With a new year and a new judge to hear their motions for new trial, Jackson Walker, a partner in its Fort Worth office and two other defendants are hoping to overturn a $3.8 million verdict a Tarrant County jury issued after finding they were part of a civil conspiracy to commit fraud in a complicated trust case.
Late last year, a jury in Virginia O. Kinsel, et al. v. Jane O. Lindsey, et al. found that Jackson Walker partner M. Keith Branyon — along with defendants Jane O. Lindsey and Robert N. Oliver — also committed statutory fraud and tortious interference with the inheritance rights of several plaintiffs resulting from the sale of a ranch in South Texas.
On Dec 28, days before he would retire from the bench, then 153rd District Judge Ken Curry of Fort Worth issued his final order in the case, approving the jury’s verdict and damages. He noted that, "as a matter of law Jackson Walker LLP is vicariously liable for the damages to the Plaintiffs caused by M. Keith Branyon because M. Keith Branyon was acting within the scope of his employment at and as a partner of Jackson Walker LLP during the time period when each of the torts alleged by Plaintiffs were committed."
On Feb. 25, new 153rd Judge Susan McCoy is set to hear arguments on motions for new trial filed by Jackson Walker, Branyon, Lindsey and Oliver.
In their 53-page motion for new trial, Jackson Walker and Branyon allege that Curry made numerous errors during a two-week long trial, including failing to give effect to his own pre-trial rulings, permitting testimony in violation of the hearsay rule, and submitting common law and statutory fraud questions to the jury that had no legal evidence to support them, among other things.
"The multitude of errors committed by Judge Curry in this case beggar explanation. . . ." according to Jackson Walker and Branyon’s Jan. 29 motion for new trial. "Defendants also recognize that they are asking the Court to review decisions of a trial over which she did not preside. Defendants, however, submit that the errors committed by the Court’s predecessor include errors that will be evident on their face, and, both individually and collectively, are so egregious that they must be corrected."
Defendants Lindsey and Kinsel filed a supplement to that motion for new trial, alleging that the relief awarded was not supported by the plaintiffs’ pleadings, among other things.
"We think that we got a fundamentally unfair trial and result in the case, and we want to rectify that," say Marshall Searcy, a partner in Fort Worth’s Kelly Hart & Hallman who represents Jackson Walker and Branyon. "We have a lot of difficulties with a number of what we think are very important legal points."
William Kirkman, a partner in Fort Worth’s Bourland & Kirkman who represents Lindsey and Oliver, relatives of the decedent in the case, agrees with Searcy.
"With all due respect to Judge Curry, I think there were some significant legal errors, mistakes made in the trial. And we hope to convince Judge McCoy that her predecessor made some mistakes," Kirkman says.
Curry declines to comment and Branyon did not return a call for comment.
"This is a case that cries out for a new trial because of substantial and prejudicial errors made during the trial. The result was a miscarriage of justice for the defendants and especially the late Lesey Kinsel," the decedent in the trust case, says Pat Cowlishaw, a Jackson Walker partner who serves as the firm’s general counsel. "We are hopeful that the court will recognize these problems, many of which were created by the plaintiffs, and rectify them by ordering a new jury trial."
Lindy Jones, a partner in Dallas’ Jones, Allen & Fuquay who represents the plaintiffs, believes the defendants will have trouble reversing the jury’s liability findings.
"They can’t undo the fact finding," Jones says of the defendants who argued during the trial that they were not at fault. "So, as you often voir dire the jury, they are the Supreme Court of the facts. They just weren’t believed by the jury and justifiably so. But that’s just me."