Fleming & Associates, L.L.P. (n/K/A Fleming, Nolen & Jez L.L.P.) and George Fleming v. Charles Kirklin, Stephen Kirklin, Paul Kirklin

Procedural entryThis page is a short order in Fleming & Associates, L.L.P. (n/K/A Fleming, Nolen & Jez L.L.P.) and George Fleming v. Charles Kirklin, Stephen Kirklin, Paul Kirklin. Read the opinion of the Court — 2015 Tex. App. LEXIS 11087 →

Court of Appeals of Texas·Decided November 24, 2015·No. 14-15-00238-CV·Published

Opinion

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

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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

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

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.

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.

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.