### 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

Come s now Enbridge Pipelines (East Texas) L.P., ( A Enbridge @ ), Appellant herein

( A Appellant @ ), 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

CLERKOpinion 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 sa me 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 A raised 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, A various 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. Th erefore, 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 th e 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 24. 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 abo ve

- 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 3CERTIFICATE OF CONFERENCE

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

counsel for Appelle e , 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 4CERTIFICATE 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 773 45

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