                                                                                                     ACCEPTED
                                                                                                05-14-01215-CV
                                                                                      FIFTH COURT OF APPEALS
                                                                                                DALLAS, TEXAS
                                                                                          2/24/2015 10:31:10 AM
                                                                                                     LISA MATZ
                                                                                                         CLERK

                                  NO. 05-14-01215-CV

                                                                           FILED IN
                         IN THE COURT OF APPEALS      5th COURT OF APPEALS
                      FOR THE FIFTH DISTRICT OF TEXAS      DALLAS, TEXAS
                                 AT DALLAS            2/24/2015 10:31:10 AM
                                                                           LISA MATZ
                                                                             Clerk

        HIGHLAND CAPITAL MANAGEMENT, L.P., Appellant/Cross-Appellee
                                 v.

                  PATRICK DAUGHERTY, Appellee/Cross-Appellant
                                     v.

          HIGHLAND EMPLOYEE RETENTION ASSETS LLC, Cross-Appellant

                        On Appeal from the 68th District Court
                              of Dallas County, Texas
                             Cause No. DC-12-04005

                   JOINT MOTION TO REORDER BRIEFING SCHEDULE


Scott A. Brister                 John F. Guild               Charles T. Frazier, Jr.
State Bar No. 00000024           State Bar No. 24041022      State Bar No. 07403100
scottbrister@andrewskurth.com    jguild@ghjhlaw.com          cfrazier@adjtlaw.com
Marc D. Katz                     GRUBER HURST JOHANSEN       Dana Livingston
State Bar No. 00791002           HAIL SHANK LLP              State Bar No. 12437420
marckatz@andrewskurth.com        1445 Ross Avenue            dlivingston@adjtlaw.com
ANDREWS KURTH LLP                Suite 2500                  ALEXANDER DUBOSE
111 Congress Avenue              Dallas, Texas 75202         JEFFERSON & TOWNSEND LLP
Suite 1700                       Telephone: (214) 855-6800   4925 Greenville Avenue
Austin, Texas 78701              Facsimile: (214) 855-6808   Suite 510
Telephone: (512) 320-9220                                    Dallas, Texas 75206-4026
Facsimile: (512) 542-5220        Attorneys for Highland      Telephone: (214) 369-2358
                                 Employee Retention Assets   Facsimile: (214) 369-2359
Attorneys for Highland Capital   LLC
Management, L.P.                                             Attorneys for Patrick
                                                             Daugherty
TO THE HONORABLE COURT OF APPEALS:

         The parties to this Appeal that have filed notices of appeal—Patrick

Daugherty (“Daugherty”); Highland Capital Management, L.P. (“Highland”); and

Highland Employee Retention Assets LLC (“HERA”)—jointly request the Court to

reorder the briefing schedule in this appeal in accordance with the parties’ respective

positions and requests for relief, and in support respectfully show the following:

         1.       This appeal arises from a suit in the 68th District Court of Dallas

County, Texas, No. DC-12-04005. Highland initiated the suit as plaintiff, asserting

various claims against Daugherty. CR 1:18. Daugherty filed counterclaims against

Highland and third-party claims against HERA, Patrick Boyce, William Britain,

James Dondero, and Sierra Verde LLC. CR 1:50. Based on the jury’s verdict,

Highland recovered a judgment of $2.8 million in attorney’s fees against Daugherty,

and Daugherty recovered a judgment of $2.6 million in damages against HERA. CR

5:2186, 2570.

         2.       After the trial court overruled Highland’s challenge to Daugherty’s

supersedeas bond, Highland filed a Motion to Increase Supersedeas Bond in this

Court under Rule 24.4 of the Texas Rules of Appellate Procedure (“Rule 24

Proceeding”) on September 24, 2014. See CR 5:2817, 2937. Highland had

previously filed a notice of appeal (Sept. 22, 2014) specifically challenging the order

denying its motion to increase the supersedeas bond. CR 5:3295. The Court assigned



JOINT MOTION TO REORDER BRIEFING SCHEDULE                                         Page 1
the above-referenced cause number to the Rule 24 Proceeding and ultimately denied

Highland’s motion. Highland Capital Mgmt. L.P. v. Daugherty, No. 05-14-01215-

CV, 2014 WL 6559001, at *2 (Tex. App.—Dallas Oct. 22, 2014, order).

         3.       Shortly after Highland filed its Rule 24 Motion in this Court, but before

the Court’s order on that Motion, Daugherty filed a notice of appeal of the Final

Judgment on October 3, 2014. CR 5:3308. On October 10, 2014, Highland and

HERA filed their respective notices of cross appeal of the Final Judgment.

CR 5:3311, 3316. The Court assigned the appeal of the Final Judgment cause

number 05-14-01283.

         4.       On October 22, 2014, the Court on its own motion consolidated the

Final Judgment appeal into the cause number for the Rule 24 Proceeding, 05-14-

01215-CV, and administratively closed cause number 05-14-01283. The parties are

designated on the Court’s docket as: Appellant – Highland; Appellees – Daugherty

and HERA.

         5.       On January 29, 2015, the Court ordered the Clerk of the Court “to

remove the designation of this case as an accelerated appeal,” and ordered the parties

“to file their briefs in this case in accordance with the requirements of rule 38.6 of

the Texas Rules of Appellate Procedure for ordinary appeals from final judgment.”




JOINT MOTION TO REORDER BRIEFING SCHEDULE                                             Page 2
         6.       Under the Court’s briefing calendar, Highland’s brief of appellant is

due February 24, 2015. For the reasons stated below, the parties respectfully request

the Court to revise the briefing schedule in this appeal.

         7.       In this appeal, the primary challenges to the Final Judgment will be

made by Daugherty—of the $2.8 million judgment against him—and by HERA—

of the $2.6 million judgment against it. Daugherty may also challenge adverse

findings by the jury on his claims against Highland and the third-party defendants.

Highland will challenge various jury findings and trial court rulings.

         8.       Based on the nature of the relief the parties’ are seeking in this appeal,

the parties respectfully request the Court to revise and reorder the briefing. The

parties respectfully propose the following briefing schedule:

 Briefing Round Briefs due
           1              • Daugherty’s opening brief due March 30, 2015.
                          • HERA’s opening brief due March 30, 2015.
           2              • Daugherty’s brief in response to HERA’s brief due 30 days
                            after #1.
                          • The combined brief of (a) Highland’s (and all other
                            appellees as to Daugherty, if applicable) brief in response to
                            Daugherty’s brief and (b) Highland’s opening brief as cross-
                            appellant due 30 days after #1.
           3              • Daugherty’s combined reply brief and appellee’s response to
                            Highland’s opening brief, due 30 days after #2.
                          • HERA’s reply brief due 30 days after #2.
           4              • Highland’s reply brief due 20 days after Daugherty’s brief
                            under #3.



JOINT MOTION TO REORDER BRIEFING SCHEDULE                                              Page 3
         9.       In an effort to further simplify the proposed briefing schedule, the

parties have also agreed that if any party requests an extension of a briefing deadline

on which more than one brief is due, and such request is unopposed, the parties will

not oppose an identical extension for the other brief that is due.

         Accordingly, Highland Capital Management L.P.; Patrick Daugherty; and

Highland Employee Retention Assets LLC respectfully request that the Court

reorder the briefing schedule as provided herein and for all other appropriate relief.

 /s/ Scott A. Brister                       /s/ John F. Guild           /s/ Charles T. Frazier, Jr.
 Scott A. Brister                           John F. Guild               Charles T. Frazier, Jr.
 State Bar No. 00000024                     State Bar No. 24041022      State Bar No. 07403100
 scottbrister@andrewskurth.com              jguild@ghjhlaw.com          cfrazier@adjtlaw.com
 Marc D. Katz                               GRUBER HURST JOHANSEN       Dana Livingston
 State Bar No. 00791002                     HAIL SHANK LLP              State Bar No. 12437420
 marckatz@andrewskurth.com                  1445 Ross Avenue            dlivingston@adjtlaw.com
 ANDREWS KURTH LLP                          Suite 2500                  ALEXANDER DUBOSE
 111 Congress Avenue                        Dallas, Texas 75202         JEFFERSON & TOWNSEND LLP
 Suite 1700                                 Telephone: (214) 855-6800   4925 Greenville Avenue
 Austin, Texas 78701                        Facsimile: (214) 855-6808   Suite 510
 Telephone: (512) 320-9220                                              Dallas, Texas 75206-4026
 Facsimile: (512) 542-5220                  Attorneys for Highland      Telephone: (214) 369-2358
                                            Employee Retention Assets   Facsimile: (214) 369-2359
 Attorneys for Highland Capital             LLC
 Management, L.P.                                                       Attorneys for Patrick
                                                                        Daugherty




JOINT MOTION TO REORDER BRIEFING SCHEDULE                                                       Page 4
                                        CERTIFICATE OF SERVICE

         I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court. I also certify that a

true and correct copy of the foregoing was served via e-service on the following

counsel of record on February 24, 2015.

 John F. Guild                                     Scott A. Brister
 GRUBER HURST JOHANSEN HAIL                        ANDREWS KURTH LLP
 SHANK LLP                                         111 Congress Avenue
 1445 Ross Avenue                                  Suite 1700
 Suite 2500                                        Austin, Texas 78701
 Dallas, Texas 75202                               scottbrister@andrewskurth.com
 jguild@ghjhlaw.com
                                                   Marc D. Katz
                                                   ANDREWS KURTH LLP
                                                   1717 Main Street
                                                   Suite 3700
                                                   Dallas, Texas 775201
                                                   marckatz@andrewskurth.com



                                                /s/ Charles T. Frazier, Jr.
                                                Charles T. Frazier, Jr.




JOINT MOTION TO REORDER BRIEFING SCHEDULE                                          Page 5
