Case Information
*0 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 2/24/2015 10:31:10 AM LISA MATZ Clerk *1 ACCEPTED 05-14-01215-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/24/2015 10:31:10 AM LISA MATZ CLERK
NO. 05-14-01215-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS
H IGHLAND APITAL M ANAGEMENT , L.P., Appellant/Cross-Appellee v.
P ATRICK D AUGHERTY , Appellee/Cross-Appellant v.
H IGHLAND E MPLOYEE R ETENTION A SSETS LLC, Cross-Appellant On Appeal from the 68th District Court of Dallas County, Texas
Cause No. DC-12-04005 J State Bar No. 00000024 State Bar No. 24041022 State Bar No. 07403100 cfrazier@adjtlaw.com OHANSEN Dana Livingston
State Bar No. 00791002 AIL State Bar No. 12437420 dlivingston@adjtlaw.com LEXANDER D UBOSE EFFERSON & OWNSEND LLP Telephone: (214) 855-6800 4925 Greenville Avenue Facsimile: (214) 855-6808
Telephone: (512) 320-9220 Dallas, Texas 75206-4026
Facsimile: (512) 542-5220 Attorneys for Highland Telephone: (214) 369-2358
Employee Retention Assets Facsimile: (214) 369-2359 Attorneys for Highland Capital LLC
Management, L.P. Attorneys for Patrick
Daugherty *2 O T HE ONORABLE OURT OF PPEALS :
The parties to this Appeal that have filed notices of appeal—Patrick Daugherty (“Daugherty”); Highland Capital Management, L.P. (“Highland”); and
Highland Employee Retention Assets LLC (“HERA”)—jointly request the Court to
reorder the briefing schedule in this appeal in accordance with the parties’ respective
positions and requests for relief, and in support respectfully show the following: This appeal arises from a suit in the 68th District Court of Dallas
County, Texas, No. DC-12-04005. Highland initiated the suit as plaintiff, asserting
various claims against Daugherty. CR 1:18. Daugherty filed counterclaims against
Highland and third-party claims against HERA, Patrick Boyce, William Britain,
James Dondero, and Sierra Verde LLC. CR 1:50. Based on the jury’s verdict,
Highland recovered a judgment of $2.8 million in attorney’s fees against Daugherty,
and Daugherty recovered a judgment of $2.6 million in damages against HERA. CR
5:2186, 2570.
2. After the trial court overruled Highland’s challenge to Daugherty’s supersedeas bond, Highland filed a Motion to Increase Supersedeas Bond in this
Court under Rule 24.4 of the Texas Rules of Appellate Procedure (“Rule 24
Proceeding”) on September 24, 2014. See CR 5:2817, 2937. Highland had
previously filed a notice of appeal (Sept. 22, 2014) specifically challenging the order
denying its motion to increase the supersedeas bond. CR 5:3295. The Court assigned
the above-referenced cause number to the Rule 24 Proceeding and ultimately denied
Highland’s motion. Highland Capital Mgmt. L.P. v. Daugherty , No. 05-14-01215-
CV, 2014 WL 6559001, at *2 (Tex. App.—Dallas Oct. 22, 2014, order). Shortly after Highland filed its Rule 24 Motion in this Court, but before
the Court’s order on that Motion, Daugherty filed a notice of appeal of the Final
Judgment on October 3, 2014. CR 5:3308. On October 10, 2014, Highland and
HERA filed their respective notices of cross appeal of the Final Judgment.
CR 5:3311, 3316. The Court assigned the appeal of the Final Judgment cause
number 05-14-01283.
4. On October 22, 2014, the Court on its own motion consolidated the Final Judgment appeal into the cause number for the Rule 24 Proceeding, 05-14-
01215-CV, and administratively closed cause number 05-14-01283. The parties are
designated on the Court’s docket as: Appellant – Highland; Appellees – Daugherty
and HERA.
5. On January 29, 2015, the Court ordered the Clerk of the Court “to remove the designation of this case as an accelerated appeal,” and ordered the parties
“to file their briefs in this case in accordance with the requirements of rule 38.6 of
the Texas Rules of Appellate Procedure for ordinary appeals from final judgment.”
6. Under the Court’s briefing calendar, Highland’s brief of appellant is due February 24, 2015. For the reasons stated below, the parties respectfully request
the Court to revise the briefing schedule in this appeal. In this appeal, the primary challenges to the Final Judgment will be
made by Daugherty—of the $2.8 million judgment against him—and by HERA—
of the $2.6 million judgment against it. Daugherty may also challenge adverse
findings by the jury on his claims against Highland and the third-party defendants.
Highland will challenge various jury findings and trial court rulings.
8. Based on the nature of the relief the parties’ are seeking in this appeal, the parties respectfully request the Court to revise and reorder the briefing. The
parties respectfully propose the following briefing schedule:
Briefing Round Briefs due
1 • Daugherty’s opening brief due March 30, 2015.
• HERA’s opening brief due March 30, 2015. 2 • Daugherty’s brief in response to HERA’s brief due 30 days after #1.
• The combined brief of (a) Highland’s (and all other appellees as to Daugherty, if applicable) brief in response to Daugherty’s brief and (b) Highland’s opening brief as cross- appellant due 30 days after #1.
• Daugherty’s combined reply brief and appellee’s response to 3 Highland’s opening brief, due 30 days after #2.
• HERA’s reply brief due 30 days after #2. 4 • Highland’s reply brief due 20 days after Daugherty’s brief under #3.
*5 In an effort to further simplify the proposed briefing schedule, the parties have also agreed that if any party requests an extension of a briefing deadline
on which more than one brief is due, and such request is unopposed, the parties will
not oppose an identical extension for the other brief that is due.
Accordingly, Highland Capital Management L.P.; Patrick Daugherty; and Highland Employee Retention Assets LLC respectfully request that the Court
reorder the briefing schedule as provided herein and for all other appropriate relief.
/s/ Scott A. Brister /s/ John F. Guild /s/ Charles T. Frazier, Jr.
State Bar No. 00000024 State Bar No. 24041022 State Bar No. 07403100 cfrazier@adjtlaw.com J OHANSEN Dana Livingston
State Bar No. 00791002 AIL State Bar No. 12437420 dlivingston@adjtlaw.com LEXANDER D UBOSE EFFERSON & OWNSEND LLP Telephone: (214) 855-6800 4925 Greenville Avenue Facsimile: (214) 855-6808
Telephone: (512) 320-9220 Dallas, Texas 75206-4026
Facsimile: (512) 542-5220 Attorneys for Highland Telephone: (214) 369-2358
Employee Retention Assets Facsimile: (214) 369-2359 Attorneys for Highland Capital LLC
Management, L.P. Attorneys for Patrick
Daugherty *6 ERTIFICATE OF S ERVICE I certify that the foregoing document was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that a
true and correct copy of the foregoing was served via e-service on the following
counsel of record on February 24, 2015. OHANSEN AIL NDREWS K URTH LLP
Dallas, Texas 75202
1717 Main Street /s/ Charles T. Frazier, Jr.