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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 takenothing 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/30/2015 2:10:26 PM CHRISTOPHER A. PRINE Clerk
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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 remand,” 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 Phillips 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, is 
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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 $60,000 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 far 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 could consider these important issues first. 

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 more 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 are 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. 
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For all of these reasons, Movants submit that their motion should be granted 

because further 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, Individually and

d/b/a Phillips Oil Interests, L.L.C.
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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 

Corporation
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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 &

RUSTAY, 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@adtappellate.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