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Appellate Attorney from Dallas’ Hankinson LLP Honored in Texas Rising Stars List

DALLAS – The Dallas-based appellate law boutique Hankinson LLP is pleased to announce that firm attorney Brett Kutnick again has earned a place on the list of Texas Rising Stars, which honors the state’s top young lawyers. The 2010 Texas Rising Stars selections are based… + read more

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DALLAS – The Dallas-based appellate law boutique Hankinson LLP is pleased to announce that firm attorney Brett Kutnick again has earned a place on the list of Texas Rising Stars, which honors the state’s top young lawyers.

The 2010 Texas Rising Stars selections are based on nominations from fellow attorneys who previously were honored on the prestigious Texas Super Lawyers list. Selection is limited attorneys age 40 and under and those who have been practicing law a decade or less. Overall, only 2.5 percent of eligible Texas attorneys earn the Rising Stars honor each year.

Mr. Kutnick has earned a spot on the prestigious list six times in his legal career. The 2010 Texas Rising Stars list will be published in the May edition of Texas Monthly magazine.

Mr. Kutnick has a strong business background and business litigation experience. He has successfully handled complex business litigation at the trial-court and appellate levels, including contract disputes, business torts, legal malpractice, and breach of fiduciary duty claims. He is a graduate of The University of Texas School of Law, where he was a member of the Texas Law Review, Chancellors, Order of the Coif, and the Legal Research Board. Mr. Kutnick earned his B.B.A. degree in honors business and finance from The University of Texas.

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.  Hankinson LLP represents national clients, regional companies, governmental bodies and individuals with trial and appellate matters, and offers mediation and arbitration services as well.

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Take-Nothing Judgment in Intellectual Property Dispute Affirmed on Appeal

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 LLP was hired to represent NTS after the trial court initially rendered judgment for the… + read more

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 LLP 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.  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.).

 

Judgment on Breach of Contract and Misappropriation of Trade Secret Claims Reversed and Rendered on Appeal, and Judgment in Favor of Counterclaimant Affirmed

Brett Kutnick successfully represented defendant/counter-plaintiff Impact Equity and its two owners in their appeal of a $400,000 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 $776,000 judgment rendered… + read more

Brett Kutnick successfully represented defendant/counter-plaintiff Impact Equity and its two owners in their appeal of a $400,000 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 $776,000 judgment rendered in favor of Impact Equity on a claim for breach of a fee agreement.  After oral argument, 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.).

 

Judgment on Breach of Contract and Misappropriation of Trade Secret Claims Reversed and Rendered on Appeal, and Judgment in Favor of Counterclaimant Affirmed

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… + read more

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.).

 

$61 Million Judgment for Breach of Bond Indenture Reversed and Rendered on Appeal

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… + read more

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).

 

Hankinson Client Prevails in Indemnification Offset Argument

Manchester, the manufacturer of an LP-gas cylinder that exploded, appealed from the trial court’s denial of its indemnification claim against ECI, the manufacturer of the cylinder’s valve assembly component. Ruling in favor of Deborah Hankinson’s client, ECI, the Court of Appeals held Manchester was a… + read more

Manchester, the manufacturer of an LP-gas cylinder that exploded, appealed from the trial court’s denial of its indemnification claim against ECI, the manufacturer of the cylinder’s valve assembly component. Ruling in favor of Deborah Hankinson’s client, ECI, the Court of Appeals held Manchester was a manufacturer as to ECI within the meaning of the Texas Civil Practices and Remedies Code, and not just a mere seller. Because the injured claimants’ pleadings in the underlying products liability case alleged that both the valve and cylinder were defective, both ECI and Manchester had a duty to indemnify each other. The proof at the indemnification trial, however, established that neither the cylinder nor the valve was defective. Therefore, the parties’ duties of indemnification offset each other. Manchester Tank & Equip. Co. v. Engineered Controls Intern., Inc., 311 S.W.3d 573 (Tex. App. – Waco 2009, pet. denied).

 

Mandamus Granted by Texas Supreme Court to Enforce the Employer’s Arbitration Agreement

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… + read more

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).

 

Hankinson LLP Successfully Defends Against Appellate Challenge to District Court’s Distribution of Marital Estate in Favor of Client

Rick Thompson successfully represented the Wife in the appeal of the district court’s division of the marital estate.  Notably, the El Paso Court of Appeals upheld the district court’s decision to admit parol evidence to prove the terms of a lost premarital agreement proffered by… + read more

Rick Thompson successfully represented the Wife in the appeal of the district court’s division of the marital estate.  Notably, the El Paso Court of Appeals upheld the district court’s decision to admit parol evidence to prove the terms of a lost premarital agreement proffered by Wife.  See Jurek v. Couch-Jurek, 296 S.W.3d 864 (Tex. App.—El Paso 2009, no pet.).

 

Court of Appeals Affirms Summary Judgment Ordering Specific Performance to Real Estate Purchaser and Reverses the Order Prohibiting the Purchaser from also Seeking Damages

In a case involving cross-appeals arising from competing motions for summary judgment in a suit over a failed real estate transaction, Brett Kutnick successfully represented the purchaser of commercial real estate on appeal from a judgment that awarded the purchaser specific performance, but precluded the… + read more

In a case involving cross-appeals arising from competing motions for summary judgment in a suit over a failed real estate transaction, Brett Kutnick successfully represented the purchaser of commercial real estate on appeal from a judgment that awarded the purchaser specific performance, but precluded the purchaser from recovering damages in addition to specific performance.  After Brett Kutnick presented oral argument, the Court of Appeals for the Second District of Texas in Fort Worth affirmed the trial court’s order granting specific performance.  In addition, the court sustained the purchaser’s cross-appeal, reversed that portion of the judgment barring the purchaser from recovering damages attributable to the seller’s delay in performing the sales contract, and remanded the case to the trial court for further proceedings as to those damages. Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559 (Tex. App.—Fort Worth 2008, pet. denied).

 

Meaning of Ambiguous Indemnity Provision Properly Submitted to Jury

Pursuant to a stock purchase agreement, Maxus sold Occidental all the stock of a subsidiary and agreed to indemnify Occidental against claims arising out of the subsidiary’s prior chemical business. The court of appeals held that the indemnification provision was ambiguous as to whether the… + read more

Pursuant to a stock purchase agreement, Maxus sold Occidental all the stock of a subsidiary and agreed to indemnify Occidental against claims arising out of the subsidiary’s prior chemical business. The court of appeals held that the indemnification provision was ambiguous as to whether the indemnity was limited to a twelve year period or was indefinite in duration. Because of the ambiguity, the court held the trial court had properly submitted the question of its meaning to the jury, which had found in favor of Occidental. The court affirmed the trial court’s judgment in favor of Occidental, which was represented by Deborah Hankinson. Maxus Energy Corp. v. Occidental Chemical Corp., 244 S.W.3d 875 (Tex. App. – Dallas 2008, pet. denied).

 

Supreme Court Strengthens Causation Requirement in Asbestos Cases

In an asbestos-related products liability and negligence case, the Supreme Court ruled in favor of Deborah Hankinson’s client, Borg-Warner, holding a plaintiff must prove that exposure to the defendant’s product was a “substantial factor” in bringing about his asbestosis. The expert’s testimony that plaintiff had… + read more

In an asbestos-related products liability and negligence case, the Supreme Court ruled in favor of Deborah Hankinson’s client, Borg-Warner, holding a plaintiff must prove that exposure to the defendant’s product was a “substantial factor” in bringing about his asbestosis. The expert’s testimony that plaintiff had been exposed to “some asbestos” was insufficient. Instead, the plaintiff was required to introduce evidence showing the approximate amount of Borg-Warner fibers to which he had been exposed. The plaintiff further had to establish and that this exposure sufficiently contributed to the total dose of asbestos he inhaled such that it could be considered a substantial factor causing his asbestosis. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007).

 

Fifth Circuit Refuses to Review Order Favoring Hankinson LLP Client Under the Collateral Order Doctrine

Client Houston Community Hospital treated three federal employees covered by health benefits plans administered by Blue Cross and Blue Shield under the Federal Employees Health Benefits Act.  Blue Cross allegedly misrepresented the levels of coverage for the employees and then refused to pay as represented. … + read more

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Client Houston Community Hospital treated three federal employees covered by health benefits plans administered by Blue Cross and Blue Shield under the Federal Employees Health Benefits Act.  Blue Cross allegedly misrepresented the levels of coverage for the employees and then refused to pay as represented.  The Hospital sued Blue Cross for negligent misrepresentation and for violations of the DTPA and the Texas Insurance Act.  Blue Cross moved for summary judgment, claiming official immunity, federal sovereign immunity, and federal preemption.  The federal district court denied the motion, and Blue Cross appealed the order to the Fifth Circuit Court of Appeals.  Rick Thompson argued, and the Fifth Circuit agreed, that the district court’s order could not be reviewed by the appellate court under the collateral order doctrine.  See Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265 (5th Cir. 2007).

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Deputy Constables Entitled to Procedural, not Substantive, Due Process

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no… + read more

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no substantive due process rights in their continued employment. Even if they did, however, the county’s termination of their employment was not so arbitrary and conscience-shocking that it violated substantive due process. Because they were not given the procedural due process that the county’s civil service system required, the deputies were entitled to nominal damages without proof of actual injury. On remand, if the county establishes just cause to terminate them, the deputies will only be entitled to damages directly resulting from the denial of a hearing, but if the county does not show just cause, the deputies may recover damages resulting from their dismissal. Deborah Hankinson and Rick Thompson represented the County of Dallas. County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007).

 

City Waives Immunity only to Extent Claims against City Offset City’s Claims

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the… + read more

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the amount of the offset, the trial court has no jurisdiction. The Court further held that the Texas Tort Claims Act only waives a municipality’s immunity when the city is the user of the property causing injury, which the City of Dallas was not in this case. Deborah Hankinson represented the City in this important decision. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

 

Preferential Rights Expire upon Final Production Payment

Representing First Permian, Deborah Hankinson successfully argued that the preferential right reserved by the assignors of certain oil and gas leases had terminated upon the assignees’ final production payment. The court reasoned that the preferential right did not create an independent right for the assignors… + read more

Representing First Permian, Deborah Hankinson successfully argued that the preferential right reserved by the assignors of certain oil and gas leases had terminated upon the assignees’ final production payment. The court reasoned that the preferential right did not create an independent right for the assignors to enjoy forever, but was intended to exist only as long as necessary to protect the assignors’ interest in the full payment for the leases. First Permian, L.L.C. v. Graham, 212 S.W.3d 368 (Tex. App. – Amarillo 2006, pet. denied).

 

Judicial Candidate Reinstated on Ballot

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a… + read more

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a lengthy petition signed by hundreds of eligible voters to have his name placed on the Republican ballot, but due to a clerical error, several of the pages failed to state he was running for “Place 8” on that court. The Republican Party chair overlooked the defects and approved the petition, which another candidate then challenged. The Supreme Court held that when a challenge is made based on facial defects in a petition that could have been timely cured had the party chair not overlooked them, the trial court must abate the challenge and allow the candidate the opportunity to cure. The Court reasoned that candidates should have the same opportunity to cure as a proper review before the filing deadline would have allowed them. Facial defects should exclude a candidate from the ballot only when a proper review by the party chair would have led to the same result. In re Francis, 186 S.W.3d 534 (Tex. 2006).

 

Hankinson Client Prevails in Preferential Rights Dispute

Non-operating working interest owners brought suit against an oil and gas unit operator, claiming the operator had violated the preferential rights provision of the operating agreement. Affirming the judgment of the trial court for the operator, the court of appeals held the operator had complied… + read more

Non-operating working interest owners brought suit against an oil and gas unit operator, claiming the operator had violated the preferential rights provision of the operating agreement. Affirming the judgment of the trial court for the operator, the court of appeals held the operator had complied with the terms of the notice provision. The court held the provision did not require the operator to provide detailed information to the plaintiffs about how the total purchase price for all the unit operator’s property in the area was allocated to the unit in question. Additionally, the court concluded plaintiffs’ affiliate had not been properly elected successor operator because plaintiffs had failed to count the operator’s votes. In this appeal, Deborah Hankinson successfully represented Occidental Petroleum. Fasken Land and Minerals, Ltd. v. Occidental Permian, Ltd., 225 S.W.3d 577 (Tex. App. – El Paso 2005, pet. denied).

 

Hankinson LLP Successfully Defends Against Effort to Transfer Venue Based on Pretrial Publicity

In this negligence case, a hospital filed a motion for change of venue on the eve of trial, arguing that publicity in the local media precluded it from receiving a fair and impartial trial.  The trial court did not grant the motion, and the hospital… + read more

In this negligence case, a hospital filed a motion for change of venue on the eve of trial, arguing that publicity in the local media precluded it from receiving a fair and impartial trial.  The trial court did not grant the motion, and the hospital sought mandamus relief in the Tyler Court of Appeals.  Rick Thompson argued the case to the court of appeals, which quickly denied the petition for writ of mandamus.  See In re East Tex. Med. Ctr. Athens, 154 S.W.3d 933 (Tex. App.—Tyler 2005, orig. proceeding).

 

 

Brett Kutnick Co-Authors a Paper on Punitive Damages that is Presented at the 18th Annual Advanced Civil Appellate Practice Course

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas. Attorney: Brett Kutnick Subject… + read more

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas.

 

Texas Supreme Court Rejects Constitutional Challenge to Texas Highway Beautification Act

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner… + read more

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner challenged the Act as a violation of his free speech rights.  Rick Thompson argued, and the Texas Supreme Court agreed, that the Act’s proscription against outdoor advertising signs was content neutral and a valid time, place, and manner restriction under the First Amendment.  See Texas Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003).