ACCEPTED 02-14-00405-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 9/28/2015 12:39:10 PM DEBRA SPISAK CLERK
No. 02-14-00405-CV FILED IN 2nd COURT OF APPEALS COURT OF APPEALS FOR THE SECOND DISTRICT FORT WORTH, TEXAS FORT WORTH, TEXAS 9/28/2015 12:39:10 PM DEBRA SPISAK Clerk MARK ROLLINS,
Appellant,
v.
HART SECURITY, LTD.,
Appellee.
On Appeal from the 141st District Court Cause No. 141-274465-14 of Tarrant County, Texas, the Honorable John P. Chupp, Presiding
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF
TO THE HONORABLE SECOND COURT OF APPEALS:
Appellant Mark Rollins (“Rollins”) files this motion requesting permission
to file the attached letter brief.
This case was submitted on oral argument on September 1, 2015.
The primary purpose of the attached letter brief is to address an issue raised
for the first time on appeal at oral argument regarding the time of the filing of the
English lawsuit in relation to Appellee’s Rule 202 petition seeking a “pre-suit”
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 1 deposition, and what impact, if any, that procedural issue has on the Court’s
disposition of the case.
This motion is made in the interest of justice and not for the purpose of
delay.
For these reasons, Rollins prays this Court grant its motion for leave and file
its post-submission letter brief.
Respectfully submitted,
/s/ John H. Cayce, Jr. William D. Wood John H. Cayce, Jr. State Bar No. 21916500 State Bar No. 04035650 william.wood@nortonrosefulbright.com john.cayce@kellyhart.com Warren S. Huang Dee. J. Kelly, Jr. State Bar No. 00796788 State Bar No. 11217250 warren.huang@nortonrosefulbright.com dee.kelly.2@kellyhart.com Justin Tschoepe Joe Greenhill State Bar No. 24079480 State Bar No. 24084523 justin.tschoepe@nortonrosefulbright.com joe.greenhill@kellyhart.com FULBRIGHT & JAWORSKI LLP KELLY HART & HALLMAN LLP 1301 McKinney, Suite 5100 201 Main Street, Suite 2500 Houston, Texas 77010-3095 Fort Worth, Texas 76102 Telephone: (713) 651-5151 Telephone: (817) 332-2500 Telecopier: (713) 651-5246 Telecopier: (817) 878-9280
COUNSEL FOR APPELLANT MARK ROLLINS
CERTIFICATE OF CONFERENCE
On September 23, 2015, I spoke to Ryan Valdez, counsel for Appellee, and he stated that Appellee does not oppose this motion.
/s/ John H. Cayce, Jr. John H. Cayce, Jr.
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 2 CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of September, 2015, a true and correct copy of the foregoing document has been delivered to the following counsel of record by electronic service and/or e-mail: Jack W. Massey jack.massey@sutherland.com Robert A. Lemus robert.lemus@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1001 Fannin Street, Suite 3700 Houston, Texas 77002 Robert D. Owen robert.owen@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1114 Avenue of the Americas New York, New York 10036 Ralph H. Duggins rduggins@canteyhanger.com Ryan Logan Valdez rvaldez@canteyhanger.com CANTEY HANGER LLP 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 Counsel for Appellee Hart Security Ltd. /s/ Joe Greenhill Joe Greenhill
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 3 JOHN H. CAYCE, JR. TELEPHONE: (817) 878-3597 john.cayce@kellyhart.com FAX: (817) 878-9797
September 28, 2015
Via Electronic Filing Debra Spisak, Clerk SECOND COURT OF APPEALS Tim Curry Criminal Justice Center 401 W. Belknap, 9th floor Fort Worth, Texas 76196 Re: Cause No. 02-14-00405-CV; Mark Rollins v. Hart Security, Ltd.; in the Second Court of Appeals, Fort Worth, Texas Dear Justices Gardner, Meier, and Sudderth:
This case was submitted on oral argument on Tuesday, September 1, 2015.
During argument, counsel for Hart presented the panel with a copy of a filed claim
form regarding the English lawsuit and suggested that counsel for Mr. Rollins had
misrepresented that the lawsuit was filed prior to Hart’s Rule 202 petition. To the
extent that the briefs submitted on Mr. Rollins’ behalf inadvertently allege that the
English lawsuit was filed prior to the Rule 202 petition, this allegation is
incorrect.1 Importantly, however, whether the English lawsuit was filed prior to or
after the Rule 202 petition is entirely irrelevant to the question of whether the trial
court abused its discretion in granting the petition to investigate a potential claim
that is governed by a mandatory forum selection clause fixing exclusive
1 Hart’s counsel similarly alleged in the trial court: “[w]e know those [claims] are pending in England.” [RR12].
FORT WORTH OFFICE | 201 MAIN STREET, SUITE 2500 | FORT WORTH, TX 76102 | TELEPHONE: (817) 332-2500 | FAX: (817) 878-9280 AUSTIN OFFICE | 303 COLORADO, SUITE 2000 | AUSTIN, TX 78701 | TELEPHONE: (512) 495-6400 | FAX: (512) 495-6401 MIDLAND OFFICE | 508 W. WALL, SUITE 444 | MIDLAND, TX 79701 | TELEPHONE: (432) 683-4691 | FAX: (432) 683-6518 NEW ORLEANS OFFICE | 400 POYDRAS STREET, SUITE 1812 | NEW ORLEANS, LA 70130 | TELEPHONE: (504) 522-1812 | FAX: (504) 522-1813 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 2
jurisdiction over the claim in English courts.2 Under Trooper, the trial court had
no discretion as a matter of law to grant Hart’s 202 petition irrespective of when
the English lawsuit was filed, because the trial court would lack authority to
adjudicate the potential claim if suit is filed against Mr. Rollins on that claim. 3
Br.Appellant8-16; ReplyBr.2-18; see In re Doe a/k/a “Trooper,” 444 S.W.3d 603,
607-09 (Tex. 2014) (orig. proceeding); see also City of Willow Park v. Squaw
Creek Downs, L.P., 166 S.W.3d 336, 340 (Tex. App.—Fort Worth 2005, no pet.).
Contrary to Hart’s assertion that Trooper is distinguishable, Trooper is on all
fours with this case in at least one critical respect: like the anonymous blogger in
Trooper, Mr. Rollins is a “potential defendant.” Br.Appellee1; [CR22]. As such,
Mr. Rollins was entitled to the same rights and protections in the 202 proceeding
as he would be in a lawsuit involving the potential claim—including the right to
challenge the trial court’s jurisdiction. Trooper, 444 S.W.3d at 608-10. The only
2 The timing of the English lawsuit is also irrelevant to whether the trial court’s benefit/burden finding is supported by the pleadings and the evidence. The insufficiency of Hart’s pleadings and evidence is fatal to Hart’s petition and requires that the trial court’s order be reversed and vacated, as matter of Texas law. Br.Appellant16-20; ReplyBr.19-22. Hart’s burden is not satisfied by the mere fact that Mr. Rollins lives in Tarrant County. If that were the case, the benefit/burden requirement would be meaningless in every circumstance where a 202 petition is filed to investigate a potential claim. See TEX. R. CIV. P. 202.2(b)(2) (petition to investigate potential claim must be filed the county “where the witness resides”). 3 As counsel for Mr. Rollins clarified at oral argument, because the mandatory forum selection clause vests the courts of England with exclusive jurisdiction over the underlying dispute, the trial court abused its discretion in exercising its jurisdiction over the dispute for pre-suit discovery purposes. The trial court’s subject matter jurisdiction is not at issue.
1965081_1 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 3
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ACCEPTED 02-14-00405-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 9/28/2015 12:39:10 PM DEBRA SPISAK CLERK
No. 02-14-00405-CV FILED IN 2nd COURT OF APPEALS COURT OF APPEALS FOR THE SECOND DISTRICT FORT WORTH, TEXAS FORT WORTH, TEXAS 9/28/2015 12:39:10 PM DEBRA SPISAK Clerk MARK ROLLINS,
Appellant,
v.
HART SECURITY, LTD.,
Appellee.
On Appeal from the 141st District Court Cause No. 141-274465-14 of Tarrant County, Texas, the Honorable John P. Chupp, Presiding
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF
TO THE HONORABLE SECOND COURT OF APPEALS:
Appellant Mark Rollins (“Rollins”) files this motion requesting permission
to file the attached letter brief.
This case was submitted on oral argument on September 1, 2015.
The primary purpose of the attached letter brief is to address an issue raised
for the first time on appeal at oral argument regarding the time of the filing of the
English lawsuit in relation to Appellee’s Rule 202 petition seeking a “pre-suit”
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 1 deposition, and what impact, if any, that procedural issue has on the Court’s
disposition of the case.
This motion is made in the interest of justice and not for the purpose of
delay.
For these reasons, Rollins prays this Court grant its motion for leave and file
its post-submission letter brief.
Respectfully submitted,
/s/ John H. Cayce, Jr. William D. Wood John H. Cayce, Jr. State Bar No. 21916500 State Bar No. 04035650 william.wood@nortonrosefulbright.com john.cayce@kellyhart.com Warren S. Huang Dee. J. Kelly, Jr. State Bar No. 00796788 State Bar No. 11217250 warren.huang@nortonrosefulbright.com dee.kelly.2@kellyhart.com Justin Tschoepe Joe Greenhill State Bar No. 24079480 State Bar No. 24084523 justin.tschoepe@nortonrosefulbright.com joe.greenhill@kellyhart.com FULBRIGHT & JAWORSKI LLP KELLY HART & HALLMAN LLP 1301 McKinney, Suite 5100 201 Main Street, Suite 2500 Houston, Texas 77010-3095 Fort Worth, Texas 76102 Telephone: (713) 651-5151 Telephone: (817) 332-2500 Telecopier: (713) 651-5246 Telecopier: (817) 878-9280
COUNSEL FOR APPELLANT MARK ROLLINS
CERTIFICATE OF CONFERENCE
On September 23, 2015, I spoke to Ryan Valdez, counsel for Appellee, and he stated that Appellee does not oppose this motion.
/s/ John H. Cayce, Jr. John H. Cayce, Jr.
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 2 CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of September, 2015, a true and correct copy of the foregoing document has been delivered to the following counsel of record by electronic service and/or e-mail: Jack W. Massey jack.massey@sutherland.com Robert A. Lemus robert.lemus@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1001 Fannin Street, Suite 3700 Houston, Texas 77002 Robert D. Owen robert.owen@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1114 Avenue of the Americas New York, New York 10036 Ralph H. Duggins rduggins@canteyhanger.com Ryan Logan Valdez rvaldez@canteyhanger.com CANTEY HANGER LLP 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 Counsel for Appellee Hart Security Ltd. /s/ Joe Greenhill Joe Greenhill
UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION LETTER BRIEF PAGE 3 JOHN H. CAYCE, JR. TELEPHONE: (817) 878-3597 john.cayce@kellyhart.com FAX: (817) 878-9797
September 28, 2015
Via Electronic Filing Debra Spisak, Clerk SECOND COURT OF APPEALS Tim Curry Criminal Justice Center 401 W. Belknap, 9th floor Fort Worth, Texas 76196 Re: Cause No. 02-14-00405-CV; Mark Rollins v. Hart Security, Ltd.; in the Second Court of Appeals, Fort Worth, Texas Dear Justices Gardner, Meier, and Sudderth:
This case was submitted on oral argument on Tuesday, September 1, 2015.
During argument, counsel for Hart presented the panel with a copy of a filed claim
form regarding the English lawsuit and suggested that counsel for Mr. Rollins had
misrepresented that the lawsuit was filed prior to Hart’s Rule 202 petition. To the
extent that the briefs submitted on Mr. Rollins’ behalf inadvertently allege that the
English lawsuit was filed prior to the Rule 202 petition, this allegation is
incorrect.1 Importantly, however, whether the English lawsuit was filed prior to or
after the Rule 202 petition is entirely irrelevant to the question of whether the trial
court abused its discretion in granting the petition to investigate a potential claim
that is governed by a mandatory forum selection clause fixing exclusive
1 Hart’s counsel similarly alleged in the trial court: “[w]e know those [claims] are pending in England.” [RR12].
FORT WORTH OFFICE | 201 MAIN STREET, SUITE 2500 | FORT WORTH, TX 76102 | TELEPHONE: (817) 332-2500 | FAX: (817) 878-9280 AUSTIN OFFICE | 303 COLORADO, SUITE 2000 | AUSTIN, TX 78701 | TELEPHONE: (512) 495-6400 | FAX: (512) 495-6401 MIDLAND OFFICE | 508 W. WALL, SUITE 444 | MIDLAND, TX 79701 | TELEPHONE: (432) 683-4691 | FAX: (432) 683-6518 NEW ORLEANS OFFICE | 400 POYDRAS STREET, SUITE 1812 | NEW ORLEANS, LA 70130 | TELEPHONE: (504) 522-1812 | FAX: (504) 522-1813 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 2
jurisdiction over the claim in English courts.2 Under Trooper, the trial court had
no discretion as a matter of law to grant Hart’s 202 petition irrespective of when
the English lawsuit was filed, because the trial court would lack authority to
adjudicate the potential claim if suit is filed against Mr. Rollins on that claim. 3
Br.Appellant8-16; ReplyBr.2-18; see In re Doe a/k/a “Trooper,” 444 S.W.3d 603,
607-09 (Tex. 2014) (orig. proceeding); see also City of Willow Park v. Squaw
Creek Downs, L.P., 166 S.W.3d 336, 340 (Tex. App.—Fort Worth 2005, no pet.).
Contrary to Hart’s assertion that Trooper is distinguishable, Trooper is on all
fours with this case in at least one critical respect: like the anonymous blogger in
Trooper, Mr. Rollins is a “potential defendant.” Br.Appellee1; [CR22]. As such,
Mr. Rollins was entitled to the same rights and protections in the 202 proceeding
as he would be in a lawsuit involving the potential claim—including the right to
challenge the trial court’s jurisdiction. Trooper, 444 S.W.3d at 608-10. The only
2 The timing of the English lawsuit is also irrelevant to whether the trial court’s benefit/burden finding is supported by the pleadings and the evidence. The insufficiency of Hart’s pleadings and evidence is fatal to Hart’s petition and requires that the trial court’s order be reversed and vacated, as matter of Texas law. Br.Appellant16-20; ReplyBr.19-22. Hart’s burden is not satisfied by the mere fact that Mr. Rollins lives in Tarrant County. If that were the case, the benefit/burden requirement would be meaningless in every circumstance where a 202 petition is filed to investigate a potential claim. See TEX. R. CIV. P. 202.2(b)(2) (petition to investigate potential claim must be filed the county “where the witness resides”). 3 As counsel for Mr. Rollins clarified at oral argument, because the mandatory forum selection clause vests the courts of England with exclusive jurisdiction over the underlying dispute, the trial court abused its discretion in exercising its jurisdiction over the dispute for pre-suit discovery purposes. The trial court’s subject matter jurisdiction is not at issue.
1965081_1 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 3
difference between the jurisdictional challenge in Trooper and the jurisdictional
challenge here is that Mr. Rollins bases his challenge on a mandatory forum
selection clause,4 whereas the challenge by the potential defendant in Trooper was
based on personal jurisdiction. Despite this difference, the result is the same—the
trial court has no discretion to grant Rule 202 discovery to investigate the potential
claim against Mr. Rollins, because the courts of England would have exclusive
jurisdiction over any suit filed by Hart on the potential claim.
Hart’s contention at oral argument that English law precludes Mr. Rollins
from challenging jurisdiction under the mandatory forum selection clause also has
no merit.5 None of Hart’s cryptic statements of English law are inconsistent with
the well-established legal doctrines discussed in Mr. Rollins’ reply brief that
permit non-signatory parties to invoke a forum selection clause under Texas law.
See ReplyBr.13-18. Instead, the English authorities on which Hart relies appear to
involve situations where the non-signatory is suing to enforce the contract; those
authorities do not address the situation where, as here, the non-signatory
(Mr. Rollins) has invoked a forum selection as a defense to avoid litigation in a
4 As a potential defendant and non-signatory to the agreement containing the mandatory forum selection clause, Mr. Rollins has the legal right to invoke the mandatory forum selection clause under the direct benefits estoppel doctrine and the transaction participant rule. ReplyBr.13-18. 5 Moreover, the argument is waived because Hart has failed to supply the Court with the full text of the English authorities on which it relies. In re S.N.A., No. 2-07-349-CV, 2008 WL 4938108, at *1-2 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.).
1965081_1 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 4
forum which the plaintiff contractually agreed not litigate the claim in question.
Texas law clearly gives Mr. Rollins the right to do this.
Thank you for your thoughtful consideration of this letter brief.
/s/ John H. Cayce, Jr. William D. Wood John H. Cayce, Jr. State Bar No. 21916500 State Bar No. 04035650 william.wood@nortonrosefulbright.com john.cayce@kellyhart.com Warren S. Huang Dee. J. Kelly, Jr. State Bar No. 00796788 State Bar No. 11217250 warren.huang@nortonrosefulbright.com dee.kelly.2@kellyhart.com Justin Tschoepe Joe Greenhill State Bar No. 24079480 State Bar No. 24084523 justin.tschoepe@nortonrosefulbright.com joe.greenhill@kellyhart.com FULBRIGHT & JAWORSKI LLP KELLY HART & HALLMAN LLP 1301 McKinney, Suite 5100 201 Main Street, Suite 2500 Houston, Texas 77010-3095 Fort Worth, Texas 76102 Telephone: (713) 651-5151 Telephone: (817) 332-2500 Telecopier: (713) 651-5246 Telecopier: (817) 878-9280
1965081_1 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com September 28, 2015 Page 5
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of September, 2015, a true and correct copy of the foregoing document has been delivered to the following counsel of record by electronic service and/or e-mail: Jack W. Massey jack.massey@sutherland.com Robert A. Lemus robert.lemus@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1001 Fannin Street, Suite 3700 Houston, Texas 77002 Robert D. Owen robert.owen@sutherland.com SUTHERLAND ASBILL & BRENNAN LLP 1114 Avenue of the Americas New York, New York 10036 Ralph H. Duggins rduggins@canteyhanger.com Ryan Logan Valdez rvaldez@canteyhanger.com CANTEY HANGER LLP 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 Counsel for Appellee Hart Security Ltd. /s/ John H. Cayce, Jr. John H. Cayce, Jr.
1965081_1 Kelly Hart & Hallman, a Limited Liability Partnership | www.kellyhart.com