In William M. Bishop, et al. v. E. Barger Miller II, et al., Mark T. Mitchell’s biggest challenge was persuading jurors that his clients were entitled to lost profits for damages that had not actually occurred.

“They had to understand that, just because the trade secrets [to mine potash] had not been proven effective, that was not a disqualifying feature,” Mitchell says.

On Feb. 15, Judge Dan Hinde of Houston’s 269th District Court issued a final judgment in Bishop, awarding $4.5 million to Mitchell’s clients, Bishop and Pinnacle Potash International.

In January 2011, after a three-week trial and two days of deliberations, jurors returned the multimillion-dollar verdict. But it took 13 months of post-verdict wrangling for the final judgment to be signed, says Mitchell, a partner in the Austin office of Gardere Wynne Sewell.

Mitchell says Bishop, an engineer, had developed a novel — and untested — system for injecting brine into underground salt deposits, then pumping out the brine to reduce the environmental consequences of mining potash, a mineral used as a fertilizer. Pinnacle Potash invested in Bishop’s business plans.

The plaintiffs alleged the following in their Jan. 10, 2011, fifth amended petition and application for temporary and permanent injunction: By 2008, Bishop and Miller had formed a partnership and developed a plan to acquire leases from the federal government to mine potash and use the technology Bishop had developed. Miller also had purchased the Reunion Potash Co. as a vehicle to invest in mine leases and technology that Bishop developed, but Miller allegedly excluded Bishop from his share of profits. The plaintiffs alleged that Miller used plans he and Bishop had developed together “to entice potential investors” for his new company, which excluded Bishop. [See the fifth amended petition.]

The plaintiffs sought a declaratory judgment stating that Bishop and Miller are partners. Among others, the causes of action included breach of contract against Miller and misappropriation of trade secrets against Miller and Reunion Potash.

In his June 8, 2010, answer, Miller denied all of the allegations. He alleged that a partnership did not exist between himself and Bishop and counterclaimed that Bishop filed the “frivolous” suit to harass Miller. [See the Miller answer.]

In its June 4, 2010, answer, Reunion Potash also denied the allegations and brought counterclaims against Bishop alleging breach of contract and misappropriation of trade secrets, which Miller denied.

In the Feb. 15 final judgment, Hinde dismissed all of the counterclaims and ordered Miller to pay damages for breach of contract and Miller and Reunion Potash to pay damages for misappropriation of trade secrets. [See the judgment.]

Miller’s defense lawyer, Houston solo Robert Pickelner, says Mitchell did a good job. But Pickelner isn’t happy with the case’s outcome.

Fulbright & Jaworski partner Paul Trahan of Houston, who represents Reunion Potash, did not return a telephone call seeking comment.

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