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News Honors Case Summaries

Archives: Business Litigation

 

Temporary Injunction Reversed in Interlocutory Appeal

Brett Kutnick successfully represented Alliance Royalties, LLC and Alliance Royalties, Inc., in an interlocutory appeal challenging a temporary injunction that enjoined them from terminating a Management Agreement with Compass Royalty Management, LLC.  After Brett Kutnick presented oral argument, the Court of Appeals for the Fifth… + read more

Brett Kutnick successfully represented Alliance Royalties, LLC and Alliance Royalties, Inc., in an interlocutory appeal challenging a temporary injunction that enjoined them from terminating a Management Agreement with Compass Royalty Management, LLC.  After Brett Kutnick presented oral argument, the Court of Appeals for the Fifth District of Texas in Dallas held that the trial court abused its discretion in granting the injunction because the injunction effectively rewrote a contract that was terminable at will and imposed a contractual relationship upon the parties that was contrary to the specific contractual provisions regarding termination.  The court therefore reversed the trial court’s injunction order and remanded the case to the trial court for further proceedings.  Alliance Royalties, LLC v. Boothe, 313 S.W.3d 493 (Tex. App.–Dallas 2010, no pet.).

 

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).

 

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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Brett Kutnick Co-Publishes a Paper on Texas Contort Law that is Presented at the Dallas Bar Association Business Section Meeting

This article analyzes the struggle faced by courts and commentators to clarify the boundary between contract claims and tort claims.  Although the line between a cause of action for contract and one sounding in tort is often blurred, an examination of Texas case law reveals… + read more

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This article analyzes the struggle faced by courts and commentators to clarify the boundary between contract claims and tort claims.  Although the line between a cause of action for contract and one sounding in tort is often blurred, an examination of Texas case law reveals some guiding principles when making the determination of whether a cause of action that includes breach of contract will also support tort and punitive damages.

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