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Texas Supreme Court Grants Mandamus Relief, Vacates New Trial Order

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen won a mandamus victory in the Texas Supreme Court for client Dean Davenport in a dispute originally brought by his former attorneys in 2012.  The attorneys claimed that under a contingency fee agreement they were owed a percentage… + read more

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen won a mandamus victory in the Texas Supreme Court for client Dean Davenport in a dispute originally brought by his former attorneys in 2012.  The attorneys claimed that under a contingency fee agreement they were owed a percentage of Davenport’s company, Water Exploration Co. Ltd., in addition to the monetary fee paid to them.

At the conclusion of a multi-week trial, a Bexar County jury determined that Davenport’s contingency fee agreement did not include giving the attorneys a share in the company.  The jury also found in Davenport’s favor on his affirmative defenses of estoppel and waiver.  The trial court, however, set aside the verdict, granting the attorneys’ request for a new trial.  In making the ruling, the court stated that the evidence was legally and factually insufficient to support the jury’s findings on Davenport’s affirmative defenses and that the agreement provided that fees would be paid out of the ownership in any business recovered.

In its ruling, the Texas Supreme Court held that the trial court abused its discretion in ordering a new trial.  The Supreme Court therefore granted mandamus relief and ordered the trial court to vacate its new trial order and render judgment on the verdict.  According to the June 16, 2017, story “Texas High Court Nixes New Trial in $42M Attys’s Fee Row” by the national legal news service Law360, the Court stated that it “did not believe the new trial order was ‘issued for valid reasons’” and that the attorney-client agreement was unambiguous in stating that the attorneys were only entitled to a monetary recovery for their services.  In re Davenport, No. 15‑0882, ___ S.W.3d ___, 2017 WL 2623070 (Tex. June 16, 2017) (orig. proceeding).

 

District Court Grants Summary Judgment and Awards Attorney’s Fees for Successfully Defending Against Declaratory Judgment Action

Brett Kutnick, Deborah Hankinson, Jennifer Rangel Stagen, and Stephanie Dooley Nelson successfully represented Eagle Oil & Gas Company (“Eagle Oil”) in the trial court in a second lawsuit filed by TRO-X, L.P. concerning oil and gas interests in the Permian Basin. Following extensive briefing and… + read more

Brett Kutnick, Deborah Hankinson, Jennifer Rangel Stagen, and Stephanie Dooley Nelson successfully represented Eagle Oil & Gas Company (“Eagle Oil”) in the trial court in a second lawsuit filed by TRO-X, L.P. concerning oil and gas interests in the Permian Basin. Following extensive briefing and a hearing, the trial court granted Eagle Oil’s motion for summary judgment on grounds of res judicata, collateral estoppel, the statute of limitations, and waiver, and denied TRO-X’s cross-motion for summary judgment. After a later evidentiary hearing on Eagle Oil’s request for attorney’s fees under the Declaratory Judgments Act, the trial court rendered final judgment that TRO X take nothing on its claims and awarded Eagle Oil attorney’s fees incurred in the trial court in the amount of $175,819.50, plus up to $261,000 in conditional appellate attorney’s fees for representation in the court of appeals and Texas Supreme Court. The case is currently on appeal in the Dallas Court of Appeals. TRO-X, L.P. v. Eagle Oil & Gas Co., No. DC-16-01439, in the 116th Judicial District Court of Dallas County, Texas.

 

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.).

 

Texas Supreme Court Denies Mandamus Relief from Trial Court Ruling in Favor of Hankinson LLP Clients

Hankinson LLP successfully defeated a challenge to a trial court’s ruling in favor of its commercial real estate clients.  After a severe hailstorm, the building owners filed claims under their insurance policies for damage to their buildings.  The insurance company refused to pay, and the… + read more

Hankinson LLP successfully defeated a challenge to a trial court’s ruling in favor of its commercial real estate clients.  After a severe hailstorm, the building owners filed claims under their insurance policies for damage to their buildings.  The insurance company refused to pay, and the building owners were forced to sue.  After actively litigating the case for almost a year, the insurance company attempted to scuttle the litigation by invoking an appraisal clause in the insurance policy.  The trial court denied the insurance company’s motion to compel an appraisal.  The insurance company sought mandamus relief from this ruling in the Dallas Court of Appeals and the Texas Supreme Court.  Both courts denied mandamus relief.  Rick Thompson and Joseph Morris briefed the issues in both courts.  See In re Lexington Ins. Co., No. 14-0182, in the Texas Supreme Court.

 

Appellate Court Affirms Summary Judgment in Favor of the Dallas Mavericks

Hankinson LLP defeated an effort to place its client, the Dallas Mavericks, into receivership.  A minority stakeholder in the team sued for the appointment of a receiver, claiming that the team was insolvent or in imminent danger of insolvency.  Finding no merit to the claims,… + read more

Hankinson LLP defeated an effort to place its client, the Dallas Mavericks, into receivership.  A minority stakeholder in the team sued for the appointment of a receiver, claiming that the team was insolvent or in imminent danger of insolvency.  Finding no merit to the claims, the trial court granted summary judgment in favor of the Mavericks. On appeal, the Hankinson LLP team successfully defended the trial court’s ruling.  Deborah Hankinson argued the case to the Dallas Court of Appeals.  Rick Thompson and Joseph Morris drafted the appellate briefs.  See Hillwood Inv. Props. III, Ltd. v. Radical Mavericks Mgmt., LLC, No. 05-11-01470-CV, in the Fifth Court of Appeals.

 

Hankinson LLP Prevails Again in Texas Supreme Court

Deborah Hankinson, Rick Thompson, and Jennifer Stagen successfully convinced the Texas Supreme Court to affirm the court of appeals’s take-nothing judgment in favor of their client, Georgia-Pacific Corporation.  In this significant asbestos case watched by many legal commentators across the country, the Supreme Court defined… + read more

Deborah Hankinson, Rick Thompson, and Jennifer Stagen successfully convinced the Texas Supreme Court to affirm the court of appeals’s take-nothing judgment in favor of their client, Georgia-Pacific Corporation.  In this significant asbestos case watched by many legal commentators across the country, the Supreme Court defined the substantial-factor causation standard for mesothelioma cases.  The Court ultimately concluded that the evidence was legally insufficient to prove that plaintiff’s alleged exposure to asbestos from Georgia-Pacific joint compound was a substantial factor in causing the plaintiff’s mesothelioma.  Deborah Hankinson argued the case before the Supreme Court.  See Bostic v. Georgia-Pacific Corp., No. 10-0775, 2014 WL 3797159 (Tex. July 11, 2014).

 

$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.).

 

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).

 

$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.

Attorney:
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).

 

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).

 

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.).

 

Take-Nothing Summary Judgment Affirmed on Claims Arising from Operation of Traffic Signal Enforcement System

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… + read more

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.).

 

Fraud Judgment Reversed and Rendered on Appeal

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… + read more

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).

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