Patrick Daugherty v. Highland Capital Management, L.P.

ACCEPTED 05-14-01215-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/24/2015 10:31:10 AM LISA MATZ CLERK NO. 05-14-01215-CV FILED IN IN THE COURT OF APPEALS 5th COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS AT DALLAS 2/24/2015 10:31:10 AM LISA MATZ Clerk HIGHLAND CAPITAL MANAGEMENT, L.P., Appellant/Cross-Appellee v. PATRICK DAUGHERTY, Appellee/Cross-Appellant v. HIGHLAND EMPLOYEE RETENTION ASSETS LLC, Cross-Appellant On Appeal from the 68th District Court of Dallas County, Texas Cause No. DC-12-04005 JOINT MOTION TO REORDER BRIEFING SCHEDULE Scott A. Brister John F. Guild Charles T. Frazier, Jr. State Bar No. 00000024 State Bar No. 24041022 State Bar No. 07403100 scottbrister@andrewskurth.com jguild@ghjhlaw.com cfrazier@adjtlaw.com Marc D. Katz GRUBER HURST JOHANSEN Dana Livingston State Bar No. 00791002 HAIL SHANK LLP State Bar No. 12437420 marckatz@andrewskurth.com 1445 Ross Avenue dlivingston@adjtlaw.com ANDREWS KURTH LLP Suite 2500 ALEXANDER DUBOSE 111 Congress Avenue Dallas, Texas 75202 JEFFERSON & TOWNSEND LLP Suite 1700 Telephone: (214) 855-6800 4925 Greenville Avenue Austin, Texas 78701 Facsimile: (214) 855-6808 Suite 510 Telephone: (512) 320-9220 Dallas, Texas 75206-4026 Facsimile: (512) 542-5220 Attorneys for Highland Telephone: (214) 369-2358 Employee Retention Assets Facsimile: (214) 369-2359 Attorneys for Highland Capital LLC Management, L.P. Attorneys for Patrick Daugherty TO THE HONORABLE COURT OF APPEALS: The parties to this Appeal that have filed notices of appeal—Patrick Daugherty (“Daugherty”); Highland Capital Management, L.P. (“Highland”); and Highland Employee Retention Assets LLC (“HERA”)—jointly request the Court to reorder the briefing schedule in this appeal in accordance with the parties’ respective positions and requests for relief, and in support respectfully show the following: 1. This appeal arises from a suit in the 68th District Court of Dallas County, Texas, No. DC-12-04005. Highland initiated the suit as plaintiff, asserting various claims against Daugherty. CR 1:18. Daugherty filed counterclaims against Highland and third-party claims against HERA, Patrick Boyce, William Britain, James Dondero, and Sierra Verde LLC. CR 1:50. Based on the jury’s verdict, Highland recovered a judgment of $2.8 million in attorney’s fees against Daugherty, and Daugherty recovered a judgment of $2.6 million in damages against HERA. CR 5:2186, 2570. 2. After the trial court overruled Highland’s challenge to Daugherty’s supersedeas bond, Highland filed a Motion to Increase Supersedeas Bond in this Court under Rule 24.4 of the Texas Rules of Appellate Procedure (“Rule 24 Proceeding”) on September 24, 2014. See CR 5:2817, 2937. Highland had previously filed a notice of appeal (Sept. 22, 2014) specifically challenging the order denying its motion to increase the supersedeas bond. CR 5:3295. The Court assigned JOINT MOTION TO REORDER BRIEFING SCHEDULE Page 1 the above-referenced cause number to the Rule 24 Proceeding and ultimately denied Highland’s motion. Highland Capital Mgmt. L.P. v. Daugherty, No. 05-14-01215- CV, 2014 WL 6559001, at *2 (Tex. App.—Dallas Oct. 22, 2014, order). 3. Shortly after Highland filed its Rule 24 Motion in this Court, but before the Court’s order on that Motion, Daugherty filed a notice of appeal of the Final Judgment on October 3, 2014. CR 5:3308. On October 10, 2014, Highland and HERA filed their respective notices of cross appeal of the Final Judgment. CR 5:3311, 3316. The Court assigned the appeal of the Final Judgment cause number 05-14-01283. 4. On October 22, 2014, the Court on its own motion consolidated the Final Judgment appeal into the cause number for the Rule 24 Proceeding, 05-14- 01215-CV, and administratively closed cause number 05-14-01283. The parties are designated on the Court’s docket as: Appellant – Highland; Appellees – Daugherty and HERA. 5. On January 29, 2015, the Court ordered the Clerk of the Court “to remove the designation of this case as an accelerated appeal,” and ordered the parties “to file their briefs in this case in accordance with the requirements of rule 38.6 of the Texas Rules of Appellate Procedure for ordinary appeals from final judgment.” JOINT MOTION TO REORDER BRIEFING SCHEDULE Page 2 6. Under the Court’s briefing calendar, Highland’s brief of appellant is due February 24, 2015. For the reasons stated below, the parties respectfully request the Court to revise the briefing schedule in this appeal. 7. In this appeal, the primary challenges to the Final Judgment will be made by Daugherty—of the $2.8 million judgment against him—and by HERA— of the $2.6 million judgment against it. Daugherty may also challenge adverse findings by the jury on his claims against Highland and the third-party defendants. Highland will challenge various jury findings and trial court rulings. 8. Based on the nature of the relief the parties’ are seeking in this appeal, the parties respectfully request the Court to revise and reorder the briefing. The parties respectfully propose the following briefing schedule: Briefing Round Briefs due 1 • Daugherty’s opening brief due March 30, 2015. • HERA’s opening brief due March 30, 2015. 2 • Daugherty’s brief in response to HERA’s brief due 30 days after #1. • The combined brief of (a) Highland’s (and all other appellees as to Daugherty, if applicable) brief in response to Daugherty’s brief and (b) Highland’s opening brief as cross- appellant due 30 days after #1. 3 • Daugherty’s combined reply brief and appellee’s response to Highland’s opening brief, due 30 days after #2. • HERA’s reply brief due 30 days after #2. 4 • Highland’s reply brief due 20 days after Daugherty’s brief under #3. JOINT MOTION TO REORDER BRIEFING SCHEDULE Page 3 9. In an effort to further simplify the proposed briefing schedule, the parties have also agreed that if any party requests an extension of a briefing deadline on which more than one brief is due, and such request is unopposed, the parties will not oppose an identical extension for the other brief that is due. Accordingly, Highland Capital Management L.P.; Patrick Daugherty; and Highland Employee Retention Assets LLC respectfully request that the Court reorder the briefing schedule as provided herein and for all other appropriate relief. /s/ Scott A. Brister /s/ John F. Guild /s/ Charles T. Frazier, Jr. Scott A. Brister John F. Guild Charles T. Frazier, Jr. State Bar No. 00000024 State Bar No. 24041022 State Bar No. 07403100 scottbrister@andrewskurth.com jguild@ghjhlaw.com cfrazier@adjtlaw.com Marc D. Katz GRUBER HURST JOHANSEN Dana Livingston State Bar No. 00791002 HAIL SHANK LLP State Bar No. 12437420 marckatz@andrewskurth.com 1445 Ross Avenue dlivingston@adjtlaw.com ANDREWS KURTH LLP Suite 2500 ALEXANDER DUBOSE 111 Congress Avenue Dallas, Texas 75202 JEFFERSON & TOWNSEND LLP Suite 1700 Telephone: (214) 855-6800 4925 Greenville Avenue Austin, Texas 78701 Facsimile: (214) 855-6808 Suite 510 Telephone: (512) 320-9220 Dallas, Texas 75206-4026 Facsimile: (512) 542-5220 Attorneys for Highland Telephone: (214) 369-2358 Employee Retention Assets Facsimile: (214) 369-2359 Attorneys for Highland Capital LLC Management, L.P. Attorneys for Patrick Daugherty JOINT MOTION TO REORDER BRIEFING SCHEDULE Page 4 CERTIFICATE OF SERVICE I certify that the foregoing document was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that a true and correct copy of the foregoing was served via e-service on the following counsel of record on February 24, 2015. John F. Guild Scott A. Brister GRUBER HURST JOHANSEN HAIL ANDREWS KURTH LLP SHANK LLP 111 Congress Avenue 1445 Ross Avenue Suite 1700 Suite 2500 Austin, Texas 78701 Dallas, Texas 75202 scottbrister@andrewskurth.com jguild@ghjhlaw.com Marc D. Katz ANDREWS KURTH LLP 1717 Main Street Suite 3700 Dallas, Texas 775201 marckatz@andrewskurth.com /s/ Charles T. Frazier, Jr. Charles T. Frazier, Jr. JOINT MOTION TO REORDER BRIEFING SCHEDULE Page 5