Enbridge Pipelines (East Texas) L.P. v. Gilbert Wheeler, Inc.

• Court: Court of Appeals of Texas
• Decided: February 9, 2015
• Docket: 12-11-00303-CV
• Status: Published

Opinion

ACCEPTED 12-11-00303-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 2/9/2015 3:04:01 PM CATHY LUSK CLERK

12-11-00303-CV FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE TWELFTH COURT OF APPEALS2/9/2015 3:04:01 PM TYLER, TEXAS CATHY S. LUSK Clerk

ENBRIDGE PIPELINES (EAST TEXAS) L.P. Appellant

Vs.

GILBERT WHEELER, INC. Appellee

Remanded to the Twelfth Court of Appeals by the Supreme Court of Texas

APPELLANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

Comes now Enbridge Pipelines (East Texas) L.P., (AEnbridge@), Appellant herein

(AAppellant@), and files this, its Appellant=s Motion for Leave to File Supplemental Brief. In

support thereof, Appellant would respectfully show unto the Court as follows:

1. On February 13, 2013, this Court made and delivered its Opinion on Rehearing

in this case. The case was then appealed by Appellee, Gilbert Wheeler, Inc., to the Supreme

Court of Texas. On August 29, 2014, the Supreme Court of Texas made and delivered its

Appellant=s Motion for Leave to File Supplemental Brief Page 1 Opinion in this case. The Judgment of the Supreme Court of Texas was also delivered on

August 29, 2014. Appellant filed a Motion for Rehearing in the Supreme Court of Texas on

October 6, 2014, but same was denied on December 19, 2014. On that date, the Supreme

Court of Texas also issued its Mandate reversing the prior judgment of this Court and remanding

the cause to this Court for further proceedings consistent with the Opinion of the Supreme Court

of Texas.

2. As the Supreme Court of Texas noted in its Opinion, Appellant Araised several

issues in the court of appeals that were not reached@ because of this Court=s disposition of the

case. Such issues include, but are not limited to, Avarious challenges to the trial court=s

admission of Wheeler=s experts= testimony, exclusion of Enbridge=s experts= testimony, and

failure to submit a jury question on one of Enbridge=s breach-of-contract defenses.@ See

Opinion of Supreme Court, at page 19.

3. Therefore, in view of the above and foregoing, Appellant respectfully submits

and files this Appellant=s Motion for Leave to File Supplemental Brief with this Court, in order

to request permission from this Court to provide a supplemental brief addressing the changes in

the applicable law made by the Supreme Court, and effect of its decision upon the remaining

issues to be resolved by this Court.

Appellant=s Motion for Leave to File Supplemental Brief Page 2 4. This motion for leave is not sought for the purpose of delay, but to allow

Appellant an opportunity to fully and completely address the issues not reached or ruled on by

the Supreme Court of Texas and/or by this Court, in light of the above-referenced Opinion of

the Supreme Court of Texas in this matter.

Prayer

Therefore, Appellant respectfully requests that the Court consider and grant this

Appellant=s Motion for Leave to File Supplemental Brief and order an appropriate deadline for

said brief to be submitted and filed.

Respectfully submitted, FLOWERS DAVIS, P.L.L.C. 1021 ESE South Loop 323 Suite 200 Tyler, Texas 75701 (903) 534-8063 (903) 534-1650 Facsimile

/s/ Julie P. Wright JULIE P. WRIGHT State Bar No. 00794883 THOMAS H. BUCHANAN State Bar No. 03290500 J. MITCHELL BEARD State Bar No. 01973600

ATTORNEYS FOR APPELLANT

Appellant=s Motion for Leave to File Supplemental Brief Page 3 CERTIFICATE OF CONFERENCE

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

counsel for Appellee, Gilbert Wheeler, Inc., by telephone and email to discuss Appellant=s

Motion for Leave to File Supplemental Brief. Said counsel informed the undersigned that

Appellee, Gilbert Wheeler, Inc., opposed this motion.

/s/ Julie P. Wright Julie P. Wright

Appellant=s Motion for Leave to File Supplemental Brief Page 4 CERTIFICATE OF SERVICE

I hereby certify that the below-listed counsel of record was served with the foregoing document via electronic mailing and certified mail, return-receipt requested, on February 9, 2015.

Mr. Don Wheeler Wheeler Law Office 101 Tenaha Street Center, Texas 75935 Email: velawson@sbcglobal.net Attorney for Plaintiff, Gilbert Wheeler, Inc.

J. Mark Mann The Mann Firm 300 West Main Street Henderson, Texas 75652 Email: mark@themannfirm.com Attorney for Plaintiff, Gilbert Wheeler, Inc.

Darrin Walker Law Office of Darrin Walker 6134 Riverchase Glen Dr. Kingwood, Texas 77345 Email: darrinwalker@embarqmail.com Attorney for Plaintiff, Gilbert Wheeler, Inc.

Appellant=s Motion for Leave to File Supplemental Brief Page 5