                                                                                                      ACCEPTED
                                                                                                 14-14-00202-CV
                                                                                   FOURTEENTH COURT OF APPEALS
                                                                                               HOUSTON, TEXAS
                                                                                            1/28/2015 2:12:23 PM
                                                                                             CHRISTOPHER PRINE
                                                                                                          CLERK


                                   No. 14-14-00202-CV
                                                                              FILED IN
                         IN THE FOURTEENTH COURT OF APPEALS14thHOUSTON,
                                                                COURT OF APPEALS
                                                                         TEXAS
                                   HOUSTON, TEXAS         1/28/2015 2:12:23 PM
                                                                        CHRISTOPHER A. PRINE
                                                                               Clerk
                           FLEMING & ASSOCIATES L.L.P.
                       (N/K/A FLEMING, NOLEN & JEZ, L.L.P.),
                                               Appellant – Cross-Appellee,
                                                v.
                          THE KIRKLIN LAW FIRM, P.C.,
                      CHARLES KIRKLIN AND STEPHEN KIRKLIN
                                              Appellees – Cross-Appellants.

                   On Appeal from the 164th District Court, Harris County, Texas
                                Trial Court Cause No. 2008-02102
                       The Honorable Alexandra Smoots-Hogan, Presiding



                  UNOPPOSED MOTION TO RESCHEDULE SUBMISSION



TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

          This case was recently set for oral argument, with submission to take place

on March 5, 2015.              Appellant respectfully requests that the argument be

rescheduled for a slightly later date, such as in April. An April submission date

would be acceptable to both sides.

          1.        The reason for this request is that the March 5 date creates significant

problems for Appellant’s counsel, Mr. Gunn.

1519.006/555770
          2.       First, the United States Court of Appeals for the Fifth Circuit has just

set one of Mr. Gunn’s other cases for oral argument on that same day in New

Orleans. That case is No. 14-20265, Contango Operators, Inc. v. USA. The case

cannot now be rescheduled, because the Fifth Circuit had already given all counsel

advance notice of the argument week in which the case would be set, and the date

is now fixed. The case involves an amount in controversy of well in excess of $10

million. Mr. Gunn has a standing relationship with Contango and had substantial

involvement in preparing the briefing.

          3.       Second, during the month of March Mr. Gunn will be finalizing the

brief of Appellant in No. 05-14-01383-CV, Enterprise Products Partners, L.P. and

Enterprise Products Operating LLC v. Energy Transfer Partners, L.P. and Energy

Transfer Fuel, L.P.. That brief is currently due at the end of February but will

need one more extension and is expected to be filed in the Dallas Court of Appeals

at the end of March. The judgment being appealed there is for more than $500

million. Mr. Gunn is lead appellate counsel in that case. He and his appellate team

personally rotated through the multi-week trial in Dallas in order to lay the

groundwork for this very appeal. The case originally was defended by Steve

Susman and his firm, but Mr. Susman’s summary judgment motion was denied,

and David Beck and our firm then stepped in and tried the case to verdict. The

jury awarded over $319 million in actual damages and found over $500 million in



15519.006/555770                                2
“benefits,” from which the trial judge ordered $150 million in disgorgement. The

case has a reporter’s record of about 67 volumes, and the brief will require

significant attention during the month of March.

          4.       Finally, Mr. Gunn is handling a number of additional cases in which

at least some of his time will be required during the period in question. Here are a

handful:

                  He is already set for oral argument in the First Court of Appeals
                   on February 24 in No. 01-13-00782-CV, Bandier Realty
                   Partners, LLC and Switchback Ventures, LLC v. SSC
                   Opportunity Partners, LLC and Douglas Britton, an $18
                   million case that he must argue against David Keltner. Mr.
                   Gunn had expected to share oral argument time with Mike
                   Hatchell, counsel for a group of co-defendants, but Mr.
                   Hatchell’s clients recently settled.

                  He has a mediation on March 2 in Beaumont that cannot be
                   rescheduled because of a court order and the limited availability
                   of the mediator. The case is No. 13-14-00377-CV, United
                   Scaffolding, Inc. v. James Levine, in the Thirteenth Court of
                   Appeals (transferred from the Ninth Court of Appeals). Mr.
                   Gunn is lead counsel in the case, and the trial lawyer has
                   resigned from her law firm and ceased representing private
                   clients, so she cannot do the mediation in his stead.

                  He has merits briefing due in No. 13-0986; Southwestern
                   Energy Production Company v. Toby Berry-Helfand and Gery
                   Muncey, a case with about $11 million in actual damages and
                   about $24 million in disgorgement. The brief is currently due
                   on February 19, but that date is unworkable and will have to be
                   extended to about March 20. Mr. Gunn is lead counsel in that
                   case and has primary responsibility for the supreme court
                   briefing.




15519.006/555770                                3
          5.       Mr. Gunn has conferred with opposing counsel, Mr. Paul Kirklin, to

inquire about scheduling, so that a mutually agreeable range of dates can be found.

Mr. Kirklin indicates that he is set for trial in a 2-week window starting March 16.

For this reason, an April submission date here would work best for both sides.

                                              Respectfully submitted,

                                              BECK REDDEN LLP


                                              By: /s/ David M. Gunn
                                                   David M. Gunn
                                                   State Bar No. 08621600
                                                   dgunn@beckredden.com
                                                   John S. Adcock
                                                   State Bar No. 00790206
                                                   jadcock@beckredden.com
                                                   Erin H. Huber
                                                   State Bar No. 24046118
                                                   ehuber@beckredden.com
                                              1221 McKinney, Suite 4500
                                              Houston, TX 77010-2010
                                              (713) 951-3700
                                              (713) 951-3720 (Fax)

                                              ADELE HEDGES, ATTORNEY AT LAW
                                                   Adele Hedges
                                                   State Bar No. 09368500
                                                   ah@adelehedges.com
                                              2719 Colquitt
                                              Houston, TX 77098
                                              (713) 702-4289
                                              COUNSEL FOR APPELLANT/
                                              CROSS-APPELLEE




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                        CERTIFICATE OF CONFERENCE

      I hereby certify that on January 27, 2015, I conferred with Paul Kirklin,
counsel for Appellee/Cross-Appellant regarding this motion and he advised that he
does not oppose the requested relief.

                                          /s/ David M. Gunn
                                          David M. Gunn




                           CERTIFICATE OF SERVICE

        I hereby certify that on January 28, 2015, a true and correct copy of the
above and foregoing Unopposed Motion to Reschedule Submission was forwarded
to all counsel by the Electronic Service Provider, if registered, otherwise by email,
as follows:
                                 Paul S. Kirklin
                           THE KIRKLIN LAW FIRM, PC
                       12600 N. Featherwood Dr., Suite 225
                              Houston, TX 77034
                            pkirklin@kirklinlaw.com
                     Counsel for Appellee/Cross-Appellants,
                           The Kirklin Law Firm, P.C.,
                     Charles B. Kirklin, and Stephen R. Kirklin

                                          /s/ David M. Gunn
                                          David M. Gunn




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