index 625
2024‐04‐15_Caption 629
2022‐07‐20_Exhibit(s)‐Exhibit 1 Limited Chain of Title Part 1 of 2‐Motion for Declaratory Judgment 630
2022‐07‐20_Exhibit(s)‐Exhibit 1 Limited Chain of Title Part 2 of 2‐Motion for Declaratory Judgment 769
2022‐08‐03_Response 1‐Weems & Kelsey's Response to the Opening Brief Under Rule 166(g) Filed by 877
Marathon and Up
2022‐08‐03_Response 2‐ Weems & Kelsey's Combined Response to Intervenor's Special Exception and 894
Plea to the Jurisdiction
2022‐08‐03_Exhibit(s) 1‐Exhibit 1A Chain of Title Part 2 of 2 917
2024‐04‐30_Clerk's Certificate 1042
Volume 3
2024‐04‐15_Title Page 1043
2024‐04‐15_Index 1044
2024‐04‐15_Caption 1048
2022‐08‐03_Exhibit(s) 2 ‐ Exhibit 1A Chain of Title Part 1of 2 1049
2022‐08‐03_Exhibit(s) 3 ‐ Exhibit 21 Affidavit of Mavis Kelsey 1262
2022‐08‐08_Reply‐The State of Texas's Reply to Response to Plea to the Jurisdiction 1288
2022‐08‐08_Reply‐Weems & Kelsey's Reply to the State of Texas Response to Motion for Declaratory 1305
Judgment and Rule 166 Motion for Pretrial Rulings on Issues of Law‐2
2022‐08‐08_Exhibit(s)‐Exhibit 22 ‐Reply to the State of Texas's Response to Motion for Declaratory 1319
Judgment and Rule 166 Motion for Pretrial Rulings on Issues of Law
2022‐08‐08_Reply‐Reply to Intervenors and Defendant Response to Plaintiff's Rule 166(g) Opening Brief 1335
2022‐09‐22_Partial Judgment‐Non‐Final‐Order on Plaintiff Weems & Kelsey's Motion for Declaratory 1346
Judgement and Rule 166 Motion for Pretrial Ruling on Issues of Law
3
Case Number 20‐CV‐0301 ‐ Index on Appeal Continued
2022‐11‐18_Amended Petition‐Weems & Kelsey's Fifth Amended Petition 1348
2022‐11‐21_Motion‐Plaintiff Weems and Kelsey's Motion to Modify Order Granting the State of Texas's 1450
Special Exception and Plea to the Jurisdiction
2023‐01‐23_Order ‐ Order on Plaintiff Weems & Kelsey's Motion to Modify Order Granting the State of 1470
Texas's Special Exception and Plea to the Jurisdiction
2023‐03‐20_Notice of Fling‐Notice of Voluntary Dismissal of Trespass AB Initio Claim 1472
2023‐03‐23_Correspondence ‐ Amended Letter to the Honorable Judge Cox 1476
2023‐04‐13_Motion for Summary Judgment‐Defendants Blanchard Pipe Line Company LLC and 1489
Marathon Pipe Line LLC's Motion for Summary Judgment
2024‐04‐30_Clerk's Certificate 1615
Volume 4
2024‐04‐15_Title Page 1616
2024‐04‐15_Index 1617
2024‐04‐15_Caption 1621
2023‐05‐10_Motion for Summary Judgment‐ Weems & Kelsey's 166a(c) and 166a(i) Motion for Partial 1622
Summary Judgment Against Marathon and Blanchard
2023‐05‐24_Response‐Weems & Kelsey's Response to Marathon's Motion for Summary Judgment 1727
2023‐05‐24_Answer‐Defendants Blanchard and Marathon Second Amended Answer 1898
2023‐05‐31_Order Denying Summary Judgment‐Order Denying Plaintiff's 166a(c) and 166a(i) Motion 1904
for Partial Summary Judgment
2023‐06‐07_Order Denying Summary Judgment‐Order on Defendants Marathon and Blanchard's 1905
Motion for Summary Judgment
2023‐09‐22_Proposed Charge of the Court‐Marathon and Blanchard First Amended Proposed Jury 1907
Charge
2023‐09‐25_Proposed Charge of the Court‐Jury Charge 1926
4
Case Number 20‐CV‐0301 ‐ Index on Appeal Continued
2023‐09‐25_Notice of Filing 1‐Plaitiff's Requested Questions 1938
2023‐09‐25_Notice of Filing 2 ‐ Plaintiff's Alternative Questions Should the Court Deny Rule 166 Motion 1946
2023‐09‐25_Objection‐Plaintiff's Objections to Jury Charge 1958
2023‐09‐25_Motion‐Plaintiff's Rule 166 Motion on Lost Rental Damages in Jury Charge 1973
2023‐09‐25_Order on Motion in Limine‐Defendants 1980
2023‐11‐02_Motion‐Motion for Judgment on Jury Verdict 1988
2023‐11‐13_Partial Judgment‐Non Final ‐ Jury Verdict as to Plaintiff's and Defendant's Only 2002
2023‐12‐13_Motion for New Trial ‐ Motion for Judgment Notwithstanding the Verdict and Motion for 2007
New Trial
2024‐01‐11_Order Denying Motion for New Trial‐Order Denying Motion for JNOV and Motion for New 2017
Trial
2024‐02‐09_Notice of Appeal 2018
2024‐04‐15_Clerks Affidavit of No Document 2021
2024‐04‐15_Case Summary 2022
2024‐04‐29_Cost Bill 2043
2024‐04‐30_Clerk's Certificate 2046
5
Appeal Caption
The State of Texas
County of Galveston
In 56th District Court at Galveston, Texas, within and for the County of Galveston, before the
Honorable Lonnie Cox, Judge thereof Presiding, the following case came on for trial, to-wit:
CASE NUMBER 20-CV-0301
Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company
6
Filed: 4/8/2021 4:32 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 52284346
By: Shailja Dixit
4/9/2021 8:25 AM
CAUSE NO. 20-CV-0301
WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF
COMPANY NO. 2, LTD., §
Plaintiff, §
§ GALVESTON COUNTY, TEXAS
V. §
§
UNION PACIFIC RAILROAD §
COMPANY, § 10TH JUDICIAL DISTRICT
Defendant.
DISCLAIMER OF UNION PACIFIC RAILROAD COMPANY
Defendant Union Pacific Railroad Company, and for its Disclaimer, states as follows:
1. Union Pacific Railroad Company is a Delaware corporation.
2. Union Pacific Railroad Company claims no current right, title or interest in or to the
real property described in Plaintiffs Original Petition.
3. By filing this Disclaimer, Union Pacific Railroad does not waive any deed restrictions
contained in the property records of the real property at issue in the litigation or adjoining real
property.
Respectfully submitted,
BROWN, PROCTOR & HOWELL, LLP
3800 N. Lamar Blvd., Suite 200
Austin, Texas 78701
(512) 599-8506
(817) 870-2427 (fax)
By: Isl Afton Sands
Afton Sands
State Bar No. 24060555
asands@brownproctor.com
COUNSEL FOR DEFENDANT UNION
PACIFIC RAILROAD COMPANY
7
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing was served upon
the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and
21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021:
Jacqueline Lucci Smith
Lucci Smith Law PLLC
2550 Gray Falls Dr
Ste 395
Houston, TX 77077
832-494-1700
Email: JLSmith@luccismithlaw.com
Melissa Ferringer
Assistant Attorney General
Transportation Division
Office of the Attorney General
P. 0. Box 12548
Austin, Texas 78711-2548
melissa.ferringer@oag.texas.gov
Is/ Afton Dee Sands
Afton Dee Sands
2
8
Filed: 4/8/2021 4:32 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 52284346
By: Shailja Dixit
4/9/2021 8:25 AM
CAUSE NO. 20-CV-0301
WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF
COMPANY NO. 2,LTD., §
Plaintiff, §
§ GALVESTON COUNTY, TEXAS
V. §
§
UNION PACIFIC RAILROAD §
COMPANY, § 10TH WDICIAL DISTRICT
Defendant.
NOTICE OF FILING RULE 11 AGREEMENT
TO THE HONORABLE WDGE OF SAID COURT:
Union Pacific Railroad Company files the attached Rule 11 Agreement among the papers
of this cause in accordance with Rule 11 of the Texas Rule of Civil Procedure.
Respectfully submitted,
BROWN, PROCTOR & HOWELL, LLP
3800 N. Lamar Blvd., Suite 200
Austin, Texas 78701
(512) 599-8506
(817) 870-2427 (fax)
By: Isl Afton Sands
Afton Sands
State Bar No. 24060555
asands@brownproctor.com
COUNSEL FOR DEFENDANT UNION
PACIFIC RAILROAD COMPANY
9
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing was served upon
the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and
21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021:
Jacqueline Lucci Smith
Lucci Smith Law PLLC
2550 Gray Falls Dr
Ste 395
Houston, TX 77077
832-494-1700
Email: JLSmith@luccismithlaw.com
Melissa Ferringer
Assistant Attorney General
Transportation Division
Office of the Attorney General
P. 0. Box 12548
Austin, Texas 78711-2548
melissa.ferringer@oag.texas.gov
Is/ Afton Dee Sands
Afton Dee Sands
2
10
From: Afton Sands
Sent: Tuesday, September 29, 2020 10:17 AM
To: Jacqueline Lucci Smith
Subject: Weems - DECA Judgment
Attachments: DRAFT DECA Judgment (ADS Redline 8-12-2020).docx
Jacqueline,
Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will agree to
file a disclaimer and would not oppose your motion. We will not agree, however, as we previously discussed. We would
attend the hearing on your motion to announce that Union Pacific has no current interest in the property, per the
disclaimer, and therefore, does not opposed entry of the judgment in the form presented .
If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want.
Also, can you please provide me with your client's email address one more time? We need to do a final confirmation
that UP did not email with him about this situation (which we are 99.9% confident we did not).
Feel free to call me to discuss. Cell is best but I am generally available most of the week.
Thank you .
Afton Sands
Brown Proctor & Howell, L.L.P.
3800 N. Lamar Blvd., Suite 200
Austin, TX 78756
Phone: (512) 599-8506
Cell: (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST)
Email: asands@brownproctor.com
*******************
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recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is
privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for
delivering it to the intended recipient, you are hereby notified that you have received this document in error and that
any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this
communication in error, please notify us immediately by e-mail, and delete the original message.
1
11
CAUSE NO. _ _ _ _ _ _ _ __
WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF
COMPANY NO. 2, LTD., §
§
Plaintiff, §
§ GALVESTON COUNTY, TEXAS
vs. §
§
UNION PACIFIC RAILROAD §
COMPANY, § JUDICIAL DISTRICT
§
Defendants. §
§
FINAL DECLARATORY JUDGMENT
ON THIS DAY, CAME TO BE HEARD, the Court considered Plaintiff Weems &
Kelsey Management Company No. 2, LTD.'s ("Weems & Kelsey") Motion for
Declaratory Judgment against defendant, Union Pacific Railroad Company ("UP-RR").
The Court, having considered pleadings in the case, the evidence on file, and arguments
of counsel, find§. the Motion has merit and should be GRANTED. The Court finds as
follows:
I. FINDINGS
1.1 The 100-foot (100') railroad right of way property made the basis of this
suit, (" Abandoned Property"), was utilized by Defendant and its railroad operator
predecessors as a railroad since at least 1901. Depicted and legally described in Ex. A.
1.2 UP-RR' s former interest in the railroad right of way originated by way of
deed in 1900 to Galveston Houston and Northern Railway Co., UP-RR's predecessor.
1.3 UP-RR applied to the Surface Transportation Board ("STB") to abandon the
PLAINTIFF'S ORIGINAL PETITION
Page 1 of 3
12
100-foot (100') railroad right of way depicted in Ex. A in 1996. The STB approved and
accepted UP-RR' s application for abandonment of its interest in the Abandoned Property
on September 21, 2017.
1.4 The STB acceptance of UP RR's application for abandonment became
effective on September 22, 2017.
1.5 Weems & Kelsey is the record owner of property that abuts and is adjacent
to the Abandoned Property that is the subject matter of this suit. Depicted in Ex. A.
1.6 On _ __, 20____J Weems & Kelsey filed a notice in the Real Property
Records of Galveston County asserting ownership of the Abandoned Property.
1.7 UP-RR has disclaimed any intertest in the Abandoned Property.
1.8 The Abandoned Property is subject to the Texas strips and gore doctrine
as the basis for determining ownership of the Abandoned Property.
1.9 The State of Texas recognizes Weems & Kelsey as the current owner of the
western one half of the Abandoned Property and seeks to condemn said one half of the
Abandoned Property for Highway purposes.
1.910 The State is the other adjacent property owner of the Abandoned Property
and has claimed ownership of the eastern one half of the Abandoned Property based on
the strips and gores doctrine.
1.101 The Abandoned Property is subject to the Texas strips and gore doctrine
as the basis for determining ownership of the .Abandoned Property.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that
2.1 Plaintiff Weems & Kelsey£ as the adjacent property owner of the
Final Deelaratory Judgment
Page 2 of 3
13
Abandoned Property, is entitled to fee simple title to the western half of the Abandoned
Property more fully described and depicted in Ex. A, that is the subject matte£ of this
2.2 Plaintiff, Weems & Kelsey's fee simple title is based on the strips and gores
doctrine applicable to abandoned property in Texas;
2.3 As of September 22, 2017, Plaintiff, Weems & Kelsey is the record fee
simple owner of the western half of the Abandoned Property, more fully described and
depicted in Ex. A.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED,
2.4 Defendant UP-RR formally aAbandoned f13roperty as a railroad right of
way and any right, titleL or interest in the Abandoned Property was terminated on
September 22, 2017.
2.5 All parties are to bear their own costs, fees and expenses.
2.6 This Court intends for this judgment to constitute this Court's final and
appealable judgment in this case, resolving all claims as to all parties, and so all other
relief that any party has requested, if not granted heretofore or in this judgment, is
denied.
Signed this _ _ _ _ day of August 2020.
JUDGE PRESIDING
Final Deelaratory Judgment
Page 3 of 3
14
From: Jacqueline Lucci Smith
Sent: Thursday, October 8, 2020 11 :17 AM
To: Afton Sands
Subject: RE: [External] Weems - DECA Judgment
Yes, I'll be filing it early next week.
From: Afton Sands
Sent: Thursday, October 8, 2020 11:06 AM
To: Jacqueline Lucci Smith
Subject: RE: [External] Weems - DECA Judgment
Jacqueline -
Any update on your timing to present the motion and set it for hearing?
Afton Sands
Brown Proctor & Howell, L.L.P.
3800 N. Lamar Blvd ., Suite 200
Austin, TX 78756
Phone: (512) 599-8506
Cell : (432) 413-5223 {PLEASE CALL THIS NUMBER FIRST)
Email: asands@brownproctor.com
*******************
The information contained in this e-mail message is intended only for the personal and confidential use of the
recipient(s) named above. This message may be an attorney-client communication and/or work product and as
such is privileged and confidential. If the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby notified that you have received this
document in error and that any review, dissemination, distribution, or copying of this message is strictly
prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete
the original message.
From: Afton Sands
Sent: Tuesday, September 29, 2020 12:58 PM
To: Jacqueline Lucci Smith
Subject: RE: [External] Weems - DECA Judgment
Jacqueline,
No-we will announce at a hearing that we have no opposition to the form of the judgment being submitted.
1
15
I think the only reason I removed the footer is because it says Plaintiff's Original Petition on the first page. I don't
care if it is on the judgment. Sorry for the confusion there.
Afton Sands
Brown Proctor & Howell, L.L.P.
3800 N. Lamar Blvd ., Suite 200
Austin, TX 78756
Phone: {512) 599-8506
Cell : {432) 413-5223 {PLEASE CALL THIS NUMBER FIRST)
Email : asands@brownproctor.com
From: Jacqueline Lucci Smith
Sent: Tuesday, September 29, 2020 12:12 PM
To: Afton Sands
Subject: RE: [External] Weems - DECA Judgment
Afton,
To clarify, I can represent that the motion is unopposed, but not agreed, correct?
Jacqueline Lucci Smith
Lucci Smith Law, PLLC
(832) 494-1700 (Main)
(832) 494-1710 (Direct)
(713) 713-252-1750 (Cell)
This email and/or attachment is for the sole use of the intended recipient(s) and may contain confidential,
attorney-client or other legally privileged information. Any unauthorized review, use or disclosure is prohibited and
may be unlawful. If you are not the intended recipient, please contact the sender by reply email and destroy all
copies of the original message.
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exception. Lucci Smith Law remains open but is taking precautionary measures while maintaining office hours with limited
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continues as long as necessary. To the extent possible, all calls will be answered, logged and sent to the appropriate employee.
Attorneys working remotely will provide you with personal cell phone numbers. We appreciate that these are unique times
calling on us all to adapt while continuing to provide high quality legal services. Thank you for placing your trust in our
team.
From: Afton Sands
Sent: Tuesday, September 29, 2020 10:17 AM
To: Jacqueline Lucci Smith
Subject: Weems - DECA Judgment
Jacqueline,
Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will
agree to file a disclaimer and would not oppose your motion. We will not agree, however, as we previously
discussed. We would attend the hearing on your motion to announce that Union Pacific has no current interest
2
16
in the property, per the disclaimer, and therefore, does not opposed entry of the judgment in the form
presented.
If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want.
Also, can you please provide me with your client's email address one more time? We need to do a final
confirmation that UP did not email with him about this situation (which we are 99.9% confident we did not).
Feel free to call me to discuss. Cell is best but I am generally available most of the week.
Thank you.
Afton Sands
Brown Proctor & Howell, L.L.P.
3800 N. Lamar Blvd ., Suite 200
Austin, TX 78756
Phone: (512) 599-8506
Cell : (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST)
Email : asands@brownproctor.com
*******************
The information contained in this e-mail message is intended only for the personal and confidential use of the
recipient(s) named above. This message may be an attorney-client communication and/or work product and as
such is privileged and confidential. If the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby notified that you have received this
document in error and that any review, dissemination, distribution, or copying of this message is strictly
prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete
the original message.
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17
Filed: 4/8/2021 4:32 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 52284346
By: Shailja Dixit
4/9/2021 8:25 AM
CAUSE NO. 20-CV-0301
WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF
COMPANY NO. 2, LTD., §
Plaintiff, §
§ GALVESTON COUNTY, TEXAS
V. §
§
UNION PACIFIC RAILROAD §
COMPANY, § 10TH JUDICIAL DISTRICT
Defendant.
UNION PACIFIC RAILROAD COMPANY'S RESPONSE TO MOTION FOR
DECLARATORY JUDGMENT AND REQUEST TO ENTER JUDGMENT
Union Pacific Railroad Company ("Union Pacific") requests this Court enter the
declaratory judgment in the form attached as Exhibit D and enforce the agreement between it and
Weems & Kelsey Management Company No. 2, Ltd. ("Weems") related to Weems' claims in
this lawsuit. Weems and Union Pacific agreed that Union Pacific abandoned the property at issue
on September 22, 2017. This is the only issue in this case that pertains to Union Pacific.
Accordingly, Union Pacific requests the Court enter the requested declaratory judgment
BACKGROUND
1. As it relates to Union Pacific, Weems seeks a declaration regarding the date that
Union Pacific abandoned the property at issue. See Plaintiffs Original Petition filed on February
26, 2017, at ,r 9.3 and Ex. D. The parties agreed that the date of abandonment is September 22,
2017. See Weems' Motion for Declaratory Judgment filed on November 16, 2020 (the
"Motion").
2. Based on this agreement, Union Pacific and Weems negotiated a form of
declaratory judgment to be entered by the Court. The parties agreed that Union Pacific would not
oppose the motion to be filed by Weems, and that Union Pacific would attend the hearing on the
18
motion to announce that Union Pacific has no interest in the property and does not oppose entry
of the form of judgment presented. See Exhibit A (email communications between Union Pacific
and Weems' counsel regarding the agreement).
3. On November 16, 2020, Weems filed the Motion and set it for hearing. Weems
requested entry of the form of judgment agreed to by Union Pacific and Weems. See Exhibit B
(the form of judgment requested by Weems).
4. A few days prior to the scheduled hearing, on December 4, 2020, the State of
Texas acting on behalf of the Texas Department of Transportation ("TXDOT") filed a Petition in
Intervention.
5. On December 9, 2020, the Court held a hearing on the Motion and counsel for
Union Pacific, Weems, and TXDOT appeared. Union Pacific announced that it had no
opposition to the form of the judgment requested by Weems. TXDOT had no opposition to entry
of a declaratory judgment related to the abandonment date but had not yet reviewed the
judgment.
6. Following the hearing, TXDOT reviewed the judgment and requested revisions
related to the ownership of the property at issue after the date of abandonment. TXDOT did not
request any changes related to the date of abandonment. Weems did not agree to those revisions.
Union Pacific has no interest in who owns the property post-abandonment.
7. In an attempt to resolve this post-hearing dispute, Union Pacific proposed a
revised form of judgment that removes the provisions that TXDOT and Weems view as
controversial related to property ownership while respecting the agreement regarding the date of
Union Pacific's abandonment of the property. See Exhibit C (redline of the form of judgment
requested by Weems).
19
8. Union Pacific requests the Court enter the form of judgment attached as Exhibit
D. It also, to the extent necessary, requests the Court enforce the Rule 11 agreement reached
between it and Weems related to the abandonment date.
ARGUMENT
9. Weems' Motion is still pending and specifically requests entry of a declaratory
judgment identifying the date of abandonment as September 22, 2017. See Motion at 7 ("[ o]n
September 22, 2017, the STB declared UP RR's 100-foot railroad right-of-way abandoned ... ").
Union Pacific requests the Court grant the relief requested in the Motion as to the abandonment
date and enter the judgment attached as Exhibit D.
10. The proposed form of judgment removes the controversial issues related to
property ownership. While these matters would still need to be resolved between Weems and
TXDOT, they can be in the pending condemnation proceeding between those parties. Union
Pacific is not a necessary party to that dispute.
11. To the extent the Court finds it necessary to consider the parties' Rule 11
Agreement on this issue, Union Pacific requests the Court enforce that agreement. The Court has
the authority to enter the Final Declaratory Judgment in the form of judgment attached as Exhibit
D even if Weems no longer wants to agree to the abandonment date. See Padilla v. LaFrance,
907 S.W.2d 454, 461 (Tex. 1995) (the trial court has the authority to enforce a settlement
agreement complying with Rule 11 even though one side no longer consents to the settlement).
12. Pursuant to Rule 11, an agreement between the attorneys or parties is enforceable
if (1) it is in writing, signed, and filed with the papers as part of the record, or (2) it is made in
open court and entered of record. See Tex. R. Civ. P. 11. To satisfy the "in writing" component
of Rule 11, the contract principles that are used in determining whether a ''writing" satisfies the
20
statute of frauds apply equally to Rule 11 agreements. See Padilla, 907 S.W.2d at 460. Thus,
"there must be a written memorandum which is complete within itself in every material detail,
and which contains all of the essential elements of the agreement, so that the contract can be
ascertained from the writings without resorting to oral testimony." Id. (quoting Cohen v.
McCutchin, 565 S.W.2d 230,232 (Tex.1978)). The written memorandum, however, need not be
contained in one document. Id.
13. Here, the emails and attachments thereto between Union Pacific and Weems
constitute a written memorandum in satisfaction of Rule 11. Where the parties express their
unequivocal consent to all material terms of the settlement agreement via emails exchanged by
counsel, counsels' emails are sufficient to satisfy Rule 11 for purposes of enforcing a settlement
agreement. See e.g., Green v. Midland Mortgage Co. 342 S.W.3d 686,691 (Tex. App.-Houston
[14th Dist.] 2011, no pet.).
CONCLUSION
Weems' live pleading and pending Motion request entry of a judgment recognizing
September 22, 2017, as the date of abandonment. Union Pacific agreed to that date and the
parties negotiated terms by which to get a judgment entered. Union Pacific requests the Court
enter judgment recognizing September 22, 2017, as the date of abandonment and grant Union
Pacific such other and further relief necessary to fully and finally resolve the claims against it in
this case.
21
Respectfully submitted,
BROWN, PROCTOR & HOWELL, LLP
3800 N. Lamar Blvd., Suite 200
Austin, Texas 78701
(512) 599-8506
(817) 870-2427 (fax)
By: Isl Afton Sands
Afton Sands
State Bar No. 24060555
asands@brownproctor.com
COUNSEL FOR DEFENDANT UNION
PACIFIC RAILROAD COMPANY
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing was served upon
the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and
21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021:
Jacqueline Lucci Smith
Lucci Smith Law PLLC
2550 Gray Falls Dr
Ste 395
Houston, TX 77077
832-494-1700
Email: JLSmith@luccismithlaw.com
Melissa Ferringer
Assistant Attorney General
Transportation Division
Office of the Attorney General
P. 0. Box 12548
Austin, Texas 78711-2548
melissa.ferringer@oag.texas.gov
Isl Afton Dee Sands
Afton Dee Sands
22
EXHIBIT A
From: Afton Sands
Sent: Tuesday, September 29, 2020 10:17 AM
To: Jacqueline Lucci Smith
Subject: Weems - DECA Judgment
Attachments: DRAFT DECA Judgment (ADS Redline 8-12-2020).docx
Jacqueline,
Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will agree to
file a disclaimer and would not oppose your motion. We will not agree, however, as we previously discussed. We would
attend the hearing on your motion to announce that Union Pacific has no current interest in the property, per the
disclaimer, and therefore, does not opposed entry of the judgment in the form presented .
If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want.
Also, can you please provide me with your client's email address one more time? We need to do a final confirmation
that UP did not email with him about this situation (which we are 99.9% confident we did not).
Feel free to call me to discuss. Cell is best but I am generally available most of the week.
Thank you .
Afton Sands
Brown Proctor & Howell, L.L.P.
3800 N. Lamar Blvd., Suite 200
Austin, TX 78756
Phone: (512) 599-8506
Cell: (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST)
Email: asands@brownproctor.com
*******************
The information contained in this e-mail message is intended only for the personal and confidential use of the
recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is
privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for
delivering it to the intended recipient, you are hereby notified that you have received this document in error and that
any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this
communication in error, please notify us immediately by e-mail, and delete the original message.
1
23
CAUSE NO. _ _ _ _ _ _ _ __
WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF
COMPANY NO. 2, LTD., §
§
Plaintiff, §
§ GALVESTON COUNTY, TEXAS
vs. §
§
UNION PACIFIC RAILROAD §
COMPANY, § JUDICIAL DISTRICT
§
Defendants. §
§
FINAL DECLARATORY JUDGMENT
ON THIS DAY, CAME TO BE HEARD, the Court considered Plaintiff Weems &
Kelsey Management Company No. 2, LTD.'s ("Weems & Kelsey") Motion for
Declaratory Judgment against defendant, Union Pacific Railroad Company ("UP-RR").
The Court, having considered pleadings in the case, the evidence on file, and arguments
of counsel, find§. the Motion has merit and should be GRANTED. The Court finds as
follows:
I. FINDINGS
1.1 The 100-foot (100') railroad right of way property made the basis of this
suit, (" Abandoned Property"), was utilized by Defendant and its railroad operator
predecessors as a railroad since at least 1901. Depicted and legally described in Ex. A.
1.2 UP-RR' s former interest in the railroad right of way originated by way of
deed in 1900 to Galveston Houston and Northern Railway Co., UP-RR's predecessor.
1.3 UP-RR applied to the Surface Transportation Board ("STB") to abandon the
PLAINTIFF'S ORIGINAL PETITION
Page 1 of 3
24
100-foot (100') railroad right of way depicted in Ex. A in 1996. The STB approved and
accepted UP-RR' s application for abandonment of its interest in the Abandoned Property
on September 21, 2017.
1.4 The STB acceptance of UP RR's application for abandonment became
effective on September 22, 2017.
1.5 Weems & Kelsey is the record owner of property that abuts and is adjacent
to the Abandoned Property that is the subject matter of this suit. Depicted in Ex. A.
1.6 On _ __, 20____J Weems & Kelsey filed a notice in the Real Property
Records of Galveston County asserting ownership of the Abandoned Property.
1.7 UP-RR has disclaimed any intertest in the Abandoned Property.
1.8 The Abandoned Property is subject to the Texas strips and gore doctrine
as the basis for determining ownership of the Abandoned Property.
1.9 The State of Texas recognizes Weems & Kelsey as the current owner of the
western one half of the Abandoned Property and seeks to condemn said one half of the
Abandoned Property for Highway purposes.
1.910 The State is the other adjacent property owner of the Abandoned Property
and has claimed ownership of the eastern one half of the Abandoned Property based on
the strips and gores doctrine.
1.101 The Abandoned Property is subject to the Texas strips and gore doctrine
as the basis for determining ownership of the .Abandoned Property.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that
2.1 Plaintiff Weems & Kelsey£ as the adjacent property owner of the
Final Deelaratory Judgment
Page 2 of 3
25
Abandoned Property, is entitled to fee simple title to the western half of the Abandoned
Property more fully described and depicted in Ex. A, that is the subject matte£ of this
2.2 Plaintiff, Weems & Kelsey's fee simple title is based on the strips and gores
doctrine applicable to abandoned property in Texas;
2.3 As of September 22, 2017, Plaintiff, Weems & Kelsey is the record fee
simple owner of the western half of the Abandoned Property, more fully described and
depicted in Ex. A.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED,
2.4 Defendant UP-RR formally aAbandoned f13roperty as a railroad right of
way and any right, titleL or interest in the Abandoned Property was terminated on
September 22, 2017.
2.5 All parties are to bear their own costs, fees and expenses.
2.6 This Court intends for this judgment to constitute this Court's final and
appealable judgment in this case, resolving all claims as to all parties, and so all other
relief that any party has requested, if not granted heretofore or in this judgment, is
denied.
Signed this _ _ _ _ day of August 2020.
JUDGE PRESIDING
Final Deelaratory Judgment
Page 3 of 3
26
From: Jacqueline Lucci Smith
Sent: Thursday, October 8, 2020 11 :17 AM
To: Afton Sands
Subject: RE: [External] Weems - DECA Judgment
Yes, I'll be filing it early next week.
From: Afton Sands
Sent: Thursday, October 8, 2020 11:06 AM
To: Jacqueline Lucci Smith
Subject: RE: [External] Weems
Preview
CLERK’S RECORD Appellate Court Case Number 01‐24‐00110‐CV Volume ___1________ of ______4_____ Trial Court Cause No. 20‐CV‐0301 In the Court 56th District Court of Galveston County, Texas Honorable Lonnie Cox Judge Presiding _________________________________________________________________ Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company _________________________________________________________________ Appealed to the Court of Appeals for the First District of Texas, at, Houston, Texas Attorney for Appellants(s): Cooke Kelsey Address: Parker & Sanchez PLLC 700 Louisiana St Ste 2700 Houston TX 77002 Telephone Number: 713‐659‐7200 Fax Number: 713‐659‐7203 E‐Mail Address: cooke@parkersanchez.com State Bar of Texas Number: 24081467 Name of Appellant/s: Weems & Kelsey Management Company No. 2, Ltd. Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas By /s/ : Lisa Kelly 1 Case Number 20‐CV‐0301 ‐ 56th District Court Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company Date Filed and Document Name Page# Volume 1 2024‐04‐15_Title Page 1 2024‐04‐15_Index 2 2024‐04‐15_Caption 6 2021‐04‐08_Disclaimer‐Disclaimer of Union Pacific Railroad Company 7 2021‐04‐08_Rule 11 Agreement 9 2021‐04‐08_Response‐Union Pacific Railroad Company's Response to Motion for Declaratory Judgment 18 and Request to Enter Judgment 2021‐10‐21_Petition in Intervention‐Marathon and Blanchard's Petition in Intervention 39 2022‐01‐21_Motion to Consolidate‐Plaintiff's and Intervenors' Joint Unopposed Motion to Consolidate 46 2022‐04‐21_Reply‐Weems & Kelsey's Reply to Defendants and intervenors' Response to Plaintiff's 52 Motion for Leave to File Amended Pleading 2022‐05‐20_Proposed Order (unsigned)‐Order on the State of Texas's Special Exception and Plea to the 64 Jurisdiction 2022‐07‐20_Motion‐Weems & Kelsey's Motion for Declaratory Judgment and Rule 166 Motion for 67 Pretrial Ruling on Issues of Law 2022‐07‐20_Exhibits ‐ Exhibit 2‐20 to Motion for Declaratory Judgment 110 2024‐04‐30_Clerk's Certificate 623 Volume 2 2024‐04‐15_Title Page 624 2 Case Number 20‐CV‐0301 ‐ Index on Appeal Continued 2024‐04‐15_Index 625 2024‐04‐15_Caption 629 2022‐07‐20_Exhibit(s)‐Exhibit 1 Limited Chain of Title Part 1 of 2‐Motion for Declaratory Judgment 630 2022‐07‐20_Exhibit(s)‐Exhibit 1 Limited Chain of Title Part 2 of 2‐Motion for Declaratory Judgment 769 2022‐08‐03_Response 1‐Weems & Kelsey's Response to the Opening Brief Under Rule 166(g) Filed by 877 Marathon and Up 2022‐08‐03_Response 2‐ Weems & Kelsey's Combined Response to Intervenor's Special Exception and 894 Plea to the Jurisdiction 2022‐08‐03_Exhibit(s) 1‐Exhibit 1A Chain of Title Part 2 of 2 917 2024‐04‐30_Clerk's Certificate 1042 Volume 3 2024‐04‐15_Title Page 1043 2024‐04‐15_Index 1044 2024‐04‐15_Caption 1048 2022‐08‐03_Exhibit(s) 2 ‐ Exhibit 1A Chain of Title Part 1of 2 1049 2022‐08‐03_Exhibit(s) 3 ‐ Exhibit 21 Affidavit of Mavis Kelsey 1262 2022‐08‐08_Reply‐The State of Texas's Reply to Response to Plea to the Jurisdiction 1288 2022‐08‐08_Reply‐Weems & Kelsey's Reply to the State of Texas Response to Motion for Declaratory 1305 Judgment and Rule 166 Motion for Pretrial Rulings on Issues of Law‐2 2022‐08‐08_Exhibit(s)‐Exhibit 22 ‐Reply to the State of Texas's Response to Motion for Declaratory 1319 Judgment and Rule 166 Motion for Pretrial Rulings on Issues of Law 2022‐08‐08_Reply‐Reply to Intervenors and Defendant Response to Plaintiff's Rule 166(g) Opening Brief 1335 2022‐09‐22_Partial Judgment‐Non‐Final‐Order on Plaintiff Weems & Kelsey's Motion for Declaratory 1346 Judgement and Rule 166 Motion for Pretrial Ruling on Issues of Law 3 Case Number 20‐CV‐0301 ‐ Index on Appeal Continued 2022‐11‐18_Amended Petition‐Weems & Kelsey's Fifth Amended Petition 1348 2022‐11‐21_Motion‐Plaintiff Weems and Kelsey's Motion to Modify Order Granting the State of Texas's 1450 Special Exception and Plea to the Jurisdiction 2023‐01‐23_Order ‐ Order on Plaintiff Weems & Kelsey's Motion to Modify Order Granting the State of 1470 Texas's Special Exception and Plea to the Jurisdiction 2023‐03‐20_Notice of Fling‐Notice of Voluntary Dismissal of Trespass AB Initio Claim 1472 2023‐03‐23_Correspondence ‐ Amended Letter to the Honorable Judge Cox 1476 2023‐04‐13_Motion for Summary Judgment‐Defendants Blanchard Pipe Line Company LLC and 1489 Marathon Pipe Line LLC's Motion for Summary Judgment 2024‐04‐30_Clerk's Certificate 1615 Volume 4 2024‐04‐15_Title Page 1616 2024‐04‐15_Index 1617 2024‐04‐15_Caption 1621 2023‐05‐10_Motion for Summary Judgment‐ Weems & Kelsey's 166a(c) and 166a(i) Motion for Partial 1622 Summary Judgment Against Marathon and Blanchard 2023‐05‐24_Response‐Weems & Kelsey's Response to Marathon's Motion for Summary Judgment 1727 2023‐05‐24_Answer‐Defendants Blanchard and Marathon Second Amended Answer 1898 2023‐05‐31_Order Denying Summary Judgment‐Order Denying Plaintiff's 166a(c) and 166a(i) Motion 1904 for Partial Summary Judgment 2023‐06‐07_Order Denying Summary Judgment‐Order on Defendants Marathon and Blanchard's 1905 Motion for Summary Judgment 2023‐09‐22_Proposed Charge of the Court‐Marathon and Blanchard First Amended Proposed Jury 1907 Charge 2023‐09‐25_Proposed Charge of the Court‐Jury Charge 1926 4 Case Number 20‐CV‐0301 ‐ Index on Appeal Continued 2023‐09‐25_Notice of Filing 1‐Plaitiff's Requested Questions 1938 2023‐09‐25_Notice of Filing 2 ‐ Plaintiff's Alternative Questions Should the Court Deny Rule 166 Motion 1946 2023‐09‐25_Objection‐Plaintiff's Objections to Jury Charge 1958 2023‐09‐25_Motion‐Plaintiff's Rule 166 Motion on Lost Rental Damages in Jury Charge 1973 2023‐09‐25_Order on Motion in Limine‐Defendants 1980 2023‐11‐02_Motion‐Motion for Judgment on Jury Verdict 1988 2023‐11‐13_Partial Judgment‐Non Final ‐ Jury Verdict as to Plaintiff's and Defendant's Only 2002 2023‐12‐13_Motion for New Trial ‐ Motion for Judgment Notwithstanding the Verdict and Motion for 2007 New Trial 2024‐01‐11_Order Denying Motion for New Trial‐Order Denying Motion for JNOV and Motion for New 2017 Trial 2024‐02‐09_Notice of Appeal 2018 2024‐04‐15_Clerks Affidavit of No Document 2021 2024‐04‐15_Case Summary 2022 2024‐04‐29_Cost Bill 2043 2024‐04‐30_Clerk's Certificate 2046 5 Appeal Caption The State of Texas County of Galveston In 56th District Court at Galveston, Texas, within and for the County of Galveston, before the Honorable Lonnie Cox, Judge thereof Presiding, the following case came on for trial, to-wit: CASE NUMBER 20-CV-0301 Weems & Kelsey Management Company No. 2, Ltd. vs. Union Pacific Railroad Company 6 Filed: 4/8/2021 4:32 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 52284346 By: Shailja Dixit 4/9/2021 8:25 AM CAUSE NO. 20-CV-0301 WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF COMPANY NO. 2, LTD., § Plaintiff, § § GALVESTON COUNTY, TEXAS V. § § UNION PACIFIC RAILROAD § COMPANY, § 10TH JUDICIAL DISTRICT Defendant. DISCLAIMER OF UNION PACIFIC RAILROAD COMPANY Defendant Union Pacific Railroad Company, and for its Disclaimer, states as follows: 1. Union Pacific Railroad Company is a Delaware corporation. 2. Union Pacific Railroad Company claims no current right, title or interest in or to the real property described in Plaintiffs Original Petition. 3. By filing this Disclaimer, Union Pacific Railroad does not waive any deed restrictions contained in the property records of the real property at issue in the litigation or adjoining real property. Respectfully submitted, BROWN, PROCTOR & HOWELL, LLP 3800 N. Lamar Blvd., Suite 200 Austin, Texas 78701 (512) 599-8506 (817) 870-2427 (fax) By: Isl Afton Sands Afton Sands State Bar No. 24060555 asands@brownproctor.com COUNSEL FOR DEFENDANT UNION PACIFIC RAILROAD COMPANY 7 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing was served upon the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and 21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021: Jacqueline Lucci Smith Lucci Smith Law PLLC 2550 Gray Falls Dr Ste 395 Houston, TX 77077 832-494-1700 Email: JLSmith@luccismithlaw.com Melissa Ferringer Assistant Attorney General Transportation Division Office of the Attorney General P. 0. Box 12548 Austin, Texas 78711-2548 melissa.ferringer@oag.texas.gov Is/ Afton Dee Sands Afton Dee Sands 2 8 Filed: 4/8/2021 4:32 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 52284346 By: Shailja Dixit 4/9/2021 8:25 AM CAUSE NO. 20-CV-0301 WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF COMPANY NO. 2,LTD., § Plaintiff, § § GALVESTON COUNTY, TEXAS V. § § UNION PACIFIC RAILROAD § COMPANY, § 10TH WDICIAL DISTRICT Defendant. NOTICE OF FILING RULE 11 AGREEMENT TO THE HONORABLE WDGE OF SAID COURT: Union Pacific Railroad Company files the attached Rule 11 Agreement among the papers of this cause in accordance with Rule 11 of the Texas Rule of Civil Procedure. Respectfully submitted, BROWN, PROCTOR & HOWELL, LLP 3800 N. Lamar Blvd., Suite 200 Austin, Texas 78701 (512) 599-8506 (817) 870-2427 (fax) By: Isl Afton Sands Afton Sands State Bar No. 24060555 asands@brownproctor.com COUNSEL FOR DEFENDANT UNION PACIFIC RAILROAD COMPANY 9 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing was served upon the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and 21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021: Jacqueline Lucci Smith Lucci Smith Law PLLC 2550 Gray Falls Dr Ste 395 Houston, TX 77077 832-494-1700 Email: JLSmith@luccismithlaw.com Melissa Ferringer Assistant Attorney General Transportation Division Office of the Attorney General P. 0. Box 12548 Austin, Texas 78711-2548 melissa.ferringer@oag.texas.gov Is/ Afton Dee Sands Afton Dee Sands 2 10 From: Afton Sands Sent: Tuesday, September 29, 2020 10:17 AM To: Jacqueline Lucci Smith Subject: Weems - DECA Judgment Attachments: DRAFT DECA Judgment (ADS Redline 8-12-2020).docx Jacqueline, Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will agree to file a disclaimer and would not oppose your motion. We will not agree, however, as we previously discussed. We would attend the hearing on your motion to announce that Union Pacific has no current interest in the property, per the disclaimer, and therefore, does not opposed entry of the judgment in the form presented . If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want. Also, can you please provide me with your client's email address one more time? We need to do a final confirmation that UP did not email with him about this situation (which we are 99.9% confident we did not). Feel free to call me to discuss. Cell is best but I am generally available most of the week. Thank you . Afton Sands Brown Proctor & Howell, L.L.P. 3800 N. Lamar Blvd., Suite 200 Austin, TX 78756 Phone: (512) 599-8506 Cell: (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST) Email: asands@brownproctor.com ******************* The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. 1 11 CAUSE NO. _ _ _ _ _ _ _ __ WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF COMPANY NO. 2, LTD., § § Plaintiff, § § GALVESTON COUNTY, TEXAS vs. § § UNION PACIFIC RAILROAD § COMPANY, § JUDICIAL DISTRICT § Defendants. § § FINAL DECLARATORY JUDGMENT ON THIS DAY, CAME TO BE HEARD, the Court considered Plaintiff Weems & Kelsey Management Company No. 2, LTD.'s ("Weems & Kelsey") Motion for Declaratory Judgment against defendant, Union Pacific Railroad Company ("UP-RR"). The Court, having considered pleadings in the case, the evidence on file, and arguments of counsel, find§. the Motion has merit and should be GRANTED. The Court finds as follows: I. FINDINGS 1.1 The 100-foot (100') railroad right of way property made the basis of this suit, (" Abandoned Property"), was utilized by Defendant and its railroad operator predecessors as a railroad since at least 1901. Depicted and legally described in Ex. A. 1.2 UP-RR' s former interest in the railroad right of way originated by way of deed in 1900 to Galveston Houston and Northern Railway Co., UP-RR's predecessor. 1.3 UP-RR applied to the Surface Transportation Board ("STB") to abandon the PLAINTIFF'S ORIGINAL PETITION Page 1 of 3 12 100-foot (100') railroad right of way depicted in Ex. A in 1996. The STB approved and accepted UP-RR' s application for abandonment of its interest in the Abandoned Property on September 21, 2017. 1.4 The STB acceptance of UP RR's application for abandonment became effective on September 22, 2017. 1.5 Weems & Kelsey is the record owner of property that abuts and is adjacent to the Abandoned Property that is the subject matter of this suit. Depicted in Ex. A. 1.6 On _ __, 20____J Weems & Kelsey filed a notice in the Real Property Records of Galveston County asserting ownership of the Abandoned Property. 1.7 UP-RR has disclaimed any intertest in the Abandoned Property. 1.8 The Abandoned Property is subject to the Texas strips and gore doctrine as the basis for determining ownership of the Abandoned Property. 1.9 The State of Texas recognizes Weems & Kelsey as the current owner of the western one half of the Abandoned Property and seeks to condemn said one half of the Abandoned Property for Highway purposes. 1.910 The State is the other adjacent property owner of the Abandoned Property and has claimed ownership of the eastern one half of the Abandoned Property based on the strips and gores doctrine. 1.101 The Abandoned Property is subject to the Texas strips and gore doctrine as the basis for determining ownership of the .Abandoned Property. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that 2.1 Plaintiff Weems & Kelsey£ as the adjacent property owner of the Final Deelaratory Judgment Page 2 of 3 13 Abandoned Property, is entitled to fee simple title to the western half of the Abandoned Property more fully described and depicted in Ex. A, that is the subject matte£ of this 2.2 Plaintiff, Weems & Kelsey's fee simple title is based on the strips and gores doctrine applicable to abandoned property in Texas; 2.3 As of September 22, 2017, Plaintiff, Weems & Kelsey is the record fee simple owner of the western half of the Abandoned Property, more fully described and depicted in Ex. A. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, 2.4 Defendant UP-RR formally aAbandoned f13roperty as a railroad right of way and any right, titleL or interest in the Abandoned Property was terminated on September 22, 2017. 2.5 All parties are to bear their own costs, fees and expenses. 2.6 This Court intends for this judgment to constitute this Court's final and appealable judgment in this case, resolving all claims as to all parties, and so all other relief that any party has requested, if not granted heretofore or in this judgment, is denied. Signed this _ _ _ _ day of August 2020. JUDGE PRESIDING Final Deelaratory Judgment Page 3 of 3 14 From: Jacqueline Lucci Smith Sent: Thursday, October 8, 2020 11 :17 AM To: Afton Sands Subject: RE: [External] Weems - DECA Judgment Yes, I'll be filing it early next week. From: Afton Sands Sent: Thursday, October 8, 2020 11:06 AM To: Jacqueline Lucci Smith Subject: RE: [External] Weems - DECA Judgment Jacqueline - Any update on your timing to present the motion and set it for hearing? Afton Sands Brown Proctor & Howell, L.L.P. 3800 N. Lamar Blvd ., Suite 200 Austin, TX 78756 Phone: (512) 599-8506 Cell : (432) 413-5223 {PLEASE CALL THIS NUMBER FIRST) Email: asands@brownproctor.com ******************* The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Afton Sands Sent: Tuesday, September 29, 2020 12:58 PM To: Jacqueline Lucci Smith Subject: RE: [External] Weems - DECA Judgment Jacqueline, No-we will announce at a hearing that we have no opposition to the form of the judgment being submitted. 1 15 I think the only reason I removed the footer is because it says Plaintiff's Original Petition on the first page. I don't care if it is on the judgment. Sorry for the confusion there. Afton Sands Brown Proctor & Howell, L.L.P. 3800 N. Lamar Blvd ., Suite 200 Austin, TX 78756 Phone: {512) 599-8506 Cell : {432) 413-5223 {PLEASE CALL THIS NUMBER FIRST) Email : asands@brownproctor.com From: Jacqueline Lucci Smith Sent: Tuesday, September 29, 2020 12:12 PM To: Afton Sands Subject: RE: [External] Weems - DECA Judgment Afton, To clarify, I can represent that the motion is unopposed, but not agreed, correct? Jacqueline Lucci Smith Lucci Smith Law, PLLC (832) 494-1700 (Main) (832) 494-1710 (Direct) (713) 713-252-1750 (Cell) This email and/or attachment is for the sole use of the intended recipient(s) and may contain confidential, attorney-client or other legally privileged information. Any unauthorized review, use or disclosure is prohibited and may be unlawful. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. COVID-19 is impacting the lives of all and in particular the way our nation conducts business. The legal arena is no exception. Lucci Smith Law remains open but is taking precautionary measures while maintaining office hours with limited staff. Specifically, appropriate procedures have been implemented to ensure safeguards remain in place while telecommuting continues as long as necessary. To the extent possible, all calls will be answered, logged and sent to the appropriate employee. Attorneys working remotely will provide you with personal cell phone numbers. We appreciate that these are unique times calling on us all to adapt while continuing to provide high quality legal services. Thank you for placing your trust in our team. From: Afton Sands Sent: Tuesday, September 29, 2020 10:17 AM To: Jacqueline Lucci Smith Subject: Weems - DECA Judgment Jacqueline, Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will agree to file a disclaimer and would not oppose your motion. We will not agree, however, as we previously discussed. We would attend the hearing on your motion to announce that Union Pacific has no current interest 2 16 in the property, per the disclaimer, and therefore, does not opposed entry of the judgment in the form presented. If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want. Also, can you please provide me with your client's email address one more time? We need to do a final confirmation that UP did not email with him about this situation (which we are 99.9% confident we did not). Feel free to call me to discuss. Cell is best but I am generally available most of the week. Thank you. Afton Sands Brown Proctor & Howell, L.L.P. 3800 N. Lamar Blvd ., Suite 200 Austin, TX 78756 Phone: (512) 599-8506 Cell : (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST) Email : asands@brownproctor.com ******************* The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. This email has been scanned for spam and viruses by Proofpoint Essentials. Click here to report this email as spam . This email has been scanned for spam and viruses by Proofpoint Essentials. Click here to report this email as spam. 3 17 Filed: 4/8/2021 4:32 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 52284346 By: Shailja Dixit 4/9/2021 8:25 AM CAUSE NO. 20-CV-0301 WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF COMPANY NO. 2, LTD., § Plaintiff, § § GALVESTON COUNTY, TEXAS V. § § UNION PACIFIC RAILROAD § COMPANY, § 10TH JUDICIAL DISTRICT Defendant. UNION PACIFIC RAILROAD COMPANY'S RESPONSE TO MOTION FOR DECLARATORY JUDGMENT AND REQUEST TO ENTER JUDGMENT Union Pacific Railroad Company ("Union Pacific") requests this Court enter the declaratory judgment in the form attached as Exhibit D and enforce the agreement between it and Weems & Kelsey Management Company No. 2, Ltd. ("Weems") related to Weems' claims in this lawsuit. Weems and Union Pacific agreed that Union Pacific abandoned the property at issue on September 22, 2017. This is the only issue in this case that pertains to Union Pacific. Accordingly, Union Pacific requests the Court enter the requested declaratory judgment BACKGROUND 1. As it relates to Union Pacific, Weems seeks a declaration regarding the date that Union Pacific abandoned the property at issue. See Plaintiffs Original Petition filed on February 26, 2017, at ,r 9.3 and Ex. D. The parties agreed that the date of abandonment is September 22, 2017. See Weems' Motion for Declaratory Judgment filed on November 16, 2020 (the "Motion"). 2. Based on this agreement, Union Pacific and Weems negotiated a form of declaratory judgment to be entered by the Court. The parties agreed that Union Pacific would not oppose the motion to be filed by Weems, and that Union Pacific would attend the hearing on the 18 motion to announce that Union Pacific has no interest in the property and does not oppose entry of the form of judgment presented. See Exhibit A (email communications between Union Pacific and Weems' counsel regarding the agreement). 3. On November 16, 2020, Weems filed the Motion and set it for hearing. Weems requested entry of the form of judgment agreed to by Union Pacific and Weems. See Exhibit B (the form of judgment requested by Weems). 4. A few days prior to the scheduled hearing, on December 4, 2020, the State of Texas acting on behalf of the Texas Department of Transportation ("TXDOT") filed a Petition in Intervention. 5. On December 9, 2020, the Court held a hearing on the Motion and counsel for Union Pacific, Weems, and TXDOT appeared. Union Pacific announced that it had no opposition to the form of the judgment requested by Weems. TXDOT had no opposition to entry of a declaratory judgment related to the abandonment date but had not yet reviewed the judgment. 6. Following the hearing, TXDOT reviewed the judgment and requested revisions related to the ownership of the property at issue after the date of abandonment. TXDOT did not request any changes related to the date of abandonment. Weems did not agree to those revisions. Union Pacific has no interest in who owns the property post-abandonment. 7. In an attempt to resolve this post-hearing dispute, Union Pacific proposed a revised form of judgment that removes the provisions that TXDOT and Weems view as controversial related to property ownership while respecting the agreement regarding the date of Union Pacific's abandonment of the property. See Exhibit C (redline of the form of judgment requested by Weems). 19 8. Union Pacific requests the Court enter the form of judgment attached as Exhibit D. It also, to the extent necessary, requests the Court enforce the Rule 11 agreement reached between it and Weems related to the abandonment date. ARGUMENT 9. Weems' Motion is still pending and specifically requests entry of a declaratory judgment identifying the date of abandonment as September 22, 2017. See Motion at 7 ("[ o]n September 22, 2017, the STB declared UP RR's 100-foot railroad right-of-way abandoned ... "). Union Pacific requests the Court grant the relief requested in the Motion as to the abandonment date and enter the judgment attached as Exhibit D. 10. The proposed form of judgment removes the controversial issues related to property ownership. While these matters would still need to be resolved between Weems and TXDOT, they can be in the pending condemnation proceeding between those parties. Union Pacific is not a necessary party to that dispute. 11. To the extent the Court finds it necessary to consider the parties' Rule 11 Agreement on this issue, Union Pacific requests the Court enforce that agreement. The Court has the authority to enter the Final Declaratory Judgment in the form of judgment attached as Exhibit D even if Weems no longer wants to agree to the abandonment date. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995) (the trial court has the authority to enforce a settlement agreement complying with Rule 11 even though one side no longer consents to the settlement). 12. Pursuant to Rule 11, an agreement between the attorneys or parties is enforceable if (1) it is in writing, signed, and filed with the papers as part of the record, or (2) it is made in open court and entered of record. See Tex. R. Civ. P. 11. To satisfy the "in writing" component of Rule 11, the contract principles that are used in determining whether a ''writing" satisfies the 20 statute of frauds apply equally to Rule 11 agreements. See Padilla, 907 S.W.2d at 460. Thus, "there must be a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony." Id. (quoting Cohen v. McCutchin, 565 S.W.2d 230,232 (Tex.1978)). The written memorandum, however, need not be contained in one document. Id. 13. Here, the emails and attachments thereto between Union Pacific and Weems constitute a written memorandum in satisfaction of Rule 11. Where the parties express their unequivocal consent to all material terms of the settlement agreement via emails exchanged by counsel, counsels' emails are sufficient to satisfy Rule 11 for purposes of enforcing a settlement agreement. See e.g., Green v. Midland Mortgage Co. 342 S.W.3d 686,691 (Tex. App.-Houston [14th Dist.] 2011, no pet.). CONCLUSION Weems' live pleading and pending Motion request entry of a judgment recognizing September 22, 2017, as the date of abandonment. Union Pacific agreed to that date and the parties negotiated terms by which to get a judgment entered. Union Pacific requests the Court enter judgment recognizing September 22, 2017, as the date of abandonment and grant Union Pacific such other and further relief necessary to fully and finally resolve the claims against it in this case. 21 Respectfully submitted, BROWN, PROCTOR & HOWELL, LLP 3800 N. Lamar Blvd., Suite 200 Austin, Texas 78701 (512) 599-8506 (817) 870-2427 (fax) By: Isl Afton Sands Afton Sands State Bar No. 24060555 asands@brownproctor.com COUNSEL FOR DEFENDANT UNION PACIFIC RAILROAD COMPANY CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing was served upon the Plaintiff by serving its counsel of record as named below in accordance with Rules 21 and 21(a) of the Texas Rules of Civil Procedure, on this the 8th day of April, 2021: Jacqueline Lucci Smith Lucci Smith Law PLLC 2550 Gray Falls Dr Ste 395 Houston, TX 77077 832-494-1700 Email: JLSmith@luccismithlaw.com Melissa Ferringer Assistant Attorney General Transportation Division Office of the Attorney General P. 0. Box 12548 Austin, Texas 78711-2548 melissa.ferringer@oag.texas.gov Isl Afton Dee Sands Afton Dee Sands 22 EXHIBIT A From: Afton Sands Sent: Tuesday, September 29, 2020 10:17 AM To: Jacqueline Lucci Smith Subject: Weems - DECA Judgment Attachments: DRAFT DECA Judgment (ADS Redline 8-12-2020).docx Jacqueline, Sorry - my week got away from me last week. Union Pacific and I made some redlines to the judgment. We will agree to file a disclaimer and would not oppose your motion. We will not agree, however, as we previously discussed. We would attend the hearing on your motion to announce that Union Pacific has no current interest in the property, per the disclaimer, and therefore, does not opposed entry of the judgment in the form presented . If this concept is acceptable and you are okay with the red lines, we can get it finalized whenever you want. Also, can you please provide me with your client's email address one more time? We need to do a final confirmation that UP did not email with him about this situation (which we are 99.9% confident we did not). Feel free to call me to discuss. Cell is best but I am generally available most of the week. Thank you . Afton Sands Brown Proctor & Howell, L.L.P. 3800 N. Lamar Blvd., Suite 200 Austin, TX 78756 Phone: (512) 599-8506 Cell: (432) 413-5223 (PLEASE CALL THIS NUMBER FIRST) Email: asands@brownproctor.com ******************* The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. 1 23 CAUSE NO. _ _ _ _ _ _ _ __ WEEMS & KELSEY MANAGEMENT § IN THE DISTRICT COURT OF COMPANY NO. 2, LTD., § § Plaintiff, § § GALVESTON COUNTY, TEXAS vs. § § UNION PACIFIC RAILROAD § COMPANY, § JUDICIAL DISTRICT § Defendants. § § FINAL DECLARATORY JUDGMENT ON THIS DAY, CAME TO BE HEARD, the Court considered Plaintiff Weems & Kelsey Management Company No. 2, LTD.'s ("Weems & Kelsey") Motion for Declaratory Judgment against defendant, Union Pacific Railroad Company ("UP-RR"). The Court, having considered pleadings in the case, the evidence on file, and arguments of counsel, find§. the Motion has merit and should be GRANTED. The Court finds as follows: I. FINDINGS 1.1 The 100-foot (100') railroad right of way property made the basis of this suit, (" Abandoned Property"), was utilized by Defendant and its railroad operator predecessors as a railroad since at least 1901. Depicted and legally described in Ex. A. 1.2 UP-RR' s former interest in the railroad right of way originated by way of deed in 1900 to Galveston Houston and Northern Railway Co., UP-RR's predecessor. 1.3 UP-RR applied to the Surface Transportation Board ("STB") to abandon the PLAINTIFF'S ORIGINAL PETITION Page 1 of 3 24 100-foot (100') railroad right of way depicted in Ex. A in 1996. The STB approved and accepted UP-RR' s application for abandonment of its interest in the Abandoned Property on September 21, 2017. 1.4 The STB acceptance of UP RR's application for abandonment became effective on September 22, 2017. 1.5 Weems & Kelsey is the record owner of property that abuts and is adjacent to the Abandoned Property that is the subject matter of this suit. Depicted in Ex. A. 1.6 On _ __, 20____J Weems & Kelsey filed a notice in the Real Property Records of Galveston County asserting ownership of the Abandoned Property. 1.7 UP-RR has disclaimed any intertest in the Abandoned Property. 1.8 The Abandoned Property is subject to the Texas strips and gore doctrine as the basis for determining ownership of the Abandoned Property. 1.9 The State of Texas recognizes Weems & Kelsey as the current owner of the western one half of the Abandoned Property and seeks to condemn said one half of the Abandoned Property for Highway purposes. 1.910 The State is the other adjacent property owner of the Abandoned Property and has claimed ownership of the eastern one half of the Abandoned Property based on the strips and gores doctrine. 1.101 The Abandoned Property is subject to the Texas strips and gore doctrine as the basis for determining ownership of the .Abandoned Property. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that 2.1 Plaintiff Weems & Kelsey£ as the adjacent property owner of the Final Deelaratory Judgment Page 2 of 3 25 Abandoned Property, is entitled to fee simple title to the western half of the Abandoned Property more fully described and depicted in Ex. A, that is the subject matte£ of this 2.2 Plaintiff, Weems & Kelsey's fee simple title is based on the strips and gores doctrine applicable to abandoned property in Texas; 2.3 As of September 22, 2017, Plaintiff, Weems & Kelsey is the record fee simple owner of the western half of the Abandoned Property, more fully described and depicted in Ex. A. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, 2.4 Defendant UP-RR formally aAbandoned f13roperty as a railroad right of way and any right, titleL or interest in the Abandoned Property was terminated on September 22, 2017. 2.5 All parties are to bear their own costs, fees and expenses. 2.6 This Court intends for this judgment to constitute this Court's final and appealable judgment in this case, resolving all claims as to all parties, and so all other relief that any party has requested, if not granted heretofore or in this judgment, is denied. Signed this _ _ _ _ day of August 2020. JUDGE PRESIDING Final Deelaratory Judgment Page 3 of 3 26 From: Jacqueline Lucci Smith Sent: Thursday, October 8, 2020 11 :17 AM To: Afton Sands Subject: RE: [External] Weems - DECA Judgment Yes, I'll be filing it early next week. From: Afton Sands Sent: Thursday, October 8, 2020 11:06 AM To: Jacqueline Lucci Smith Subject: RE: [External] Weems