1 NO. 01-09-00997-CV

________________________________________________________ IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON

________________________________________________________ Carlton Energy Group, LLC, Appellant/Cross-Appellee,

v. Gene E. Phillips, Individually and d/b/a Phillips Oil Interests, LLC, et al.,

Appellees/Cross-Appellants.

________________________________________________________ ON REMAND FROM THE SUPREME COURT OF TEXAS CAUSE NUMBER 12-0255

________________________________________________________ REPLY TO CARLTON ENERGY GROUP, LLC’S RESPONSE TO MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING

________________________________________________________ Carlton’s emphatic opposition to supplemental briefing on remand is curious. Carlton presumably wants this Court to render a judgment totaling more than $50 million based on arguments written in 2010 as alternatives to the relief each primarily sought —in Carlton’s case, a nine

- figure judgment based on the jury’s verdict; in Phillips’s, a take

nothing judgment based on various legal theories. But the reasons Carlton gives for this rush to (a huge) judgment make little sense. ACCEPTED 01-09-00997-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/30/2015 2:10:26 PM CHRISTOPHER PRINE

CLERK2 Carlton first claims that the “Supreme Court nowhere in its opinion indicates that
this Court should re

- open briefing” but that claim is simply wrong. This Court can read the Supreme Court’s opinion and make its own interpretation of the language that “Phillips is entitled to argue that the jury’s verdict was against the great weight and preponderance of the evidence,” Slip Op. at 25, 2015 WL 2148951 at *11, and that Movants’ “argu[ment] that the evidence is factually insufficient to support the judgment

. . . may be raised on reman d,” Slip Op. at 26, 2015 WL 2148951, at *12. Especially given that some of the possible outcomes suggested by the Supreme Court for consideration on remand were never discussed by either side in any briefing to any court, it is literally impossible for P hillips to raise its insufficiency argument without further briefing. Second, Carlton argues that the constitutional issue should not be briefed because that issue was not previously raised by Movants in this Court. In their briefing, Movants
will show that the constitutional issue has not, and indeed could not, have been waived in this Court or at any other stage prior to the Supreme Court’s decision. The Movants’ constitutional challenge goes to this Court’s authority to conduct any sufficiency review at all, and this Court cannot make a considered ruling on that challenge without considering the parties’ arguments and authorities. Indeed, Carlton’s plea that this Court prohibit briefing on this issue even if it accepts briefing on an ordinary sufficiency challenge doth protest too much. This Court can ensure that such arguments neither increase the size of the briefs nor enlarge the time allotted to prepare them. Why, then, is3 Carlton so adamant that the Court need not consider whether it has the power to render the judgment Carlton seeks? Finally, this remains an important case that should be carefully considered

— especially given that the Supreme Court itself indicated that some evidence supported actual damages that could be as low as $60,0 00 or as high as $31.16 million. Carlton counters that the case is old, and this is true

— but that is only because the parties and the courts alike have found the case difficult. Indeed, at the time the Supreme Court issued its mandate, this case was by f ar the oldest on its docket. The fact that this case was pending before the Supreme Court for so long is now not a basis for this Court to “ rush to judgment , ” particularly when the Supreme Court, as Carlton has suggested in its briefing, may have remanded the case so that this Court co uld c onsider these important issues fi rst. Thus, it is hard to imagine a case less suitable for expedited treatment than this one. Reliance on the earlier briefing will certainly impair this Court’s ability to reach a correct result. Not only will it make it far mor e difficult for the Court to determine whether it has jurisdiction at all, but, if it decides that it does, this Court will be forced to rely on out of date briefing which was written primarily to advocate positions that the Supreme Court has determined ar e irrelevant. The Movants’ main brief in this Court devoted less than 2 pages to a factual sufficiency attack on the trial court’s $31.16 million award, and their reply and post

- submission briefs devoted little more attention to this
issue

— and even then, most came in a no

- evidence context. And, as already mentioned , nothing in any brief has addressed the other extrapolated valuations raised by the Supreme Court.4 For all of these reasons, Movants submit that their motion should be granted
because furthe r briefing is required in the interests of justice. Respectfully submitted,

BAKER BOTTS L.L.P. By: /s / Thomas R. Phillips Thomas R. Phillips tom.phillips@bakerbotts.com State Bar No. 00000102 Evan A. Young evan.young@bakerbotts.com State Bar No. 24058192 Benjamin A. Geslison ben.geslison@bakerbotts.com State Bar No. 24074269 98 San Jacinto Blvd. Ste 1500 Austin, Texas 78701 T: (512) 322

- 2565 F: (512) 322

- 8363

HOLMGREN JOHNSON MITCHELL MADDEN LLP
Mitchell Madden mmadden@hjmmlegal.com State Bar No. 12789350 Melissa Johnson State Bar No. 19142900 melissa@hjmmlegal.com 13800 Montfort Dr. Ste 160 Dallas, Texas 75240 T: (972) 484

- 7780 Attorneys for Appellees/Cross

- Appellants Gene E. Phillips, In dividually and d/b/a Phillips Oil Interests, L.L.C.5 HAWKINS PARNELL THACKSTON & YOUNG LLP
Robert B. Gilbreath rgilbreath@hptylaw.com State Bar No. 07904620 4514 Cole Ave. Ste 500 Dallas, Texas 75205
William V. Dorsaneo State Bar No. 06012000 3315 Daniel Avenue Dallas, Texas 75202 T: (214) 780

- 5114 Attorneys for Appellees/Cross

- Appellants Syntek West, Inc. and CabelTel International Corporation6 CERTIFICATE OF SERVICE I certify that a copy of this Reply was served electronically on all counsel of record listed below on December 30 , 2015: Fred Hagans Kendall C. Montgomery Paula Janecek Mathers HAGANS BURDINE MONTGOMERY & R USTAY , P.C. 3200 Travis, Fourth Floor Houston, Texas 77006 Email: FHagans@hagans

- law.com Roger D. Townsend Kevin Dubose ALEXANDER DUB OSE & TOWNSEND, LLP 1844 Harvard Street Houston, Texas 77008 Email: rtownsend@adtappell ate.com David M. Gunn BECK REDDEN & SECREST, L.L.P. 1221 McKinney St. Ste 4500 Houston, Texas 77010 Email: dgunn@beckredden.com
Vincent L. Marable III PAUL WEBB, P.C. 221 North Houston Street Wharton, Texas 77488 Email: trippmarable@sbcglobal.net
Warren W. Harris Jeffrey L. Oldham BRACEWELL & GIULIANI LLP 711 Louisiana Street Ste 2300 Houston, Texas 77002 Email: Warren.Harris@bgllp.com

/s/ Thomas R. Phillips Thomas R. Phillips