1519.006/555770 

## No. 14-14-00202-CV

I N THE 

### F OURTEENTH 

### C OURT OF 

### A PPEALS 

### H OUSTON 

### , T EXAS



### F LEMING 

### & A SSOCIATES 

### L.L.P. ( N 

### / K 

### / A 

### F LEMING 

### , N OLEN 

### & J EZ 

### , L.L.P.), Appellant – Cross-Appellee,

v. 

### T HE 

### K IRKLIN 

### L AW 

### F IRM 

### , P.C., C HARLES 

### K IRKLIN AND 

### S TEPHEN 

### K IRKLIN 

### Appellees – Cross-Appellants.

On Appeal from the 164th Distri ct Court, Harris County, Texas Trial Court Cause No. 2008-02102 The Honorable Alexandra Smoots-Hogan, Presiding



### U NOPPOSED 

### M OTION TO 

### R ESCHEDULE 

### S UBMISSION

T O THE H ONORABLE F OURTEENTH C OURT OF A PPEALS :
This case was recently set for oral ar gument, with submission to take place

on March 5, 2015. Appellant respectfu lly 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 th at the March 5 date creates significant

problems for Appellant’s counsel, Mr. Gunn. ACCEPTED 14-14-00202-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 1/28/2015 2:12:23 PM CHRISTOPHER PRINE

CLERK15519.006/555770 2 2. First, the United States Court of Appeals for the Fifth Circuit has just

set one of Mr. Gunn’s other cases for or al argument on that same day in New

Orleans. That cas e is No. 14-20265, Contango Operators, Inc. v. USA . The case

cannot now be rescheduled, be cause the Fifth Circuit had already given all counsel

advance notice of the argumen t week in which the case w ould be set, and the date

is now fixed. The case i nvolves an amount in controve rsy of well in excess of $10

million. Mr. Gunn has a st anding relationship with C ontango and had substantial

involvement in preparing the briefing.

3. Second, during the month of Ma rch 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. En ergy 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 bei ng 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 Da llas in order to lay the

groundwork for this very appeal. Th e 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 in15519.006/555770 3 “benefits,” from which the trial judge or dered $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 num ber of additional cases in which

at least some of his time will be required during the period in que stion. Here are a

handful:

 He is already set for oral argumen t 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 or al 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 cas e 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-He lfand 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 responsi bility for the supreme court briefing.15519.006/555770 4 5. Mr. Gunn has confe rred with opposing counsel, Mr. Paul Kirklin, to

inquire about scheduling, so that a mutually agreeable ra nge of dates can be found.

Mr. Kirklin indicates that he is set for tr ial in a 2-week window starting March 16.

For this reason, an April submission date here would work best for both sides.

Respectfully submitted,

B ECK R EDDEN 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)

A DELE H EDGES , A TTORNEY AT L AW Adele Hedges State Bar No. 09368500 ah@adelehedges.com 2719 Colquitt Houston, TX 77098 (713) 702-4289

C OUNSEL FOR A PPELLANT / C ROSS -A PPELLEE15519.006/555770 5 

### C ERTIFICATE OF 

### C ONFERENCE
I hereby certify that on January 27, 2015, I conferred with Paul Kirklin, counsel for Appellee/Cross-Appellant regard ing this motion and he advised that he does not oppose the requested relief.

/s/ David M. Gunn David M. Gunn



### C ERTIFICATE OF 

### S ERVICE
I hereby certify that on January 28, 2 015, a true and correct copy of the above and foregoing Unopposed Motion to Reschedule Submission was forwarded to all counsel by the Electronic Service Provi der, if registered, otherwise by email, as follows:
Paul S. Kirklin T HE K IRKLIN L AW F IRM , 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