George Fleming and Fleming & Associates, LLP v. the Kirklin Law Firm, P.C., Charles Kirklin and Stephen Kirklin

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ACCEPTED 14-14-00202-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/28/2015 2:12:23 PM CHRISTOPHER PRINE CLERK No. 14-14-00202-CV FILED IN IN THE FOURTEENTH COURT OF APPEALS14thHOUSTON, COURT OF APPEALS TEXAS HOUSTON, TEXAS 1/28/2015 2:12:23 PM CHRISTOPHER A. PRINE Clerk FLEMING & ASSOCIATES L.L.P. (N/K/A FLEMING, NOLEN & JEZ, L.L.P.), Appellant – Cross-Appellee, v. THE KIRKLIN LAW FIRM, P.C., CHARLES KIRKLIN AND STEPHEN KIRKLIN Appellees – Cross-Appellants. On Appeal from the 164th District Court, Harris County, Texas Trial Court Cause No. 2008-02102 The Honorable Alexandra Smoots-Hogan, Presiding UNOPPOSED MOTION TO RESCHEDULE SUBMISSION TO THE HONORABLE FOURTEENTH COURT OF APPEALS: This case was recently set for oral argument, with submission to take place on March 5, 2015. Appellant respectfully requests that the argument be rescheduled for a slightly later date, such as in April. An April submission date would be acceptable to both sides. 1. The reason for this request is that the March 5 date creates significant problems for Appellant’s counsel, Mr. Gunn. 1519.006/555770 2. First, the United States Court of Appeals for the Fifth Circuit has just set one of Mr. Gunn’s other cases for oral argument on that same day in New Orleans. That case is No. 14-20265, Contango Operators, Inc. v. USA. The case cannot now be rescheduled, because the Fifth Circuit had already given all counsel advance notice of the argument week in which the case would be set, and the date is now fixed. The case involves an amount in controversy of well in excess of $10 million. Mr. Gunn has a standing relationship with Contango and had substantial involvement in preparing the briefing. 3. Second, during the month of March Mr. Gunn will be finalizing the brief of Appellant in No. 05-14-01383-CV, Enterprise Products Partners, L.P. and Enterprise Products Operating LLC v. Energy Transfer Partners, L.P. and Energy Transfer Fuel, L.P.. That brief is currently due at the end of February but will need one more extension and is expected to be filed in the Dallas Court of Appeals at the end of March. The judgment being appealed there is for more than $500 million. Mr. Gunn is lead appellate counsel in that case. He and his appellate team personally rotated through the multi-week trial in Dallas in order to lay the groundwork for this very appeal. The case originally was defended by Steve Susman and his firm, but Mr. Susman’s summary judgment motion was denied, and David Beck and our firm then stepped in and tried the case to verdict. The jury awarded over $319 million in actual damages and found over $500 million in 15519.006/555770 2 “benefits,” from which the trial judge ordered $150 million in disgorgement. The case has a reporter’s record of about 67 volumes, and the brief will require significant attention during the month of March. 4. Finally, Mr. Gunn is handling a number of additional cases in which at least some of his time will be required during the period in question. Here are a handful:  He is already set for oral argument in the First Court of Appeals on February 24 in No. 01-13-00782-CV, Bandier Realty Partners, LLC and Switchback Ventures, LLC v. SSC Opportunity Partners, LLC and Douglas Britton, an $18 million case that he must argue against David Keltner. Mr. Gunn had expected to share oral argument time with Mike Hatchell, counsel for a group of co-defendants, but Mr. Hatchell’s clients recently settled.  He has a mediation on March 2 in Beaumont that cannot be rescheduled because of a court order and the limited availability of the mediator. The case is No. 13-14-00377-CV, United Scaffolding, Inc. v. James Levine, in the Thirteenth Court of Appeals (transferred from the Ninth Court of Appeals). Mr. Gunn is lead counsel in the case, and the trial lawyer has resigned from her law firm and ceased representing private clients, so she cannot do the mediation in his stead.  He has merits briefing due in No. 13-0986; Southwestern Energy Production Company v. Toby Berry-Helfand and Gery Muncey, a case with about $11 million in actual damages and about $24 million in disgorgement. The brief is currently due on February 19, but that date is unworkable and will have to be extended to about March 20. Mr. Gunn is lead counsel in that case and has primary responsibility for the supreme court briefing. 15519.006/555770 3 5. Mr. Gunn has conferred with opposing counsel, Mr. Paul Kirklin, to inquire about scheduling, so that a mutually agreeable range of dates can be found. Mr. Kirklin indicates that he is set for trial in a 2-week window starting March 16. For this reason, an April submission date here would work best for both sides. Respectfully submitted, BECK REDDEN LLP By: /s/ David M. Gunn David M. Gunn State Bar No. 08621600 dgunn@beckredden.com John S. Adcock State Bar No. 00790206 jadcock@beckredden.com Erin H. Huber State Bar No. 24046118 ehuber@beckredden.com 1221 McKinney, Suite 4500 Houston, TX 77010-2010 (713) 951-3700 (713) 951-3720 (Fax) ADELE HEDGES, ATTORNEY AT LAW Adele Hedges State Bar No. 09368500 ah@adelehedges.com 2719 Colquitt Houston, TX 77098 (713) 702-4289 COUNSEL FOR APPELLANT/ CROSS-APPELLEE 15519.006/555770 4 CERTIFICATE OF CONFERENCE I hereby certify that on January 27, 2015, I conferred with Paul Kirklin, counsel for Appellee/Cross-Appellant regarding this motion and he advised that he does not oppose the requested relief. /s/ David M. Gunn David M. Gunn CERTIFICATE OF SERVICE I hereby certify that on January 28, 2015, a true and correct copy of the above and foregoing Unopposed Motion to Reschedule Submission was forwarded to all counsel by the Electronic Service Provider, if registered, otherwise by email, as follows: Paul S. Kirklin THE KIRKLIN LAW FIRM, PC 12600 N. Featherwood Dr., Suite 225 Houston, TX 77034 pkirklin@kirklinlaw.com Counsel for Appellee/Cross-Appellants, The Kirklin Law Firm, P.C., Charles B. Kirklin, and Stephen R. Kirklin /s/ David M. Gunn David M. Gunn 15519.006/555770 5