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Archives: Brett Kutnick

 

Texas Supreme Court Eliminates $9.6 Million Judgment for Injured Worker Based on the Absence of a Duty

In a highly watched case regarding the duties owed by former property owners, Deborah Hankinson, Brett Kutnick, Rick Thompson, and Jennifer Stagen successfully represented Occidental Chemical Corporation and persuaded the Texas Supreme Court to reverse a $9.6 million negligence judgment awarded to a worker who… + read more

In a highly watched case regarding the duties owed by former property owners, Deborah Hankinson, Brett Kutnick, Rick Thompson, and Jennifer Stagen successfully represented Occidental Chemical Corporation and persuaded the Texas Supreme Court to reverse a $9.6 million negligence judgment awarded to a worker who was partially blinded by acid at a chemical plant years after Occidental’s sale of the plant. Specifically, the Supreme Court addressed whether a property owner who allegedly creates a dangerous condition owes a duty in premises liability to warn of the dangerous condition or to make it safe and a duty in negligence to use reasonable care not to create the dangerous condition in the first place. In answering that question in the negative, the Court rejected the notion that a property owner acts as both owner and independent contractor when improving its own property, subjecting itself to either premises-liability or ordinary-negligence principles depending on the injured party’s pleadings. Instead, the Court held that premises-liability principles apply to a property owner who creates a dangerous condition on its property, and that the claim of a person injured by the condition remains a premises-liability claim as to the owner-creator, regardless of how the injured party chooses to plead it. Because Occidental sold the property eight years before the plaintiff’s accident, the Supreme Court held that Occidental owed no duty of care as that duty had passed to its vendee. The Court therefore reversed the court of appeals’ judgment and rendered judgment that the plaintiff take nothing. See Occidental Chemical Corp. v. Jenkins, No. 13-0961, 2016 WL 82662 (Tex. Jan. 8, 2016).

 

Take-Nothing Judgment in Favor of Contractor Affirmed on Appeal

Brett Kutnick and Jennifer Stagen successfully represented Triad Electric and Controls, Inc. on appeal from a take-nothing judgment rendered in Triad’s favor after a multi-week jury trial in which the plaintiff, MEMC Pasadena, Inc., sought over $25 million in lost profits allegedly sustained by MEMC’s… + read more

Brett Kutnick and Jennifer Stagen successfully represented Triad Electric and Controls, Inc. on appeal from a take-nothing judgment rendered in Triad’s favor after a multi-week jury trial in which the plaintiff, MEMC Pasadena, Inc., sought over $25 million in lost profits allegedly sustained by MEMC’s polysilicon manufacturing facility from a power outage during the construction of an expansion project. After Brett Kutnick presented oral argument, the Court of Appeals for the Fourteenth District of Texas in Houston rejected MEMC’s challenges to the legal and factual sufficiency of the evidence and the jury charge, concluded that the evidence supported the jury’s findings that MEMC agreed to exclude consequential lost profits in its contract with Triad and was estopped from claiming otherwise, and held that the economic loss rule bars MEMC’s recovery of negligence damages from Triad. The court therefore affirmed the trial court’s judgment that MEMC take nothing from Triad. MEMC Pasadena, Inc. v. Riddle Power, LLC and Triad Electric and Controls, Inc., No. 14-13-00117-CV, ___ S.W.3d ___, 2015 WL 4628143 (Tex. App.—Houston [14th Dist.] Aug. 4, 2015, no pet. hist.).

 

Take-Nothing Summary Judgment Affirmed in Products Liability Action

Brett Kutnick and Stephanie Nelson successfully defended a take-nothing summary judgment rendered in favor of Hankinson LLP client, Whirlpool Corporation, in a recent products liability appeal in the U.S. Court of Appeals for the Fifth Circuit. The plaintiff had sued Whirlpool alleging carbon monoxide exposure… + read more

Brett Kutnick and Stephanie Nelson successfully defended a take-nothing summary judgment rendered in favor of Hankinson LLP client, Whirlpool Corporation, in a recent products liability appeal in the U.S. Court of Appeals for the Fifth Circuit. The plaintiff had sued Whirlpool alleging carbon monoxide exposure from a gas range. The Hankinson appellate team persuaded the Fifth Circuit that the district court properly excluded plaintiff’s expert witnesses on causation and design defect and that summary judgment was proper on all of the plaintiff’s claims. Accordingly, the Fifth Circuit affirmed the district court’s summary judgment. Macy v. Whirlpool Corp., No. 14-20603, 2015 WL 3505511 (5th Cir. June 4, 2015).

 

Order Granting New Trial Reviewed and Vacated on Mandamus

Brett Kutnick led a team of Hankinson lawyers, including Deborah Hankinson, Joseph Morris, Jennifer Rangel Stagen, and Stephanie Nelson, in successfully representing the defendants in a petition for writ of mandamus seeking to set aside a trial court’s order granting the plaintiffs a new trial… + read more

Brett Kutnick led a team of Hankinson lawyers, including Deborah Hankinson, Joseph Morris, Jennifer Rangel Stagen, and Stephanie Nelson, in successfully representing the defendants in a petition for writ of mandamus seeking to set aside a trial court’s order granting the plaintiffs a new trial after a multi-week jury trial concerning the alleged breach of an attorney-client contingency fee agreement. Following briefing, the Court of Appeals for the Fourth District of Texas in San Antonio conditionally granted the mandamus petition and ordered the trial court to vacate its order granting a new trial and issue a new order specifying its reasons for granting a new trial. In re Davenport, No. 04-14-00666-CV, 2015 WL 1089679 (Tex. App.—San Antonio Mar. 11, 2015, orig. proceeding) (mem. op.).

 

Death Penalty Sanctions Vacated on Mandamus

Brett Kutnick, Jennifer Rangel Stagen, and Joseph Morris successfully represented Medtronic, Inc. in a petition for writ of mandamus seeking to set aside a death penalty sanction for Medtronic’s alleged improper contact with the opposing party’s consulting expert.  Following briefing, the Court of Appeals for… + read more

Brett Kutnick, Jennifer Rangel Stagen, and Joseph Morris successfully represented Medtronic, Inc. in a petition for writ of mandamus seeking to set aside a death penalty sanction for Medtronic’s alleged improper contact with the opposing party’s consulting expert.  Following briefing, the Court of Appeals for the Tenth District of Texas in Waco held that (1) petition for writ of mandamus was not barred by laches, (2) Medtronic lacked an adequate remedy by appeal, and mandamus was thus an appropriate vehicle to challenge the trial court’ sanctions order, and (3) the trial court abused its discretion in imposing evidentiary sanctions against Medtronic.  The court thus conditionally granted the petition for writ of mandamus and directed the trial court to vacate its order granting sanctions for the alleged improper contact with the consulting expert.  In re Medtronic, Inc., No. 10-14-00077-CV, 2014 WL 2159555 (Tex. App.—Waco May 22, 2014, orig. proceeding) (mem. op.).

 

 

$8.2 Million Judgment for Breach of Contract Reversed on Appeal

Deborah Hankinson, Brett Kutnick, and Jennifer Rangel Stagen successfully represented Eagle Oil & Gas Company (“Eagle Oil”) in an appeal of a judgment after a jury trial awarding the plaintiff, TRO-X, L.P., over $8.2 million in damages and attorney’s fees, based on alleged breaches of… + read more

Deborah Hankinson, Brett Kutnick, and Jennifer Rangel Stagen successfully represented Eagle Oil & Gas Company (“Eagle Oil”) in an appeal of a judgment after a jury trial awarding the plaintiff, TRO-X, L.P., over $8.2 million in damages and attorney’s fees, based on alleged breaches of a contract to acquire and dispose of oil and gas leases and interests.  Following oral argument, the Court of Appeals for the Eleventh District of Texas in Eastland held that (1) Eagle Oil could not, as a matter of law, deprive TRO-X of its right to retain an unpromoted working interest by selling to Eagle Oil & Gas Partners, LLC on a promoted basis without consultation with TRO-X, (2) the evidence conclusively establishes that Eagle Oil did not deprive TRO-X of its right to retain an unpromoted working interest, (3) Eagle Oil did not breach the agreement by sending a letter to TRO-X, and (4) Eagle Oil could not, as a matter of law, deprive TRO-X from acquiring its proportionate share of an overriding royalty interest and working interest back-in, and the evidence conclusively establishes that Eagle Oil did not deprive TRO-X of the interests.  The court thus reversed and rendered judgment that the plaintiff take nothing on its multi-million dollar breach-of-contract claims against Eagle and instead rendered judgment that the plaintiff recover $379,788.80 under a court-ordered accounting.  The court further affirmed the take-nothing judgment rendered in favor of the firm’s other client, Eagle Oil & Gas Partners, LLC, on the plaintiff’s tortious interference claim.  Eagle Oil & Gas Co. v. TRO-X, L.P., 416 S.W.3d 137 (Tex. App.—Eastland  2013, pet. filed), reh’g denied, 427 S.W.3d 580 (Tex. App.—Eastland  2014).

 

Judgment Against Owner of Limited Liability Company Reversed on Appeal Because the Evidence Was Legally Insufficient to Pierce the Corporate Veil

Brett Kutnick and Jennifer Rangel Stagen successfully represented Jesse Marion in an appeal of a judgment after a jury trial awarding the plaintiff, Donnelley, L.P., over $578,000 in damages and attorney’s fees based on an alleged breach of a mail processing agreement.  After Brett Kutnick… + read more

Brett Kutnick and Jennifer Rangel Stagen successfully represented Jesse Marion in an appeal of a judgment after a jury trial awarding the plaintiff, Donnelley, L.P., over $578,000 in damages and attorney’s fees based on an alleged breach of a mail processing agreement.  After Brett Kutnick presented oral argument, the Court of Appeals for the Fifth District of Texas in Dallas held that the trial court erred in piercing the corporate veil of Mr. Marion’s mail processing company, Metroplex Mailing Services, LLC, and rendering judgment against Mr. Marion individually because there was no evidence to show that Mr. Marion used Metroplex to perpetrate an actual fraud for his direct personal benefit.  The court thus reversed and rendered judgment that the plaintiff take nothing on its claims against Jesse Marion.  Metroplex Mailing Services, LLC v. RR Donnelley & Sons Co., 410 S.W.3d 889, 2013 WL 5202069 (Tex. App.—Dallas 2013, no pet.).

 

Hankinson LLP Attorney Earns Board Certification in Civil Appellate Law

DALLAS – The Dallas-based appellate law boutique Hankinson LLP is proudly announcing that firm attorney Brett Kutnick has become Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. “There are tens of thousands of lawyers in Texas, but only 435 are… + read more

Attorney:

DALLAS – The Dallas-based appellate law boutique Hankinson LLP is proudly announcing that firm attorney Brett Kutnick has become Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.

“There are tens of thousands of lawyers in Texas, but only 435 are Board Certified in Civil Appellate Law,” says Rick Thompson, former managing partner of Hankinson LLP. “That makes Brett part of a very select group and we’re extremely proud of their accomplishment.”

Hankinson LLP now is home to three attorneys who are Board Certified in Civil Appellate Law, including firm founder Deborah Hankinson and Mr. Thompson.

To earn board certification, Mr. Kutnick was approved to take a six-hour written exam based on a demonstration of his unique appellate experience, passed the exam, and was screened by an extensive peer-review process.

Mr. Kutnick utilizes his appellate expertise, extensive business background, and over 16 years of experience in Texas trial and appellate courts to bring substantial value to his clients at all stages of a lawsuit.  With a focus on complex commercial litigation, Mr. Kutnick has successfully represented his clients before the Texas Supreme Court, the Texas courts of appeals, and the U.S. Court of Appeals for the 5th Circuit in a wide variety of matters, including contract disputes, business torts, legal malpractice claims, breach of fiduciary duty actions, and shareholder oppression cases.  As a former litigator, he is in a unique position to anticipate the ways in which pretrial and trial issues affect the client’s position in a potential appeal, and thus plays an integral role in shaping pretrial strategy and working with trial counsel to analyze complex procedural, jurisdictional, and evidentiary issues, draft jury charges and trial briefs, and preserve error.

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Summary Judgment in Favor of Executive Rights Holder Reversed on Appeal

Brett Kutnick and Jennifer Rangel Stagen successfully represented plaintiff Betty Lou Bradshaw, the holder of a non‑participating royalty interest, in her appeal of the trial court’s orders granting summary judgment to multiple defendants on her claims for breach of fiduciary duty, conspiracy, and a constructive… + read more

Brett Kutnick and Jennifer Rangel Stagen successfully represented plaintiff Betty Lou Bradshaw, the holder of a non‑participating royalty interest, in her appeal of the trial court’s orders granting summary judgment to multiple defendants on her claims for breach of fiduciary duty, conspiracy, and a constructive trust. After Brett Kutnick presented oral argument, the Court of Appeals for the Second District of Texas in Fort Worth held that the executive rights holder owed a fiduciary duty to Ms. Bradshaw and that genuine issues of material fact existed as to whether the executive rights holder breached its fiduciary duty to Ms. Bradshaw.  The court therefore reversed the trial court’s orders granting summary judgment to the defendants and remanded the case to the trial court for further proceedings.  Bradshaw v. Steadfast Financial, L.L.C., 39 S.W.3d 348 (Tex. App.—Fort Worth 2013, pet. filed).

 

Trial Court Renders Take-Nothing Judgment in Favor of General Contractor

Brett Kutnick served as appellate counsel for a team of trial lawyers in defending Triad Electric and Controls, Inc. in a lawsuit filed by MEMC Pasadena, Inc. seeking over $25 million in lost profits and property damages allegedly sustained by MEMC’s polysilicon manufacturing facility during… + read more

Brett Kutnick served as appellate counsel for a team of trial lawyers in defending Triad Electric and Controls, Inc. in a lawsuit filed by MEMC Pasadena, Inc. seeking over $25 million in lost profits and property damages allegedly sustained by MEMC’s polysilicon manufacturing facility during the construction of an expansion project.  After a multi-week jury trial, the 151st Judicial District Court of Harris County, Texas in Houston rendered a take-nothing judgment in Triad’s favor.  Mr. Kutnick was responsible for the jury charge, many of the significant legal and evidentiary issues that arose during the course of the trial, and all post-verdict motions.  The case is currently being appealed by MEMC in the Court of Appeals for the Fourteenth District of Texas in Houston.  MEMC Pasadena, Inc. v. Riddle Power, LLC and Triad Electric and Controls, Inc., No. 2008-11010, 151st Judicial District Court of Harris County, Texas.

 

Vacatur of Arbitration Award for Evident Partiality Upheld on Appeal

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen represented Occidental Petroleum Corporation and several of its subsidiaries in moving to vacate an arbitration award regarding the interpretation of a purchase and sales agreement.  After extensive briefing and argument, the trial court vacated the arbitration award for… + read more

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen represented Occidental Petroleum Corporation and several of its subsidiaries in moving to vacate an arbitration award regarding the interpretation of a purchase and sales agreement.  After extensive briefing and argument, the trial court vacated the arbitration award for evident partiality by one of the neutral arbitrators.  The First District Court of Appeals in Houston subsequently affirmed the vacatur of the arbitration award, and after requesting full briefs on the merits, the Texas Supreme Court denied the petitioners’ petition for review and motion for rehearing.  Amoco D.T. Co. v. Occidental Petroleum Corp., 343 S.W.3d 837 (Tex. App.–Houston [1st Dist.] 2011, pet. denied).

 

Hankinson Attorneys Honored by Best Lawyers, Martindale-Hubbell

DALLAS – Lawyers from the Dallas-based Hankinson LLP law firm have earned honors from Texas’ Best Lawyers and Texas’ Top Rated Lawyers magazines based on their work in appellate law. Dallas attorney and mediator Deborah Hankinson, founder of Hankinson LLP, appears in the 2012 edition of… + read more

DALLAS – Lawyers from the Dallas-based Hankinson LLP law firm have earned honors from Texas’ Best Lawyers and Texas’ Top Rated Lawyers magazines based on their work in appellate law.

Dallas attorney and mediator Deborah Hankinson, founder of Hankinson LLP, appears in the 2012 edition of Texas’ Best Lawyers magazine, a publication of Best Lawyers in America, which previously named her the Dallas Appellate Lawyer of the Year. Texas’ Best Lawyers was included in the May 25 editions of the Houston Chronicle, The Dallas Morning News, the Austin American-Statesman, the San Antonio Express-News and the Texas editions of The Wall Street Journal.

That honor follows Ms. Hankinson’s appearance alongside fellow firm attorney Brett Kutnick in the 2012 edition of Texas’ Top Rated Lawyers, which was distributed by the same Texas newspapers on March 30, 2012. Texas’ Top Rated Lawyers is published by Martindale-Hubbell and American Lawyer Media.

“The recognition from Texas’ Best Lawyers and Texas’ Top Rated Lawyers reflects our hard work in appellate law, arbitration and mediation at Hankinson LLP,” Ms. Hankinson says. “Praise from our peers means a great deal to us.”

Editors of the 2012 Texas’ Best Lawyers list asked Texas’ top attorneys to identify those lawyers who they would direct a friend or loved one to hire if they could not handle the case themselves. Based on those responses, Ms. Hankinson was named Lawyer of the Year in appellate law in Dallas.

Ms. Hankinson and Mr. Kutnick earned recognition from Texas’ Top Rated Lawyers magazine based on peer ratings compiled by ALM and LexisNexis Martindale-Hubbell.

Hankinson LLP, the preeminent civil appellate firm in the Southwest, provides clients with innovative legal insights and judicial perspective in all phases of litigation. The firm’s attorneys work with trial teams to develop strategies designed to put a case in the best position before, during, and after trial. Dallas-based Hankinson LLP represents national clients, regional companies, governmental bodies, and individuals with trial and appellate matters, and offers mediation and arbitration services as well. Learn more about the firm at http://hankinsonlaw.com.

 

$3 Million Breach of Fiduciary Duty Judgment Reversed on Appeal

Brett Kutnick and Jennifer Stagen were principal members of the legal team that successfully represented Douglas Strebel in an appeal of a judgment after a jury trial awarding the plaintiff, a member of a Delaware limited liability company and a limited partner in a Texas limited… + read more

Brett Kutnick and Jennifer Stagen were principal members of the legal team that successfully represented Douglas Strebel in an appeal of a judgment after a jury trial awarding the plaintiff, a member of a Delaware limited liability company and a limited partner in a Texas limited partnership, nearly $3.5 million in lost distributions, attorney’s fees, and interest based on alleged breaches of fiduciary duties by Strebel.  Following oral argument, the Court of Appeals for the First District of Texas in Houston held that the parties contractually disclaimed the fiduciary duties related to profit distributions to the plaintiff.  The court thus reversed the judgment on the plaintiff’s breach of fidcuary duty claims and remanded the case to the trial court for consideration of the jury’s alternative liability and damages finding on the plaintiff’s minority oppression claim.  Strebel v. Wimberly, 371 S.W.3d 267 (Tex. App.–Houston [1st Dist.] 2012, pet. denied).

 

Brett Kutnick Presents Article at Advanced Civil Trial Course on Fiduciary Duties.

Brett Kutnick’s article examined the formal and informal relationships that typically give rise to fiduciary duties, the consequences that flow from the existence of a fiduciary duty, and the remedies that are generally available in fiduciary duty cases.  Because “fiduciary” concepts remain amorphous under the… + read more

Attorney:
Subject Matter:

Brett Kutnick’s article examined the formal and informal relationships that typically give rise to fiduciary duties, the consequences that flow from the existence of a fiduciary duty, and the remedies that are generally available in fiduciary duty cases.  Because “fiduciary” concepts remain amorphous under the law, his presentation in Dallas and Houston focused on the traps for both plaintiffs and defendants in fiduciary duty actions. View the pdf here.

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Subject Matter:

 

Dallas Court of Appeals Rules for DART Contractor in Dispute Against Architect

In a second appeal involving the same lawsuit, Brett Kutnick was a principal member of the legal team that successfully represented Martin K. Eby Construction Company in its negligent misrepresentation suit against LAN/STV, an architect and engineer that prepared faulty construction plans and drawings for… + read more

In a second appeal involving the same lawsuit, Brett Kutnick was a principal member of the legal team that successfully represented Martin K. Eby Construction Company in its negligent misrepresentation suit against LAN/STV, an architect and engineer that prepared faulty construction plans and drawings for an extension of the DART rail project. Following the remand in the first appeal, Eby settled its administrative claim against DART for $4.7  million and proceeded to trial against LAN/STV.  The jury found that LAN/STV had committed negligent misrepresentations that caused Eby $5 million in damages, but the trial court reduced the award to $2,250,000 plus interest based on the jury’s additional finding that LAN/STV was 45% responsible.  On appeal, the Dallas Court of Appeals rejected LAN/STV’s arguments regarding the derivative governmental immunity statute, the economic loss doctrine, the evidence of negligent misrepresentations, and the effect of the DART settlement.  The court also declined to reinstate the full amount of the verdict, as Eby had requested.  Martin K. Eby Construction Co. v. LAN/STV, 350 S.W.3d 675 (Tex. App.—Dallas 2011), rev’d, 435 S.W.3d 234 (Texas 2014).

 

Sanction Against Lawyer Reversed Based on Finding That He Did Not Commit the Alleged Conduct.

Brett Kutnick and Rick Thompson were principal members of the legal team that successfully represented a partner in a major Texas law firm who was sanctioned by a trial court for allegedly accusing opposing counsel of suborning perjury and ordered to purchase a half-page apology… + read more

Brett Kutnick and Rick Thompson were principal members of the legal team that successfully represented a partner in a major Texas law firm who was sanctioned by a trial court for allegedly accusing opposing counsel of suborning perjury and ordered to purchase a half-page apology in the Texas Lawyer. The Dallas Court of Appeals reversed the sanction in its entirety, holding that the lawyer had not accused opposing counsel of suborning perjury and that the trial court’s order reflected “both an erroneous assessment of the evidence and a misapplication of the law on subornation of perjury.”  Both the sanction order and the successful appeal received extensive coverage in the Texas Lawyer and other legal publications.  (Published opinion (2011); cite omitted).

 

Hankinson LLP Client Obtains Judgment Vacating Arbitration Award

Ruling in favor of Deborah Hankinson’s and Brett Kutnick’s client, Occidental Petroleum, the Court of Appeals affirmed the trial court’s decision to vacate an arbitration award. The court held that one of the arbitrators displayed evident partiality by failing to disclose that, at the time… + read more

Ruling in favor of Deborah Hankinson’s and Brett Kutnick’s client, Occidental Petroleum, the Court of Appeals affirmed the trial court’s decision to vacate an arbitration award. The court held that one of the arbitrators displayed evident partiality by failing to disclose that, at the time the parties approved him as a member of the arbitration panel, the firm at which he worked represented the ultimate parent company of one of the appellants in a mandamus proceeding to prevent the deposition of its CEO. The court held that an objective person could reasonably have concluded that the arbitrator’s nondisclosure of this fact was material, and that it created a reasonable impression of his partiality. The court also concluded Amoco failed to prove that if Oxy had performed a reasonable investigation of the arbitrator, it would have discovered his evident partiality. Amoco D.T. Co., v. Occidental Petroleum Corp., 343 S.W.3d 837 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

 

Court of Appeals Affirms Finding of Shareholder Oppression and Stock Buy-Back Remedy

Brett Kutnick was the principal author of the appellate briefs in a well-publicized case involving shareholder oppression in which the Court of Appeals for the Fifth District of Texas upheld a judgment in favor of the firm’s client, Ann Rupe, based on the jury’s finding… + read more

Brett Kutnick was the principal author of the appellate briefs in a well-publicized case involving shareholder oppression in which the Court of Appeals for the Fifth District of Texas upheld a judgment in favor of the firm’s client, Ann Rupe, based on the jury’s finding that she had been oppressed by the officers and directors of Rupe Investment Corporation.  The court of appeals also upheld the trial court’s order requiring the defendants to buy back Ms. Rupe’s stock as an equitable remedy for their misconduct, but remanded the case for further proceedings to determine the fair market value of the stock.  Ritchie v. Rupe, 339 S.W.3d 275 (Tex. App.—Dallas 2011), rev’d, 443 S.W.3d 856 (Tex. 2014).

 

Breach of Contract Judgment Reversed and Vacated on Appeal

Brett Kutnick and Jennifer Rangel Stagen were two of the lawyers who represented defendants Hampden Corporation and Fantasy Diamond Corporation in an appeal of a judgment after a bench trial awarding the plaintiff over $750,000 in damages for breach of a commission agreement. Following oral… + read more

Brett Kutnick and Jennifer Rangel Stagen were two of the lawyers who represented defendants Hampden Corporation and Fantasy Diamond Corporation in an appeal of a judgment after a bench trial awarding the plaintiff over $750,000 in damages for breach of a commission agreement. Following oral argument, the Dallas Court of Appeals held that the trial court abused its discretion by concluding that the parties tried the breach of contract action by consent and by granting the plaintiff leave to file an amended petition after the trial to assert that cause of action. The court thus vacated the judgment in its entirety and remanded the case to the trial court to allow it to consider the evidence at trial in light of the claims pleaded in the plaintiff’s earlier-filed petition. Hampden Corp. v. Remark, Inc., 331 S.W.3d 489 (Tex. App.–Dallas 2010, pet. denied).

 

Default Judgment Reversed on Appeal

Brett Kutnick was part of the team that successfully represented defendants Paul Williams and Hughes-Roth Financial Group in an appeal of a no-answer default judgment awarding the plaintiff Nexplore Corporation over $300,000 in damages and attorney’s fees and the right to cancel Williams’s 10 million… + read more

Brett Kutnick was part of the team that successfully represented defendants Paul Williams and Hughes-Roth Financial Group in an appeal of a no-answer default judgment awarding the plaintiff Nexplore Corporation over $300,000 in damages and attorney’s fees and the right to cancel Williams’s 10 million shares of stock in Nexplore valued at approximately $7 million.  The Court of Appeals for the Fifth District of Texas at Dallas held that the trial court never obtained personal jurisdiction over the defendants because substituted service was not property authorized, and that the default judgment rendered against the defendants was therefore void.  The court thus reversed the judgment and remanded the case to the trial court for further proceedings.  Williams v. Nexplore Corp., No. 05-09-00621-CV, 2010 WL 4945364 (Tex. App.—Dallas 2010, pet. denied.) (mem. op.).

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