12-11-00303-CV 

 

IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

 

ENBRIDGE PIPELINES (EAST TEXAS) L.P.

Appellant

Vs.

GILBERT WHEELER, INC. 

Appellee

 

 

Remanded to the Twelfth Court of Appeals by the Supreme Court of Texas 

 

APPELLANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL 

BRIEF 

 

Comes now Enbridge Pipelines (East Texas) L.P., (AEnbridge@), Appellant herein 

(AAppellant@), and files this, its Appellant=s Motion for Leave to File Supplemental Brief. In 

support thereof, Appellant would respectfully show unto the Court as follows: 

1. On February 13, 2013, this Court made and delivered its Opinion on Rehearing 

in this case. The case was then appealed by Appellee, Gilbert Wheeler, Inc., to the Supreme 

Court of Texas. On August 29, 2014, the Supreme Court of Texas made and delivered its 

Appellant=s Motion for Leave to File Supplemental Brief Page 1

ACCEPTED

12-11-00303-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

2/9/2015 3:04:01 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 2/9/2015 3:04:01 PM CATHY S. LUSK Clerk
Opinion in this case. The Judgment of the Supreme Court of Texas was also delivered on 

August 29, 2014. Appellant filed a Motion for Rehearing in the Supreme Court of Texas on 

October 6, 2014, but same was denied on December 19, 2014. On that date, the Supreme 

Court of Texas also issued its Mandate reversing the prior judgment of this Court and remanding 

the cause to this Court for further proceedings consistent with the Opinion of the Supreme Court 

of Texas. 

2. As the Supreme Court of Texas noted in its Opinion, Appellant Araised several 

issues in the court of appeals that were not reached@ because of this Court=s disposition of the 

case. Such issues include, but are not limited to, Avarious challenges to the trial court=s 

admission of Wheeler=s experts= testimony, exclusion of Enbridge=s experts= testimony, and 

failure to submit a jury question on one of Enbridge=s breach-of-contract defenses.@ See 

Opinion of Supreme Court, at page 19.

3. Therefore, in view of the above and foregoing, Appellant respectfully submits 

and files this Appellant=s Motion for Leave to File Supplemental Brief with this Court, in order 

to request permission from this Court to provide a supplemental brief addressing the changes in 

the applicable law made by the Supreme Court, and effect of its decision upon the remaining 

issues to be resolved by this Court. 

Appellant=s Motion for Leave to File Supplemental Brief Page 2
4. This motion for leave is not sought for the purpose of delay, but to allow 

Appellant an opportunity to fully and completely address the issues not reached or ruled on by 

the Supreme Court of Texas and/or by this Court, in light of the above-referenced Opinion of 

the Supreme Court of Texas in this matter. 

Prayer

Therefore, Appellant respectfully requests that the Court consider and grant this 

Appellant=s Motion for Leave to File Supplemental Brief and order an appropriate deadline for 

said brief to be submitted and filed.

Respectfully submitted,

FLOWERS DAVIS, P.L.L.C.

1021 ESE South Loop 323

Suite 200

Tyler, Texas 75701

(903) 534-8063

(903) 534-1650 Facsimile

/s/ Julie P. Wright 

JULIE P. WRIGHT

State Bar No. 00794883 

THOMAS H. BUCHANAN

State Bar No. 03290500

J. MITCHELL BEARD

State Bar No. 01973600

ATTORNEYS FOR APPELLANT 

Appellant=s Motion for Leave to File Supplemental Brief Page 3
CERTIFICATE OF CONFERENCE 

 

On February 2nd and 3rd 2015, Appellant=s attorney communicated with Darrin Walker, 

counsel for Appellee, Gilbert Wheeler, Inc., by telephone and email to discuss Appellant=s 

Motion for Leave to File Supplemental Brief. Said counsel informed the undersigned that 

Appellee, Gilbert Wheeler, Inc., opposed this motion. 

 

/s/ Julie P. Wright 

Julie P. Wright

Appellant=s Motion for Leave to File Supplemental Brief Page 4
CERTIFICATE OF SERVICE 

 

I hereby certify that the below-listed counsel of record was served with the foregoing 

document via electronic mailing and certified mail, return-receipt requested, on February 9, 

2015.

Mr. Don Wheeler

Wheeler Law Office

101 Tenaha Street

Center, Texas 75935

Email: velawson@sbcglobal.net

Attorney for Plaintiff, Gilbert Wheeler, Inc.

J. Mark Mann

The Mann Firm 

300 West Main Street 

Henderson, Texas 75652

Email: mark@themannfirm.com

Attorney for Plaintiff, Gilbert Wheeler, Inc.

Darrin Walker

Law Office of Darrin Walker

6134 Riverchase Glen Dr.

Kingwood, Texas 77345

Email: darrinwalker@embarqmail.com

Attorney for Plaintiff, Gilbert Wheeler, Inc.

/s/ Julie P. Wright 

Julie P. Wright

Appellant=s Motion for Leave to File Supplemental Brief Page 5