Motion-Secondary: URELIFT GULF COAST L P vs. BENNETT, TRAVIS

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                                                      CAUSE NO. 2012-30681

           URELIET GULF Coast, L.P.                                IN THE DISTRICT COURT OF

                    PLAINTIFF,

           vs.                                                     HARRIS COUNTY, TEXAS

           TRAVIS BENNETT

                   DEFENDANT.                                      295™ JUDICIAL DISTRICT

            URLIFT GULF Coast, L.P.’S REPLY TO THE RESPONSE OF TRAVIS BENNETT TO MOTION TO
                                    Mopiry, CORRECT OR REFORM THE JUDGMEN

           TO THE HONORABLE JUDGE OF SAID CourT:

                    Comes Now Urelift Gulf Coast, L.P. (“Urelift) and files this its Reply to the Response of

           Travis Bennett to Urelift’s Motion to Modify, Correct or Reform the Judgment pursuant to Rule

           329b(g) of the Texas Rules of Civil Procedure and respectfully shows:

                    1      The Response is a text book example of bad faith opposition.      While admitting that

           an unconditional award of appellate fees is error, Bennett actually argues there is no need to modify

           the judgment because the court of appeals can do so.

                   2,      The complete quote from Keith v. Keith, 221 S.W.3d 156 upon which Bennett

           actually purports to rely is as follows:

                           A trial court may not penalize a party for taking a successful appeal [citations
                   omitted]. An unconditional award of appellant’s attorney’s fees is improper. [citation
                   omitted]. However, an unconditional award of appellate fees does not require reversal;
                    instead, we may modify the trial court’s judgment to make the award of appellate attorney
                    fees contingent upon the receiving patty’s success on appeal.

           fd. at 172.

                    3      To make it absolutely clear that there was error in the judgment, the Keith court stated

           “We sustain points of error seven, eight and nine and modify the district court’s judgment...” This
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           is a rendition on the issue of appellate fees. The judgment as presently drafted is clearly crroncous.

           This is exactly the type of defect that Rule 329b(g) of the Texas Rules of Civil Procedure were

           designed to remedy.

                    4       Throughout this litigation, Bennett has done nothing much beside attempt to get his

           fees shifted. Now, his usual practice ongoing, he wants fees for the bad faith opposition of a request

           for modification he knows must be granted. First, of course, the existing judgment does not award

           fees, contingently or otherwise, for opposing a motion under Rule 329b(g). Second, an opposition

           must be successful, and, in this instance, it cannot be. Urelifi, therefore, seeks an award of its fees

           for the prosecution of a motion to which Bennett had an obligation to agree.

                    Wherefore, Premises Considered, Urelift prays that the Court’s final judgment be modified,

           corrected or reformed to condition any award of attorney fees on Travis Bennett being successful on

           any appeal, that Urelift be awarded its reasonable fees for the prosecution of this motion and for such

           other relief as is just.

                                                                   Respectfully submitted,

                                                                   WILSHIRE & SCOTT, P.C.




                                                                           Texas SBN 21665500
                                                                           One Chasewood, Suite 310
                                                                           20333 State Highway 249
                                                                           Houston, Texas 77070
                                                                           Telephone: (713) 651-1221
                                                                           Telecopier: (713) 651-0020

                                                                   ATTORNEY FOR URELIFT GULF COAST, L.P.
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                                                CERTIFICATE OF SERVICE

                   This is to certify that a true and correct copy of the foregoing instrument has been served on
           counsel of record as indicated below in accordance with the Texas Rules of Civil Procedure, on this
           the 2" day of October, 2013 as follows:

           Via Telecopy
           Craig D. Dillard
           Boyer Miller
           Attorneys at Law
           4265 San Filipe, Suite 1200
           Houston, Texas 77027
                                                                     ’
                                                                         RA         Ly
                                                                  Eugene B. Wilshire