                                                                              ACCEPTED
                                                                          14-15-00238-CV
                                                          FOURTEENTH COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    11/24/2015 9:02:11 AM
                                                                    CHRISTOPHER PRINE
                    No. 14-15-00238-CV                                             CLERK

                    No. 14-15-00369-CV

           IN THE FOURTEENTH COURT OF APPEALS     FILED IN
                                            14th COURT OF APPEALS
                     HOUSTON, TEXAS            HOUSTON, TEXAS
                                                  11/24/2015 9:02:11 AM
                                                  CHRISTOPHER A. PRINE
            FLEMING & ASSOCIATES, L.L.P.    N/K/A          Clerk

             FLEMING, NOLEN & JEZ, L.L.P. AND
                   GEORGE FLEMING,
                Appellants/Cross-Appellees,
                             v.
  CHARLES KIRKLIN, STEPHEN KIRKLIN, PAUL KIRKLIN AND
             THE KIRKLIN LAW FIRM, P.C.,
                             Appellees

On Appeal from the 234th District Court, Harris County, Texas
             Trial Court Cause No. 2014-53135
               Hon. Wesley Ward, Presiding


                     SUPPLEMENT TO
              APPELLANTS’/CROSS-APPELLEES’
                 MOTION FOR REHEARING


                             FLEMING, NOLEN & J EZ, L.L.P.
                             George M. Fleming
                             State Bar No. 07123000
                             Sylvia Davidow
                             State Bar No. 05430551
                             J. Kenneth Johnson
                             State Bar No. 10746300
                             2800 Post Oak Blvd., Suite 4000
                             Houston, TX 77056
                             Tel. (713) 621-7944
                             Fax (713) 621-9638

                             Counsel for Appellants/Cross-Appellees
                                          TABLE OF CONTENTS


TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION: REASONS FOR THE SUPPLEMENT .................................... 1

FACTS .......................................................................................................................2

ARGUMENT ............................................................................................................. 3

CONCLUSION .......................................................................................................... 6

CERTIFICATE OF SERVICE .................................................................................. 8




                                                              i
                                       TABLE OF AUTHORITIES

CASES

Approximately $58,641.00 and One 2005 Acura TL v. State,
     331 S.W.3d 579 (Tex. App.—Houston [14th Court] 2011, no
     pet.) ..................................................................................................................4

Sweed v. Nye,
     323 S.W.3d 873 (Tex. 2010) (per curiam) ...................................................... 4


RULES

TEX. R. CIV. P. 329b ...............................................................................................2, 4

TEX. R. APP. P. 18 ...................................................................................................... 5

TEX. R. APP. P. 19.1 ................................................................................................... 5

Tex. R. App. P. 49 ...................................................................................................... 5




                                                               ii
TO THE HONORABLE COURT OF APPEALS:

      Appellants/Cross-Appellees Fleming & Associates, L.L.P., n/k/a Fleming,

Nolen & Jez, L.L.P. (“F&A”), and George Fleming (collectively, “the Fleming

Appellants”) supplement their motions for rehearing filed on November 13, 2015

in Appeal Nos. 14-15-00238-CV and 14-15-00369-CV. See TEX. R. APP. P. 49.1.

          INTRODUCTION: REASONS FOR THE SUPPLEMENT

      The Fleming Appellants file their supplement to make this Court aware of

the following facts:       the Kirklin Appellees blatantly ignored the Court’s

jurisdiction, and improperly filed and scheduled a hearing on a motion for

rehearing in the 234th District Court (No. 2014-53135).      This Court does not

know that on November 12, 2015, the Kirklin Appellees had moved for rehearing

at the trial court of its denial of their requested trial attorneys’ fees and set a

hearing for Monday, November 23, 2015. Their motion was filed despite both

sides’ full briefing on the issue at this Court.

      At their unilaterally-set hearing, the Kirklin Appellees made false legal

representations to the trial court. First, they argued that this Court no longer

retains jurisdiction over either of the above appeals because the Court ordered the

appeals dismissed as interlocutory. In so doing the Kirklin Appellees consciously

disregarded the two pending motions for rehearing that the Fleming Appellants

filed, as well as the Court’s request for their response. Second, they based their



                                             1
position on TEX. R. CIV. P. 329b, a rule they do not understand, and that is

immaterial to the jurisdiction issue.

                                        FACTS

      To inform this Court of the Kirklin Appellees’ ill-advised conduct, the

Fleming Appellants begin with the following chronology:

   • 10.29.15        This Court’s dismissal of Appeal Nos. 14-15-00238-CV and
                     14-15-00369-CV as interlocutory.

   • 11.12.15        Jackson Defendants’ R. 162 notice of dismissal of their claims
                     in No. 2014- 53135, including sanctions and attorneys’ fees;
                     filed and served 11.12.15.

   • 11.12.15        Kirklin Appellees’ trial court motion for rehearing of the
                     denial of attorneys’ fees; filed and served on 11.12.15. A copy
                     of their motion for rehearing is attached as Ex. 1.

   • 11.13.15        Fleming Appellants’ motion for rehearing, including the R.
                     162 notice of dismissal; filed and served 11.13.15.

   • 11.17.15        This Court’s request for a response from the Kirklin Appellees
                     to the motion for rehearing in both appeals; due 11.30.15.

   • 11.18.15        Fleming Appellants’ opposition to the Kirklin Appellees’
                     motion. A copy of the opposition to rehearing (excluding
                     exhibits) is attached as Ex. 2.

   • 11.23.15        Oral hearing at the trial court on the Kirklin Appellees’ motion
     (9:30 a.m.)     for rehearing on the denial of their trial attorneys’ fees; second
                     evidentiary hearing on motion set for 12.07.15.

   • 11.23.15    Kirklin Appellees’ unilateral expansion of 12.07.15 hearing;
     (1:23 p.m.) summary judgment attorneys’ fees and sanctions, both passed
                 earlier. A copy of the notice of hearing is attached as Ex. 3.


                                           2
                                    ARGUMENT

       The Kirklin Appellees erroneously misled the trial court—most likely

deliberately, or perhaps due to their own lack of knowledge of the rules. They

maintained to the lower court that this Court lacked jurisdiction after it dismissed

the two appeals as interlocutory. Further, they refused to take into consideration

the pending motions for rehearing and the Court’s request for their responses by

November 30, 2015. And to compound their error, the Kirklin Appellees insisted

to the trial court that it has plenary power to rehear their motion opposing the

denial of attorneys’ fees. 1

       Judge Ward noted at the hearing that he was “troubled” by the pendency of

the rehearing motions at this Court. 2 Nonetheless, he set a hearing (evidentiary,

apparently) for Monday December 7, 2015 (one week after the response deadline

at this Court); stated he would do some research; and asked for the parties’

briefing. But any hearing held by the trial court would be improper, since it has no

jurisdiction to hear the Kirklin Appellees’ motion.




1
  In fact, the contents of the motion for rehearing (Ex. 1) improperly uses argument
and evidence in response to the Fleming Appellants’ appellate briefing on
attorneys’ fees.
2
  Unfortunately, no transcript was made.


                                          3
      In short, the Kirklin Appellees have jurisdiction backwards. The trial court’s

lack of jurisdiction and this Court’s plenary power are clear, and both are

supported legally and by the record.

      First, on March 30, 2015, the trial court signed an order denying the trial

court fees and sanctions that the Kirklin Appellees had requested last year.

Therefore, some eight months ago, the Kirklin Appellees had 30 days from the

date of judgment to file some type of motion to have the ruling changed (e.g., a

motion for new trial or to modify the judgment). See TEX. R. CIV. P. 329b. The

filing of that type of motion in March or April 2015 would have extended the trial

court’s plenary power over the judgment of fee/sanctions denial for 30 days, even

if they had filed a notice of appeal. Id. at 329b(d).

      But not only did the Kirklin Appellees file no such motion, their legal error

cannot be corrected. That is because on the very next day, March 31, 2015, they

filed a notice of cross-appeal. By perfecting their cross-appeal, they properly

invoked this Court’s jurisdiction. See Sweed v. Nye, 323 S.W.3d 873, 875 (Tex.

2010) (per curiam); Approximately $58,641.00 and One 2005 Acura TL v. State,

331 S.W.3d 579, 582 (Tex. App.—Houston [14th Court] 2011, no pet.). Hence, the

case is not pending at the 234th District Court, despite the Kirklin Appellees’

misguided argument.




                                           4
      Moreover, the Kirklin Appellees’ position is additionally erroneous, because

this Court retains plenary power at this juncture. They either decided to mislead

the trial court as to the law on the subject, or do not know the law.

      The Fleming Appellants filed timely motions for rehearing under TEX. R.

APP. P. 49. Responses were requested, but appellate rulings have yet to issue.

Therefore, appellate plenary power over the October 29, 2015 judgments of

dismissal will not expire until “30 days after the court overrules all timely filed

motions for rehearing or en banc reconsideration, and all timely filed motions to

extend time to file such a motion.” TEX. R. APP. P. 19.1. Nor, obviously, has the

time begun to run on the issuance of a mandate. Id. at R. 18.

      As a final note, the Kirklin Appellees continue to flout the rules.   A few

hours after the November 23        hearing, they went even farther by improperly

moving for rehearing on the following: “The Rule 13 Motion for Sanctions and

Attorneys’ Fees contained in Defendants’ Motion for Summary judgment which

was filed on December 16, 2014.”

      First, for the same reasons provided above they are not legally permitted to

do so. And second, as the Fleming Appellants pointed out in their motion for

rehearing at 5-6 and Tabs 2 and 3, the Kirklin Appellees moved for summary

judgment and sanctions. But even if they had requested attorneys’ fees and costs




                                           5
and expenses in one line of their motion (3 CR 752) the record proves they waived

both fees and sanctions under their summary judgment motion.

                                  CONCLUSION

      For reasons argued earlier, the Court should grant the Fleming Appellants’

motions for rehearing and reinstate Nos. 14-15-00238-CV and 14-15-00369-CV as

appeals from final judgments.

      Additionally, the Court should take into consideration the Kirklin Appellees’

disregard for this Court’s continuing jurisdiction/plenary power; and its attempt to

mislead the trial court by insisting it has plenary power. The Fleming Appellants

leave to the Court’s discretion any actions it may wish to take, but will apprise the

trial court of the Kirklin Appellees’ actions.




                                           6
Respectfully submitted,

FLEMING, NOLEN & JEZ, L.L.P.


By: /s/Sylvia Davidow
     J. Kenneth Johnson
     State Bar No. 10746300
     ken_johnson@fleming-law.com
     Sylvia Davidow
     State Bar No. 05430551
     sylvia_davidow@fleming-law.com
     George M. Fleming
     State Bar No. 07123000
     george_fleming@fleming-law.com
2800 Post Oak Blvd., Suite 4000
Houston, TX 77056
Tel. (713) 621-7944
Fax (713) 621-9638

COUNSEL FOR APPELLANTS/
CROSS APPELLEES
FLEMING & ASSOCIATES, L.L.P., AND
GEORGE FLEMING
(N/K/A FLEMING, NOLEN & JEZ, L.L.P.)
AND GEORGE FLEMING




7
                          CERTIFICATE OF SERVICE

       I hereby certify that on November 23, 2015, a true and correct copy of the
above and foregoing Supplement to Motion for Rehearing of Appellants/Cross-
Appellees was forwarded to all counsel by the Electronic Service Provider, if
registered, otherwise by email, as follows:

Paul Kirklin
pkirklin@kirklinlaw.com
Charles B. Kirklin
ckirklin@kirklinlaw.com
THE KIRKLIN LAW FIRM, PC
12600 N. Featherwood Drive, Suite 225
Houston, TX 77034
Tel: (713) 571-8300
Fax: (281) 922-6240

COUNSEL FOR APPELLEES CHARLES KIRKLIN, PAUL KIRKLIN,
AND THE KIRKLIN LAW FIRM, P.C.

Stephen R. Kirklin
12600 N. Featherwood Drive, Suite 225
Houston, TX 77034
Tel: (713) 571-8300
Fax: (281) 922-6240

APPELLEE STEPHEN R. KIRKLIN, PRO SE



                                        /s/Sylvia Davidow
                                        Sylvia Davidow




                                        8
                            CAUSE NO. 2014-53135

FLEMING & ASSOCIATES, L.L.P. (n/k/a §              IN DISTRICT COURT OF
FLEMING, NOLEN & JEZ, L.L.P.)       §
AND GEORGE FLEMING,                 §
                                    §
     Plaintiffs,                    §
                                    §
VS.                                 §
                                    §                  HARRIS COUNTY, TX
CHARLES KIRKLIN, STEPHEN            §
KIRKLIN, PAUL KIRKLIN, THE          §
KIRKLIN LAW FIRM, P.C, DON          §
JACKSON, JEFFREY                    §
W. CHAMBERS, AND WARE,              §
JACKSON, LEE & CHAMBERS, L.L.P., §
                                    §
     Defendants.                    §           234TH JUDICIAL DISTRICT




MOTION FOR REHEARING ON DENIAL OF TRIAL ATTORNEYS' FEES
             FOR THE KIRKLIN LAW FIRM, P.C.

                             A.    BACKGROUND

This case has been on an ill-fated appeal by George Fleming ("Fleming") which

has been dismissed for want of jurisdiction by the Court of Appeals. The reason it

was sent back from the Court of Appeals is that George Fleming despite being told

to do so by the Court of Appeals, failed and refused to seek an order from this

Court declaring that the Order granting summary judgment dated April 6, 2015

was intended to be a final appealable order. In its July 21, 2015 Abatement Order,

the Court of Appeals stated "It is the responsibility of any party seeking

reinstatement (of the appeal) to request a hearing date from the trial court and to

                                         1
schedule a hearing..." Since Fleming refused to request a hearing, the Court of

Appeals had no choice but to dismiss for want of jurisdiction. This conduct by

Fleming is further evidence that Fleming is proceeding in bad faith in this litigation

and had no real intention of prosecuting his appeal. This caused the Kirklin

Defendants to incur the considerable expense of fully briefing the issues only to

have to now start all over again if Fleming files yet another bogus appeal. This

comes on the heals of Fleming's dismissal of his appeal of this Court's ruling

dismissing the Ware Jackson Defendants within days of filing that appeal. This

type of dilatory tactics by Fleming should be sanctioned by the courts.

      The appellate briefing revealed that the primary objection that Fleming was

raising as to the trial attorneys' fees was that the Charles Kirklin, Paul Kirklin,

Stephen Kirklin and The Kirklin Law Firm, P.C. ("Kirklin Defendants") were

appearing pro se and therefore had not "incurred" any attorneys' fees. Also, this

Court made a reference to a case (Beckstrom v. Gilmore, 886 S.W.2d 845

(Tex.App.--Eastland, pet. denied) that raised the same issue at the previous hearing

in this Court on attorneys' fees as required by TCPA. This Motion for rehearing

relies on the previous evidence offered by the Defendants and new additional

evidence proving that The Kirklin Law Firm, P.C. is not appearing pro se and has

incurred the attorneys' fees being sought.

        B.     Attorneys' Fees Incurred by The Kirklin Law Firm, P.C.


                                             2
       George Fleming contends that defendants The Kirklin Law Firm, P.C.,

Charles Kirklin, Stephen Kirklin, and Paul Kirklin defended themselves pro se, and

that because they defended themselves pro se, they didn't "incur" any attorneys'

fees as is required by the TCPA. This argument is correct in the case of defendants

Charles Kirklin, Stephen Kirklin, and Paul Kirklin, but it's incorrect in the case of

defendant The Kirklin Law Firm, P.C.

       In Texas, a corporation cannot defend itself pro se.1 It must be represented

by a licensed attorney,2 and a corporation cannot be a licensed attorney. In this

case, The Kirklin Law Firm, P.C. (a corporation) was represented by Charles

Kirklin, Paul Kirklin and Stephen Kirklin (a sole practitioner), (all licensed

attorneys), The Kirklin Law Firm, P.C. entered into a written Attorneys' Fees

Contract with Charles, Paul and Stephen Kirklin which is attached hereto as

Exhibit A to this Motion and incorporated herein the same as if set out fully. This

Attorneys' Fees Contract legally obligated The Kirklin Law Firm, P.C. to pay each

of the attorneys for representing it in this case on an hourly basis. Each of the

attorneys performed legal services for the Kirklin Law Firm, P.C. in prosecuting its


1
  Dell Dev. Corp. v. Best Indus. Unif. Supply Co., Inc., 743 S.W.2d 302, 303 (Tex.App.-Houston
[14th Dist.] 1987, writ denied); In re Cash Media Systems, Inc., 326 B.R. 655 (Bankr. S.D. Tex.
2005) (applying Texas law); Globe Leasing, Inc. v. Engine Supply and Mach. Service, 437
S.W.2d 43 (Tex. Civ. App. Houston 1st Dist. 1969).
2
  Nelson v. Britt, 241 S.W.3d 672 (Tex. App. Dallas 2007); Kennedy v. Kennedy, 222 S.W.3d 97
(Tex. App. Austin 2006); Nevada Gold & Silver, Inc. v. Andrews Independent School Dist., 225
S.W.3d 68, 221 Ed. Law Rep. 924 (Tex. App. El Paso 2005); KSNG Architects, Inc. v. Beasley,
109 S.W.3d 894 (Tex. App. Dallas 2003).
                                               3
Motion to Dismiss George Fleming's claims against it pursuant to TCPA. Further,

each attorney submitted invoices to The Kirklin Law Firm, P.C. which are attached

hereto as Exhibit B to this Motion and incorporated herein the same as if fully set

out. Also, The Kirklin Law Firm, P.C. paid the invoices as evidenced by the

checks which are attached hereto as Exhibit C and incorporated herein the same as

if fully set forth.

       At the previous hearing on March 30, 2015 The Kirklin Law Firm, P.C.

offered additional undisputed evidence that The Kirklin Law Firm, P.C. incurred

attorneys' fees to them:

       The reasonable, usual and customary value of the reasonable and
       necessary legal services of Charles Kirklin, Stephen R. Kirklin and
       Paul Kirklin incurred by the Kirklin Defendants in defending the
       Kirklin Defendants [defined to include The Kirklin Law Firm, P.C. @
       7 RR 2584] against this legal action brought by George Fleming is
       $53,950.00 through March 30, 2015....3

       The Kirklin Defendants then itemized these incurred attorneys' fees,

beginning with the following statement:

       The following represents reasonable and necessary attorneys' fees
       incurred by the Kirklin Defendants in defending against the legal
       action....4




3
  1 RR 92 (March 30, 2015 Hearing) (emphasis added). The Reporter's Record is attached as
Exhibit D to this Motion and incorporated herein as if fully set out.
4
  1 RR 92 - 96 (March 30, 2015 Hearing) (emphasis added)
                                              4
        After itemizing the hourly charges, Charles Kirklin confirmed that The

Kirklin Law Firm, P.C. agreed to pay their attorneys' an hourly fee: "...the fee is a

fixed hourly fee as shown above."5

        Charles Kirklin testified in detail that The Kirklin Law Firm, P.C. was billed

for the charges listed in the itemization.6 He concluded by testifying that "...we

billed what time we took on each of these projects, yes."7

        Texas courts have held that the foregoing evidence is more than sufficient to

prove that attorneys' fees were incurred by a party. For example, in the American

Heritage Capital case, a litigant offered the following affidavit evidence from the

representing attorney:

        My services and the services of [his firm] were and are necessary and
        the expenses incurred are reasonable in that Plaintiff ... filed suit
        against Defendants and it was reasonable and necessary for
        Defendants to retain legal counsel to represent and defend them in this
        action, as well as to assert their statutory rights under the Texas Anti-
        SLAPP statute....8

The court held that the following was evidence that the litigants incurred attorneys'

fees:

        To this evidence we may add [the attorney's] subsequent description
        of the legal work he and others actually performed on the case and the

5
  1 RR @ 93 (March 30, 2015 Hearing)
6
  See, for example, 1 RR 107 (March 30, 2015 Hearing); 1 RR 36 (March 30, 2015 Hearing) @
14 – 17; 1 RR 39 (March 30, 2015 Hearing ) @ 12 – 14; 1 RR 41 – 42 (March 30, 2015
Hearing); 1 RR 44 (March 30, 2015 Hearing) @ 16 – 18; 1 RR 44 – 45 (March 30, 2015
Hearing); 1 RR 45 (March 30, 2015 Hearing)
7
  1 RR 58 (March 30, 2015 Hearing)
8
  Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 878 (Tex. App.—Dallas 2014, no pet.)
                                             5
       existence of the invoices directed to [the litigants]. The evidence,
       viewed as a whole, gives rise to a reasonable inference that [the
       litigants] did in fact "retain," i.e., make an agreement to pay, [the
       attorney and his firm] for their legal services.

       We also agree...that the evidence adequately supports the proposition
       that [the litigant] also incurred liability for and paid for the legal
       services of [the attorney and his firm]. In his affidavit, [the attorney]
       explains what services were performed by members of his law firm,
       how much time was spent on those services, and what the relevant
       hourly rates were. Coupled with his previous testimony indicating that
       [the litigants] retained [the attorney and his firm] to furnish those
       services, [the attorney's] testimony is some evidence that [the litigant]
       actually incurred—became liable to pay—fees for those services.9

       Like the litigants in American Heritage Capital, after offering evidence that

it incurred attorneys' fees to its attorneys, The Kirklin Law Firm, P.C. offered

evidence that explained what services were performed by its attorneys,10 how much

time was spent on those services,11 and what the relevant hourly rates were.12 This

constituted evidence that The Kirklin Law Firm, P.C. incurred attorneys' fees and

in what amounts.

       Fleming cross-examined Charles Kirklin about the number of hours that

were performed in carrying out various tasks for which The Kirklin Law Firm,

P.C. was billed, but he failed to cross-examine Charles Kirklin on The Kirklin Law

Firm, P.C.'s evidence of the basic fact that it incurred attorneys' fees, at least in


9
  Id.
10
   1 RR 94 – 96 (March 30, 2015 Hearing)
11
   Id.
12
   Id.
                                           6
some amount. He also failed to offer any evidence that would prove otherwise.

Thus, the evidence that The Kirklin Law Firm, P.C. incurred attorneys' fees stands

unchallenged.

         Even if The Kirklin Law Firm, P.C. had not submitted the foregoing

evidence, the Texas Supreme Court has held that trial courts can infer that

attorneys' fees were incurred from circumstantial evidence:

         The record reflects...that services were performed on the doctor's
         behalf. The attorney filed an answer, a plea in abatement, a motion to
         dismiss, and a notice of appeal. The attorney also appeared, argued,
         and gave testimony regarding the motion to dismiss. While there is no
         evidence about what Dr. Garcia (or perhaps his insurance carrier)
         agreed to pay for these services, it blinks reality to assume that the
         attorney was a volunteer or that Dr. Garcia did not incur attorney's
         fees for this work.... Because there is some evidence in this case that
         attorney's fees were both incurred and reasonable, the trial court
         should have awarded attorney's fees to Dr. Garcia.13

         In this case, there is direct evidence that The Kirklin Law Firm, P.C.

incurred and paid attorneys' fees as explained above, but there is also plenty of

circumstantial evidence from which attorneys' fees can be inferred as well. Just as

in the Garcia case, The Kirklin Law Firm, P.C.'s attorneys filed an answer, a

motion to dismiss, and took other actions on behalf of their client. According to the

Garcia case, this circumstantial evidence alone is evidence that The Kirklin Law

Firm, P.C. incurred attorneys' fees.

C.       THE ATTORNEYS' FEES ARE REASONABLE AND MANDATORY

13
     Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010)
                                               7
The $53,950 in attorneys' fees sought by The Kirklin Law Firm, P.C. is a

reasonable amount. Charles Kirklin testified in support of these attorneys' fees in

detail, and the trial court held that "$53,950 appears to me to be a reasonable and

necessary fee."14 Nevertheless, this Court awarded The Kirklin Law Firm, P.C.

zero in attorneys' fees at the trial level.

         This was an abuse of discretion because Texas courts have held that when a

case is dismissed under the TCPA, if any attorneys' fees were incurred (as has been

proven in this case), the trial court must award attorneys' fees to the prevailing

party in an amount above zero:

         Certain of our sister courts have reached the conclusion that an award
         of court costs, attorney's fees, and other expenses incurred in
         defending against the action is mandatory under section 27.009(a)(1)
         of the TCPA. See Schimmel v. McGregor, 438 S.W.3d 847, 863
         (Tex.App.—Houston [1st Dist.] 2014, pet. denied) (because movant
         established his entitlement to dismissal under the TCPA, he was
         entitled to “court costs, reasonable attorney's fees, and other expenses
         incurred in defending against the legal action as justice and equity
         may require” under section 27.009(a)(1)); Sierra Club v. Andrews
         Cnty., 418 S.W.3d 711, 720 (Tex.App.—El Paso 2013) (award of
         attorney's fees is mandatory under section 27.009(a)(1) of the TCPA if
         motion for dismissal granted), rev'd on other grounds, No. 14–0214, –
         –– S.W.3d ––––, 2015 WL 2148029 (Tex. May 8, 2015); Fitzmaurice
         v. Jones, 417 S.W.3d 627, 634 (Tex.App.—Houston [14th Dist.]
         2013, no pet.) (trial court erred by not awarding appellants reasonable
         attorney's fees as requested by appellants and “required by section
         27.009(a)”), disapproved on other grounds by In re Lipsky, No. 13–
         0928, –––S.W.3d ––––, ––––, 2015 WL 1870073, at *4 (Tex. Apr. 24,
         2015) (orig. proceeding); see also Sullivan v. Abraham, No. 07–13–
         00296–CV, –––S.W.3d ––––, ––––, 2014 WL 5140289, at *1

14
     1 RR 88 (March 30, 2015 Hearing)
                                              8
      (Tex.App.—Amarillo Oct. 13, 2014, pet. filed) (section 27.009(a)(1)
      specifies trial court “shall award” fees and expenses to moving party
      if suit is dismissed; those two words “connote a lack of discretion”);
      Rauhauser v. McGibney, No. 02–14–00215–CV, –––S.W.3d ––––, ––
      ––,2014 WL 6996819, at *8 (Tex.App.—Fort Worth Dec. 11, 2014,
      no pet.) (award of court costs, attorney's fees, and expenses mandatory
      under section 27.009(a) of the TCPA)....15


      The plain language of section 27.009(a)(1) mandates that appellants,
      as successful movants for dismissal, are entitled to an award of
      reasonable attorney's fees and other expenses incurred in defending
      against the action that is supported by the evidence. See Cruz, 452
      S.W.3d at 522. While the statute affords the trial court discretion
      to adjust downward reasonable attorney's fees and other expenses
      incurred in defending against the action as justice and equity may
      require, the statute does not afford discretion to award no
      attorney's fees and other expenses when the amount of reasonable
      fees and other expenses incurred in defending against the action
      are supported by record evidence. See Tex. Civ. Prac. & Rem.Code
      Ann. § 27.009(a)(1). On this record, we conclude the trial court
      abused its discretion by awarding no attorney's fees and other
      expenses incurred in defending against the action to appellants.16

      This Court stated that $53,950 in attorneys' fees was a reasonable and

necessary fee. It had the discretion to award that amount, or something less than

that, but it was an abuse of discretion to award no attorneys' fees.

     D.    Segregation of attorneys' fees as between the Kirklin Defendants

      It was unnecessary to segregate the attorneys' fees as between each of the

Kirklin Defendants because all attorneys' fees at issue were for legal services

performed on behalf of all the Kirklin Defendants, including The Kirklin Law
15
   Avila v. Larrea, 05-14-00631-CV, 2015 WL 3866778, at *3 (Tex. App.—Dallas June 23,
2015, pet. filed)
16
   Avila @ 5 (emphasis added)
                                            9
Firm, P.C. Thus, The Kirklin Law Firm, P.C.'s claims for attorneys' fees were

"inextricably intertwined" as between each of the Kirklin Defendants. As stated by

the 14th Court of Appeals:

       ...if a party proves that the claims arise out of the same transaction and
       are so interrelated that their prosecution or defense entails proof or
       denial of essentially the same facts, then the fees are deemed to be
       "intertwined to the point of being inseparable," and the party seeking
       attorney's fees may recover the entire amount of fees covering all
       claims.17

       At the trial level, all the legal issues and proof of facts applied to all the

Kirklin Defendants equally (same transaction), and they offered evidence that

every single one of the itemized attorneys' fees entries were performed on behalf of

all the Kirklin Defendants.18

       It would be impossible to segregate these "inextricably intertwined"

attorneys' fees as between the Kirklin Defendants, and Texas law doesn't require

segregation between the parties that are seeking attorneys' fees in such a situation.

     E.     Segregation of Attorneys' Fees as between the Fleming Plaintiffs

       There were two plaintiffs in this litigation at the trial level, Fleming and

Fleming & Associates, LLP ("F&A") (or collectively "Fleming Plaintiffs"). But

only Fleming is still a plaintiff , and the Kirklin Defendants are seeking attorneys'

fees against only him. The Kirklin Defendants' attorneys did engage in activities

17
   Air Routing Intern. Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 693 (Tex.
App.—Houston [14th Dist.] 2004, no pet.)
18
   1 RR 92 (March 30, 2015 Hearing)
                                              10
that related to only Fleming and not to Fleming & Associates, LLP and vice versa.

Thus, the Kirklin Defendants were required to segregate their attorneys' fees as

between George Fleming and Fleming & Associates, LLP, and they did.

         But Fleming argues that the Kirklin Defendants failed to segregate attorneys'

fees as between the George Fleming and Fleming & Associates, L.L.P. ("Fleming

Plaintiffs"):

         Last, despite losing one of the two TCPA motions they copied, the
         Kirklins still sought almost $54,000 in trial-level fees at higher hourly
         rates than the other attorneys had billed. Overall, the Kirklins' times
         sheets demonstrate their lack of "a good faith effort to exclude from a
         fee request hours that are excessive, redundant, or otherwise
         unnecessary.19

         With respect to factor (4), the U.S. Supreme Court has held "the most
         critical factor in determining the reasonableness of a fee award is the
         degree of success obtained...." Little need be said on the subject. Even
         with the benefit of copying other attorneys' ideas and work product,
         the Kirklins managed to succeed in just one of the two motions they
         filed.... Therefore, if the Court does not affirm the denial of attorneys'
         fees due to the Kirklins' pro se attorney status...It should begin with a
         50% fee reduction to reflect the Kirklins' limited success.20

         This argument is misleading and incorrect. The Kirklin Law Firm, P.C.

segregated the attorneys' fees as between the Fleming Plaintiffs, and it is only

seeking the attorneys' fees attributable to work performed in connection with

George Fleming's claims (on which they were successful). The Kirklin Law Firm,

P.C. specifically excluded the attorneys' fees attributable to work performed in

19
     Brief of Cross-Appellee @ 23
20
     Id. @ 26
                                            11
connection with F&A's claims (on which they were initially unsuccessful in their

anti-SLAPP motion, but ultimately successful in summary judgment).

         This segregation was laid out clearly in Charles Kirklins' declaration when

the attorneys' fees were separated into two categories:

         (1) "LEGAL SERVICES RE: FLEMING & ASSOCIATES,
         LLP,"21 and

         (2) "LEGAL SERVICES RELATED TO MOTION TO DISMISS
         CLAIMS BY GEORGE FLEMING"22

         The Kirklin Defendants excluded the first category from their attorneys' fees

damages calculation, as can be seen at 1 RR 96 (March 30, 2015 Hearing), which

calculates only the "TOTALS FOR LEGAL SERVICES RELATED TO MOTION

TO DISMISS CLAIMS OF GEORGE FLEMING 1/12/15 – 3/30/15" at

$53,950.00. This is the total amount that The Kirklin law Firm, P.C. is seeking for

attorneys' fees at the trial level.

         Thus, The Kirklin Law Firm, P.C. segregated its calculation of attorneys'

fees as between the Fleming Plaintiffs, and it is only seeking attorneys' fees for

work performed in connection with the claims asserted by Fleming, individually.

         WHEREFORE, PREMISES CONSIDERED, The Kirklin Law Firm, P.C.

prays for an award of $53,950.00 in trial attorney's fees.


21
     1 RR 93 (March 30, 2015 Hearing)
22
     1 RR 94 (March 30, 2015 Hearing)


                                           12
                                       Respectfully Submitted,

                                       THE KIRKLIN LAW FIRM, P.C.


                                       By: /s/ Paul S. Kirklin
                                       Paul S. Kirklin
                                       Texas Bar No. 24070063
                                       Charles B. Kirklin
                                       Texas Bar No. 11523500
                                       Email: ckirklin@kirklinlaw.com
                                       12600 N Featherwood Dr Suite 225
                                       Houston, TX 77034
                                       Tel. (713) 571-8300
                                       Fax. (281) 922-6240
                                       Attorneys for Defendants The Kirklin Law
                                       Firm P.C., Charles Kirklin, and Paul Kirklin

                                        /s/ Stephen R. Kirklin__________________
                                       Stephen R. Kirklin, Pro Se
                                       Texas Bar No. 11523700
                                       12600 N Featherwood Dr Suite 225
                                       Houston, TX 77034
                                       Tel. (713) 571-8300
                                       Fax. (281) 922-6240
                                       Attorney for Defendant Stephen R. Kirklin
                                       and The Kirklin Law Firm, P.C.

                          CERTIFICATE OF SERVICE

       I certify that on November 12, 2015 a true and correct copy of the foregoing
Motion For Rehearing was served on all counsel of record and George Fleming
electronically at george_fleming@fleming-law.com, and the electronic transmission
was reported as complete.


                                       /s/ Paul S. Kirklin
                                       Paul S. Kirklin


                                       /s/ Stephen R. Kirklin____________________
                                       Stephen R. Kirklin

                                         13
EXHIBIT A
                             ATTORNEYS' FEES CONTRACT

      Whereas, The Kirklin Law Firm, P.C. has been sued in Cause No. 2014-53135 styled
"Fleming & Associates, L.L.P. v. Kirklin, et al", in the 234th District Court of Harris
County, Texas and

       Whereas, the Kirklin Law Firm, P.C. desires to pursue dismissal of these claims as
well as any other claims asserted by the Plaintiffs pursuant to the Texas Anti-SLAPP
Statute ("TCPA"), and

       Whereas, in order to obtain attorneys' fees from the Plaintiffs pursuant to TCPA, it
is necessary for The Kirklin Law Firm, P.C. to hire attorneys to represent it in this case
and to become legally liable for payment of the attorneys' fees incurred in obtaining
dismissal of the claims, and

       Whereas, the undersigned attorneys desire to represent The Kirklin Law Firm, P.C.
in seeking dismissal and any appeals related to the dismissal of the claims.

    NOW THEREFORE IN CONSIDERATION OF THE MUTUAL PROMISES
CONTAINED HEREIN THE PARTIES AGREE AS FOLLOWS:

       1. Charles Kirklin, Paul Kirklin and Stephen Kirklin, (Solo Practitioner) (herein the
" Attorneys") agree to represent The Kirklin Law Firm, P.C. in Cause No. 2014-53135 on an
hourly basis at their usual rates for this kind of case.

        2. The Kirklin Law Firm, P.C. agrees to pay the Attorneys on an hourly basis at
their usual hourly fees for this kind of a case and The Kirklin Law Firm, P.C. acknowledges
that it is legally liable to pay the fees charged by the Attorneys in Cause No. 2014-53135
and is by this Attorneys' Fees Contract incurring and agreeing to pay the fees charged by
the Attorneys.

       3. The effective date of this agreement is December 11, 2014.

AGREED TO:

The Kirklin Law Firm, P.C.



___________________
 _______________    _________
               ____ _______
                       _                                ______
                                                         ___
                                                          ____ _______________________
                                                          __   _________________________
By Charles Kirklin,
           Kirklin President
                    Preside                                    Charles Kirklin


___________________________
__
 _______
      __________
         _    __
              _
              ____
                ___
                 ____
                   ______
                    _ ______
                           ___
                             _
           Kirklin, Solo
 Stephen Kirklin                                        ______________________________
                                                         ___
                                                          _ _________________________
                                                                                 _
        Practitioner                                           Paul Kirklin
EXHIBIT B
                                         CHARLES KIRKLIN

                                        ATTORNEY AT LAW

                                              INVOICE

TO:                                                                               MAY 31,2015
The Kirklin Law Firm, P.C.
12600 N. Featherwood, Suite 225
Houston, Texas 77034

FOR LEGAL SERVICES RENDERED TO THE KIRKLIN LAW FIRM, P.C. BY CHARLES KIRKLIN ("CBK") IN
CONNECTION WITH CLAIMS BY GEORGE FLEMING IN CAUSE NO. 2014-53135 IN THE 234TH DISTRICT
COURT AND THE PROSECUTION OF A MOTION TO DISMISS PURSUANT TO THE TEXAS ANTI-SLAPP
STATUTE AS FOLLOWS. The charges made in this invoice are only for work done by Charles Kirklin as
indicated by "CBK" below.


Jan. 12, 2014         Review of Plaintiffs' Second Amended Petition.      CBK            2.00
                                                                          SRK            3.00

Jan. 16, 2015         Review of the Jackson Defendants' Anti-SLAPP        CBK            2.00
                      Motion to Dismiss as to George Fleming.             SRK            3.00

Jan. 16, 2015         Review of Fleming's Response to Motion to Dismiss   CBK            2.00
                      filed by the Jackson Defendants.                    SRK            3.00

Jan. 19, 2015         Preparation of Defendants' Second Amended           CBK            4.00
                      Answer. Preparation of the Kirklin Defendants'      SRK            6.00
                      Anti-SLAPP Motion to Dismiss as to George
                      Fleming.

Jan. 19, 2015         Review of Fleming's Response to Motion to           CBK            3.00
                      Dismiss filed by Kirklin Defendants.                SRK            3.00

Jan. 22, 2015         Research on Anti-SLAPP Cases.                       CBK            2.00


Jan. 25, 2015         Review of Jacksons' Reply in Support of their       CBK            1.00
                      Motion to Dismiss. Preparation for Hearing.         PSK            6.00
                                                                          SRK            6.00

Jan. 26, 2015         Preparation for and attendance at Hearing on        CBK            4.00
                      the Anti-SLAPP Motions.                             PSK            4.00
                                                                          SRK            4.00

Jan. 28, 2015         Preparation of Supplemental Memo for the            CBK            4.00
                      Court in light of the Hearing and proposed          SRK            4.00

                                                 1
                 Order granting dismissal, attorneys' fees and
                 Sanctions.

Jan. 29, 2015    Review of Jackson Defendants' Further Briefing       CBK       2.00
                 in support of their Motion to Dismiss.               SRK       2.00


Jan. 29, 2015    Review of Fleming's Reply to Kirklin Defendants      CBK       2.00
                 Argument at the hearing.                             SRK       2.00

Jan. 29, 2015    Review of Fleming's Sur-reply to the Jackson         CBK       2.00
                 Defendants' Reply.                                   SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Kirklin Defendants' Motion to Dismiss.               SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Jackson Defendant's Motion to Dismiss                SRK       2.00

Feb. 19, 2015    Preparation of Supplement to Kirklin Defendant's     CBK       4.00
                 Motion to Dismiss with exhibits and Declaration      SRK       4.00
                 of Charles B. Kirklin.

Feb. 20, 2015    Review of letter to Court from Jackson Defendants'   CBK        .50
                 Counsel regarding statutory deadlines.               SRK        .50

Feb.. 25, 2015   Review of Court Orders Granting the Jackson          CBK       1.00
                 Defendants Motions to Dismiss and the Kirklin        SRK       1.00
                 Defendants' Motion to Dismiss.

Feb. 26, 2015    Revise Attorneys' Fees Declaration in view of the    CBK       2.00
                 ruling of the Court to exclude attorneys' fees       SRK       2.00
                 related to Fleming & Associates, L.L.P.

Feb. 27, 2015    Preparation of Kirklin Defendants Motion to Award    CBK       5.00
                 Attorney's Fees and Sanctions.                       SRK       5.00

Mar. 29, 2015    Preparation for Hearing on Motion to Award           CBK       2.00
                 Attorneys' Fees and Sanctions.                       SRK       2.00
                                                                      PSK       2.00

Mar. 30, 2015    Attendance at Hearing on Motion to Award             CBK       2.00
                 Attorneys' Fees and Sanctions                        SRK       2.00
                                                                      PSK   `   2.00




                                            2
    Total Due and payable to Charles Kirklin
    CBK 50.5Hrs @ $450.00= $ 22,725.00




3
                                           PAUL KIRKLIN

                                        ATTORNEY AT LAW

                                              INVOICE

TO:                                                                               MAY 31, 2015
The Kirklin Law Firm, P.C.
12600 N. Featherwood, Suite 225
Houston, Texas 77034

FOR LEGAL SERVICES RENDERED TO THE KIRKLIN LAW FIRM, P.C. BY PAUL KIRKLIN ("PSK") IN
CONNECTION WITH CLAIMS BY GEORGE FLEMING IN CAUSE NO. 2014-53135 IN THE 234TH DISTRICT
COURT AND THE PROSECUTION OF A MOTION TO DISMISS PURSUANT TO THE TEXAS ANTI-SLAPP
STATUTE AS FOLLOWS. The charges in this invoice is only for work done by Paul Kirklin as indicated
"PSK" below.


Jan. 12, 2014         Review of Plaintiffs' Second Amended Petition.       CBK            2.00
                                                                           SRK            3.00

Jan. 16, 2015         Review of the Jackson Defendants' Anti-SLAPP         CBK            2.00
                      Motion to Dismiss as to George Fleming.              SRK            3.00

Jan. 16, 2015         Review of Fleming's Response to Motion to Dismiss    CBK            2.00
                      filed by the Jackson Defendants.                     SRK            3.00

Jan. 19, 2015         Preparation of Defendants' Second Amended            CBK            4.00
                      Answer. Preparation of the Kirklin Defendants'       SRK            6.00
                      Anti-SLAPP Motion to Dismiss as to George
                      Fleming.

Jan. 19, 2015         Review of Fleming's Response to Motion to            CBK            3.00
                      Dismiss filed by Kirklin Defendants.                 SRK            3.00

Jan. 22, 2015         Research on Anti-SLAPP Cases.                        CBK            2.00


Jan. 25, 2015         Review of Jacksons' Reply in Support of their        CBK            1.00
                      Motion to Dismiss. Preparation for Hearing.          PSK            6.00
                                                                           SRK            6.00

Jan. 26, 2015         Preparation for and attendance at Hearing on         CBK            4.00
                      the Anti-SLAPP Motions.                              PSK            4.00
                                                                           SRK            4.00

Jan. 28, 2015         Preparation of Supplemental Memo for the             CBK            4.00
                      Court in light of the Hearing and proposed           SRK            4.00

                                                 1
                 Order granting dismissal, attorneys' fees and
                 Sanctions.

Jan. 29, 2015    Review of Jackson Defendants' Further Briefing       CBK       2.00
                 in support of their Motion to Dismiss.               SRK       2.00


Jan. 29, 2015    Review of Fleming's Reply to Kirklin Defendants      CBK       2.00
                 Argument at the hearing.                             SRK       2.00

Jan. 29, 2015    Review of Fleming's Sur-reply to the Jackson         CBK       2.00
                 Defendants' Reply.                                   SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Kirklin Defendants' Motion to Dismiss.               SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Jackson Defendant's Motion to Dismiss                SRK       2.00

Feb. 19, 2015    Preparation of Supplement to Kirklin Defendant's     CBK       4.00
                 Motion to Dismiss with exhibits and Declaration      SRK       4.00
                 of Charles B. Kirklin.

Feb. 20, 2015    Review of letter to Court from Jackson Defendants'   CBK        .50
                 Counsel regarding statutory deadlines.               SRK        .50

Feb.. 25, 2015   Review of Court Orders Granting the Jackson          CBK       1.00
                 Defendants Motions to Dismiss and the Kirklin        SRK       1.00
                 Defendants' Motion to Dismiss.

Feb. 26, 2015    Revise Attorneys' Fees Declaration in view of the    CBK       2.00
                 ruling of the Court to exclude attorneys' fees       SRK       2.00
                 related to Fleming & Associates, L.L.P.

Feb. 27, 2015    Preparation of Kirklin Defendants Motion to Award    CBK       5.00
                 Attorney's Fees and Sanctions.                       SRK       5.00

Mar. 29, 2015    Preparation for Hearing on Motion to Award           CBK       2.00
                 Attorneys' Fees and Sanctions.                       SRK       2.00
                                                                      PSK       2.00

Mar. 30, 2015    Attendance at Hearing on Motion to Award             CBK       2.00
                 Attorneys' Fees and Sanctions                        SRK       2.00
                                                                      PSK   `   2.00




                                            2
    Total Due and payable to Paul Kirklin
    PSK 14Hrs @ $350.00= $4,900.00




3
                                          STEPHEN KIRKLIN

                                        SOLO PRACTITIONER

                                         ATTORNEY AT LAW

                                               INVOICE

TO:                                                                                   MAY 31, 2015
The Kirklin Law Firm, P.C.
12600 N. Featherwood, Suite 225
Houston, Texas 77034

FOR LEGAL SERVICES RENDERED TO THE KIRKLIN LAW FIRM, P.C. BY STEPHEN KIRKLIN ("SRK") IN
CONNECTION WITH CLAIMS BY GEORGE FLEMING IN CAUSE NO. 2014-53135 IN THE 234TH DISTRICT
COURT AND THE PROSECUTION OF A MOTION TO DISMISS PURSUANT TO THE TEXAS ANTI-SLAPP
STATUTE AS FOLLOWS. The charges in this invoice are only for Stephen Kirklin reflected as "SRK" below.


Jan. 12, 2014          Review of Plaintiffs' Second Amended Petition.         CBK             2.00
                                                                              SRK             3.00

Jan. 16, 2015          Review of the Jackson Defendants' Anti-SLAPP           CBK             2.00
                       Motion to Dismiss as to George Fleming.                SRK             3.00

Jan. 16, 2015          Review of Fleming's Response to Motion to Dismiss      CBK             2.00
                       filed by the Jackson Defendants.                       SRK             3.00

Jan. 19, 2015          Preparation of Defendants' Second Amended              CBK             4.00
                       Answer. Preparation of the Kirklin Defendants'         SRK             6.00
                       Anti-SLAPP Motion to Dismiss as to George
                       Fleming.

Jan. 19, 2015          Review of Fleming's Response to Motion to              CBK             3.00
                       Dismiss filed by Kirklin Defendants.                   SRK             3.00

Jan. 22, 2015          Research on Anti-SLAPP Cases.                          CBK             2.00


Jan. 25, 2015          Review of Jacksons' Reply in Support of their          CBK             1.00
                       Motion to Dismiss. Preparation for Hearing.            PSK             6.00
                                                                              SRK             6.00

Jan. 26, 2015          Preparation for and attendance at Hearing on           CBK             4.00
                       the Anti-SLAPP Motions.                                PSK             4.00
                                                                              SRK             4.00

Jan. 28, 2015          Preparation of Supplemental Memo for the               CBK             4.00

                                                  1
                 Court in light of the Hearing and proposed           SRK       4.00
                 Order granting dismissal, attorneys' fees and
                 Sanctions.

Jan. 29, 2015    Review of Jackson Defendants' Further Briefing       CBK       2.00
                 in support of their Motion to Dismiss.               SRK       2.00


Jan. 29, 2015    Review of Fleming's Reply to Kirklin Defendants      CBK       2.00
                 Argument at the hearing.                             SRK       2.00

Jan. 29, 2015    Review of Fleming's Sur-reply to the Jackson         CBK       2.00
                 Defendants' Reply.                                   SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Kirklin Defendants' Motion to Dismiss.               SRK       2.00

Jan. 30, 2015    Review of Fleming's Final Response to                CBK       2.00
                 Jackson Defendant's Motion to Dismiss                SRK       2.00

Feb. 19, 2015    Preparation of Supplement to Kirklin Defendant's     CBK       4.00
                 Motion to Dismiss with exhibits and Declaration      SRK       4.00
                 of Charles B. Kirklin.

Feb. 20, 2015    Review of letter to Court from Jackson Defendants'   CBK        .50
                 Counsel regarding statutory deadlines.               SRK        .50

Feb.. 25, 2015   Review of Court Orders Granting the Jackson          CBK       1.00
                 Defendants Motions to Dismiss and the Kirklin        SRK       1.00
                 Defendants' Motion to Dismiss.

Feb. 26, 2015    Revise Attorneys' Fees Declaration in view of the    CBK       2.00
                 ruling of the Court to exclude attorneys' fees       SRK       2.00
                 related to Fleming & Associates, L.L.P.

Feb. 27, 2015    Preparation of Kirklin Defendants Motion to Award    CBK       5.00
                 Attorney's Fees and Sanctions.                       SRK       5.00

Mar. 29, 2015    Preparation for Hearing on Motion to Award           CBK       2.00
                 Attorneys' Fees and Sanctions.                       SRK       2.00
                                                                      PSK       2.00

Mar. 30, 2015    Attendance at Hearing on Motion to Award             CBK       2.00
                 Attorneys' Fees and Sanctions                        SRK       2.00
                                                                      PSK   `   2.00




                                            2
    Total Due and payable to Stephen Kirklin
    SRK 58.5Hrs @ $450.00= $ 26,325.00




3
EXHIBIT C
                                                                                                                  trHAsE cD
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                         12600 N FEATHERWOOD DR, STE 225                                                          vwvw.Charo.com
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                                                                                             11/18/2015 3:41:22 PM
                                                                          Chris Daniel - District Clerk Harris County
                                                                                             Envelope No. 7891169
                                                                                         By: LAWANDA CORNETT
                                                                                     Filed: 11/18/2015 3:41:22 PM

                                     No. 2014-53135

FLEMING & ASSOCIATES, L.L.P.               §     IN THE DISTRICT COURT OF
(n/k/a FLEMING, NOLEN & JEZ,               §
L.L.P.) and GEORGE FLEMING,                §
       Plaintiffs,                         §
                                           §
v.                                         §
                                           §     HARRIS COUNTY, TEXAS
CHARLES KIRKLIN, STEPHEN                   §
KIRKLIN, PAUL KIRKLIN, THE                 §
KIRKLIN LAW FIRM, P.C. (n/k/a              §
KIRKLIN SOH, L.L.P.), DON                  §
JACKSON, JEFFREY W.                        §
CHAMBERS, and WARE, JACKSON,               §
LEE & CHAMBERS L.L.P.,                     §
     Defendants.                           §     234TH JUDICIAL DISTRICT

                      THE FLEMING PLAINTIFFS’
                OPPOSITION TO THE KIRKLIN LAW FIRM’S
              MOTION FOR REHEARING ON ATTORNEYS’ FEES

TO THE HONORABLE COURT:

       Plaintiffs/Appellants Fleming & Associates, L.L.P. (n/k/a Fleming, Nolen & Jez,

L.L.P.) and George Fleming (collectively, the Fleming Plaintiffs) oppose the motion for

rehearing filed by Defendants Charles Kirklin, Stephen Kirklin, Paul Kirklin, The Kirklin

Law Firm, P.C. (n/k/a Kirklin Soh, L.L.P.) (the Kirklin Defendants).

       The Fleming Plaintiffs’ opposition does not address the merits of the Kirklin

Defendants’ motion for rehearing, but rather establishes the Court’s lack of jurisdiction to

entertain it. The Fleming Plaintiffs therefore respectfully request that the Court dismiss

or summarily deny the Kirklin Defendants’ motion for lack of jurisdiction, and order the

rehearing postponed indefinitely:
       1.      The Kirklin Defendants have not only filed a jurisdictionally improper

motion for rehearing of this Court’s denial of trial attorneys’ fees, but also have

unilaterally set a hearing on the motion for a date the Fleming Plaintiffs’ trial counsel is

unavailable.

       2.      This Court lacks jurisdiction to consider the motion for rehearing for two

reasons, both of which the Kirklin Defendants ignore:

       First, Defendants divested the Court of jurisdiction by filing a notice of

cross-appeal from the fee denial one day after the order; and

       Second, the Fleming Plaintiffs’ motion for rehearing from the dismissal of appeals

from this Court’s (allegedly interlocutory) Orders, and the Kirklin Defendants’

cross-appeal, is presently pending at the Fourteenth Court of Appeals, as is the appellate

court’s request for Defendants’ responses.

       3.      The procedural facts establishing lack of jurisdiction follow:

               • This Court denied the Kirklin Defendants’ trial attorneys’ fees and
                  sanctions motion in an Order signed March 30, 2015.

               • The Kirklin Defendants did not move for rehearing before this Court, as
                  they were permitted to do. Instead, the next day—March 31, 2015—
                  they filed a notice of cross-appeal in pending Appeal No. 14-15-00238-
                  CV (from the anti-SLAPP dismissal), seeking reversal of the denial of
                  fees and sanctions. Therefore, they are not allowed to move for
                  rehearing months later, as rehearing has been waived.

               • On October 29, 2015, the Fourteenth Court of Appeals dismissed
                  Appeal No. 14-15-00238-CV, holding the appeal was not taken from a



                                              2
   final Order.   The dismissal included the Kirklin Defendants’ cross-
   appeal. It also dismissed a companion appeal, No. 14-15-00369-CV
   (summary judgment) for the same reason.

• The deadline for a motion for rehearing at the appellate court was
   Friday, November 13, 2015.

• On November 12, 2015, at 3:43 p.m., co-Defendants Don Jackson,
   Jeffrey W. Chambers, and Ware, Jackson, Lee & Chambers L.L.P. (the
   Jackson Defendants) filed a Rule 162 notice of dismissal with this
   Court.   Effective immediately, therefore, all claims related to the
   Jackson Defendants were dismissed.        See, e.g., Univ. of Tex. Med.
   Branch v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).

• 45 minutes later, at 4:33 p.m., the Kirklins improperly filed their motion
   for rehearing in this Court. But despite certifying that service took place
   on November 12, they deliberately delayed serving counsel until
   today—November 18, 2015. Hence, this opposition.

• On November 13, 2015, the Fleming Plaintiffs filed two motions for
   rehearing at the Court of Appeals, attaching the Jackson Defendants’
   R. 162 notice of dismissal. A copy of the motion for No. 14-15-00238-
   CV (without exhibits), which is a duplicate of the motion for No. 14-15-
   00369-CV, is attached to this opposition as Ex. 1.

• The motions for rehearing are still pending at the Fourteenth Court of
   Appeals. Therefore, this Court lacks jurisdiction to consider and rule on
   the Kirklin Defendants’ motion for rehearing, and to hear argument on
   the motion.

• Further, on November 17, 2015, the Court of Appeals requested
   responses from the Kirklin Defendants to the Fleming Plaintiffs’


                              3
                   motions for rehearing. Copies of the appellate court’s requests are
                   attached to this opposition as Ex. 2. That is because under the R. 49.2
                   of the Rules of Appellate Procedure:

                      No response to a motion for rehearing need be filed
                      unless the court so requests. A motion will not be
                      granted unless a response has been filed or requested
                      by the court.

Therefore, the Kirklin Defendants should respond to the Court of Appeals’ request, as it

obviously retains jurisdiction. They may not file a motion in this Court, which lacks

jurisdiction to consider it.

         4.    Last, the Kirklin Defendants set a hearing without consulting with the

Fleming Plaintiffs’ trial counsel as to his schedule. Ken Johnson, trial counsel for the

Fleming Plaintiffs, will be unavailable for a hearing on Monday, November 23, 2015. A

copy of his declaration accompanies this opposition as Ex. 3.



                                      CONCLUSION

         For all reasons above, the Court lacks jurisdiction to consider any submission from

the Kirklin Defendants, including a motion for rehearing—which was waived in any

event. The Court should therefore deny or dismiss the Kirklin Defendants’ motion for

rehearing for lack of jurisdiction. Further, the Court should order the hearing continued

indefinitely, to be reset only if the Kirklin Defendants’ motion is properly before the

Court.




                                              4
    Respectfully submitted,

    /s/ J. Ken Johnson
    J. Ken Johnson
    State Bar No. 10746300
    Email: ken_johnson@fleming-law.com
    Sylvia Davidow
    State Bar No. 05430551
    Email: sylvia_davidow@fleming-law.com
    George M. Fleming
    State Bar No. 07123000
    Email: george_fleming@fleming-law.com
    FLEMING, NOLEN & JEZ, L.L.P.
    2800 Post Oak Blvd., Suite 4000
    Houston, Texas 77056
    Telephone (713) 621-7944
    Fax (713) 621-9638

    ATTORNEYS FOR
    PLAINTIFFS/APPELLANTS/
    CROSS-APPELLEES
    FLEMING & ASSOCIATES, L.L.P.
    and GEORGE M. FLEMING




5
                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing has been served on all
attorneys of record, as set forth below, on November 18, 2015.

Via E-Mail to:

Paul Kirklin                             Stephen R. Kirklin
pkirklin@kirklinlaw.com                  12600 N. Featherwood Drive, #225
The Kirklin Law Firm, P.C.               Skirklin312@gmail.com
12600 N. Featherwood Drive, #225         Houston, Texas 77034
Houston, Texas 77034                     Telephone (713) 571-8300
Telephone (713) 571-8300                 Facsimile (281) 922-6240
Facsimile (281) 922-6240

ATTORNEY FOR DEFENDANTS                  DEFENDANT STEPHEN R. KIRKLIN,
CHARLES KIRKLIN, PAUL                    PRO SE
KIRKLIN, AND THE KIRKLIN
LAW FIRM, P.C.




                                                 /s/Sylvia Davidow
                                                 Sylvia Davidow




                                             6
                                                                                   11/23/2015 1:23:51 PM
                                                                Chris Daniel - District Clerk Harris County
                                                                                   Envelope No. 7949261
                                                                               By: LAWANDA CORNETT
                                                                           Filed: 11/23/2015 1:23:51 PM

                           CAUSE NO. 2014-53135

FLEMING & ASSOCIATES, L.L.P. (n/k/a §            IN DISTRICT COURT OF
FLEMING, NOLEN & JEZ, L.L.P.)       §
AND GEORGE FLEMING,                 §
                                    §
     Plaintiffs,                    §
                                    §
VS.                                 §
                                    §                HARRIS COUNTY, TX
CHARLES KIRKLIN, STEPHEN            §
KIRKLIN, PAUL KIRKLIN, THE          §
KIRKLIN LAW FIRM, P.C, DON          §
JACKSON, JEFFREY                    §
W. CHAMBERS, AND WARE,              §
JACKSON, LEE & CHAMBERS, L.L.P., §
                                    §
     Defendants.                    §         234TH JUDICIAL DISTRICT


                           NOTICE OF HEARING

      Please take notice that a hearing has been set on December 7, 2015 at 1:00
p.m. in the 234th Judicial Court for (1) Motion For Rehearing on Denial of Trial
Attorneys' Fees For The Kirklin Law Firm, P.C. which was filed on November 12,
2015 and (2) The Rule 13 Motion for Sanctions and Attorneys' Fees contained in
Defendants' Motion For Summary Judgment which was filed on December 16, 2014.

                                    Respectfully Submitted,

                                    THE KIRKLIN LAW FIRM, P.C.


                                    By: /s/ Paul S. Kirklin
                                    Paul S. Kirklin
                                    Texas Bar No. 24070063
                                    Charles B. Kirklin
                                    Texas Bar No. 11523500
                                    Email: ckirklin@kirklinlaw.com
                                    12600 N Featherwood Dr Suite 225
                                    Houston, TX 77034
                                    Tel. (713) 571-8300
                                    Fax. (281) 922-6240
                                    Attorneys for Defendants The Kirklin Law
                                    Firm P.C., Charles Kirklin, and Paul Kirklin

                                       1
                                        /s/ Stephen R. Kirklin__________________
                                       Stephen R. Kirklin,
                                       Texas Bar No. 11523700
                                       12600 N Featherwood Dr Suite 225
                                       Houston, TX 77034
                                       Tel. (713) 571-8300
                                       Fax. (281) 922-6240
                                       Attorney for Defendants Stephen R. Kirklin
                                       and The Kirklin Law Firm, P.C.


                          CERTIFICATE OF SERVICE

       I certify that on November 23, 2015 a true and correct copy of the foregoing
Notice of Hearing was served on all counsel of record and George Fleming
electronically at george_fleming@fleming-law.com, and J. Ken Johnson
electronically at ken_johnson@fleming-law.com, and Sylvia Davidow at
silvia_davidow@fleming-law.com.


                                       /s/ Paul S. Kirklin
                                       Paul S. Kirklin


                                       /s/ Stephen R. Kirklin____________________
                                       Stephen R. Kirklin




                                          2
