                                                                                            ACCEPTED
                                                                                        02-14-00405-CV
                                                                            SECOND COURT OF APPEALS
                                                                                  FORT WORTH, TEXAS
                                                                                  9/28/2015 12:39:10 PM
                                                                                         DEBRA SPISAK
                                                                                                 CLERK


                          No. 02-14-00405-CV
                                                                       FILED IN
                                                                2nd COURT OF APPEALS
            COURT OF APPEALS FOR THE SECOND                  DISTRICT
                                                                  FORT WORTH, TEXAS
                       FORT WORTH, TEXAS                        9/28/2015 12:39:10 PM
                                                                     DEBRA SPISAK
                                                                         Clerk
                                     MARK ROLLINS,

                                       Appellant,

                                           v.

                              HART SECURITY, LTD.,

                                        Appellee.

                    On Appeal from the 141st District Court
               Cause No. 141-274465-14 of Tarrant County, Texas,
                    the Honorable John P. Chupp, Presiding

                 UNOPPOSED MOTION FOR LEAVE TO FILE
                    POST-SUBMISSION LETTER BRIEF

TO THE HONORABLE SECOND COURT OF APPEALS:

       Appellant Mark Rollins (“Rollins”) files this motion requesting permission

to file the attached letter brief.

       This case was submitted on oral argument on September 1, 2015.

       The primary purpose of the attached letter brief is to address an issue raised

for the first time on appeal at oral argument regarding the time of the filing of the

English lawsuit in relation to Appellee’s Rule 202 petition seeking a “pre-suit”



UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF               PAGE 1
deposition, and what impact, if any, that procedural issue has on the Court’s

disposition of the case.

         This motion is made in the interest of justice and not for the purpose of

delay.

         For these reasons, Rollins prays this Court grant its motion for leave and file

its post-submission letter brief.

                                              Respectfully submitted,

                                        /s/ John H. Cayce, Jr.
William D. Wood                         John H. Cayce, Jr.
State Bar No. 21916500                  State Bar No. 04035650
william.wood@nortonrosefulbright.com john.cayce@kellyhart.com
Warren S. Huang                         Dee. J. Kelly, Jr.
State Bar No. 00796788                  State Bar No. 11217250
warren.huang@nortonrosefulbright.com dee.kelly.2@kellyhart.com
Justin Tschoepe                         Joe Greenhill
State Bar No. 24079480                  State Bar No. 24084523
justin.tschoepe@nortonrosefulbright.com joe.greenhill@kellyhart.com
FULBRIGHT & JAWORSKI LLP                KELLY HART & HALLMAN LLP
1301 McKinney, Suite 5100               201 Main Street, Suite 2500
Houston, Texas 77010-3095               Fort Worth, Texas 76102
Telephone: (713) 651-5151               Telephone: (817) 332-2500
Telecopier: (713) 651-5246              Telecopier: (817) 878-9280

                 COUNSEL FOR APPELLANT MARK ROLLINS


                         CERTIFICATE OF CONFERENCE

       On September 23, 2015, I spoke to Ryan Valdez, counsel for Appellee, and
he stated that Appellee does not oppose this motion.

                                            /s/ John H. Cayce, Jr.
                                            John H. Cayce, Jr.

UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF                  PAGE 2
                         CERTIFICATE OF SERVICE

      I hereby certify that on this 28th day of September, 2015, a true and correct
copy of the foregoing document has been delivered to the following counsel of
record by electronic service and/or e-mail:
      Jack W. Massey
      jack.massey@sutherland.com
      Robert A. Lemus
      robert.lemus@sutherland.com
      SUTHERLAND ASBILL & BRENNAN LLP
      1001 Fannin Street, Suite 3700
      Houston, Texas 77002
      Robert D. Owen
      robert.owen@sutherland.com
      SUTHERLAND ASBILL & BRENNAN LLP
      1114 Avenue of the Americas
      New York, New York 10036
      Ralph H. Duggins
      rduggins@canteyhanger.com
      Ryan Logan Valdez
      rvaldez@canteyhanger.com
      CANTEY HANGER LLP
      600 West 6th Street, Suite 300
      Fort Worth, Texas 76102
      Counsel for Appellee Hart Security Ltd.
                                       /s/ Joe Greenhill
                                       Joe Greenhill




UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF             PAGE 3
JOHN H. CAYCE, JR.                                                                                           TELEPHONE: (817) 878-3597
john.cayce@kellyhart.com                                                                                           FAX: (817) 878-9797

                                                   September 28, 2015

Via Electronic Filing
Debra Spisak, Clerk
SECOND COURT OF APPEALS
Tim Curry Criminal Justice Center
401 W. Belknap, 9th floor
Fort Worth, Texas 76196
         Re:       Cause No. 02-14-00405-CV; Mark Rollins v. Hart Security, Ltd.; in
                   the Second Court of Appeals, Fort Worth, Texas
Dear Justices Gardner, Meier, and Sudderth:

         This case was submitted on oral argument on Tuesday, September 1, 2015.

During argument, counsel for Hart presented the panel with a copy of a filed claim

form regarding the English lawsuit and suggested that counsel for Mr. Rollins had

misrepresented that the lawsuit was filed prior to Hart’s Rule 202 petition. To the

extent that the briefs submitted on Mr. Rollins’ behalf inadvertently allege that the

English lawsuit was filed prior to the Rule 202 petition, this allegation is

incorrect.1 Importantly, however, whether the English lawsuit was filed prior to or

after the Rule 202 petition is entirely irrelevant to the question of whether the trial

court abused its discretion in granting the petition to investigate a potential claim

that is governed by a mandatory forum selection clause fixing exclusive

1
   Hart’s counsel similarly alleged in the trial court: “[w]e know those [claims] are
pending in England.” [RR12].


     FORT WORTH OFFICE | 201 MAIN STREET, SUITE 2500 | FORT WORTH, TX 76102 | TELEPHONE: (817) 332-2500 | FAX: (817) 878-9280
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                                 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com
September 28, 2015
Page 2

jurisdiction over the claim in English courts.2 Under Trooper, the trial court had

no discretion as a matter of law to grant Hart’s 202 petition irrespective of when

the English lawsuit was filed, because the trial court would lack authority to

adjudicate the potential claim if suit is filed against Mr. Rollins on that claim. 3

Br.Appellant8-16; ReplyBr.2-18; see In re Doe a/k/a “Trooper,” 444 S.W.3d 603,

607-09 (Tex. 2014) (orig. proceeding); see also City of Willow Park v. Squaw

Creek Downs, L.P., 166 S.W.3d 336, 340 (Tex. App.—Fort Worth 2005, no pet.).

       Contrary to Hart’s assertion that Trooper is distinguishable, Trooper is on all

fours with this case in at least one critical respect: like the anonymous blogger in

Trooper, Mr. Rollins is a “potential defendant.” Br.Appellee1; [CR22]. As such,

Mr. Rollins was entitled to the same rights and protections in the 202 proceeding

as he would be in a lawsuit involving the potential claim—including the right to

challenge the trial court’s jurisdiction. Trooper, 444 S.W.3d at 608-10. The only

2
    The timing of the English lawsuit is also irrelevant to whether the trial court’s
benefit/burden finding is supported by the pleadings and the evidence. The insufficiency
of Hart’s pleadings and evidence is fatal to Hart’s petition and requires that the trial
court’s order be reversed and vacated, as matter of Texas law. Br.Appellant16-20;
ReplyBr.19-22. Hart’s burden is not satisfied by the mere fact that Mr. Rollins lives in
Tarrant County. If that were the case, the benefit/burden requirement would be
meaningless in every circumstance where a 202 petition is filed to investigate a potential
claim. See TEX. R. CIV. P. 202.2(b)(2) (petition to investigate potential claim must be
filed the county “where the witness resides”).
3
   As counsel for Mr. Rollins clarified at oral argument, because the mandatory forum
selection clause vests the courts of England with exclusive jurisdiction over the
underlying dispute, the trial court abused its discretion in exercising its jurisdiction over
the dispute for pre-suit discovery purposes. The trial court’s subject matter jurisdiction is
not at issue.

1965081_1            Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com
September 28, 2015
Page 3

difference between the jurisdictional challenge in Trooper and the jurisdictional

challenge here is that Mr. Rollins bases his challenge on a mandatory forum

selection clause,4 whereas the challenge by the potential defendant in Trooper was

based on personal jurisdiction. Despite this difference, the result is the same—the

trial court has no discretion to grant Rule 202 discovery to investigate the potential

claim against Mr. Rollins, because the courts of England would have exclusive

jurisdiction over any suit filed by Hart on the potential claim.

       Hart’s contention at oral argument that English law precludes Mr. Rollins

from challenging jurisdiction under the mandatory forum selection clause also has

no merit.5 None of Hart’s cryptic statements of English law are inconsistent with

the well-established legal doctrines discussed in Mr. Rollins’ reply brief that

permit non-signatory parties to invoke a forum selection clause under Texas law.

See ReplyBr.13-18. Instead, the English authorities on which Hart relies appear to

involve situations where the non-signatory is suing to enforce the contract; those

authorities do not address the situation where, as here, the non-signatory

(Mr. Rollins) has invoked a forum selection as a defense to avoid litigation in a

4
  As a potential defendant and non-signatory to the agreement containing the mandatory
forum selection clause, Mr. Rollins has the legal right to invoke the mandatory forum
selection clause under the direct benefits estoppel doctrine and the transaction participant
rule. ReplyBr.13-18.
5
  Moreover, the argument is waived because Hart has failed to supply the Court with the
full text of the English authorities on which it relies. In re S.N.A., No. 2-07-349-CV,
2008 WL 4938108, at *1-2 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.).

1965081_1            Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com
September 28, 2015
Page 4

forum which the plaintiff contractually agreed not litigate the claim in question.

Texas law clearly gives Mr. Rollins the right to do this.

       Thank you for your thoughtful consideration of this letter brief.

                                                        Respectfully submitted,

                                        /s/ John H. Cayce, Jr.
William D. Wood                         John H. Cayce, Jr.
State Bar No. 21916500                  State Bar No. 04035650
william.wood@nortonrosefulbright.com john.cayce@kellyhart.com
Warren S. Huang                         Dee. J. Kelly, Jr.
State Bar No. 00796788                  State Bar No. 11217250
warren.huang@nortonrosefulbright.com dee.kelly.2@kellyhart.com
Justin Tschoepe                         Joe Greenhill
State Bar No. 24079480                  State Bar No. 24084523
justin.tschoepe@nortonrosefulbright.com joe.greenhill@kellyhart.com
FULBRIGHT & JAWORSKI LLP                KELLY HART & HALLMAN LLP
1301 McKinney, Suite 5100               201 Main Street, Suite 2500
Houston, Texas 77010-3095               Fort Worth, Texas 76102
Telephone: (713) 651-5151               Telephone: (817) 332-2500
Telecopier: (713) 651-5246              Telecopier: (817) 878-9280

               COUNSEL FOR APPELLANT MARK ROLLINS




1965081_1           Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com
September 28, 2015
Page 5

                           CERTIFICATE OF SERVICE

      I hereby certify that on this 28th day of September, 2015, a true and correct
copy of the foregoing document has been delivered to the following counsel of
record by electronic service and/or e-mail:
       Jack W. Massey
       jack.massey@sutherland.com
       Robert A. Lemus
       robert.lemus@sutherland.com
       SUTHERLAND ASBILL & BRENNAN LLP
       1001 Fannin Street, Suite 3700
       Houston, Texas 77002
       Robert D. Owen
       robert.owen@sutherland.com
       SUTHERLAND ASBILL & BRENNAN LLP
       1114 Avenue of the Americas
       New York, New York 10036
       Ralph H. Duggins
       rduggins@canteyhanger.com
       Ryan Logan Valdez
       rvaldez@canteyhanger.com
       CANTEY HANGER LLP
       600 West 6th Street, Suite 300
       Fort Worth, Texas 76102
       Counsel for Appellee Hart Security Ltd.
                                               /s/ John H. Cayce, Jr.
                                               John H. Cayce, Jr.




1965081_1          Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com
