ACCEPTED
12-11-00303-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/9/2015 3:04:01 PM
CATHY LUSK
CLERK
12-11-00303-CV
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE TWELFTH COURT OF APPEALS2/9/2015 3:04:01 PM
TYLER, TEXAS CATHY S. LUSK
Clerk
ENBRIDGE PIPELINES (EAST TEXAS) L.P.
Appellant
Vs.
GILBERT WHEELER, INC.
Appellee
Remanded to the Twelfth Court of Appeals by the Supreme Court of Texas
APPELLANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL
BRIEF
Comes now Enbridge Pipelines (East Texas) L.P., (AEnbridge@), Appellant herein
(AAppellant@), and files this, its Appellant=s Motion for Leave to File Supplemental Brief. In
support thereof, Appellant would respectfully show unto the Court as follows:
1. On February 13, 2013, this Court made and delivered its Opinion on Rehearing
in this case. The case was then appealed by Appellee, Gilbert Wheeler, Inc., to the Supreme
Court of Texas. On August 29, 2014, the Supreme Court of Texas made and delivered its
Appellant=s Motion for Leave to File Supplemental Brief Page 1
Opinion in this case. The Judgment of the Supreme Court of Texas was also delivered on
August 29, 2014. Appellant filed a Motion for Rehearing in the Supreme Court of Texas on
October 6, 2014, but same was denied on December 19, 2014. On that date, the Supreme
Court of Texas also issued its Mandate reversing the prior judgment of this Court and remanding
the cause to this Court for further proceedings consistent with the Opinion of the Supreme Court
of Texas.
2. As the Supreme Court of Texas noted in its Opinion, Appellant Araised several
issues in the court of appeals that were not reached@ because of this Court=s disposition of the
case. Such issues include, but are not limited to, Avarious challenges to the trial court=s
admission of Wheeler=s experts= testimony, exclusion of Enbridge=s experts= testimony, and
failure to submit a jury question on one of Enbridge=s breach-of-contract defenses.@ See
Opinion of Supreme Court, at page 19.
3. Therefore, in view of the above and foregoing, Appellant respectfully submits
and files this Appellant=s Motion for Leave to File Supplemental Brief with this Court, in order
to request permission from this Court to provide a supplemental brief addressing the changes in
the applicable law made by the Supreme Court, and effect of its decision upon the remaining
issues to be resolved by this Court.
Appellant=s Motion for Leave to File Supplemental Brief Page 2
4. This motion for leave is not sought for the purpose of delay, but to allow
Appellant an opportunity to fully and completely address the issues not reached or ruled on by
the Supreme Court of Texas and/or by this Court, in light of the above-referenced Opinion of
the Supreme Court of Texas in this matter.
Prayer
Therefore, Appellant respectfully requests that the Court consider and grant this
Appellant=s Motion for Leave to File Supplemental Brief and order an appropriate deadline for
said brief to be submitted and filed.
Respectfully submitted,
FLOWERS DAVIS, P.L.L.C.
1021 ESE South Loop 323
Suite 200
Tyler, Texas 75701
(903) 534-8063
(903) 534-1650 Facsimile
/s/ Julie P. Wright
JULIE P. WRIGHT
State Bar No. 00794883
THOMAS H. BUCHANAN
State Bar No. 03290500
J. MITCHELL BEARD
State Bar No. 01973600
ATTORNEYS FOR APPELLANT
Appellant=s Motion for Leave to File Supplemental Brief Page 3
CERTIFICATE OF CONFERENCE
nd rd
On February 2 and 3 2015, Appellant=s attorney communicated with Darrin Walker,
counsel for Appellee, Gilbert Wheeler, Inc., by telephone and email to discuss Appellant=s
Motion for Leave to File Supplemental Brief. Said counsel informed the undersigned that
Appellee, Gilbert Wheeler, Inc., opposed this motion.
/s/ Julie P. Wright
Julie P. Wright
Appellant=s Motion for Leave to File Supplemental Brief Page 4
CERTIFICATE OF SERVICE
I hereby certify that the below-listed counsel of record was served with the foregoing
document via electronic mailing and certified mail, return-receipt requested, on February 9,
2015.
Mr. Don Wheeler
Wheeler Law Office
101 Tenaha Street
Center, Texas 75935
Email: velawson@sbcglobal.net
Attorney for Plaintiff, Gilbert Wheeler, Inc.
J. Mark Mann
The Mann Firm
300 West Main Street
Henderson, Texas 75652
Email: mark@themannfirm.com
Attorney for Plaintiff, Gilbert Wheeler, Inc.
Darrin Walker
Law Office of Darrin Walker
6134 Riverchase Glen Dr.
Kingwood, Texas 77345
Email: darrinwalker@embarqmail.com
Attorney for Plaintiff, Gilbert Wheeler, Inc.
/s/ Julie P. Wright
Julie P. Wright
Appellant=s Motion for Leave to File Supplemental Brief Page 5