Maverick Industries, Inc. d/b/a National Communication Services v. American Teleconferencing Services, LTD. d/b/a P{remiere Global Services; Civil Action No. 3:10-CV-0389-N; _____ WL ___; United States District Court, Northern District, Dallas Division, Judge David Godbey, presiding.
In a complex breach of contract case, the trial team of James W. Walker and Dan Gus successfully represented an agent during the bench trial of a commission dispute filed on behalf of Maverick Industries, Inc. d/b/a National Communication Services, against American Teleconferencing Services, LTD. d/b/a Premiere Global Services (“PGi”) due to PGi’s repudiation of an agreement to pay commissions to Maverick Industries.

Maverick Industries is a Dallas-based broker of telecommunications and data services.  The court found that Maverick Industries had made it possible for PGi to obtain more than $3.5 million in business from Dean Foods and Bay Valley Foods, two of Maverick Industries’ customers, in exchange for PGi’s promise to pay commissions to Maverick Industries.  James W. Walker of Walker Sewell argued that PGi’s sudden termination of commission payments to Maverick Industries in 2008 constituted a repudiation of PGi’s contract obligations that rendered PGi liable for past commissions as well as commissions that Maverick Industries would have earned in the future.

Judge David C. Godbey of the U.S. District Court for the Northern District of Texas, agreed with Maverick’s assertion that PGi repudiated its promise to pay commissions.  The court ruled in Maverick’s favor on its breach of contract claim and, further, ruled in favor of Maverick by denying any relief on each of PGi’s counterclaims and affirmative defenses.  The District Court’s Final Judgment awarded more than $400,000 in relief, including the value of past commissions, future commissions, pre-judgment interest and attorney’s fees.  In addition, the court rejected PGI’s defenses and counterclaims against Maverick Industries, including a claim seeking reimbursement for past commission payments.

Maverick Industries’ victory came after more than two years of litigation that ended in an August 2011 trial involving witnesses from Dallas, Chicago and Atlanta, including senior executives of both PGi and Maverick Industries.

Lanie Whitmire and Ray Whitmire v. National Cutting Horse Association; Cause No. 236-220623-06; In the 236th Judicial District Court Forth Worth, Tarrant County, Texas; The Honorable Thomas Lowe, Presiding Judge; January 25, 2011.

The trial team of James W. Walker and partner Mike Watson secured a favorable verdict for their client Lainie Whitmire on claims made against the National Cutting Horse Association at the conclusion of a three week jury trial in Fort Worth’s 236th District Court.

TXU Portfolio Management Company, L.P. v. FPL Energy, LLC, et. al, Cause No: 05-08-01584, 2010 WL 2904628 (Tex.App. – Dallas July 27, 2010).

Walker Sewell prevailed in a novel electric utility case in which the trial team of founding partner James W. Walker and partners Dan Gus and Mike Watson represented a power wholesaler in prosecuting the wholesaler's claims for liquidated damages for a power producer's failure to produce and deliver promised annual quantities of renewable energy and renewable energy credits from three wind farms in West Texas. On summary judgment, the trial court invalidated the power purchase agreements' liquidated damage provisions, construed the power transmission provisions in a manner consistent with the producer's counterclaims, and put the power wholesaler to trial during a period of intense legislative and regulatory scrutiny accompanied by negative publicity. Notwithstanding these challenges, the trial team secured a directed verdict that the seller had breached its production and delivery obligations. The jury awarded the power wholesaler $8.9 million in actual damages, and rendered a take nothing verdict on the seller's counterclaims. Despite the jury verdict in favor of the power wholesaler, the trial court entered a take nothing judgment on the power wholesaler's claims and awarded costs to the power producer.

On appeal, James Walker and Dan Gus obtained a decision from the Fifth Court of Appeals in Dallas, Texas that affirmed the take nothing judgment on the power producer's counterclaims, reversed the trial court's construction of the power transmission provisions, affirmed the validity of the parties' liquidated damages agreement, and remanded the case to the trial court for the calculation of the power wholesaler's liquidated damages, attorneys' fees and costs, thereby permitting the wholesaler to recover far more than the $8.9 million awarded by the jury in the original trial.

Luminant Generation Company, LLC v. KLIF Broadcasting, Inc. – State District Court in Dallas, Texas

In a complex commercial real estate dispute, the trial team of James Walker and Dan Gus represented a landowner in its efforts to terminate a long term license agreement that permitted a national radio broadcast company to operate a three-antenna broadcast array on prime real estate for only $7,500 per year. The landowner alleged that the broadcast company had materially breached the terms of the license agreement, and thus sought to terminate the agreement and remove the broadcast towers, thereby permitting the landowner to sell the property for commercial development. Due to its aggressive prosecution of the case, Walker Sewell was able to settle the case and enable the landowner to sell the property as a part of one of Dallas County's largest commercial real estate transactions that included the landowner, a commercial developer, a municipality, a school district and the broadcast company. In connection with that transaction, the broadcast company paid $1.8 million to settle the material breach claims against it and retain the license agreement for its final 11 years.

TXU SEM Company v. Catholic Healthcare West – Federal District Court in Phoenix, Arizona
Dan Gus of Walker Sewell represented a retail power company in a commercial construction dispute involving the design and construction of a cogeneration power project for a private hospital in California. The hospital refused to accept and pay for the project unless the power company operated the project at its own expense for an extended period of time as demonstration of the project's completion. Accordingly, Walker Sewell filed suit against the private hospital in federal court in Phoenix, Arizona to collect nearly $3.8 million that was owed for the construction of the power plant. As a result of the lawsuit filed by Walker Sewell, the power company recovered the full amount owed to it when the hospital agreed to accept the power plant following a brief reliability demonstration paid for by the hospital.

TXU Portfolio Management Company, L.P. v. FPL Energy Pecos Wind I, L.P., et. al, Cause No: 04-10314, In the 116th Judicial District Court for Dallas County, Texas.

On July 29, 2007, the trial team of founding partner James W. Walker and partners Dan Gus and Mike Watson secured a directed verdict after two weeks of trial on their client's breach of contract claims in relation to three Renewable Energy Credit Purchase Agreements requiring the delivery of Annual Quantities of Renewable Energy and Renewable Energy Credits for the years 2002 - 2005. The twelve member jury then returned a favorable verdict awarding TXU Portfolio Management Company, L.P. a total of $8.9 Million in damages in connection with this breach of contract. The same jury rejected the FPL Energy defendants' counterclaims and awarded them zero damages.

Baylor Health Care System v. Employers Reinsurance Corp., --- F.3d ---, 2007 WL 1933938 (5th Cir. July 5, 2007)

On July 5, 2007, a unanimous panel of the United States Court of Appeals for the Fifth Circuit reversed a summary judgment entered against the Firm's clients, a non-profit hospital and its offshore captive insurer, in a reinsurance dispute arising from the settlement of a personal injury lawsuit which exceeded $10 million. Founding partner Kevin Sewell successfully argued that genuine issues of material fact existed as to whether the parties' agreement to each contribute directly to the underlying settlement precluded the hospital and its captive insurer from seeking recovery of the entire settlement under the terms of the reinsurance certificate.

Liberty Mut. Fire Ins. Co. v. Fireman's Fund Ins. Co., 2007 WL 1577922 (5th Cir. May 30, 2007) (unpublished)

On May 30, 2007, the United States Court of Appeals for the Fifth Circuit affirmed a summary judgment entered in favor of the Firm's client, a primary insurer, in a lawsuit filed by an excess insurer seeking to recover contributions it made to the settlement of a personal injury lawsuit. Founding partner Kevin Sewell argued that a primary insurer which furnishes a defense to its insured is entitled to independently evaluate and determine the settlement value of a lawsuit and is not required to surrender this right to an excess insurer even when the insured's potential liability significantly exceeds the primary policy limit. A unanimous panel agreed, holding that the Mississippi's volunteer doctrine precluded the excess insurer from recovering any portion of its settlement contribution from the primary insurer, despite the fact that the primary insurer contributed less than 20% of its policy limit to the underlying settlement.