AFFORDABLE POWER, L.P. f/ma AFFORDABLE POWER, INC., Appellant. BUCKEYE VENTURES, INC., Appellee

Transcription

1 IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS Court of Appeals AFFORDABLE POWER, L.P. f/ma AFFORDABLE POWER, INC., Appellant BUCKEYE VENTURES, INC., Appellee On Appeal from the 193'~ District Court Dallas County, Texas Trial Court Cause No. DC REPLY BRIEF OF APPELLANT AFFORDABLE POWER, L.P. f/wa AFFORDABLE POWER, INC. ORAL ARGUMENT REQUESTED James A. Dunn DUNN, NEAL & GERGER, L.L.P. Texas Bar No Post Oak Boulevard, Suite 400 Houston, Texas Tel. (713) Fax (713) Attorney for Appellant Affordable Power, L.P. Wa Affordable Power Plan, Inc. flkla as Affordable Power Plan, L.P.

2 TABLE OF CONTENTS.. TABLE OF CONTENTS TABLE OF AUTHORITIES... iii REPLY BRIEF OF APPELLANT... 1 STATEMENT OF FACTS IN REPLY... 1 ISSUES WITH ARGUMENTS AND AUTHORITIES... 2 ISSUE NO. 1 THE ELEMENTS OF A CLAIM FOR NEGLIGENT MISREPRESENTATION ARE NOT SATISFIED IN THIS CASE (IN RESPONSE TO APPELLEE'S ISSUES 1, 2 and 3)... 2 ISSUE NO. 2 THE DAMAGES CLAIMED BY BUCKEYE WERE NOT PROXIMATELY CAUSED BY AFFORDABLE POWER (IN RESPONSE TO APPELLEE'S ISSUES NOS. 4 AND 5)... 7 ISSUE NO. 3 AFFORDABLE POWER CANNOT BE HELD LIABLE BASED ON THE STATEMENTS OR ACTIONS OF FRED LEPOVITZ (IN RESPONSE TO APPELLEE'S ISSUE NO. 6)... 9 ISSUE NO. 4 BUCKEYE IS NOT ENTITLED TO INDEMNITY OR CONTRIBUTION UNDER COMMON LAW (IN RESPONSE TO APPELLEE'S ISSUE NO. 7) ISSUE NO. 5 BUCKEYE IS NOT ENTITLED TO RECOVER ITS OWN ATTORNEY'S FEES (IN RESPONSE TO APPELLEE'S ISSUE NOS. 7 AND 8) CONCLUSION PRAYER CERTIFICATE OF SERVICE... 14

3 TABLE OF AUTHORITIES Cases Airborne Freight Corp., Inc. v. C.R. Lee Enters., Inc., 847 S.W.2d (Tex. App.- El Paso 1992, writ denied)... 6 Allied Vista. Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.-Houston [14'~ Dist.] 1999, pet. denied)... 5 American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997)... 4 Astra Oil Co., Inc. v. Diamond Shamrock Rej Co., L.P., 89 S. W.3d 702, 706 (Tex. App. - Houston [lst Dist.] 2002, pet. denied) Aviation Offe ofam., Inc. v. Alexander &Alexander of Tex., Inc., 751 S.W.2d 179, 180 (Tex. 1988) (per curiam) B & B Auto Supply. Sand Pit & Trucking Co. v. Cent. Freight Lines. Inc., 603 S.W.2d 814, (Tex. 1980) Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) City ofkeller v. Wilson, 168 S. W.3d 802, 822 (Tex. 2005) Cypress Creek Util. Serv. Co. v. Muller, 640 S.W.2d 860, 864 (Tex. 1982) Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)... 5,8 Great American Ins. Co. v. North Austin Municipal Utility District No. 1, 908 S.W.2d 415, 426 (Tex. 1995)... 8 Jeffries v. Pat A. Madison. Inc., 269 S.W.3d 689 (Tex. App.-Eastland, no pet.)... 7 Jones v. Krown, 218 S.W.3d 746, 750 (Tex. App.-Fort Worth 2007, pet. denied) McCamish, Martin. Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999)... 4 Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002)... 9 Scherer v. Angell, 252 S.W.3d 777, 781 (Tex. App.-Amarillo 2007, no pet.)... 5 Warrantech Corp. v. Steadfast Ins. Co., 21 0 S.W.3d 760, 770 (Tex. App. -Fort Worth 2006)- 11 Rules Tex. Civ. Prac. & Rem. Code (j Treaties RETATEMENT (SECOND) OF TORTS (j 552cmt.B... 5

4 IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS Court of Appeals AFFORDABLE POWER, L.P. flwa AFFORDABLE POWER, INC., Appellant v. BUCKEYE VENTURES, INC., Appellee REPLY BRIEF OF APPELLANT TO THE HONORABLE COURT OF APPEALS: Appellant Affordable Power, L.P. d/b/a Affordable Power, Inc. W a Affordable Power Plan ("Affordable Power") files its Appellant's Reply Brief seeking reversal and rendition or reversal and remand of the Judgment appealed from in favor of Buckeye Ventures, Inc. ("Buckeye"). STATEMENT OF FACTS IN REPLY Buckeye admits that Exhibits "A" and "A-I" of the TXU Contract (P. Ex. 2) were not provided to Fred Lepovitz by Nick Raissis when Raissis gave Lepovitz the TXU Contract to review on March 30, (Appellee Brief, pp ). Buckeye then argues the missing exhibits do not provide the amount of the penalty Buckeye would be required to pay in the event of an early termination of the contract. (Appellee Brief, p. 19). This argument is misleading and ignores both the language of the TXU Contract 1

5 entitled ExcessAJnder Usage as well as the testimony of the TXU representative at trial, Jonathan Naylor, that this section did provide the statement as to how any early termination damages would be calculated. (I1 R.R ). ISSUES WITH ARGUMENTS AND AUTHORITIES ISSUE NO. 1 THE ELEMENTS OF A CLAIM FOR NEGLIGENT MISREPRESENTATION ARE NOT SATISFIED IN THIS CASE (IN RESPONSE TO APPELLEE'S ISSUES 1,2 and 3) Buckeye's negligent misrepresentation claim is based on the statements attributed to Fred Lepovitz on March 31, 2006, that after checking with a lawyer that the TXU Energy contract was void in the State of Texas. (111. R.R. 117). When asked by Raissis of Buckeye "are you sure," Lepovitz responded that in reviewing the defauit section of the contract there was nothing said about a termination fee or an amount. (111. R.R. 46). Mr. Raissis then also read the TXU contract and there was nothing on the first or second page about a termination fee. (111. R.R. 46). The only information provided to Lepovitz prior to his making those statements were the first two pages of the TXU Contract (111 R.R. 73) which according to Raissis was very difficult to read (I11 R.R. 96) and Raissis provided Lepovitz with one monthly billing &om TXU for one of the three locations. (I11 R.R. 44). Raissis testified that two of the locations were about 20,000 kilowatts a month and the third location was about 5,000 kilowatts a month for consumption of electricity. (I11 R.R. 32). Raissis did not provide Lepovitz with the entire TXU Energy contract and specifically did not provide Lepovitz with either Exhibit "A" the Service Point Listing

6 Report or Exhibit "A-1", the Monthly Contract Usage schedule. (111. R.R ). Lepovitz also confirmed that Buckeye did not show Lepovitz the entire TXU Energy contract. (11. R.R. 150). The ExcessAJnder Usage section provides that if the Buyer's consumption of electricity for all meters in a calendar month is less than the total amount listed on Exhibit "A-1" for such month by more than the under-usage percentage (10%) then the Seller may charge Buyer the cost of liquidating the Shortfall Quantity. There follows a formula for calculating the amount that would be charged to the Buyer for the shortfall quantities. Exhibit "A-I" lists the required quantities that must be taken each month by Buckeye from January 2006 through January When asked whether the TXU Contract described the amount of penalties that might be charged to Buckeye, Naylor testified "yes" and pointed to the ExcessNnder Usage section. (I1 R.R ). Buckeye also downplays the significance of Raissis not supplying Lepovitz with Exhibit "A" of the TXU Contract. Exhibit "A" is entitled Service Point Listing Report and its shows the total contract coinmitment (1,435,991 kwh) and also shows that all three locations were grouped under one TXU customer for purposes of usage. (P. Ex. 2). It is significant that TXU grouped all three locations together under one customer contract. Buckeye argued at trial Rule of the Texas Administrative Code required certain Customer Protection Rules (including a clear statement as to any early termination penalties) which Buckeye argues would have put Buckeye on notice of the penalty for early termination if the rules had been complied with. TXU responded that the Customer 3

7 Protection Rules were not applicable because Buckeye did not qualify as a small commercial customer because the volume was over 50 kilowatts per hour. (I1 R.R. 69). In order to determine whether Buckeye qualified as a small commercial customer entitled to the protection of the Customer Protection Rules it would have been necessary for Buckeye to provide Lepovitz with Ex. "A" showing the usage (peak and low) and that TXU was treating the three locations together despite the fact that they were three different businesses with different owners. (I11 R.R. 27) As Buckeye admits at p. 5 of its brief, Buckeye's Nicholas Raissis discussed several provisions of the TXU contract with Carlos of TXU, including the ExcessJUnder Usage provision and the penalty that would be imposed if the monthly usage was over or under the estimated average usage per month. (111. R.R. 34, P. Ex. 2, p. 2). There is no evidence that Raissis shared his conversation about the ExcessiUnder Usage provision with Lepovitz. The elements of a cause of action for negligent misrepresentation are as follows: (a) the defendant made a representation to the plaintiff in the course of defendant's business or in a transaction in which the defendant had an interest; (b) the defendant supplied false information for the guidance of others; (c) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; (d) the plaintiff justifiably relied on the representation; and (e) the defendant's negligent misrepresentation proximately caused the plaintiffs injury. See, McCamish, Mautin, Brown & LoefJler v. F.E. Appling interests, 991 S.W.2d 787, 791 (Tex. 1999) and American Tobacco Co. v. Guinnell, 951 S.W.2d 420,436 (Tex ) See, also Federal

8 Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991). The false information must be a misstatement of an existing fact. See, Schevev v. Angell, 252 S.W.3d 777, 781 (Tex. App.-Amarillo 2007, no pet.) and Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.-Houston [14" Dist.] 1999, pet. denied). In response to the argument that the misrepresentation must be a misstatement of existing fact, Buckeye makes two arguments. First, Buckeye argues that Lepovitz represented that he had taken the TXU Contract to a lawyer for review. However, it is clear from the record that Buckeye claims it relied on the opinion that the TXU Contract was void because there was no early termination penalty stated in the damages section of the contract. This is clearly a legal opinion and not a factual misstatement that the contract was taken to an attorney for a legal opinion does not transform this legal opinion into a mixed issue of law and fact. Second, Buckeye argues that Restatement (Second) of Torts cmt. B provides that under the Restatement, negligent misrepresentation applies to an opinion given upon facts equally well known to both the supplier and recipient. (Appellee Brief, p. 13). However, as noted above, the parties in this case were clearly not equally in possession of the facts. Buckeye was in possession of the entire TXU Contract but gave Lepovitz only two pages of the contract and did not provide him with Exhibits "A" and "A-I." Buckeye did not share with Lepovitz the conversation that Raissis had with Carlos Zamora about the ExcessLJnder Usage provision. Buckeye was in possession of information about how TXU was treating all three locations under one customer contract and did not provide that information to Lepovitz. Buckeye was in

9 possession of information about the usage at all three locations but provided Lepovitz with information about the billing showing volumes at only one location. The statement that the TXU contract is void is not a statement of an existing fact and properly would be understood as giving an opinion that if TXU decided to sue Buckeye that a court, after reviewing the TXU contract, and not seeing any express early termination penalty would not enforce any such penalty against Buckeye. Once TXU filed suit, both Buckeye's first lawyer, Don DeGrasse, and its second group of lawyers Rohde and Frels took the same position - Texas courts would not enforce an early termination penalty against Buckeye given the terms of the TXU Contract that Buckeye made different arguments in support of the claim that the TXU Contract was not enforceable is a distinction without a difference. Buckeye is still in the position of suing Affordable Power for stating that the TXU Contract was void when Buckeye made many similar statements and arguments over the course of the litigation. Texas courts have held that where there is no misstatement of an existing fact, that as a matter of law, there is no basis for a negligent misrepresentation claim. See, Airborne Freight Coup., Inc. v. C.R. Lee Enters., Inc., 847 S.W.2d 289,294 (Tex. App.- El Paso 1992, writ denied). Buckeye argues that there was justifiable reliance by Buckeye on the statements made by Lepovitz. This argument is based primarily on the argument that the TXU Contract does not provide the basis for calculating the early termination penalty. (Appellee Brief, p. 17). This argument is in response to the argument that there can be no justifiable reliance where the party is charged with knowledge of the true facts. An noted

10 above, the ExcessKJnder Usage contains the formula for calculating the early termination penalty by incorporating the Exhibit "A-I" and calculating the difference between the contracted usage volumes, the allowed tolerance, the volumes delivered, and the market price on the date the shortfall deficiency is calculated. Buckeye had all of the information necessary to calculate the early termination penalty. Buckeye did not provide this information to Lepovitz. There can be no justifiable reliance by Buckeye under these facts. See, Jeffries v. Pat A. Madison, Inc., 269 S.W.3d 689 (Tex. App.- Eastland, no pet.). ISSUE NO. 2 THE DAMAGES CLAIMED BY BUCKEYE WERE NOT PROXIMATELY CAUSED BY AFFORDABLE POWER (IN RESPONSE TO APPELLEE'S ISSUES NOS. 4 AND 5) The Final Judgment awarded TXU damages in the amount of $30, as well as attorney's fees against Buckeye and Buckeye was awarded the same amount as part of its damages against Affordable Power. The legal fees claimed by TXU Energy and awarded by the Trial Court were $16, and TXU Energy's attorney testified the fees were related to the prosecution of the lawsuit. (11. R.R ). Prior to filing the lawsuit against Buckeye, TXU's attorney sent a demand letter to Buckeye demanding the sum of $30, and advising that failure to pay the demand could result in additional expenses and attorney's fees. (P. Ex. 1). Buckeye chose to fight the lawsuit claiming that TXU was not entitled to recover the damages claimed for early termination. The additional damages awarded to Buckeye for the attorney's fees recovered by TXU were not damages proximately caused by Affordable Power.

11 In its brief, Buckeye argues that the issue of the TXU attorney's fees is an issue of mitigation of damages and not an issue of proximate cause and therefore Affordable Power is not permitted to raise the issue because mitigation of damages is an affirmative defense. The doctrine of mitigation of damages prevents a party from recovering damages that could have been avoided by reasonable effort by the party. Great American Ins. Co. v. North Austin Municipal Utility District No. 1, 908 S.W.2d 415, 426 (Tex. 1995). If Buckeye had done nothing in response to the demand by TXU, there would not have been a claim for over $16,000 in attorney's fees. Instead, Buckeye and its attorneys (both sets) formed the opinion that TXU was not entitled to recover the damages it claimed based on the TXU Contract as written. In this case, the $16,000 in attorney's fees for TXU was generated by the affirmative efforts of Buckeye to fight the claim based on its attorneys' own views of the TXU claim. In a claim for negligent misrepresentation, damages for negligent misrepresentation are limited to pecuniary loss suffered as a consequence of the plaintiffs reliance on the misrepresentation. See Fed. Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 439, (Tex. 1991) (limiting negligent misrepresentation damages to pecuniary losses in reliance on the misrepresentation, and disallowing "benefit-of-the-bargain" damages). When Buckeye made the determination to fight the lawsuit and assert its defenses to the TXU lawsuit with its own lawyers and TXU incurred attorney's fees during the course of that litigation, those litigation costs cannot be characterized properly as pecuniary loss suffered as a consequence of the reliance by

12 Buckeye on any misrepresentation by Affordable Power. Clearly, during the course of the litigation, Buckeye was relying on its own lawyers rather than Affordable Power. With regard to the award of actual damages consisting of the breach of contract damages, the evidence is overwhelming that it was the actions of Buckeye that proximately caused the damages to Buckeye not the actions of Affordable Power. The evidence is referenced above in connection with the documents and information not provided to Lepovitz and is detailed in Appellant's Amended Brief and will not be repeated here. ISSUE NO. 3 AFFORDABLE POWER CANNOT BE HELD LIABLE BASED ON THE STATEMENTS OR ACTIONS OF FRED LEPOVITZ (IN RESPONSE TO APPELLEE'S ISSUE NO. 6) In Appellant's Amended Brief, Appellant raised the issue can Affordable Power be held liable for the statement of its independent contractor or agent outside the scope of his authority? Appellant argued that it would only be responsible to the statements of Fred Lepovitz if the statements of Lepovitz were made within the scope of his general authority. See, Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). Appellant argued that the evidence showed that Affordable Power did not give actual authority to its sales consultants to have competitors' contracts reviewed by legal counsel. (111. R.R. 166). While Appellee had made a number of general statements about the law of agency, Appellee has not pointed to any evidence that Lepovitz' conduct in allegedly providing legal opinions about the termination of the TXU contract were within the general scope of his authority with Affordable Power.

13 ISSUE NO. 4 BUCKEYE IS NOT ENTITLED TO INDEMNITY OR CONTRIBUTION UNDER COMMON LAW (IN RESPONSE TO APPELLEE'S ISSUE NO. 7) Buckeye argues that it may have been awarded Judgment on its indemnity claim. The record does not support that assertion. Buckeye requested a Declaratory Judgment that Buckeye is entitled to indemnity or contribution from Affordable Power. (I. C.R. 127). The Judgment does not grant any relief to Buckeye on its request for Declaratory Judgment and the Judgment provides that "All relief not expressly granted herein is denied. This judgment disposes of all parties and all issues." (11. C.R ). There are two types of indemnity: common law indemnity and contractual indemnity. Texas no longer recognizes common law indemnity except in cases where one party's liability is purely vicarious. See Astra Oil Co., Inc. v. Diamond Shamrock Re$ Co., L.P., 89 S.W.3d 702, 706 (Tex. App. - Houston [lst Dist.] 2002, pet. denied). The claim by TXU Energy against Buckeye is not a case where Buckeye is vicariously liable for the actions of Affordable Power. Under Texas law, the availability of common law indemnity is extremely limited. Cypress Creek Util. Serv. Co. v. Muller, 640 S.W.2d 860, 864 (Tex. 1982); B & B Auto Supply, Sand Pit & Trucking Co. v. Cent. Freight Lines, Inc., 603 S.W.2d 8 14, (Tex. 1980). Common law indemnity survives in Texas only in products liability actions to protect an innocent retailer in the chain of distribution and in negligence actions to protect a defendant whose liability is purely vicarious in nature. Aviation Offe of Am., Inc. v. Alexander & Alexander of Tex., Inc., 751 S.W.2d 179, 180 (Tex. 1988) (per

14 curiam). While Buckeye asserts arguments based on an agency relationship, it is clear that Buckeye's liability to TXU is not vicarious but direct. ISSUE NO. 5 BUCKEYE IS NOT ENTITLED TO RECOVER ITS OWN ATTORNEY'S FEES (IN RESPONSE TO APPELLEE'S ISSUE NOS. 7 AND 8) The Trial Court correctly ruled that Buckeye is not entitled to an award of attorney's fees. In Warrantech Coup. v. Steadfast Ins. Co., 2 10 S.W.3d 760, 770 (Tex. App. - Fort Worth 2006), the court noted that the Declaratory Judgment Act is not available to settle disputes already pending before the court and a claim presenting no new controversies but brought solely to pave an avenue to attorney's fees is improper. The ciaim for negligence misrepresentation was before the Trial Court as a result of Buckeye's Third Party Petition. Section Tex. Civ. Prac. & Rem. Code provides that a person interested under a deed, will, written contract of other writings constituting a contract may have determined any question of construction or validity arising under the instrument and obtain a declaration of rights, status or other legal relations thereunder. Buckeye's claims in this lawsuit do not satisfy the test for a declaratory judgment. There was no need for a DecIaratory Judgment. The decision whether to award attorney's fees is within the discretion of the court and there is no requirement that attorney's fees be awarded. Bocquet v. Herring, 972 S.W.2d 19,20 (Tex. 1998). See, also Jones v. Krown, 218 S.W.3d 746,750 (Tex. App.-Fort Worth 2007, pet. denied). Buckeye argues that it is entitled to recover the sum of $28, for its attorney's fees incurred in litigating its claims against Affordable Power. (Appellee Brief

15 p.29). Mr. Rohde testified on behalf of Buckeye that Buckeye had incurred $38, in attorney's fees through the trial of the case. (I11 R.R. 145). Mr. Rohde further testified to segregation of the time as 25% allocated to the defense of Buckeye to the TXU claims and 75% to the prosecution of the claims against Affordable Power. (I11 R.R ). In arriving at the figure of $28,841.62, Mr. Rohde calculated 75% of the total fees of $38, In Appellee's Brief, Buckeye completely ignores the balance of Mr. Rohde's testimony on segregation of attorney's fees. Buckeye asserted two claims against Affordable Power. The first claim was for negligent misrepresentation and the second claim was for a declaratory judgment for contribution and indemnity. (I1 C.R ) Under cross-examination, Mr. Rohde estimated that the percentage of time spent on the declaratory judgment indemnity claim was 25%. (I11 R.R. 149). Since there is no basis for the claim that a party who prevails on a negligent misrepresentation claim is entitled to an award of attorney's fees, this testimony would further reduce the claim for attorney's fees to $7, The only request for attorney's fees plead by Buckeye related to its request for attorney's fees pursuant to $ under the Declaratory Judgment Act. (I C.R [specifically p. 1301). The Trial Court's Judgment does not grant any declaratory relief as requested by Buckeye. There is no declaration that Buckeye is entitled to contribution or indemnity from Affordable Power. The Final Judgment does provide that "[all1 relief not expressly granted herein is denied." (I1 C.R ). The Trial Court correctly denied declaratory relief to Buckeye.

16 CONCLUSION In conducting a legal sufficiency review, the Court is required to consider the evidence in the light most favorable to the Trial Court's judgment. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Even under a legal sufficiency review, a finding that Affordable Power supplied "false information" to Buckeye and that Buckeye "justifiably relied" on the representation or that Buckeye is entitled to all of the damages awarded by the judgment cannot be sustained. Under a factual sufficiency review, the Court is required to consider and weigh all of the evidence and to set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bah, 709 S.W.2d 175, 176 (Tex. 1986). The judgment favoring Buckeye on the elements set forth above its negligent misrepresentation claim cannot survive a factual sufficiency challenge. PRAYER Appellant Affordable Power, L.P. d/b/a Affordable Power, Inc. Wa Affordable Power Plan requests that the Court of Appeals reverse the Judgment in favor of Buckeye against Affordable Power on its third party claims and render a tale-nothing Judgment in favor of Affordable Power and against Buckeye on its third party claims, or, in the alternative that the Court of Appeals reverse the Judgment in favor of Buckeye against Affordable Power and remand the case to the Trial Court, and for such other relief to which Appellant may be entitled.

17 Respectfully submitted, James A. Dunn Texas Bar No DUNN, NEAL & GERGER, L.L.P Post Oak Blvd., Suite ouston, Texas Tel: (713) Fax: (713) ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE I hereby certify that on this 8* day of January, 2010, a true and correct copy of this Reply Brief of Appellant was served by certified mail, return receipt requested, upon the following: John Charles Sherwood 2926 Maple Ave., Suite 200 Dallas, TX Michael E. Rohde Mark Frels How Frels Rohde Woods & Duke, P.C Young Street Dallas, TX annzr\ C ciu James A. Dunn -

18 CERTIFICATE OF COMPLIANCE I certify that this submitted CD or attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by attachment; 2. The CD or attachment is labeled with the following information: A. Case Name: Affordable Power, L.P. dlbla Affordable Power, Inc. v. Buckeve Ventures. Inc. B. The Appellate Case Number: CV C. The Type of Brief: Replv Brief of Appellant Affordable Power, L.P. flwa Affordable Power. Inc. D: Party for whom the brief is being submitted: Ap~ellant Affordable Power, L.P. dlbla Affordable Power. Inc. E. The Word Processing Software and Version Used to Prepare the Brief: MS Word Office The CD or attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.l(k). 4. The CD or attachment is free of viruses or any other files that would be disruptive to the Court's computer system. The following software, if any, was used to ensure the brief is virus-free: Svmantec Antivirus understand that a copy of this brief may be posted on the Court's website and that the electronically filed copy of the brief becomes part of the Court's record. 6. Copies have been sent to all parties associated with this case. - C J \ (Sfgnatwe of filing party and date) Tr4fiP~ 4. Odtud (Printed name)