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Archives: Procedural + Evidentiary Issues

 

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).

 

Improper Post-Judgment Orders Successfully Challenged on Appeal

During collection efforts against the firm’s client, the trial court signed several orders to enforce a judgment under the turnover statute. One order awarded the plaintiff attorney’s fees and costs that were incurred after the judgment had been satisfied. A second order purported to vest… + read more

During collection efforts against the firm’s client, the trial court signed several orders to enforce a judgment under the turnover statute. One order awarded the plaintiff attorney’s fees and costs that were incurred after the judgment had been satisfied. A second order purported to vest the trial court with jurisdiction over related litigation pending in other courts. Rick Thompson successfully challenged these orders on appeal. The court of appeals reversed the first order and struck the offending parts of the second order. Evans v. Frost National Bank, No. 05-12-01491-CV (Tex. App. – Dallas Aug. 11, 2015).

 

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.).

 

 

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.

 

Hankinson Wins New Sentencing Hearing for Juvenile

Deborah Hankinson successfully argued to the Texas Supreme Court that a juvenile, who was sentenced to twenty years confinement for sexually assaulting his seven year old cousin, was entitled to a new sentencing hearing. The Court held that if the State’s expert had testified truthfully… + read more

Deborah Hankinson successfully argued to the Texas Supreme Court that a juvenile, who was sentenced to twenty years confinement for sexually assaulting his seven year old cousin, was entitled to a new sentencing hearing. The Court held that if the State’s expert had testified truthfully about the reliability of certain scientific evidence, the evidence would have been excluded. The expert misstated the potential error rate of the evidence and inaccurately described the literature supporting or rejecting it. In closing argument, the State repeatedly referred to the expert’s testimony as proof that defendant was a pedophile. Because the expert’s testimony and the State’s use of that testimony contributed to the defendant’s sentence, the Court remanded the case for a new sentencing hearing. In re M.P.A., 364 S.W.3d 277 (Tex. 2012).

 

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).

 

Appellate Court Affirms Award of Punitive Damages in Favor of Hankinson LLP Client

In this medical malpractice case, Hankinson LLP represented the family of a deceased patient against a skilled nursing facility.  The facility repeatedly administered the patient a drug that he was allergic to, which ultimately led to his death.  The trial court rendered judgment on the… + read more

In this medical malpractice case, Hankinson LLP represented the family of a deceased patient against a skilled nursing facility.  The facility repeatedly administered the patient a drug that he was allergic to, which ultimately led to his death.  The trial court rendered judgment on the jury’s verdict in favor of the family, including an award of punitive damages.  Rick Thompson successfully fended off the facility’s challenge to the evidence supporting the district court’s judgment in the Amarillo Court of Appeals.  On April 15, 2011, the Texas Supreme Court denied the facility’s petition for review.  See THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548 (Tex. App.—Amarillo 2010, pet. denied).

 

Expert Testimony Legally Insufficient to Support Verdict

In an appeal from a judgment on a jury verdict against current lease operator for underpaid royalties on casinghead gas, the court of appeals reversed, holding the evidence was legally insufficient. Because the testimony of plaintiff’s expert did not comport with the language of the… + read more

In an appeal from a judgment on a jury verdict against current lease operator for underpaid royalties on casinghead gas, the court of appeals reversed, holding the evidence was legally insufficient. Because the testimony of plaintiff’s expert did not comport with the language of the leases, it constituted no evidence of the operator’s failure to pay royalties. Additionally, the proceeds to which expert pointed as the basis for his theory were proceeds of the sale of gas after processing  rather than as produced at the wellhead. Moreover, the royalty owners’ expert’s testimony did not comport with state law as to the determination of the market value of casinghead gas, and thus did not support the verdict that the lease operators underpaid royalties on market-value leases. Deborah Hankinson represented Occidental Permian in this successful appeal. Occidental Permian Ltd. v. Helen Jones Foundation, 333 S.W.3d 392 (Tex. App. – Amarillo 2011, pet. denied).

 

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.).

 

Judgment Allowing Judicial Foreclosure Affirmed on Appeal

Brett Kutnick successfully represented plaintiff LPP Mortgage in the defendants’ appeal of a judgment for judicial foreclosure following a bench trial.  The Court of Appeals held that LPP Mortgage’s suit for foreclosure following its unsuccessful attempt to collect a judgment on the debt was not… + read more

Brett Kutnick successfully represented plaintiff LPP Mortgage in the defendants’ appeal of a judgment for judicial foreclosure following a bench trial.  The Court of Appeals held that LPP Mortgage’s suit for foreclosure following its unsuccessful attempt to collect a judgment on the debt 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).

 

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.).

 

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.).

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