Case Information

*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 11/30/2015 5:16:37 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-15-00238-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 11/30/2015 5:16:37 PM CHRISTOPHER PRINE CLERK No. 14-15-00238-CV

No. 14-15-00369-CV I N THE F OURTEENTH C OURT OF A PPEALS H OUSTON , T EXAS

F LEMING & A SSOCIATES , L.L.P. N / K / A F LEMING , N OLEN & J EZ , L.L.P. AND G EORGE F LEMING ,

Appellants/Cross-Appellees, v.

C HARLES K IRKLIN , S TEPHEN K IRKLIN , P AUL K IRKLIN AND T HE K IRKLIN L AW F IRM , P.C., Appellees On Appeal from the 234th District Court, Harris County, Texas Trial Court Cause No. 2014-53135 Hon. Wesley Ward, Presiding A PPELLANTS ’/C ROSS -A PPELLEES ’ R EPLY T O THE K IRKLIN D EFENDANTS ’ O PPOSITION TO T HEIR M OTION FOR R EHEARING 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 *2 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”) reply to the Kirklin defendants’ response in opposition to their

motions for rehearing in Appeal Nos. 14-15-00238-CV and 14-15-00369-CV.

In support, the Fleming Appellants show the Court the following: 1. If possible, the Kirklin defendants have made a confusing finality issue even more so. Contrary to what the Kirklin defendants argue, this is a

straightforward issue. All that now needs to occur is the continuation of the

Fleming Appellants’ appeal from two final judgments for the Kirklin defendants,

as well as their own attorneys’ fee cross-appeal. If finality was not found before,

the Jackson defendants’ nonsuit of any claims by or against them should have

cured any finality problems, given that no appeal is pending on the judgment for

the Jackson defendants.

2. Nonetheless, the Kirklin defendants have managed somehow to

conflate expired trial court plenary power with this Court’s alleged lack of

jurisdiction resulting from its dismissal of the two remaining appeals as

interlocutory. They are wrong on both counts, as the Fleming Appellants

explained to this Court in their November 23, 2015 supplement to their rehearing

motions.

3. The Kirklin defendants convoluted the finality issue further by insisting to the trial court in a motion and at a hearing that it was permitted to

consider and rule on their pending rehearing motion on the denial of trial attorneys’

fees. By contrast, they maintained, this Court lacked jurisdiction, apparently

because the nonsuit ended everything.

4. But the Kirklin defendants have now reversed course entirely. And

further, they have not addressed the contents of the Fleming Appellants’ motion for

rehearing. Instead, they focus on the Court’s October 29, 2015 dismissal Orders.

5. First, the Kirklin defendants never mentioned to the trial court last week that the Fleming Appellants’ motions for rehearing were (and are) pending,

and that this Court had requested their response by November 30, 2015. However,

they did respond timely.

6. But the Kirklin defendants’ November 29 opposition to rehearing

includes nothing meritorious. In short, they have reversed their position 180º, and

see nothing wrong with the reversal. To the extent that their argument is at all

comprehensible, the Kirklin defendants now claim that the trial court’s orders are

not final because it did not sign an order dismissing the Jackson defendants’

claims after the nonsuit was filed.

7. Moreover, the little authority they provide on the effect of a nonsuit

does not apply to the finality issue here. One decision deals with appellate

timetables, and the other with a nonsuit allowing the right to appeal . See Davidoff

v. GX Tech. Corp ., 134 S.W.3d 514 (Tex. App.—Waco 2004, no pet.); Villafani v.

Trejo , 251 S.W.3d 466 (Tex. 2008).

8. Nor does the lack of ruling on appellate and supreme court attorneys’

fees prevent finality for purposes of allowing the appeals to continue. As the Court

has long held, “[a]n award of appellate attorney’s fees is a conditional award,

depending on the outcome of the appeal.” See Protechnics Int’l, Inc. v. Tru-Tag

Sys., Inc ., 843 S.W.2d 734, 735 (Tex. App.—Houston [14th Dist.] 1992, no writ);

see also Messier v. Messier , 458 S.W.3d 155, 170 (Tex. App.—Houston [14th

Dist.] 2015, no pet.). Obviously, a conditional order with which F&A may never

need to comply will not block the finality of the trial court’s judgments.

9. Last, the Kirklin defendants’ unawareness of relevant rules concerning interlocutory appeals cannot save them from divesting the trial court of

its jurisdiction over its order denying their attorneys’ fees.

10. In short, the Kirklin defendants cannot have it both ways, by choosing to misrepresent the law to whatever is expedient for them. This Court

has jurisdiction over both appeals. They are now taken from final judgments and

should proceed to resolution until the end, through rehearing motions and perhaps

supreme court proceedings.

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 defendants’ flouting of all rules of procedures in their effort to achieve their goals.

Once more, the Fleming Appellants leave to the Court’s discretion any actions it

may wish to take. Again, it will apprise the trial court of the Kirklin defendants’

actions.

Respectfully submitted, F LEMING , N OLEN & J EZ , 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 C OUNSEL F OR A PPELLANTS / C ROSS A PPELLEES F LEMING & A SSOCIATES , L.L.P., AND G EORGE F LEMING ( N / K / A F LEMING , N OLEN & J EZ , L.L.P.) AND G EORGE F LEMING *7 C ERTIFICATE OF S ERVICE I hereby certify that on November 30, 2015, a true and correct copy of the above and foregoing Appellants’/Cross-Appellees’ Reply to the Kirklin

Defendants’ Opposition to Their Motion for Rehearing 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

T HE K IRKLIN L AW F IRM , 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