Judge sides with entities on motion to dismiss timing

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District Judge Ernie B. Armstrong ruled Friday that Kinder Morgan did not file a motion to dismiss a lawsuit filed by four Scurry County taxing entities in a timely manner.
His ruling stated Kinder Morgan filed its motion 110 days after being served with the lawsuit by Scurry County, Snyder ISD, Western Texas College and the Scurry County Hospital District. A defendant has 60 days to respond with a motion to dismiss, according to attorney Brent Lemon, who is representing the entities. Armstrong, in his ruling, agreed with Lemon.
The entities are challenging a June Appraisal Review Board decision not to reappraise Kinder Morgan’s mineral properties from 2012-18.
Armstrong heard from Lemon and Kinder Morgan attorney Jack Shepherd last week. Lemon said his suit was filed on Aug. 23 and Kinder Morgan was officially notified on Aug. 29.
“By statute, Kinder Morgan had 60 days from the date of service of citation to file a TCPA (Texas Citizens Participation Act) Motion to Dismiss on the basis that Plaintiffs’ lawsuit is somehow ‘based on, relates to, or is in response’ to Kinder Morgan’s exercise of its right of ‘free speech,’” Armstrong wrote. “Since the only purported exercise of ‘free speech’ that Kinder Morgan relies upon for its TCPA Motion to Dismiss is its rendition and valuation of mineral properties for ad valorem tax purposes and since that has been at issue since Plaintiffs’ initiation of these proceedings, Kinder Morgan failed to timely file its TCPA Motion to Dismiss. The Court finds good cause does not exist to extend Kinder Morgan’s time for filing its TCPA Motion to Dismiss.”
Shepherd said during last week’s hearing that Lemon filed an amended motion claiming fraud, but Armstrong ruled earlier this year that fraud was not a new legal action in this case.
The next phase of the case will be discovery. There has been a dispute as to what information Kinder Morgan and the Scurry County Appraisal District must provide to Lemon.
In August, Lemon’s original discovery petition requested all data used to set the values for the years in question. Those figures include gross oil production, net revenue interest, net oil production, starting gross oil price, escalation rate, oil price, gross income, operating expense details, severance taxes, net income, discount factor and discounted cash flow. The updated petition requested the same information.
Armstrong said during last week’s hearing that confidentiality agreements would be signed by Lemon and anyone from his office or the entities who will review the material.
Lemon’s services will be at no cost to the entities unless future settlements are reached in the matter. If that occurs, Lemon will receive 20 percent of any settlement. U.S. Consults, LLC, would also receive 20 percent of any settlements reached in the lawsuits.