Attorneys for Kinder Morgan filed a 105-page appeal of District Judge Ernie B. Armstrong’s decision that the company’s Texas Citizens Participation Act (TCPA) motion to dismiss a case filed by four Scurry County taxing entities was not filed in a timely manner.
Brent Lemon, who is representing Scurry County, Snyder ISD, Western Texas College and the Scurry County Hospital District, has until May 6 to submit a response to the 11th District Court of Appeals in Eastland.
In March, Armstrong wrote that Kinder Morgan filed its TCPA, also known as anti-SLAPP, motion to dismiss 110 days after being served with the lawsuit. A defendant has 60 days to respond with a motion to dismiss, according to Lemon. Armstrong, in his ruling, agreed with Lemon.
The taxing entities are challenging a June Appraisal Review Board decision not to reappraise Kinder Morgan’s mineral values from 2012-18.
“By statute, Kinder Morgan had 60 days from the date of service of citation to file a TCPA 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 in his ruling. “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.”
Kinder Morgan attorney Jack Shepherd said during a March 13 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.
In its appeal, Kinder Morgan wrote that Lemon’s second amended petition “alleged for the first time that Kinder Morgan knowingly and purposefully made misrepresentation to Scurry (County Appraisal District) CAD and Pickett in an effort to evade taxes. This new claim is a ‘legal action’ implicating Kinder Morgan’s constitutional rights under the TCPA.”
“There is no doubt that Plaintiffs brought a new legal action because (1) there is a stark difference between the Original Petition’s allegation that values were incorrectly and erroneously omitted and the Second Amended Petition’s allegations that Kinder Morgan intentionally made misrepresentations; and (2) the procedural history demonstrates that Plaintiffs brought a new claim alleging fraud by Kinder Morgan to avoid a dismissal shortly after Kinder Morgan filed its Rule 91a Motion to Dismiss,” the appeal stated. “Given the difference in the petitions and the procedural history, any argument by Plaintiffs that fraud was alleged in the Original Petition is meritless.”
With the appeal process underway, Kinder Morgan’s notice of intent of appeal stated it “automatically stays all proceedings in the trial court,” including information discovery requested by Lemon.
Lemon’s services may 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.
If the appeals court overturns Armstrong’s ruling, the taxing entities could be required to pay Kinder Morgan’s attorneys’ fees.
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