Gibbs & Bruns’ lawyers prosecute and defend appeals in a variety of jurisdictions and at all levels of the appellate process. The firm’s appellate work arises from litigation handled by firm lawyers as well as from cases tried by other lawyers. The firm’s appellate lawyers work closely with the firm’s trial teams drafting jury charges, dispositive motions, and other filings related to preserving client options in potential future appellate proceedings.
Zachry Construction Corporation v. Port of Houston Authority of Harris County, Texas
In this case, which was closely watched by the construction industry in Texas and across the country, Gibbs & Bruns recovered more than $37.2 million for its client, Zachry Construction Corporation, after a successful trial and multiple appellate proceedings that established numerous legal principles favorable to Zachry regarding construction law and governmental immunity.
Following a complex three-month jury trial against the Port of Houston Authority—and a resulting jury verdict for Zachry—the trial court entered a final judgment on April 28, 2010 awarding Plaintiff Zachry $23.4 million in damages. This breach of contract lawsuit arose from the Port’s last-minute rejection of a contractually approved construction method Zachry intended to use to build a 2000-foot wharf facility. Prior to trial, we successfully defeated several summary judgment motions filed by the Port seeking to dismiss the case in its entirety. We also won several pre-trial rulings that narrowed the issues to be tried in Zachry’s favor.
On appeal, the Fourteenth Court of Appeals reversed the trial court’s judgment. The Texas Supreme Court granted review and reversed the appellate court’s decision, finding in favor of Zachry, and remanded the case to the court of appeals for further consideration. In December 2016, the Fourteenth Court of Appeals affirmed the trial court’s $23.4 million judgment. On September 1, 2017, the Texas Supreme Court denied the Port’s petition for review, and the judgment became final. The Port paid Zachry more than $33.5 million to satisfy the judgment, including post-judgment interest, and also agreed to pay more than $3.8 million in retainage that the Port had withheld during the litigation.
ERG Resources, LLC v. Nabors Global Holdings II, Limited, et al.
We represented ERG Resources, Inc. in litigation against Nabors Global Holdings II, Ltd. and Parex Resources, Inc. involving the acquisition of oil and gas properties in the Republic of Colombia. In early 2012, ERG agreed to purchase the stock of Ramshorn International from Nabors for $45 million, which would give ERG ownership of Ramshorn’s valuable Colombian oil and gas interests. During the due diligence period, ERG identified certain alleged breaches of Nabors’ representations and warranties under the purchase agreement. At the same time, Parex offered Nabors a substantially higher price for the same assets. ERG alleged that Parex had knowledge of the purchase agreement and that Nabors sought to thwart the deal in order to sell the assets to Parex instead of ERG. Nabors subsequently sold the assets to Parex for $75 million. ERG filed suit against Nabors and Ramshorn seeking specific performance and, in the alternative, damages for breach of contract. ERG also asserted claims against Parex and its subsidiary for tortious interference with ERG’s contract. After a two-day special appearance hearing, the trial court denied Parex’s and Ramshorn’s special appearances, but granted the special appearance of the Parex subsidiary.
The jurisdictional rulings were appealed to the Texas Supreme Court, which determined that personal jurisdiction existed over Ramshorn but not over Parex or its subsidiary. As a result, ERG was required to pursue parallel litigation against Parex in Alberta, Canada. In 2017, ERG’s claims against all parties were resolved prior to trial in a series of settlements totaling $35 million.
Huntsman Corporation v. Credit Suisse Securities (USA) LLC, et al.
As a part of our fast-track strategy in the Huntsman takeover litigation (see fuller description in “Securities Litigation”), we obtained a temporary injunction prohibiting Credit Suisse and Deutsche Bank from interfering with Huntsman’s right to present a solvency certificate at closing, a document that was required to trigger funding of the merger. The Defendant Banks appealed this injunction. We not only prevailed on the appeal, we did so in a way that effectively precluded any effort by the Banks to obtain a subsequent summary judgment against Huntsman, because we persuaded the court that there was sufficient evidence to establish Huntsman’s right to an injunction. The injunction was affirmed in every respect by a unanimous Beaumont Court of Appeals, and the Banks did not pursue further appellate remedies. See Credit Suisse Securities (USA) LLC v. Huntsman Corp., 269 S.W.3d 722 (Tex. App.—Beaumont 2008, no pet.).
Clear Channel Communications, et al. v. Citigroup Global Markets, Inc., et al.
One of the challenges we faced in Clear Channel (see fuller description in “Securities Litigation”) was defeating the Defendant Banks’ argument that our clients’ lawsuit was subject to a mandatory forum selection clause requiring that their tort claims be litigated in New York pursuant to a clause in a financing commitment letter. We successfully persuaded the trial court that our client, CC Media Holdings, was not a party to the commitment letter and thus was not bound by the contract’s forum selection clause – despite the Banks’ argument that CC Media sought to directly benefit from it. The Banks pursued a writ of mandamus to the San Antonio Court of Appeals, which refused to hear the matter upon considering our response to the petition for the writ. See our Response here. This is one of the few cases in Texas in which a company has successfully avoided enforcement against it of a forum selection clause.
Authorlee, et al. v. Tuboscope Vetco International, Inc., et al.
Five years after settling their occupational lung disease claims, 11 Plaintiffs brought suit against our client Tuboscope Vetco International, Inc. and others seeking to set aside the settlements and reopen their claims. Plaintiffs alleged their settlements were part of an unlawful “aggregate settlement” and were void as against public policy. Plaintiffs also alleged that Defendants fraudulently assisted Plaintiffs’ former counsel in improperly obtaining their consent to the settlement. After researching the file’s history, we persuaded the court to abate the case. In an effort to avoid their settlement, Plaintiffs then filed a motion for new trial in the original settled case. Following discovery and a hearing, that motion was denied. On appeal to the First Court of Appeals in Houston, we obtained the affirmance of the trial court’s denial of a new trial, thereby leaving the prior settlements intact. See Authorlee v. Tuboscope, 274 S.W.3d 111 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). Plaintiffs’ petition for review was denied by the Texas Supreme Court after full briefing on the merits.
WTG Gas Processing, L.P. v. ConocoPhillips, et al.
On February 23, 2010, the Court of Appeals affirmed a judgment dismissing all claims against ConocoPhillips Company and others arising out of ConocoPhillips’ sale of natural gas pipelines and processing plants near San Angelo, Texas. Plaintiff WTG Gas Processing, L.P. (WTG) alleged it had an oral contract to purchase the assets and filed suit against ConocoPhillips seeking damages for breach of contract, fraud, and negligent misrepresentation, together with claims for tortious interference with a contract or a prospective business relationship against ConocoPhillips’ financial advisor and the asset purchaser. We were first retained to represent ConocoPhillips in December 2005. In October 2007, the trial court granted full and final summary judgment for ConocoPhillips and the remaining Defendants, and WTG appealed.
The Court of Appeals affirmed the trial court’s grant of summary judgment in its entirety, holding that ConocoPhillips had conclusively negated the existence of any contract with WTG. The court held that, under bid procedures communicated to each of the potential purchasers, ConocoPhillips unequivocally stated its intent not to be bound to any contract in the absence of a final, executed purchase and sale agreement, and further held that WTG’s evidence was insufficient as a matter of law to prove a waiver of those rights. Because ConocoPhillips negated the existence of any contract with WTG, the court further affirmed the dismissal of WTG’s claim for tortious interference.
Cuesta, et al. v. Ford Motor Co., et al.
Plaintiffs sued Defendants for breach of express warranty, breach of the implied warranties of merchantability and fitness for particular purpose, negligence, and strict products liability alleging that their Ford trucks contained defective accelerator pedals. In a ruling widely viewed as difficult to obtain, the trial court certified the case as a nationwide class action including owners of vehicles in all 50 states and the District of Columbia. On interlocutory appeal, the Court of Civil Appeals reversed the trial court’s certification order. After granting certiorari, however, the Oklahoma Supreme Court vacated the Court of Civil Appeals’ decision and affirmed the trial court’s certification of a nationwide class action on all Plaintiffs’ breach of warranty claims. See Cuesta v. Ford Motor Co., 209 P.3d 278 (Okla. 2009).
City of Houston/ Southern Crushed Concrete
We defended the City of Houston in a lawsuit brought by Southern Crushed Concrete (SCC) challenging the constitutionality of the City’s Concrete Crushing Site Ordinance. In October 2009, the court issued an order and final judgment granting the City’s motion for summary judgment, denying SCC’s motion for summary judgment, and dismissing SCC’s claims with prejudice. We vigorously defended the trial court’s ruling on appeal by SCC to the Houston Court of Appeals, which upheld the constitutionality of the City’s ordinance in November 2010.
Bains, et al. v. Moores, et al.
We represented a former outside director of Peregrine Systems in connection with litigation brought by former investors alleging violations of various California securities laws and various California common-law causes of action including fraud and negligent misrepresentation. After briefing and oral argument in the California Court of Appeals for the Fourth Appellate District, we obtained an affirmance from the Court of Appeals of the summary judgment on all of Plaintiffs’ claims that we had obtained for our client in the trial court below. See Bains v. Moores, 91 Cal. Rptr. 3d 309 (App. 2009). In July 2009, the California Supreme Court denied Plaintiff’s Petition for Review and for depublication of the Court of Appeals decision.
Gray v. Waste Resources, Inc.
We were hired by Defendant Waste Resources after a trial that resulted in a $1.5 million jury verdict for fraud against it. We appeared on behalf of Defendant for post-verdict motions and the hearing and obtained a judgment notwithstanding the verdict, which rejected Plaintiff’s claims and awarded final judgment in favor of Defendant. On appeal to the Fourteenth Court of Appeals in Houston, we obtained the affirmance of the trial court’s judgment dismissing the case. See Gray v. Waste Resources, Inc., 222 S.W.3d 522 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Phoenix Network Technologies v. Neon Systems
In a case of first impression, we obtained the affirmance of a judgment dismissing a Defendant software company from the case based on a forum selection clause that was included in a contract between Plaintiff and another Defendant and to which the Defendant software company was not a party. See Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605 (Tex. App.—Houston [1st Dist.], no pet.).
Fleming & Associates v. Newby & Tittle
We represented certain former outside directors of the Enron Board of Directors in litigation arising out of the collapse of Enron. In one of the coordinated and consolidated cases, we obtained the affirmance of the district court’s order finding that a law firm representing certain Plaintiffs engaged in sanctionable conduct. In this case of first impression, the Fifth Circuit rejected the Fleming Plaintiffs’ arguments that the sanctions order was rendered moot by the settlement of the underlying case in which Defendants had agreed not to collect the monetary sanctions and affirmed the district court’s decision not to vacate its sanctions order. See Fleming & Assocs. v. Newby & Tittle, 529 F.3d 631 (5th Cir. 2008).
Swank v. Sverdlin
We were hired as counsel for an outside director of Automated Marine Propulsion Systems, Inc. after a jury returned a $75 million verdict against him. During post-trial proceedings, we persuaded the trial court to reduce the judgment to $5 million. On appeal to the First Court of Appeals in Houston, we obtained a reversal of the judgment in its entirety. See Swank v. Sverdlin, 121 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). After requesting full briefs on the merits, the Supreme Court denied Plaintiffs’ petition for review.
Cohen v. Arthur Andersen, L.L.P.
In a case of first impression regarding the proper application of a settlement credit at the summary judgment stage, we obtained summary judgment for Defendant Arthur Andersen on fraud and negligence claims asserted by the beneficiaries of a trust. On appeal, we obtained the affirmance of the summary judgment. See Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Den Norske Stats Oljeselskap As v. HeereMac Vof
In case of first impression regarding the application of the Foreign Trade Antitrust Improvements Act, we obtained dismissal of antitrust claims by a Norwegian oil corporation against an Italian corporation for an alleged anticompetitive conspiracy that supposedly inflated the price of heavy lift barge services in the North Sea. On appeal to the United States Fifth Circuit Court of Appeals, we obtained the affirmance of the dismissal. See Den Norskje Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 (5th Cir. 2001). The United States Supreme Court declined to grant the petition for writ of certiorari.