Tentative Settlement

On the eve of a scheduled federal trial, events unfolded that led to a tentative settlement in a case about oil leases that involved three big Texas firms: Baker Botts, Susman Godfrey, and Gruber Hurst Johansen & Hail. On Jan. 7, U.S. District Judge Terry R. Means of the Northern District of Texas in Dallas issued an order in MC Asset Recovery LLC v. Castex Energy Inc., et al, denying the corporate defendants’ attempt to quash a subpoena aimed at getting on the stand lawyers from Baker Botts who had provided counsel to those defendants for the transactions involved in MC Asset Recovery. On Jan. 9, according to the PACER record of the case, at a hearing before Means, both sides read and agreed to the terms of their proposed settlement. Court approval of that settlement is still pending. G. Michael Gruber, a partner in Dallas’ Gruber Hurst, who represented the plaintiffs, declines comment, citing, through his assistant, the terms of the settlement that bar his public comment on it. Neal Manne, a partner in Susman Godfrey, who represents the defendants, writes in an email: “The parties agreed that there would be no comment, other than that it was an amicable settlement.”

Farming Firm

How does a Texas firm come to own a cattle, watermelon and hay operation? It’s a long story, involving two property disputes. Toufic Nicolas explains that, in the 1980s, his firm — then called Nicolas, Morris & Barrow — represented clients who owned 16 acres in Caldwell County. An adjacent neighbor claimed that his land extended about eight acres into the client’s property. The boundary dispute wound up in court, and the firm’s clients won a judgment. During the appellate process, the neighbor gave up. “He came and said, ‘I don’t want to bother with that tract,’” Nicolas explains. “He transferred it to the firm.” For more than 30 years, Nicolas says the firm — which changed names to Nicolas & Morris and then to Nicolas, Morris, Gilbreath & Smith — owned the land, paid the taxes, and leased the tract to a family that ran the cattle-watermelon operation. When the firm recently wanted to sell the land, it needed to clear the title. “You have to serve whoever is a record owner,” he explains. Nicolas says a family named Byrd “had owned the property back in the 1900s or whatever.” Alvin W. Byrd, Jr. — “one of Byrd’s forebears” — filed an answer challenging the firm’s claim of title, according to a Jan. 9 opinion by the 3rd Court of Appeals in Austin. The 3rd Court dismissed the challenge, affirming a trial court judgment declaring the firm the owner, according to the opinion in Alvin W. Byrd, Jr. v. Nicolas & Morris. The firm produced deeds between “the Byrd forebears” and a string of subsequent owners, ending with the firm, the opinion says. This will be the final chapter in the firm-farm story: Nicolas says the firm sold the land last year. A telephone number for Byrd could not be located.

Fee Dispute

Beaumont plaintiff’s lawyer Brent W. Coon is in a fee dispute with lawyers he hired to represent him, but both sides say they’re trying to work it out. On Nov. 28, 2012, Austin firm Taylor Dunham and Austin lawyer Joe K. Longley filed a breach of contract suit in the 53rd District Court in Travis County against Coon, Brent W. Coon PC and Brent Coon & Associates, alleging the defendants owe them a total of $240,000. The plaintiffs allege in the petition that the defendants entered into an agreement in 2010 to pay them $10,000 each on the first day of each month, beginning on Sept. 1, 2010, through Aug. 1, 2011, for “outstanding legal fees and expenses.” However, Taylor Dunham and Longley allege that the defendants have failed to pay them anything. In Taylor Dunham LLP, et al. v. Brent W. Coon, et al, they seek the $240,000, special and exemplary damages, interest, attorney fees and costs. David E. Dunham, a partner in Taylor Dunham who represents his firm and Longley in the suit, declines comment except to say, “I have been in touch with Mr. Coon’s lawyers, and we are hopeful that steps are going to be taken here immediately to work this out.” Kent Alsuler, a shareholder in Nathan Sommers Jacobs in Houston, who represents Coon and his firm, says Coon “considers this to be a personal matter” and is hopeful it can be resolved “behind the scenes.” In an original answer filed on Jan. 4, Coon and his firm generally deny the allegations and seek a take-nothing judgment. They also seek a change of venue to Jefferson County, because Coon and his firm are based in Jefferson County and the “[a]greement that is subject matter of this lawsuit . . .arises out of a lawsuit that was filed in Jefferson County.” That underlying suit is Provost ★ Umphrey Law Firm LLP v. Brent W. Coon, et al, according to the answer. Alsuler says the underlying litigation relates to fees from the state’s tobacco litigation. Walter Umphrey, managing partner of Provost ★ Umphrey, did not return a call seeking comment.

Racial Slur

The 5th U.S. Circuit Court of Appeals devotes much of its time to correcting trial court judges when their legal rulings miss the mark. And while the 5th Circuit found that U.S. District Judge Lynn Hughes was correct to dismiss a Title VII racial discrimination case on summary judgment in its Jan. 7 decision in Mr. Albert J. Autry v. Fort Bend Independent School District, the 5th Circuit noted that he was incorrect in deeming some racially offensive testimony that the plaintiff attempted to offer at trial as “political.” According to the decision in Albert Autry, the plaintiff sued the Fort Bend Independent School District (FBISD), alleging that the school district hired a lesser qualified Caucasian to fill a job he was seeking. After FBISD met its burden of showing a legitimate non-discriminatory reason for hiring the Caucasian, Hughes approved the FBISD’s summary judgment motion, the 5th Circuit notes in its decision. After appealing that decision to the 5th Circuit, Autry argued among other things that a member of the hiring committee that interviewed him in October 2008 told him that another FBISD official involved with hiring decisions had said: “If President Obama’s elected, they’re going to have to take down the Statute of Liberty and put a piece of fried chicken in his hand” according to the decision. “While FBISD challenged the statement as rank hearsay, the district judge rejected it as political, observing that ‘no black individually and no blacks collectively owns the sensitivity rights to fried chicken or anything else,” according to the 5th Circuit’s decision in Autry. “The district judge’s comment misses the mark, as it overlooks the racial component of” the alleged statement, wrote Senior Judge Patrick Higginbotham in an opinion joined by Judges Priscilla Owen and Leslie Southwick. According to a footnote in the decision “When Autry’s lawyer tentatively suggested that Johnson’s alleged reference to fried chicken was ‘a long-standing racial slur,’ the district judge rejoined that ‘That’s really surprising to Colonel Sanders.” That footnote also referenced the U.S. Supreme Court’s 2006 decision in Ash v. Tyson Foods which held that “the term ‘boy’ may be evidence of racial animus, depending on the context in which it is used,” the 5th Circuit wrote. While the 5th Circuit affirmed the trial court’s decision, it reversed and vacated the award of attorney fees to FBISD in the case because, while Autry’s claims could not survive summary judgment, they were not “frivolous, unreasonable or without foundation.” Hughes declines comment about the 5th Circuit’s decision. Paul Lamp, a partner in Houston’s Rogers, Morris & Grove who represents FBISD and was present at the hearing in which the “fried chicken” testimony was challenged, says, “That is what the judge said” of Hughes’ comments. Lamp says Hughes’ comments were part of an hour-long hearing. Lamp adds that Hughes is “is a very well respected jurist in the Southern District of Texas” who is “extremely qualified” to hear Title VII discrimination cases. Ronald Merriweather, a Houston attorney who represents Autry, did not return an e-mailed request for comment.

Bright Lights

Kelly Siegler, a former Harris County district attorney who unsuccessfully sought the Republican nomination for DA in 2008, will be investigating unsolved murder cases on TV. TNT announced on Jan. 9 that it has ordered eight episodes of an unscripted procedural drama starring Siegler, a prosecutor for 21 years, and Yolanda McClary, who worked more than 7,000 cases in 26 years with the Las Vegas Police Department. The unscripted show has a working title of “Cold Justice.” According to TNT, the show is executive produced by Dick Wolf, whose shows include “Law & Order,” Dan Cutforth and Jane Lipsitz, whose shows include “Top Chef,” and Tom Thayer, whose recent productions include 2012′s “Hitchcock.” TNT writes that Siegler and McClary will put their “vast knowledge and experience to work helping local law enforcement officers and families of violent-crime victims get to the truth.” “Taking on a different unsolved crime each week, they will carefully re-examine evidence, question suspects and witnesses, and chase down leads in order to solve cases that would have otherwise remained cold indefinitely,” TNT writes in the release. Siegler says she’s anxious to start investigating some cases. “We just heard the news yesterday. Obviously, I’m all excited,” she says. Siegler says they will start filming once she and the producers identify some unsolved crimes to investigate. She says that when she worked in special crimes at the DA’s office and she was working on cold cases, she frequently got calls from police officers in little towns across Texas or from sheriff’s deputies who didn’t have the manpower to solve some tough cases, so she knows many cases are out there. “That’s when I first realized how much of a need there was,” she says, noting that the show will be “Texas-heavy” at least at the start because of her contacts around the state. While she and McClary will do a lot of the investigating, the plan is to have a “good homicide cop” helping them. She’s lined up Johnny Bonds, a retired investigator with the DA’s office. “He’s worked on thousands of murder cases. He’s the best cop I’ve ever worked with in over 21 years,” she says. Bonds says he’s looking forward to working again with Siegler because she’s such a good prosecutor. Although he retired in 2008, Bonds says getting back into investigations will be “like riding a bicycle.” Bonds says an investigation into a long-unsolved case is often successful. “The theory was the longer it went unsolved the longer it took to solve them, but that’s not always the case. Sometimes 10 years later, people who were afraid to talk will talk,” he says. Since she left the DA’s office in 2008, Siegler says she’s worked as a special prosecutor and did some civil law.

What If?

Hypothetical questions are fairly common at oral arguments at the Texas Supreme Court. It’s an easy way for justices to probe what could happen in the future if the court ruled a particular litigant’s way. Sometimes, they’re a useful way for a judge to make a point. And, sometimes, they’re kind of gross. For example, consider the Jan. 10 argument the high court heard in Kathryn and Jeremy Medlen v. Carla Strickland. The litigants in that case are fighting over whether a lower court decision should stand; it allowed pet owners to recover for the “sentimental value” of a dog that was mistakenly euthanized. The litigants and amici in Medlen have brought up all sorts of hypotheticals to test the boundaries of the lower court ruling. Texas courts allow plaintiffs to recover the sentimental value of “heirlooms” that would otherwise have no value. But what if that heirloom happened to be a dog? Justice Don Willett decided to test this hypothetical out: “Let’s say a beloved canine companion has died, and the owners go to the taxidermist and — for whatever reason — and they have it stuffed and displayed. Can that ever take on the attributes of a heirloom where, if that is destroyed, the owners can get compensation for that heirloom, taxidermied pet, but not the actual pet itself?” Willett asked. John Cayce, a partner in Fort Worth’s Kelly Hart & Hallman, did his best to answer that question, deflecting it as an “apples to oranges” comparison but saying that dogs are “living, breathing, emotive, sentient beings to which humans form an emotional bond,” making the point that puppies (stuffed or not) are not like other forms of personal property and should not be treated as such in the grand scheme of Texas tort litigation. Randy Turner, who represents the Medlens, who sued over the loss of their pet, argued that pets are property, just like any other object, regardless of whether it’s living or not.

Retirement Policy

Mary Korby, a longtime partner in Weil, Gotshal & Manges in Dallas, joined K&L Gates‘ Dallas office as a partner on Jan. 1. Korby says she moved to K&L Gates because she had reached Weil Gotahal’s mandatory retirement age and wanted to continue to practice law. “Their philosophy is: If you don’t push more mature partners out the door, you don’t have room for the younger to come up. I was not at all ready to quit, so I ended up at K&L,” says Korby, a transactional lawyer who chaired Weil Gotshal’s associate compensation committee until August 2012. Korby says she considered several firms for the next chapter of her practice, but K&L Gates has a “really incredible” network of offices overseas, which fits with her cross-border work. “It was the international scope and also just the depth of expertise across the various practice areas. There are, what, 2,000-plus attorneys here,” Korby says. Korby joined K&L Gates’ Dallas office with commercial litigator T. Gregory Jackson, who came from Geary, Porter & Donovan in Dallas. Jackson says it is a good move for his practice because he has clients that “have needs on a national basis.” “I see it as a way to expand my practice and be able to retain matters that my clients have on a more national basis,’ he says. Neither Jackson nor Korby would identify clients they brought with them to K&L Gates, which has 46 offices. Craig Budner, administrative partner in Dallas for K&L Gates, says the firm is thrilled to have Korby and Jackson in its partner ranks. He says Korby adds international transactional expertise, and Jackson has done a lot of oil and gas litigation, which is an area K&L Gates wants to strengthen. With the two new lawyers, K&L Gates has 91 lawyers in Dallas, he says. Glenn West, managing partner of Weil Gotshal’s Dallas office, says it was “not a happy day” for the firm when Korby left, but the firm mandates retirement from the firm at the end of the year when a lawyer turns age 68. “We will miss her, and we will continue to work with her and we are helping her transition over. . . . She’s a friend and a retired partner of Weil,” West says. James T. Porter, managing shareholder of Geary Porter, Jackson’s former firm, did not return a telephone message seeking comment.