1519.006/555770 

No. 14-14-00202-CV 

IN THE FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

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. 

ACCEPTED

14-14-00202-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

1/28/2015 2:12:23 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 1/28/2015 2:12:23 PM CHRISTOPHER A. PRINE Clerk
15519.006/555770 2 

 2. First, the United States Court of Appeals for the Fifth Circuit has just 

set one of Mr. Gunn’s other cases for 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 3 

“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 4 

 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 5 

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