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