Larry Rothenberg, Houston solo ()
Larry Rothenberg’s client is in the Guinness Book of World Records as the “fastest real-time court reporter” and is also a recognized chess player, he said.
So it just follows that Rothenberg, a Houston solo, successfully defended a $240,000 judgment his client won before a trial court, three months after the case was submitted to Houston’s First Court of Appeals. It’s an appellate ruling that Rothenberg said checkmates the defendant’s claim that his client, Mark Kislingbury, does not have standing to make a recovery in a business dispute.
The decision is a big win for Kislingbury, who has received recognition from the Guinness Book of World Records, Rothenberg said. The record book notes that Kislingbury of Houston, Texas “is the National Court Reporters Association [NCRA] speed and real-time champion, achieving 360 words per minute with 97.23 percent accuracy, at the NCRA 2004 summer convention on July 30, 2004.”
“He teaches court reporting, and he’s the world’s fastest court reporter with the most words per minute. And he’s a chess master. You’ve got win a certain number of games and you’re recognized. This guy is a world-class chess player,” Rothenberg said of Kislingbury.
The background to the dispute in the First Court’s Aug. 19 decision in Aloysius v. Kislingbury is as follows.
Kislingbury, who has a business training court reporters, met Jeniffer Aloysius, another court reporter, at a convention, and they later formed Stenomaster to sell court reporting training materials in 2004. The business relationship began to deteriorate in 2007, and when Kislingbury sought to buy Aloysius’ interest in the company, she refused to provide a full accounting, according to the opinion.
Upon discovering that Aloysius had written numerous checks from the Stenomaster account to herself, Kislingbury sued Aloysius for breach of contract, fraud, conversion and breach of fiduciary duties. Aloysius testified that she was the bookkeeper for the company and that Stenomaster “was not profitable.” Because it didn’t have funds, she would pay its expenses from her personal accounts and “reimburse herself when funds became available,” according to the opinion.
A trial court rendered judgment for Kislingbury against Aloysius for $240,117.30 in damages and $98,000 in attorney fees and appellate attorney fees in the event of an appeal. Aloysius appealed the judgment to the First Court, arguing that Kislingbury lacked standing to recover in his individual capacity and the evidence was not sufficient to support the damages awarded.
The First Court ruled that Kislingbury did have standing to recover against Aloysius for violating the terms of the 2004 business agreement that created Stenomaster.
“Kislingbury alleged that Aloysius had ‘breached the terms of the agreement’ by diverting Stenomaster revenues to her personal accounts, failing to make distributions in accordance with the apportionment stated in the agreement and withholding complete information regarding the financial status of the company,” wrote Justice Terry Jennings in an opinion joined by Justices Jane Bland and Michael Massengale. “We hold that Kislingbury has standing to recover on his own breach of contract claim in his individual capacity.”
The First Court also ruled that the evidence in the case was sufficient to support the damage award. However, the First Court ruled that the trial court erred in awarding appellate attorney fees to Kislingbury because it did not make the award contingent on Aloysius’ appeal being unsuccessful. The First Court affirmed the trial court’s rulings in the case, but modified the trial court’s judgment to make the attorney fees award contingent on Aloysius’ appeal failing at the high court.
Rothenberg is pleased with the opinion.
“The other side was trying to argue that Mr. Kislingbury didn’t have any individual claims,” Rothenberg said. “The court held that in a closely held corporation, a shareholder can assert individual claims.”
Dave George, a partner in Houston’s Connelly Baker Wotring who represents Aloysius, is disappointed in the decision.
“We believe these were the damages of the company, not of Mr. Kislingbury, and the company should have been the property party, rather than him personally, which would have resulted in a reversal and no award,” George said. “And right now we’re considering our options in seeking rehearing or pursuing relief at the [Texas] Supreme Court.”
As for the appellate victory by the world’s fastest court reporter, George said: “We wish him the best of luck in his future court reporting.”