Marvin Glenn Berry and Bonnie Berry as Successor in Interest to Dennis Wayne Berry v. Albert Theodore Powers and Allied Ports LLC

ACCEPTED 15-25-00060-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 10/16/2025 5:00 PM No. 15-25-00060-CV CHRISTOPHER A. PRINE CLERK IN THE COURT OF APPEALS FOR THE15th COURT FILED IN OF APPEALS FIFTEENTH JUDICIAL DISTRICT OF TEXASAUSTIN, TEXAS AUSTIN 10/16/2025 5:00:31 PM CHRISTOPHER A. PRINE Clerk Marvin Glenn Berry, and Bonnie Berry as successor in interest to Dennis Wayne Berry, Appellants v. Albert Theodore Powers and Allied Ports, LLC, Appellees APPELLANTS’ REPLY BRIEF LAW OFFICE OF HENKE & WILLIAMS AUDREY MULLERT VICKNAIR Charlie Henke Audrey Mullert Vicknair State Bar No. 00784254 State Bar No. 14650500 2929 Allen Parkway, Suite 3900 N. Carancahua St., Ste. 1400 Houston, Texas 77019 Corpus Christi, Texas 78401 [email protected] (361) 884-5400; (361) 884-5401 fax Counsel for Marvin Glenn Berry [email protected] JACKSON WALKER, LLP Joel R. Glover LAW OFFICES OF DOUGLAS ALLISON State Bar No. 24087593 Douglas A. Allison [email protected] State Bar No. 01083500 Sarah Patel Pacheco N. Tancahua St. State Bar No. 00788164 Corpus Christi, Texas 78401 [email protected] (361) 888-6002; (361) 888-6651 Richard A. Howell [email protected] State Bar No. 24056674 [email protected] Counsel for Appellants Austin K. Yancy State Bar No. 24110558 [email protected] J. Davis LaBarre State Bar No. 24131442 [email protected] JACKSON WALKER, LLP 1401 McKinney St., Suite 1900 Houston, Texas 77010 Counsel for Bonnie Berry

TABLE OF CONTENTS INDEX OF AUTHORITIES ......................................................................................3 ARGUMENT .............................................................................................................4 I. The Injunction Order Alters, Rather than Protects, the Status Quo, Improperly Countenances Powers’ Disputed Claims, and Grants Powers the Ultimate Relief He is Seeking .................................................4 II. Appellees Confirm the Order is Overbroad and Make Concessions .........9 III. Appellees Omitted Necessary Parties.......................................................10 CONCLUSION AND PRAYER ..............................................................................10 CERTIFICATE OF COMPLIANCE .......................................................................12 CERTIFICATE OF SERVICE ................................................................................12

INDEX OF AUTHORITIES Cases Benavides ISD v. Guerra, 681 S.W.2d 246 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) ................................................7 In re Newton, 146 S.W.3d 648 (Tex. 2004) (orig. proceeding) .................................6 Patterson v. City of Bowie, 295 S.W.2d 676 (Tex. App.—Fort Worth 1956, no writ) ................................................................6

Statutes Tex. Civ. Prac. & Rem. Code § 37.006(a) ............................................................... 11 Tex. R. Civ. P. 683 ...................................................................................................11

TO THE HONORABLE FIFTEENTH COURT OF APPEALS: Appellants Marvin Glenn Berry and Bonnie Berry file this Reply Brief in support of their appeal which seeks to reverse or dissolve the trial court's erroneous temporary injunction order.

ARGUMENT 1 Appellees’ arguments cannot save this temporary injunction order. They have failed to establish they are entitled to this “extraordinary remedy.” The injunction grants ultimate relief and is overbroad, and Appellees have failed to bring all necessary parties into the lawsuit. The trial court abused its discretion. This Court should dissolve this temporary injunction.

I. The Injunction Order Alters, Rather than Protects, the Status Quo, Improperly Countenances Powers’ Disputed Claims, and Grants Powers Ultimate Relief In an effort to uphold the injunction, Powers asserts he has “[an] equity ownership interest and management rights in the Project” that must be protected, that the entities at issue have valid and enforceable “governing documents” transferring their interests, that “Ted—through Allied Ports, LSPH, LSPV, and LSPE—has had the power and authority to manage Axis Midstream and continues to have such power and authority,” and “Berry GP has no such power or authority”

Appellants disagree with Appellees’ version of the “facts” and direct the Court to Appellants’ more complete Statement, which is replete with record references in support. (EE Br. p. 28, 34, 35). But every one of these alleged “truths” that Powers suggests need protection are instead central issues in dispute. Marty and Bonnie contest Powers’ ability to bring these claims at all, as well as the validity and enforceability of the alleged agreements and documents on which Powers relies. Marty and Bonnie dispute, for a variety of reasons, that Powers can claim he has any ownership interest or management rights in any of the entities at issue, that any interests were transferred with board approval or executed documents, and that no other entity has ownership of or authority to manage Axis (which Powers dropped as a party from the suit).

Appellees say, “All the temporary injunction does is prevent Marty and Bonnie from altering the ownership or control of the Project assets or its entities, unless they are authorized to do so under the applicable governing documents, between now and trial.” (EE Br. p. 36) But this is the ultimate relief Powers seeks: a determination that the purported “investment agreement” and “governing documents” on which he relies are valid, binding and enforceable. The trial court’s injunction has countenanced Powers’ claims, created a new status quo, and granted Powers ultimate relief.

“The last, actual, peaceable, non-contested status which preceded the pending controversy”—that controversy being Powers’ claim of ownership interest and management rights in the Project or any entity—is the status of the various companies, interests and assets before Powers’ contested claim of ownership. In re Newton, 146 S.W.3d 648, 651 (Tex. 2004). Powers relies on the documents to claim his contested interest. Indeed, it is Powers who is conducting “[a]n unwarranted invasion of property” by asserting rights and interests in the assets of non-parties; this “new status quo” that Powers has created “must [not] be protected pending a final trial.” (see Ee Br. p. 34, citing and quoting Patterson v. City of Bowie, 295 S.W.2d 676 (Tex. App.—Fort Worth 1956, no writ)).

Appellees’ heavy reliance on the language in the injunction order that no action can be taken with respect to the various entities listed or their assets “except as provided in the governing operating agreement [that Powers drafted] for the respective entity” (EE Br. p. 34, 35) highlights the erroneous nature of this order and the fallacy of Appellees’ argument that they have not been granted the relief they are seeking through the improper temporary injunction. The order treats the alleged and contested “governing documents” as valid and enforceable, an issue that must be determined on the merits. The court has protected the status Powers contends should be the status of the parties (as Appellees acknowledge in their brief: “[the injunction] simply freezes the current status of the Project assets and entities and prohibits Marty and Bonnie from making changes prior to trial unless they are authorized to do so under the relevant documents.” EE Br. p. 39). But Appellants have raised numerous challenges to Powers’ claims. Merits determinations are yet to be made – in the trial court below or in any other.

Appellees acknowledge the legal principle that “If an act of one party alters the relationship between that party and another, and the latter contests the action, the status quo cannot be the relationship as it exists after the action.” Benavides ISD v. Guerra, 681 S.W.2d 246, 249 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) (EE Br. p. 27, emphasis in original). Properly applied to this case, Powers purports to have altered the relationship between numerous Berry entities and their assets and interests by virtue of his alleged agreements and “governing documents.” Moreover, Powers had had no contact with Marty or Dennis (or later Bonnie) during all this time (up to August of 2024) and had taken no action to affect their day-to-day activities operating these Berry-owned entities. He then filed this lawsuit and tried to halt their actions. Appellants, Defendants below, contest all of these acts by Powers. Pursuant to Appellees’ own cited case, the status quo “cannot be” the relationship that exists after Powers’ contested actions. The trial court’s order is erroneous.

Appellees treat this as if Powers has owned these properties, assets and interests (acreage, lease, permit) all along and Marty and Bonnie attempted to take his alleged ownership interest away (EE Br. p. 27, 34-35). Not so, instead Berry GP and the related entities (none of which are parties to this suit) have owned these properties, interests and assets for years, long before Powers came along, long before the alleged agreements on which he relies (in 2018/2019) and the documents he drafted that he claims changed everything (in 2020). 2 Even Lawrence recognized at the hearing that the status quo is that Berry GP owns Axis (RR2:298-99; RR3:42).

What Powers contends is the “status quo” is, instead, the end result he hopes to achieve. This was a temporary injunction proceeding. No merits issues were before the trial court. The order must be reversed.

Finally, Appellees make an important concession in their brief: Appellants also appear to argue that the temporary injunction order alters that status quo because it ‘potentially impacts Redfish Bay Terminals and Canada Project Holdings’ and that the status quo is those companies are owned by Berry GP (for Redfish Bay Terminals) and Berry family trusts (for Canada Project Holdings). Br. at 52–54. This is a red herring. Neither of those entities is listed in the temporary injunction. See 3 CR 3862–63.

The ownership and ability to manage those entities is not at issue in this appeal. (EE Br. p. 28, n. 6) (emphasis added). Appellees are bound by their concession that Redfish Bay Terminals and Canada Project Holdings, which are not parties to this suit, are free to conduct business as they have all along. 3 Lawrence created Axis and transferred it to Berry GP in 2017 (RR5:22; DX-24). GP’s board never transferred Axis (RR2:271). GP has claimed Axis as a GP entity since 2017 (DX-24-26, 28-36). Axis’ permit application was not filed by a Powers’ company (RR5:23). Lawrence testified he, Dennis and Marty own and manage all the companies in the project (RR2:252-53) and the three have a majority, so they are the “shot callers” for the project; “This is our deal, is the way I understand it.” (RR3:78-79) Berry GP and Axis are not parties to this suit (Appelees named Axis then dropped it).

Redfish Bay Terminals Inc. is owned 100% by Berry GP and has owned and controlled real property (266 acres +/-) in Aransas Pass for years; Canada Projects Holdings Inc. is II. Appellees Confirm the Temporary Injunction is Overbroad and Make Concessions Appellees have walked back substantial portions of the injunction order they obtained in an apparent effort to save it from Appellants’ accurate challenge that the injunction is overbroad. Appellees again concede that as to Redfish Bay Terminals and Canada Project Holdings, “The temporary injunction does not enjoin either of those entities. Nor does it enjoin Marty and Bonnie (or anyone else) from acting with respect to those entities.” (EE Br. p. 41-42) Appellees also say, “the temporary injunction order does not purport to enjoin Axis Midstream or Berry GP from taking any action.” (id. p. 42, 44). Again, Appellees are bound by their telling concessions regarding two additional entities that are not parties to this suit.

Separately, Appellees agree that an injunction order cannot enjoin a defendant from conducting lawful activities or exercising legal rights (EE Br. p. 40). But in protesting Appellant’s complaint that the injunction order does just that, Appellees say the order “prohibits [Marty and Bonnie] from unlawfully attempting to control entities they have no legal right to control,” that “neither Marty nor Bonnie is the Manager of Axis Midstream,” and Marty and Bonnie “have no such rights” under the “governing documents to take an action.” (EE Br. p. 40, 41). Again, Powers— owned by Marty, Dennis and Lawrence’s Trusts and holds a lease on real property (64 acres) on Harbor Island (CR3 pdf 317; RR2:300, 305-306, 307-310; RR3:35-36). RBT has been an operative full inland barge terminal for decades and has tenants on the property (RR3:303-305; RR4:170-71). and the injunction order—treat his disputed documents as controlling. Appellees’ unsuccessful attempt to defend the order against one attack (overbreadth) underscores the veracity of the others (ultimate relief, status quo).

III. Appellees Omitted Necessary Parties Regarding the failure of Appellees to make Axis and Berry GP parties to the injunction order, this is not an issue of “finding” necessary parties who remain unknown at the time a temporary injunction is requested, nor is this a declaratory judgment case involving a homeowners’ association with an unwieldy number of potential parties—both as in Appellees’ cited cases (EE Br. p. 45-46). Here there was no “danger” that “rights might be lost before the parties could be found and joined” for inclusion in the injunction order (id. p. 45). Two known parties are the focus here. Axis was a party then Powers dropped it from his lawsuit. Berry GP, a central entity in the Berry enterprise, was always known to Powers. Powers’ failure to keep Axis in the lawsuit and to make Berry GP a party—when he flatly contends “Berry GP is not the owner of Axis Midstream” (EE Br. p. 44)—is a problem of his own making. Tex. R. Civ. P. 683; Tex. Civ. Prac. & Rem. Code § 37.006(a).

CONCLUSION AND PRAYER The temporary injunction order was an abuse of discretion. Appellees’ response arguments fail to justify the order -- and in fact highlight why it is erroneous. This Court should dissolve the injunction.

Respectfully submitted, /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair LAW OFFICE OF AUDREY MULLERT VICKNAIR State Bar No. 14650500 N. Carancahua St., Ste. 1400 Corpus Christi, Texas 78401 (361) 884-5400; (361) 884-5401 fax [email protected] Douglas A. Allison State Bar No. 01083500 LAW OFFICES OF DOUGLAS ALLISON N. Tancahua St. Corpus Christi, Texas 78401 (361) 888-6002; (361) 888-6651 [email protected] Counsel for both Appellants Charlie Henke State Bar No. 00784254 HENKE & WILLIAMS 2929 Allen Parkway, Suite 3900 Houston, Texas 77019 [email protected] Counsel for Marvin Glenn “Marty” Berry Joel R. Glover State Bar No. 24087593 [email protected] Sarah Patel Pacheco State Bar No. 00788164 [email protected] Richard A. Howell State Bar No. 24056674 [email protected] Austin K. Yancy State Bar No. 24110558 [email protected] J. Davis LaBarre State Bar No. 24131442 [email protected] JACKSON WALKER, LLP 1401 McKinney St., Suite 1900 Houston, Texas 77010 Counsel for Bonnie Berry CERTIFICATE OF COMPLIANCE I certify that the word count for this Appellants’ Reply Brief is 1,776 words long from the Argument through the end of the Prayer, pursuant to Tex. R. App. P. 9.4(i)(2)(C). I am relying on the word count of the computer program used to prepare this document. /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair

CERTIFICATE OF SERVICE I certify that on this 16th day of October 2025, a true and correct copy of the foregoing Motion was served via e-file Texas on all counsel of record in this appeal.

Via E-File and E-Service Mary Kate Raffetto Jake McClellan Madeline Gay Beck Redden E-mail:[email protected] Roland Garcia Greenberg Traurig E-mail: [email protected] Counsel for Appellees Powers and Allied Ports

/s/ Audrey Mullert Vicknair Audrey Mullert Vicknair

Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Audrey Vicknair Bar No. 14650500 [email protected] Envelope ID: 106951989 Filing Code Description: Other Brief Filing Description: Appellants Reply Brief Status as of 10/17/2025 7:04 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Michael R.Absmeier [email protected] 10/16/2025 5:00:31 PM SENT Melanie McClenathen [email protected] 10/16/2025 5:00:31 PM SENT Rosa Brennan [email protected] 10/16/2025 5:00:31 PM SENT Adam Aston 24045423 [email protected] 10/16/2025 5:00:31 PM SENT Mary Raffetto [email protected] 10/16/2025 5:00:31 PM SENT Yvonne Ferrari [email protected] 10/16/2025 5:00:31 PM SENT Michelle Bultman [email protected] 10/16/2025 5:00:31 PM SENT Jesse Crochet [email protected] 10/16/2025 5:00:31 PM SENT Sydney Ballesteros [email protected] 10/16/2025 5:00:31 PM SENT Cameron Roth [email protected] 10/16/2025 5:00:31 PM SENT Madeline Gay [email protected] 10/16/2025 5:00:31 PM SENT Barrett Reasoner [email protected] 10/16/2025 5:00:31 PM SENT Roxanne Graham [email protected] 10/16/2025 5:00:31 PM SENT Michael JakeMcClellan [email protected] 10/16/2025 5:00:31 PM SENT Bruce Baldree [email protected] 10/16/2025 5:00:31 PM SENT Roland Garcia [email protected] 10/16/2025 5:00:31 PM SENT Audrey Vicknair [email protected] 10/16/2025 5:00:31 PM SENT Douglas Allison [email protected] 10/16/2025 5:00:31 PM SENT Audrey Vicknair [email protected] 10/16/2025 5:00:31 PM SENT Douglas Allison [email protected] 10/16/2025 5:00:31 PM SENT Anna Erickson [email protected] 10/16/2025 5:00:31 PM SENT Charlie Henke [email protected] 10/16/2025 5:00:31 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Audrey Vicknair Bar No. 14650500 [email protected] Envelope ID: 106951989 Filing Code Description: Other Brief Filing Description: Appellants Reply Brief Status as of 10/17/2025 7:04 AM CST Case Contacts Charlie Henke [email protected] 10/16/2025 5:00:31 PM SENT Joel Glover [email protected] 10/16/2025 5:00:31 PM SENT