The attorney for four Scurry County taxing entities has responded to Kinder Morgan’s appeal of District Judge Ernie B. Armstrong’s decision that the company’s Texas Citizens Participation Act (TCPA) motion to dismiss a case was not filed in a timely manner.
Attorney Brent Lemon filed the 131-page response on Monday in the 11th Court of Appeals, which was the deadline to submit his response to the Eastland-based court. No date has been set to hear Kinder Morgan’s appeal.
In his brief, Lemon, who is representing Scurry County, Snyder ISD, Western Texas College and the Scurry County Hospital District in the case seeking Kinder Morgan mineral interests be reappraised from 2012-18, wrote the company’s motion to dismiss the case was not filed in a timely manner.
“The Original Petition placed Kinder Morgan on notice that taxpayer fraud and ‘free speech’ representations and misrepresentations were at issue.
Specifically, Kinder Morgan knew that the renditions and information (sought by the Taxing Units for months) related to and served as a basis for the Taxing Units’ claim,” Lemon wrote. “In fact, while essentially ignored in Kinder Morgan’s Brief, it is never disputed that the Original Petition related to and was based on the renditions and information which is the ‘free speech’ subject of the Kinder Morgan TCPA Motion to Dismiss. The Second Amended Petition did not present any new legal action, new party, or prayer for relief not previously contained in the Original Petition.”
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.
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.”
Lemon’s response stated, “The Second Amended Petition was based on and related to the same Kinder Morgan renditions and information, and did not assert a new legal action. After months of arguing to the contrary, Kinder Morgan recently admitted that a common law action for fraud in the ad valorem area does not exist.”
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 settlement.
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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