Both sides in a lawsuit involving the Kinder Morgan, the Scurry County Appraisal District and four taxing entities have filed their responses to the Texas Supreme Court.
D. Brent Lemon, the attorney for Scurry County, Snyder ISD, Western Texas College and Cogdell Memorial Hospital, filed his 78-page response to Kinder Morgan’s appeal of Eastland’s 11th Court of Appeals decision.
That appeals court decision upheld District Judge Ernie B. Armstrong’s ruling that Kinder Morgan had missed the deadline to file its motion to dismiss the lawsuit as a nuisance suit under the Texas Citizens Participation Act. Kinder Morgan has maintained that the basis of the taxing entities lawsuit changed from information gathering to allegations of fraud, and that should have extended the district court’s deadline.
Kinder Morgan argued in its 164-page filing to the Texas Supreme Court that the taxing entities changed the court filings listing the reasons for wanting the re-appraisals from a “cursory (barely seven pages, in all)” filing that “omitted any factual allegations concerning rights protected by TCPA,” to charges of fraud against the company.
In its filing with the Supreme Court, Kinder Morgan’s attorneys argue that the plaintiffs can take advantage of the Strategic Lawsuit Against Public Participation (SLAPP) by making vague allegations until the 60-day deadline has passed, and then filing a more specific petition.
Kinder Morgan argued that it filed its motion to dismiss within 60 days of the more specific, amended petition that included the charge of fraud.
Lemon said the allegation of fraud existed from the outset.
“The Original Petition was a timely filed statutory appeal under the Tax Code, and it also expressly identified the taxpayer fraud cases of Beck and In re ExxonMobil Corp. and it referenced the term ‘omission ab initio,’” he wrote. “Kinder Morgan’s second issue raised relative to the trial court denying an extension to file its TCPA motion to dismiss was completely waived or, alternatively, was without any showing of good cause or an abuse of discretion on the part of the trial court.”
Lemon was recently found to not have jurisdiction in a similar lawsuit involving Iraan-Sheffield ISD and Kinder Morgan.
In response to a Kinder Morgan motion to show authority and plea to the jurisdiction, 83rd District Judge Robert Cadena in Pecos County last month ruled that Lemon “failed to establish sufficient authority to prosecute this suit on behalf of Plaintiff (Iraan-Sheffield ISD)” and that “the lawsuit and claims brought by the plaintiff in this case are dismissed with prejudice.”
The lawsuit here relates to mineral valuations for the years 2013-2018, which U.S. Consults, LLC, told several taxing entities were being misrepresented by Kinder Morgan.
Representatives from those taxing entities were required to sign non-disclosure agreements before U.S. Consults would meet with them about the plan to sue Kinder Morgan.
Lemon was brought in on a contingency basis, as a tax ferret, to pursue the lawsuit on behalf of the four taxing entities. He and U.S. Consults will receive 40 percent of any settlement between the taxing entities and Kinder Morgan.
In local court, Kinder Morgan filed a motion to dismiss based not on jurisdiction, but claiming the lawsuit was frivolous and used the Texas Citizens Participation Act (TCPA) as the basis for its motion.After District Judge Ernie B. Armstrong dismissed the motion because he said it was filed too late, Kinder Morgan appealed. Armstrong’s ruling was upheld by the Eastland Appeals Court.
The taxing entities in 2018, sought to have Kinder Morgan’s mineral values re-appraised, a request the Scurry County Appraisal District’s Appraisal Review Board denied. The taxing entities then filed a lawsuit in 132nd District Court in an effort to get a ruling that would order the re-appraisals.
If Kinder Morgan is successful in its effort to have the lawsuit dismissed under the TCPA, the taxing entities could be required to pay the company’s legal fees related the lawsuit.
Kinder Morgan appealed its mineral valuations this year, which were upheld by the ARB, and has thus far withheld a portion of its ad valorem taxes payable until the case can be heard, which is expected to be this summer.
Image
Body