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

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
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.
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 Paul Kirklin
PSK 14Hrs @ $350.00= $4,900.00
3
STEPHEN KIRKLIN
SOLO PRACTITIONER
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 STEPHEN KIRKLIN ("SRK") 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 are only for Stephen Kirklin reflected as "SRK" 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
1
Court in light of the Hearing and proposed SRK 4.00
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 Stephen Kirklin
SRK 58.5Hrs @ $450.00= $ 26,325.00
3
EXHIBIT C
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11/18/2015 3:41:22 PM
Chris Daniel - District Clerk Harris County
Envelope No. 7891169
By: LAWANDA CORNETT
Filed: 11/18/2015 3:41:22 PM
No. 2014-53135
FLEMING & ASSOCIATES, L.L.P. § IN THE DISTRICT COURT OF
(n/k/a FLEMING, NOLEN & JEZ, §
L.L.P.) and GEORGE FLEMING, §
Plaintiffs, §
§
v. §
§ HARRIS COUNTY, TEXAS
CHARLES KIRKLIN, STEPHEN §
KIRKLIN, PAUL KIRKLIN, THE §
KIRKLIN LAW FIRM, P.C. (n/k/a §
KIRKLIN SOH, L.L.P.), DON §
JACKSON, JEFFREY W. §
CHAMBERS, and WARE, JACKSON, §
LEE & CHAMBERS L.L.P., §
Defendants. § 234TH JUDICIAL DISTRICT
THE FLEMING PLAINTIFFS’
OPPOSITION TO THE KIRKLIN LAW FIRM’S
MOTION FOR REHEARING ON ATTORNEYS’ FEES
TO THE HONORABLE COURT:
Plaintiffs/Appellants Fleming & Associates, L.L.P. (n/k/a Fleming, Nolen & Jez,
L.L.P.) and George Fleming (collectively, the Fleming Plaintiffs) oppose the motion for
rehearing filed by Defendants Charles Kirklin, Stephen Kirklin, Paul Kirklin, The Kirklin
Law Firm, P.C. (n/k/a Kirklin Soh, L.L.P.) (the Kirklin Defendants).
The Fleming Plaintiffs’ opposition does not address the merits of the Kirklin
Defendants’ motion for rehearing, but rather establishes the Court’s lack of jurisdiction to
entertain it. The Fleming Plaintiffs therefore respectfully request that the Court dismiss
or summarily deny the Kirklin Defendants’ motion for lack of jurisdiction, and order the
rehearing postponed indefinitely:
1. The Kirklin Defendants have not only filed a jurisdictionally improper
motion for rehearing of this Court’s denial of trial attorneys’ fees, but also have
unilaterally set a hearing on the motion for a date the Fleming Plaintiffs’ trial counsel is
unavailable.
2. This Court lacks jurisdiction to consider the motion for rehearing for two
reasons, both of which the Kirklin Defendants ignore:
First, Defendants divested the Court of jurisdiction by filing a notice of
cross-appeal from the fee denial one day after the order; and
Second, the Fleming Plaintiffs’ motion for rehearing from the dismissal of appeals
from this Court’s (allegedly interlocutory) Orders, and the Kirklin Defendants’
cross-appeal, is presently pending at the Fourteenth Court of Appeals, as is the appellate
court’s request for Defendants’ responses.
3. The procedural facts establishing lack of jurisdiction follow:
• This Court denied the Kirklin Defendants’ trial attorneys’ fees and
sanctions motion in an Order signed March 30, 2015.
• The Kirklin Defendants did not move for rehearing before this Court, as
they were permitted to do. Instead, the next day—March 31, 2015—
they filed a notice of cross-appeal in pending Appeal No. 14-15-00238-
CV (from the anti-SLAPP dismissal), seeking reversal of the denial of
fees and sanctions. Therefore, they are not allowed to move for
rehearing months later, as rehearing has been waived.
• On October 29, 2015, the Fourteenth Court of Appeals dismissed
Appeal No. 14-15-00238-CV, holding the appeal was not taken from a
2
final Order. The dismissal included the Kirklin Defendants’ cross-
appeal. It also dismissed a companion appeal, No. 14-15-00369-CV
(summary judgment) for the same reason.
• The deadline for a motion for rehearing at the appellate court was
Friday, November 13, 2015.
• On November 12, 2015, at 3:43 p.m., co-Defendants Don Jackson,
Jeffrey W. Chambers, and Ware, Jackson, Lee & Chambers L.L.P. (the
Jackson Defendants) filed a Rule 162 notice of dismissal with this
Court. Effective immediately, therefore, all claims related to the
Jackson Defendants were dismissed. See, e.g., Univ. of Tex. Med.
Branch v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).
• 45 minutes later, at 4:33 p.m., the Kirklins improperly filed their motion
for rehearing in this Court. But despite certifying that service took place
on November 12, they deliberately delayed serving counsel until
today—November 18, 2015. Hence, this opposition.
• On November 13, 2015, the Fleming Plaintiffs filed two motions for
rehearing at the Court of Appeals, attaching the Jackson Defendants’
R. 162 notice of dismissal. A copy of the motion for No. 14-15-00238-
CV (without exhibits), which is a duplicate of the motion for No. 14-15-
00369-CV, is attached to this opposition as Ex. 1.
• The motions for rehearing are still pending at the Fourteenth Court of
Appeals. Therefore, this Court lacks jurisdiction to consider and rule on
the Kirklin Defendants’ motion for rehearing, and to hear argument on
the motion.
• Further, on November 17, 2015, the Court of Appeals requested
responses from the Kirklin Defendants to the Fleming Plaintiffs’
3
motions for rehearing. Copies of the appellate court’s requests are
attached to this opposition as Ex. 2. That is because under the R. 49.2
of the Rules of Appellate Procedure:
No response to a motion for rehearing need be filed
unless the court so requests. A motion will not be
granted unless a response has been filed or requested
by the court.
Therefore, the Kirklin Defendants should respond to the Court of Appeals’ request, as it
obviously retains jurisdiction. They may not file a motion in this Court, which lacks
jurisdiction to consider it.
4. Last, the Kirklin Defendants set a hearing without consulting with the
Fleming Plaintiffs’ trial counsel as to his schedule. Ken Johnson, trial counsel for the
Fleming Plaintiffs, will be unavailable for a hearing on Monday, November 23, 2015. A
copy of his declaration accompanies this opposition as Ex. 3.
CONCLUSION
For all reasons above, the Court lacks jurisdiction to consider any submission from
the Kirklin Defendants, including a motion for rehearing—which was waived in any
event. The Court should therefore deny or dismiss the Kirklin Defendants’ motion for
rehearing for lack of jurisdiction. Further, the Court should order the hearing continued
indefinitely, to be reset only if the Kirklin Defendants’ motion is properly before the
Court.
4
Respectfully submitted,
/s/ J. Ken Johnson
J. Ken Johnson
State Bar No. 10746300
Email: ken_johnson@fleming-law.com
Sylvia Davidow
State Bar No. 05430551
Email: sylvia_davidow@fleming-law.com
George M. Fleming
State Bar No. 07123000
Email: george_fleming@fleming-law.com
FLEMING, NOLEN & JEZ, L.L.P.
2800 Post Oak Blvd., Suite 4000
Houston, Texas 77056
Telephone (713) 621-7944
Fax (713) 621-9638
ATTORNEYS FOR
PLAINTIFFS/APPELLANTS/
CROSS-APPELLEES
FLEMING & ASSOCIATES, L.L.P.
and GEORGE M. FLEMING
5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served on all
attorneys of record, as set forth below, on November 18, 2015.
Via E-Mail to:
Paul Kirklin Stephen R. Kirklin
pkirklin@kirklinlaw.com 12600 N. Featherwood Drive, #225
The Kirklin Law Firm, P.C. Skirklin312@gmail.com
12600 N. Featherwood Drive, #225 Houston, Texas 77034
Houston, Texas 77034 Telephone (713) 571-8300
Telephone (713) 571-8300 Facsimile (281) 922-6240
Facsimile (281) 922-6240
ATTORNEY FOR DEFENDANTS DEFENDANT STEPHEN R. KIRKLIN,
CHARLES KIRKLIN, PAUL PRO SE
KIRKLIN, AND THE KIRKLIN
LAW FIRM, P.C.
/s/Sylvia Davidow
Sylvia Davidow
6
11/23/2015 1:23:51 PM
Chris Daniel - District Clerk Harris County
Envelope No. 7949261
By: LAWANDA CORNETT
Filed: 11/23/2015 1:23:51 PM
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
NOTICE OF HEARING
Please take notice that a hearing has been set on December 7, 2015 at 1:00
p.m. in the 234th Judicial Court for (1) Motion For Rehearing on Denial of Trial
Attorneys' Fees For The Kirklin Law Firm, P.C. which was filed on November 12,
2015 and (2) The Rule 13 Motion for Sanctions and Attorneys' Fees contained in
Defendants' Motion For Summary Judgment which was filed on December 16, 2014.
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
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/s/ Stephen R. Kirklin__________________
Stephen R. Kirklin,
Texas Bar No. 11523700
12600 N Featherwood Dr Suite 225
Houston, TX 77034
Tel. (713) 571-8300
Fax. (281) 922-6240
Attorney for Defendants Stephen R. Kirklin
and The Kirklin Law Firm, P.C.
CERTIFICATE OF SERVICE
I certify that on November 23, 2015 a true and correct copy of the foregoing
Notice of Hearing was served on all counsel of record and George Fleming
electronically at george_fleming@fleming-law.com, and J. Ken Johnson
electronically at ken_johnson@fleming-law.com, and Sylvia Davidow at
silvia_davidow@fleming-law.com.
/s/ Paul S. Kirklin
Paul S. Kirklin
/s/ Stephen R. Kirklin____________________
Stephen R. Kirklin
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