In a highly complex title dispute between Texas oil-and-gas operators, the plaintiffs claimed superior title to a mineral lease on a 169.1-acre tract in Concho County, Texas. After the jury found that the plaintiffs had superior title, the trial court ordered the defendants—who possessed and had drilled a producing well on the tract—to turn over possession of the property, drilling equipment, and almost $1 million being held in suspense pending adjudication of the case. Hankinson Levinger attorneys Deborah Hankinson, Ryan Clinton, and Carl Cecere represented the defendants on appeal. The Austin Court of Appeals reversed the trial-court judgment, rendered judgment that the plaintiffs take nothing, and also rendered judgment that title and possession of the mineral estate, equipment, and funds belonged to the defendants. Plaintiffs appealed to the Texas Supreme Court, which denied review after requesting full briefing on the merits.  McCammon v. Ischy, No. 03-06-00707-CV, 2010 WL 1930149 (Tex. App.—Austin May 12, 2010, pet. denied).

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, No. 05-09-00946-CV, 2011 WL 3795695 (Tex. App. — Dallas Aug. 29, 2011, no pet. hist.).

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).

In a closely-watched case involving shareholder oppression, the Dallas Court of Appeals upheld a judgment in favor of Hankinson Levinger client Ann Rupe based on the jury’s finding that she had been oppressed by the officers and directors of Rupe Investment Corporation when they refused her request to meet with potential purchasers of her stock.  The appellate court 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. Ms. Rupe was represented at trial by Steve Aldous and Charla Aldous.  Ritchie v. Rupe, as Trustee for the Dallas Gordon Rupe, III 1995 Family Trust, No. 05-08-00615-CV, 2011 WL 1107214 (Tex. App. — Dallas Mar. 28, 2011, no pet. h.).

In Occidental Permian Ltd. v. Helen Jones Foundation, et al., a group of Texas royalty owners alleged that OPL, an oil and gas producer, had underpaid royalties for casinghead gas produced during carbon dioxide-injection tertiary recovery operations in West Texas. Hankinson Levinger was hired to assist OPL during trial, post-trial, and appellate proceedings. After the jury reached a multi-million dollar verdict for the plaintiffs, OPL appealed. Deborah Hankinson argued the case before the Amarillo Court of Appeals (after she and Ryan Clinton briefed the appeal), and the Amarillo Court of Appeals reversed the trial court’s judgment, concluding that no evidence supported the jury’s findings. The court of appeals rendered judgment that the plaintiffs take nothing against OPL. Occidental Permian Ltd. v. Helen Jones Foundation, et. al, 333 S.W.3d 392 (Tex. App.—Amarillo Jan. 31, 2011, pet. filed).

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. filed).

Brett Kutnick was one of the lawyers who represented defendants Paul Williams and Hughes-Roth Financial Group in an appeal of a 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 Dallas Court of Appeals 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, ___ S.W.3d ___, 2010 WL 4945364 (Tex. App.–Dallas 2010, no pet. h.) (mem. op.).

Jennifer Rangel Stagen was on the legal team that represented ACS State and Local Solutions, Inc., a corporation that provides traffic signal enforcement systems to municipalities, in the appeal of a take-nothing summary judgment in its favor. The plaintiff had been cited for a red-light violation, and brought claims against ACS for purported violations of the Texas Debt Collection Act and negligence per se based on alleged violations of the Texas Occupations Code and the Texas Transportation Code. The Dallas Court of Appeals affirmed the summary judgment in favor of ACS on all grounds. Amanda Ward v. ACS State and Local Solutions, Inc., d/b/a LDC Collection Systems, 328 S.W.3d 648 (Tex. App.—Dallas 2010, no pet.).

Brett Kutnick was a principal member of the legal team that represented defendant Peter Gottlieb in an appeal of a judgment awarding the plaintiff $233,000 in actual damages and $466,000 in exemplary damages for fraud after a multi-week jury trial. The Dallas Court of Appeals denied the plaintiff’s appeal seeking additional damages, concluded that there was no evidence to support the jury’s fraud finding against Gottlieb, and reversed the trial court’s judgment and rendered judgment that the plaintiff take nothing from Gottlieb. Cerullo v. Gottlieb, 309 S.W.3d 160 (Tex. App.–Dallas 2010, pet. denied).

Brett Kutnick was a principal member of the legal team that represented plaintiff LPP Mortgage in the defendants’ appeal of a judgment for judicial foreclosure following a bench trial. The Austin Court of Appeals held that LPP Mortgage’s suit for foreclosure was not barred by res judicata, waiver, or the Texas statute of limitations, and thus affirmed the trial court’s judgment in favor of LPP.  Stephens v. LPP Mortgage, Ltd., 316 S.W.3d 742,  (Tex. App.–Austin 2010, pet. denied).

Brett Kutnick represented defendants Alliance Royalties, Inc. and Alliance Royalties, LLC in an interlocutory appeal of a temporary injunction that prohibited the defendants from terminating management agreements with the plaintiff.  After oral argument, the Dallas Court of Appeals concluded that the trial court abused its discretion, and it thus reversed the trial court’s temporary injunction order.  Alliance Royalties, LLC v. Boothe, No. 05-09-01019-CV, 313 S.W.3d 493 (Tex. App.–Dallas 2010, no pet.).

In Rusty’s Weigh Scales v. North Texas Scales, the plaintiff alleged that NTS misappropriated trade secrets when it repaired industrial weighing scales originally sold and programmed by the plaintiff. Hankinson Levinger was hired to represent NTS after the trial court initially rendered judgment for the plaintiff. Deborah Hankinson successfully persuaded the trial court to withdraw the first judgment and render judgment that the plaintiff take nothing. Hankinson, along with Ryan Clinton, briefed the case on appeal to the El Paso Court of Appeals, with Clinton arguing the case. After briefing and argument, the court of appeals affirmed the trial court’s judgment in favor of NTS, concluding that the plaintiff provided insufficient evidence to support any damages award. Rusty’s Weigh Scales v. North Texas Scales, 314 S.W.3d 105 (Tex.App.—El Paso 2010, no pet.).

Brett Kutnick was a principal member of the legal team that represented defendant/counter-plaintiff Impact Equity and its two owners in their appeal of judgment rendered in favor of the plaintiff for breach of a confidentiality agreement and misappropriation of trade secrets and in the plaintiff’s cross-appeal of a judgment rendered in Impact Equity’s favor on a claim for breach of a fee agreement. The Dallas Court affirmed the judgment in favor of Impact Equity on its breach of contract claim and reversed and rendered judgment that the plaintiff take nothing on its claims. Calce v. Dorado Exploration, Inc., 309 S.W.3d 719 (Tex. App.–Dallas 2010, no pet.).

Brett Kutnick was a principal member of the legal team that represented Sears, Roebuck and Co. in the appeal of a $61 million judgment based on a jury verdict that Sears breached a bond indenture by prematurely redeeming corporate bonds held by a number of institutional investors. The Dallas Court of Appeals sustained Sears’ no evidence challenge because the investors failed to present any evidence of breach, and thus reversed and rendered a take-nothing judgment against the investors. After Sears responded to the investors’ petition for review, the Texas Supreme Court denied the petition. Sears, Roebuck and Co. v. AIG Annuity Ins. Co., 270 S.W.3d 632 (Tex. App.–Dallas 2008, pet. denied).

Rick Thompson represented the employer in an original proceeding to enforce an arbitration agreement in an Employee Injury Benefit Plan, which was signed by the employee who was killed during the course and scope of his employment. The trial court and court of appeals refused to enforce the arbitration agreement against the employee’s surviving family members who had not signed the Plan. The Texas Supreme Court held that the surviving family members, as wrongful death beneficiaries, were derivative claimants and were therefore bound by the decedent’s agreement to arbitrate. The Court conditionally granted the employer’s petition for writ of mandamus and directed the trial court to enter an order compelling arbitration of the surviving family members’ claims against the employer. In re Golden Peanut Co., 298 S.W.3d 629 (Tex. 2009).

Brett Kutnick represented a foreign defendant, Alliance Royalties, LLC, in filing a petition for writ of mandamus to challenge a discovery order compelling it to present for live depositions in Dallas any witness or affiant whose testimony it intended to rely upon to support its special appearance challenging the assertion of personal jurisdiction over it by a Texas court.  After filing its petition, the Dallas Court of Appeals granted Alliance Royalties’ emergency motion for temporary relief to stay the trial court’s order pending the determination of the mandamus petition and requested a response from the opposing parties.  The opposing parties subsequently agreed to depose Alliance Royalties’ witness in Nevis, thus mooting the mandamus petition.  In re Alliance Royalties, LLC, No. 05-09-01251-CV (Tex. App. –Dallas 2009, orig. proceeding).

In this divorce action, the wife attempted to enforce the terms of a missing premarital agreement that partitioned the income from her separate property earned during the marriage as her separate property.  Her husband denied the existence of any premarital agreement and objected to the admission of any evidence relating to any premarital agreement between the parties.  Although the wife could not tender the premarital agreement, the trial court permitted the attorney who drafted the premarital agreement and the couple’s former accountant to testify regarding the terms of the premarital agreement.  The husband objected to the trial court’s admission of this parol evidence regarding the premarital agreement.  In its final judgment, the trial court enforced the terms of the missing premarital agreement in favor of the wife.  Rick Thompson successfully represented the wife on appeal, persuading the court of appeals that any parol evidence regarding the missing premarital agreement was proper under Rule 1004 of the Texas Rules of Evidence. Jurek v. Couch-Jurek, 296 S.W.3d 864 (Tex. App.—El Paso 2009, no pet.).

In State v. Lueck, a governmental employee was terminated after a vendor charged the State hundreds of thousands of dollars for disputed work.  The employee then sued the State, claiming that an e-mail he previously wrote to his supervisor protected his conduct under the Texas Whistleblower Act.  The State, represented by Ryan Clinton, appealed to the Texas Supreme Court, arguing that the substantive elements of the Whistleblower Act limited the jurisdiction of Texas courts, and that the plaintiff’s claim fell outside the Act’s waiver of immunity from suit and liability.   After briefing and oral argument, the Texas Supreme Court agreed and dismissed the suit for lack of subject-matter jurisdiction.  State v. Lueck, 290 S.W.3d 876, 886 (Tex. 2009)

Brett Kutnick represented plaintiff Warner Alan Properties in the seller’s appeal of a summary judgment that granted the plaintiff specific performance of an agreement to purchase an apartment complex in Fort Worth and in the plaintiff’s cross-appeal challenging the trial court’s order barring the plaintiff from recovering incidental damages in addition to specific performance.  After presenting oral argument, the Fort Worth Court of Appeals affirmed the summary judgment in favor of the plaintiff, reversed that part of the trial court’s judgment barring the plaintiff from recovering damages attributable to the seller’s delay in performing the contract, and remanded the case to the trial court for further proceedings.  Paciwest, Inc. v. Warner Alan Properties, LLC, No. 2-07-443-CV, 266 S.W.3d 559 (Tex. App.–Fort Worth 2008, pet. denied).

Residents of a justice-of-the-peace precinct gathered signatures to call a local-option election to legalize the sale of alcoholic beverages in their precinct—i.e., to make the precinct “wet.”  The boundaries of the precinct, however, overlapped two former justice-of-the-peace precincts that had previously voted “dry.”  Deborah G. Hankinson and Rick Thompson filed briefs on behalf of the City of Addison—a real party in interest that opposed the local-option election—that convinced the Texas Supreme Court to hold that an election in the current justice-of-the-peace precinct would not be effective to change the “dry: status of the two former justice-of-the-peace precincts that voted “dry.”  Accordingly, the Court held that the Commissioners Court had no duty to order the local-option election.  In re Calla Davis, 269 S.W.3d 581 (Tex. 2008).