Lee Harvey Oswald’s Gravestone

Judging by recent history and a case set for Oct. 1 oral argument before Dallas’ 5th Court of Appeals, every item connected to President John F. Kennedy’s assassination will end up in litigation at some point. Recently, the owner of a Dallas apartment complex where Kennedy assassin Lee Harvey Oswald once lived lost a state-court challenge over the building’s demolition. Years earlier, an ownership dispute over the .38-caliber Colt Cobra revolver Jack Ruby used to kill Oswald also became the basis of a lawsuit. Now, the 5th Court will hear Wayne Lensing and Lefthander Marketing v. David Card and Cleo Card, a case concerning who owns Oswald’s original grave marker. The court will have to decide whether Wayne Lensing, the Illinois collector who bought Oswald’s headstone at an auction, can assert a special appearance in the case challenging whether the Texas courts have jurisdiction over him. Lensing and the company that manages the museum he owns assert in their brief that the alleged theft and conversion could only have occurred in Illinois, because that’s where the plaintiffs contacted him and demanded the return of the grave marker. Lensing builds race-car chassis and parts; he owns numerous presidential limousines and memorabilia, including several rooms of furniture used in the White House at different points in history, his brief states. Lensing also purchased the Yellow Checker Cab that Oswald used to escape downtown Dallas after the assassination. The plaintiffs, David Card and Cleo Card, argue in their brief that they properly sued Lensing and his company in Dallas. “Our folks are suing him for conversion and theft and alleging that the conversion and theft occurred in Texas,” says Chad Baruch, a Rowlett solo who represents the Cards in the 5th Court argument. The couple’s family had purchased the house where the gravestone was found and are seeking its return. Baruch says the defendants are climbing a steep jurisdictional hill in their argument. “It’s not easy to win a special appearance, but it’s not impossible to do. It’s very much a case-specific inquiry,” he says. Kenneth East, a partner in North Richland Hills’ Foster & East who represents Lensing and Lefthander Marketing, says his clients assert that Texas courts have no jurisdiction over the plaintiffs’ claims. “In this case, the plaintiff has no connection to anything my client did,” East says. “And my client doesn’t have any agents or employees here,” he says, adding that his clients deny the fraud and conversion allegations. Baruch marvels at the continuing fascination over Kennedy assassination memorabilia and its potential for litigation. “People are crazy for that stuff,” Baruch says. “It’s, I don’t know, macabre.”

Judge Gets Admonished

The State Commission on Judicial Conduct has publicly admonished a Victoria state district judge, after he had ex parte communications with a lawyer about an attorney fee dispute in which the judge later awarded that attorney $45,000. The background to the admonition of 267th District Judge Juergen “Skipper” Koetter, which the commission released Sept. 23, is as follows, according to the document. Attorney O.F. Jones filed a lawsuit against former client Richard Whatley to recover attorney fees. Koetter awarded a take-nothing judgment, which Jones appealed to Corpus Christi’s 13th Court of Appeals. The 13th Court reversed and remanded the case. Koetter awarded Jones $40,000 in attorney fees, but he later reduced that amount to $26,694. Whatley filed a motion for new trial, but he withdrew that motion and offered to pay the $26,694. In response, Jones indicated he wanted a new trial because he believed he was entitled to more money from Whatley. Koetter later granted the new trial. Jones then sent a letter to Whatley’s attorney, Jerry L. Clark, indicating that he’d had ex parte communication with Koetter about mediating the case. “He told me to tell you he was inclined to sign a judgment that would provide me with a larger amount than he had previously,” the letter stated. Clark objected to the ex parte communication and requested a meeting with Koetter before the case was set for trial. The next day, Jones notified Clark that Koetter signed a $45,000 judgment awarding Jones attorney fees. Whatley appealed the judgment, which the 13th Court reversed and remanded to Koetter, after finding he had no authority to make the award without affording Whatley the right to be heard. In his written responses to the commission, Koetter acknowledged the ex parte “conversations” with Jones and explained that his $45,000 judgment was based on his opinion and the evidence that had been presented by the parties in the case, who’d been asked to submit briefs and any additional evidence. The commission concluded in its admonition “that Judge Koetter engaged in an improper ex parte communication with Jones concerning a contested issue in a pending case, which resulted in the entry of a judgment in favor of Jones without affording Whatley the right to be heard.” “In reaching its decision, the Commission took into account the fact that Judge Koetter had been sanctioned previously for engaging in similar conduct,” the admonition continues. Koetter, Jones and Clark did not return calls for comment. Tom Cunningham, a partner in Houston’s Cunningham Darlow who chairs the commission, declines comment about the admonition.

Mark Cuban’s Civil 
Insider-Trading Trial

When Dallas Mavericks owner Mark Cuban walks into a federal courtroom on Sept. 30 to stand trial on a civil allegation of insider trading, he certainly will get plenty of attention from the national media and the potential jurors who may sit in judgment of the high-profile billionaire. What Cuban won’t get is special treatment in the form of a “jury questionnaire,” submitted by Cuban’s lawyers in the case to get a better sense of what the venire members know about Cuban, according to a recent ruling by U.S. District Judge Sidney Fitzwater, who will preside over the trial. While federal judges usually control voir dire by asking questions of potential jurors, Cuban’s lawyers had requested that they be able to ask questions directly of the jurors through a questionnaire, because “there is a substantial risk that the prospective venire will come to the jury-selection process with preconceived beliefs, judgments and opinions — certainly more so than the venire in an average case,” according to a defense motion filed in the case. Yet Fitzwater, who is the chief judge of the Northern District of Texas, rejected that request, noting in a Sept. 10 order that a jury questionnaire would not be necessary. “The court concludes that its usual three-phase process will be sufficient to address the concerns raised in Cuban’s motion. In the first and third phases, the court can ‘ask probing questions to ferret out possible bias,’ ” Fitzwater writes. “During the second phase, counsel can make further, proper inquiries of the entire venire. And during the third phase, counsel can question venire members directly, without preset time constraints, to ensure that the venire members who remain (and who are subject to peremptory strikes) can be fair and impartial.” Tom Melsheimer, managing partner of the Dallas office of Fish & Richardson. represents Cuban. Melsheimer notes that, while Fitzwater has not allowed the use of jury questionnaires in the past, it was worth asking him. “We’re very confident that Judge Fitzwater is going to do a thorough voir dire to make sure the jury is fair and impartial,” Melsheimer says. Kevin O’Rourke, an attorney with the U.S. Securities and Exchange Commission who is representing the government in the case, did not return a call for comment.

Ouch! Hot Coffee!

A 1994 lawsuit filed by a 79-year-old New Mexico woman who was severely burned by a hot cup of McDonald’s coffee became a poster child for tort reform and a call to cap damages in lawsuits. In Stella Liebeck v. McDonald’s Restaurants, et al. a jury in New Mexico awarded Stella Liebeck, who received third-degree burns from the hot coffee, $2.9 million in damages, but the judge reduced the award to $640,000, and the litigation later settled under confidential terms. Now, in Texas, a Harris County man has filed a negligence suit against Jack in the Box Inc., alleging he received burns in the groin area when a clerk spilled coffee on him when attempting to hand him a cup at the drive-through line. Altaf Abro alleges in the petition he filed in the 281st District Court that he purchased the coffee on Jan. 12 from a Jack in the Box restaurant on Spencer Highway in South Houston. He alleges that, after he paid for the coffee, “Defendant’s employee improperly handled the large cup of hot coffee and spilled it on Plaintiff’s groin-area while attempting to hand it to him.” Abro alleges he was treated for burns to his groin afterward at a nearby hospital. “As a result of Defendant’s negligence, Plaintiff suffered multiple personal injuries,” Abro alleges in the petition. He seeks up to $75,000 in damages, penalties, costs, expenses, pre-judgment interest and attorney fees. Plaintiff’s attorney Ivan Capellan, of Hightower, Russo & Capellan of Houston, did not return a telephone message seeking comment. A telephone message and an email, both seeking comment, to the Jack in the Box media relations department in San Diego were not returned.

New DA Appointee

Newly appointed Harris County District Attorney Devon Anderson delivered a brief public statement on Sept. 26 about her plans for running the DA’s office. Gov. Rick Perry appointed Anderson on Sept. 24 to succeed her late husband Mike Anderson and serve until the next general election. Belinda Hill, a former state district judge who has been running the DA’s office since Mike Anderson’s death on Oct. 31, will continue as first assistant, Anderson announced. Hill stood by Anderson when she met with reporters, but did not speak. Anderson said Hill was “the steady hand who kept the office on an even keel” over the last few weeks. “This job looks a lot less daunting with Belinda by my side,” she said. Anderson, who was an assistant DA in Harris County for 12 years, a former state district judge and criminal-defense attorney, said it’s an “honor and a dream come true to be able to lead the office I grew up in.” She said she’s an advocate for justice, not convictions, and she wants the opportunity to finish what her husband started when he took office in January. She said that, during her tenure as a judge, she presided over a drug court and says she’s a “firm believer in rehabilitation” for many drug addicts. She also says she will prosecute all cases in which law enforcement officers in Harris County are killed.