Preview
FILED
4/12/2024 8:49 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rosa Delacerda DEPUTY,
CAUSE NO. DC-21- 07876
BINH LE, 116™ DISTRICT COURT
DALLAS COUNTY, TEXAS
Plaintiff,
Vv.
LEVI MCCATHERN, II, [Hon. Tonya Parker]
MATTHEW MUCKLEROY,
JAMES SHERRY, and
MCCATHERN, PLLC,
Defendants.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Defendants Levi McCathern, II, Matthew Muckleroy, James Sherry, and McCathern,
PLLC, (collectively “Defendants” or “the McCathern Lawyers”) submit the following initial pre-
trial Proposed Findings of Fact and Conclusions of Law. By submitting these proposed findings
of fact and conclusions of law, Defendants do not waive the right to later modify or request
modifications, whether by addition or deletion, of these proposed findings of fact and conclusions
of law as may be appropriate under subsequent Court rulings, the controlling law, and the evidence
admitted at trial.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE I
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Respectfully submitted,
By: /s/ William D. Cobb, Jr.
WILLIAM D. COBB, JR.
Texas Bar No. 04444150
weobb@cobbmartinez.com
LINDSEY RATTIKIN COMSTOCK
Texas Bar No. 24095977
lcomstock@cobbmartinez.com
COBB MARTINEZ WOODWARD PLLC
1700 Pacific Avenue, Suite 3100
Dallas, Texas 75201
Phone: 214.220.5200
Facsimile: 214.220.5299
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served on
counsel ofrecord in accordance with the Texas Rules of Civil Procedure on April 12, 2024.
/s/ Lindsey Rattikin Comstock
LINDSEY RATTIKIN COMSTOCK
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 2
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CAUSE NO. DC-21- 07876
BINH LE, 116™ DISTRICT COURT
DALLAS COUNTY, TEXAS
Plaintiff,
Vv.
LEVI MCCATHERN, II, [Hon. Tonya Parker]
MATTHEW MUCKLEROY,
JAMES SHERRY, and
MCCATHERN, PLLC,
Defendants.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
I
PROPOSED FINDINGS OF FACT
1 In August 2015, Plaintiff Binh Le (“Le”) retained Defendants Matthew Muckleroy, James
Sherry, and McCathern, PLLC (collectively, “the McCathern Lawyers”) to represent Le in
litigation against Le’s former employer, Exeter Finance Corporation (“Exeter”) and Enzo
Parent, LLC (“Enzo”).
Prior to the litigation against Exeter and Enzo, Le worked as a human resource professional
for Lennox until he was terminated. On June 28, 2013, Le signed a Separation and General
Release Agreement with Lennox, in which he released any claims and any rights to Lennox
equity in return for severance pay. Le had no further rights to Lennox compensation or equity
as of June 28, 2013.
A month later, on July 25, 2013, Le received an offer of employment from Exeter, which he
then accepted on July 26, 2013.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 3
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4. Asa part of his Exeter compensation package, Le had a written agreement related to profit
interest units (“PIU”) in Exeter’s parent, Enzo. Exeter fired Le on February 23, 2015. On
March 9, 2015, as permitted by the terms of the agreement, Enzo called any PIU which had
vested and repurchased them from Le at the Enzo board’s assigned value of $0.00.
In the underlying suit, Le sued Exeter and Enzo in state district court. Exeter removed the case
to the federal district court for the Northern District of Texas where it was assigned to United
States District Judge Sam Lindsay. Binh Hoa Le v. Exeter Fin. Corp., No. 3:15-CV-3839-L,
2019 WL 1436375 (N.D. Tex. Mar. 31, 2019), aff'd, 990 F.3d 410 (Sth Cir. 2021) (the
“underlying lawsuit”).
From the beginning of the case, the McCathern Lawyers and Le developed a damages model
based on two distinct claims — one known as the “Lennox damages” and a second as the “PIU
damages.” During the preparation for filing suit, Le provided the McCathern Lawyers a “Claim
Summary” memo stating that he had been “proactively” recruited away from Lennox by
Exeter, and that in joining Exeter he had left $1.5 million in unvested equity “on the table” at
Lennox because of Exeter’s fraudulent representations to him. Le’s claim to the Lennox
damages was premised on Le’s story that Exeter had recruited Le away from a secure position
at Lennox and that Le had walked away from a significant compensation package including
millions of dollars in equity at Lennox in order to join Exeter.
But Le misrepresented to the court and to the McCathern Lawyers in the underlying lawsuit
the true facts about being fraudulently induced to resign his position at Lennox to join Exeter.
Le had been given his Separation Agreement on June 4, 2013. By June 6, 2013, Lennox had
publicly announced Le’s departure from the company and identified his replacement. Le had
already signed a Separation Agreement with Lennox by June 28, 2013 and had released and
abandoned any claim to Lennox compensation or Lennox equity no later than that date. He did
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~ PAGE 4
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not accept a job at Exeter until being presented with an offer on July 25, 2013, which he did
not accept until only after receiving on July 17 and 18 written “representations” about the
Exeter PIU program, on which he testified in the underlying lawsuit that he relied to take the
Exeter job. On July 17, on July 18, on July 25, and on July 26, Le had no Lennox position or
Lennox equity from which to walk away.
On December 15, 2016, Exeter deposed David Moon, Le’s former boss at Lennox, who
testified that he had fired Le for cause well before Le had accepted a job at Exeter, and not that
Le had resigned. He also identified a never-seen or produced written Separation Agreement
between Lennox and Le. In the Separation Agreement, Le released Lennox from all claims
including claims to any unpaid stock awards or incentive compensation. Le had never revealed
the Separation and Release Agreement to the McCathern Lawyers and they did not know the
document existed before the deposition. Nor had Le ever informed the McCathern Lawyers of
the true chronology of events that had him unemployed at Lennox well before he took a new
job with Exeter.
The fact that Le had departed Lennox weeks before Le received the Exeter documents on which
he said he relied when he took the Exeter job, and that Le had given up the allegedly lost
Lennox compensation in the Lennox Separation and Release Agreement, destroyed any good
faith claim Le ever had for the Lennox damages. The McCathern Lawyers had already filed a
timely expert report in September 2019 (three months before the Moon deposition) with a well-
constructed theory supporting Le’s Lennox-related damages. Le’s failure to be truthful about
the facts had doomed his expert’s earlier opinions. The result of Moon deposition was that Le’s
Lennox damages had no good faith legal or factual basis in the underlying suit.
10. The District Court in the underlying lawsuit noted the following false claims by Le:
e Plaintiff executed the Employment Agreement and walked away from a
multi-million-dollar equity plan with his prior employer.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 5
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e Plaintiff left behind “about 2 million” in equity to work for Exeter.
e Plaintiff negotiated another $20,000.00 to his sign-on bonus at Exeter
BECAUSE “Lennox was on track to hit 2x its bonus, and Exeter was not.
And so, the sign-on bonus was an attempt to make up the difference” and
“was under what I would have been paid had I stayed at Lennox.”
“Le told Floyd that he was leaving Lennox, a publicly traded company, and
going to Exeter, a private company, which inherently contains a certain
degree of ‘risk involved.’”
11. In its decision affirming the summary judgment for Exeter, the Fifth Circuit wrote:
The record establishes that Le made statements referencing his employment with
Lennox that were not true. Therefore, the district court correctly determined that
Le’s conduct in connection with the transactions before the court was inequitable,
precluding any equitable remedy.
See Le v. Exeter Finance Corp., 990 F.3d 410, 416 (5th Cir. 2021).
12. In a PowerPoint presentation titled “Exeter Case Analysis” which Le prepared for the
McCathern Lawyers afier the Moon deposition, Le wrote: “I sincerely apologize for not
providing the full picture of my departure from Lennox.”
13. After the Moon deposition, Le was obligated to, and agreed to, abandon his claim to Lennox
damages because they lacked any factual bases. It was a late stage in the litigation. The deadline
to designate experts had been September 6, 2016, so by the time the Moon deposition occurred
in December 2016, the discovery period had closed, and the expert deadlines had passed.
14 Despite the revelations in Moon’s deposition, the McCathern Lawyers worked quickly and
diligently to present alternative theories of damages. The supplemental expert reports Le
argues were “late” were attempts to rescue what little damage claim could still be constructed
after Le had failed in his responsibility to truthfully report the facts of his employment.
15 All that was left was Le’s claim that Exeter and Enzo owed him holdings in PIU, and a claim
for unpaid retention bonus and severance benefits. The PIU damage claim was that Exeter
should have paid Le “profit interest units” in Enzo upon his termination. The parties performed
significant fact and expert discovery on the PIU issues, and the McCathern Lawyers advocated
for a favorable valuation of Le’s PIU. The McCathern Lawyers ultimately prevailed on its
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 6
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motion to compel the production of the “Duff & Phelps” audit reports that Le asserted would
place a value on Le’s PIU. But, the District Court and Court of Appeals ruled as a matter of
law that the PIU had no value, because Exeter had the unreviewable authority in the PIU
Agreement to call awarded PIU at any value — including $0 - in the event of an employee’s
termination. As to severance, the District Court observed that Le’s signed offer letter was no
more than an “agreement to agree” based on future conditions, and that Le had rejected those
conditions. And so, Le could not prevail on his claim to severance benefits.
16 The day after the Moon deposition testimony, Exeter filed a motion for summary judgment,
and a motion to exclude Le’s expert damages testimony. Le filed responses (abandoning the
Lennox damages claim while supporting the remaining claims) and a motion for continuance
to allow the pending discovery motions to be adjudicated. More than a year later, the court
tuled on the various motions. In its memorandum opinion and order, the District Court
evaluated Le’s PIU damages claim. Binh Hoa Le v. Exeter Finance Corp. et al., No. 3:15-CV-
3839-L in the U.S. District Court for the Northern District of Texas, Dallas Division at 32-36,
61-68, 96-98. The court determined that the PIU damages claim was “entirely hypothetical in
nature.” /d. at 36. The court noted that: (1) Le conceded that Exeter could call! the PIU, (2)
Le’s method for valuing the PIU was hypothetical, and (3) Exeter had a contractual right to
call the value of the PIU at $0.00. /d. at 65. Finally, the court ruled that Le “cannot establish
that he suffered any damages as a result of the alleged breach of the PIU Agreement.” /d. at
98. After evaluating Le’s breach of contract claim for PIU damages, the District Court granted
Exeter’s motion summary judgment. /d.
1 Judge Lindsay explained that Le acknowledged that the PIU would be valued in accordance with the agreement he
had with Exeter related to the PIU. See Id. at 34. The PIU Le possessed were “time-based” in that Enzo was required
to provide its good faith calculation of the fair market value of the PIU within ten days of a “call notice.” Jd.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 7
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17. The District Court considered Le’s damage claims and rejected them. The District Court’s
Memorandum Opinion and Order confirms that it reviewed each of Le’s expert report filings,
both original and supplemental, and each of Le’s attempts to prove a damage claim. The court
tuled that those alleged damages were not recoverable. /d. at 62-63.
18 While the District Court struck the later expert filings from the record, its opinion establishes
that the result of the case would have been no different had the stricken filings been made
earlier or made with express leave of court. The District Court determined that “... exceptional
circumstances [did] not exist to warrant granting leave to file these materials...” so that any
motion for leave would have been futile. See id. at 12. The District Court’s ruling on Le’s PIU
damage claim was based on the fact that Le’s supporting valuation was based on a 2013
hypothetical, speculative projection Exeter provided to Le during his employment
negotiations. /d. at 63.
19 On appeal, the Fifth Circuit Court of Appeals ruled that the stricken material would not have
mattered, answering the question “whether the Duff & Phelps audit reports would have
affected the summary-judgment analysis. The analysis would not have changed, the [trial]
court concluded, because the reports did not create a genuine dispute of material fact.” And the
Fifth Circuit added its conclusion: “We agree.” Le v. Exeter Finance Corp., 990 F.3d at 414.
20. The Fifth Circuit concluded:
The PIU Agreement assigns to the board of directors the task of determining the
fair market value of PIUs at the time of a call. The Duff & Phelps audit reports
indicate that their PIU valuations rely on methods and dates tailored to the limited
financial-reporting purpose of the reports. The reports do not provide a valuation
of the PIUs using the methods or dates required by the PIU Agreement. Therefore,
on the record before us, the audit reports do not create a genuine dispute of material
fact as to the PIUs’ value under the PIU Agreement’s terms. Jd.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~ PAGE 8
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Therefore, the filings stricken in the trial court were adjudicated by the Fifth Circuit not to
create a fact issue precluding Exeter’s summary judgment whether or not they were in
evidence.
21 Additionally, the Fifth Circuit examined Le’s fraudulent inducement claim against Exeter and
affirmed the district court’s conclusion that the undisputed evidenced shows that Le did not
rely on Exeter’s representation as to the PIU’s projected value when he decided to join the
company. Le, 990 F.3d at 415-16. In the underlying case, the preponderance of the evidence
shows that Exeter did not knowingly or recklessly make a material representation that was
false. Exeter’s representations to Le about the PIU’s projected value were not representations
of an existing material fact. Le did not actually or justifiably rely on any representation made
by Exeter. Le stated that the PIU opportunity sounded “outlandish.” Moreover, Le was a
sophisticated party who understood the volatility of the PIUs, and he did not actually or
justifiably rely on the one-page example or any other representation by Exeter as a
representation of material fact.
22. The preponderance of the evidence does not show that Le would have prevailed on any other
fraudulent inducement, promissory estoppel, quantum meruit, or any other claim that was not
presented in the underlying lawsuit.
23 The PIUs were the subject of written agreements, which governed their terms. By the time Le
was terminated by Exeter, no buyout or other triggering event had occurred to realize any
payments under the PIUs. Le was not entitled to keep any vested or unvested PIU upon his
termination by Exeter. Those PIUs were always subject to being called by Enzo at a value
determined by Enzo.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~PAGE9
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24. Le and his new counsel at Seiler Mitby chose not to appeal the rulings on his wrongful
terminations and employment-based lost wage claims, which had been adjudicated against him
in the trial court. The McCathern lawyers had nothing to do with that choice.
25, On June 18, 2021, Le filed this lawsuit against the McCathern Lawyers. In this lawsuit, Le
asserts five acts of professional negligence against the McCathern Lawyers: (1) failure to
present relevant evidence in the underlying lawsuit; (2) failure to meet court deadlines; (3)
failure to appropriately hire and prepare an acceptable expert report for damages; (4) failure to
follow the orders from the federal court and move for leave to file additional pleadings, which
resulted in evidence and pleadings being struck from the record; and (5) failure to rehabilitate
Le during depositions to enhance his credibility.
26 But the preponderance of the evidence shows that the McCathern Lawyers did not fail to
exercise ordinary care and therefore did not breach the standard of ordinary care. Moreover,
the preponderance of the evidence shows that the McCathern Lawyers’ conduct did not
proximately cause damages, if any, to Le. The preponderance of the evidence shows Le’s
damages, if any, were caused by Le’s own acts and/or omissions for which the McCathern
Lawyers were not responsible. The preponderance of the evidence shows Le’s underlying
claims have no merit.
27 Le filed claims of professional negligence, gross negligence, and breach of fiduciary duty as
to all Defendants.
28 Le filed a breach of contract and unjust enrichment claims as to McCathern, PLLC.
29 McCathern, PLLC filed a breach of contract counterclaim for outstanding fees due and owing
by Le for the legal services rendered by McCathern, PLLC. [McCathern, PLLC’s breach of
contract counterclaim was resolved by the parties’ Rule 11 agreement.]
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30. On January 6, 2023, this Court granted summary judgment in part, awarding a take nothing
judgment to all the Defendants as to the breach of fiduciary duty claim and awarding a take
nothing judgment to McCathern, PLLC as to Le’s breach of contract and unjust enrichment
claims. The court denied summary judgment as to the professional negligence and gross
negligence claims. The court conducted a bench trial on Le’s professional negligence and gross
negligence claims, as well as McCathern, PLLC’s breach of contract counterclaim against Le.
[McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11
agreement. ]
31 As to McCathern, PLLC’s breach of contract counterclaim, Le and the McCathern Lawyers
entered into a valid and enforceable contract whereby Le agreed to pay McCathern, PLLC for
legal services rendered. [McCathern, PLLC’s breach of contract counterclaim was resolved by
the parties’ Rule 11 agreement.]
32 The McCathern Lawyers performed their obligations under the contract. [McCathern, PLLC’s
breach of contract counterclaim was resolved by the parties’ Rule 11 agreement. ]
33 Le failed to pay $5,878.00 owed to McCathern, PLLC under the contract. [McCathern, PLLC’s
breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.]
34 Le’s breach of the parties’ contract has caused damage to McCathern, PLLC in the amount of
Le’s unpaid bills of $5,878.00. [McCathern, PLLC’s breach of contract counterclaim was
resolved by the parties’ Rule 11 agreement.]
35 McCathern, PLLC is the proper party to sue for breach of contract. [McCathern, PLLC’s
breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.]
36 McCathern, PLLC met all conditions precedent to its claim for breach of contract, including
presenting its claim to Le for breach of contract. But Le has not paid the outstanding balance
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~~ PAGE IL
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due and owing. McCathern, PLLC is the prevailing party to its breach of contract counterclaim
against Le and is entitled to $5,787.00 in damages. [McCathern, PLLC’s breach of contract
counterclaim was resolved by the parties’ Rule 11 agreement.]
37 McCathern PLLC is represented by counsel, Cobb Martinez Woodward PLLC (“Cobb
Martinez Woodward’) in this lawsuit. Cobb Martinez Woodward performed necessary legal
services for McCathern PLLC’s breach of contract claim. The preponderance of the evidence
shows that Cobb Martinez Woodward worked hours, which is a reasonable number
of hours, at the reasonable hourly rate of $___ per attorney for its representation on
McCathern PLLC’s breach of contract claim, and is therefore entitled to reasonable and
necessary attorney’s fees in the amounts set forth below:
For representation in the trial court:
For representation in the court of appeals:
For representation at the petition for review stage in the Supreme Court of Texas:
Ss
For representation at the merits briefing stage in the Supreme Court of Texas:
For representation through oral argument and the completion of proceedings in the Supreme
Court of Texas:
[McCathern, PLLC’s breach of contract counterclaim and attorney’s fee claim was resolved
by the parties’ Rule 11 agreement.]
38 The preponderance of the evidence shows Cobb Martinez Woodward is also entitled to its
expenses and court costs in the amount of . [McCathern, PLLC’s breach of
contract counterclaim was resolved by the parties’ Rule 11 agreement. ]
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IL.
PROPOSED CONCLUSIONS OF LAW
A. Le’s Negligence and Gross Negligence Claims.
39. To prove a legal-malpractice claim, the client must establish by a preponderance of the
evidence that: (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that
duty; and (3) the lawyer’s breach proximately caused damage to the client.” Rogers v. Zanetti,
518 S.W.3d 394, 400 (Tex. 2017).
40 While the McCathern Lawyers owed a duty of care to Le during their representation of Le in
the underlying lawsuit, Le failed to prove by a preponderance of the evidence that the
McCathern Lawyers breached that duty of care. Le failed to prove by a preponderance of the
evidence that the McCathern Lawyers failed to exercise ordinary care and thus, failed to prove
by a preponderance of the evidence the McCathern Lawyers breached the standard of ordinary
care. The preponderance of the evidence shows that the McCathern Lawyers did not fail to
obtain and present relevant evidence to the District Court in the underlying lawsuit that would
have changed the outcome of the underlying lawsuit. Next, the McCathern Lawyers met all
deadlines in the case. The McCathern Lawyers had timely filed an expert report based on Le’s
Lennox-related damages, that later, through no fault of the McCathern Lawyers, turned out to
be based on a misrepresentation by Le. By the time the McCathern Lawyers learned of Le’s
misrepresentations, which were revealed in the Moon deposition, the expert deadline had
already passed. Even before Moon’s deposition, the McCathern Lawyers timely propounded
discovery to Exeter, moved to compel that discovery, and timely filed Le’s initial expert
damages report. Le gave his own deposition testimony on November 14, 2016, failing to
mention that Lennox had terminated him, or that he had signed a Separation and Release
Agreement in June, well before Exeter’s critical July representations and July 25 job offer.
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After the Moon deposition, the McCathern Lawyers worked to rehabilitate Le’s broken
damages model, but the expert deadline had already passed.
41 The Magistrate Judge finally conducted a January 31, 2017 hearing on the long-pending
Motion to Compel. In its ruling the court compelled production by Exeter of audit reports by
Duff & Phelps related to valuing the PIU and granted Le his attorney’s fees in connection with
the dispute. The McCathern Lawyers’ diligence in pursuing Le’s motion to compel the PIU
valuation documents provided the basis for Le’s supplemental expert reports.
42 The McCathern Lawyers attempted to present alternative theories of damages through the
supplemental expert reports. The District Court considered the alternative theories and
reviewed each of Le’s expert report filings but ruled that such damages were entirely
hypothetical and not recoverable and granted summary judgment. Le did not have recoverable
Lennox damages, PIU damages, or severance pay in the underlying lawsuit. Additionally, the
District Court ruled (and the Fifth Circuit affirmed) that the stricken filings would not have
affected the summary judgment analysis in the underlying lawsuit. Finally, Le’s complaint
about the failure to rehabilitate Le during depositions to enhance his credibility has no bearing
on summary judgment. Credibility issues are not determined at the summary judgment stage.
Green v. Unauthorized Practice of Law Committee, 883 S.W.2d 293, 297 (Tex. App.—Dallas
1994, no writ).
43 Next, Le failed to prove by a preponderance of the evidence that the McCathern Lawyers’
conduct proximately caused Le’s damages, if any. “When a legal-malpractice case arises from
prior litigation, the plaintiff must prove that the client would have obtained a more favorable
result in the underlying litigation had the attorney conformed to the proper standard of care.”
Rogers, 518 S.W.3d at 401 (citing Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013)).
Traditionally, this is shown by recreating the underlying case, or proving a “‘case-within-a-
case.” See Rogers, 518 S.W.3d at 401. The Texas Supreme Court in Rogers v. Zanetti, 518
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S.W.3d 394, 400 (Tex. 2017), determined that the “cause-in-fact standard requires not only
that the act or omission be a substantial factor but also that it be a but-for cause of the injury
or occurrence.”
44 The preponderance of the evidence shows that the McCathern Lawyers’ conduct during their
representation of Le was not the proximate cause of any damage to Le. Le did not have
provable damages in the underlying lawsuit. Additionally, the preponderance of the evidence
shows that Le sustained no damages in the underlying lawsuit. Instead, Le’s claims are an
impermissible collateral attack on the prior judgment.
45 The proximate-cause element of a legal-malpractice case requires proof of a cause in fact:
proof that, but for the attorney’s alleged mistake, the claimed harm would not have occurred.
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Rsch. Corp., 299 S.W.3d 106, 122
(Tex. 2009). Here, that cannot be established. There is no factually or legally sufficient
evidence that any failure to follow the orders from the federal court and move for leave to file
additional pleadings, causing pleadings to be struck from the record, caused Le to lose the
underlying case. There is also no evidence that a Motion for Leave would have been granted
to amend pleadings or to file supplemental or amended filings. There is no evidence that leave
would have been granted to amend expert reports after the deadline. In fact, the underlying
case decision says there was no sufficient reason to grant such leave. The Fifth Circuit
determined that Le could “not create a genuine dispute of material fact” even if the expert
filings were properly before the district court and given full credit. The Fifth Circuit held that
the filings stricken in the trial court would not have created a fact issue precluding summary
judgment. Le, 990 F.3d at 414. Thus, the preponderance of the evidence shows that the result
of the case would have been no different had the stricken filings been made earlier or with
leave of court. Le has no legally or factually sufficient evidence of his underlying claims having
any merit.
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46. Additionally, the Fifth Circuit examined Le’s fraudulent inducement claim against Exeter and
affirmed the district court’s conclusion that Le did not rely on Exeter’s representation as to the
PIU’s projected value when he decided to join the company. Le, 990 F.3d at 415-16. To prove
a fraudulent inducement claim, Le was required to show by a preponderance of the evidence:
(1) the defendant knowingly or recklessly made a material representation; (2) the
representation was false; (3) the defendant intended the plaintiff to act on the representation;
(4) the plaintiff actually and justifiably relied on the representation; and (5) the plaintiff thereby
suffered an injury. /d. at 416. The preponderance of the evidence shows that Exeter did not
knowingly or recklessly make a material representation that was false. Exeter’s representations
to Le about the PIU’s projected value were not representations of an existing material fact. Le
did not actually or justifiably rely on any representation made by Exeter. Le stated that the PIU
opportunity sounded “outlandish.” Moreover, Le was a sophisticated party who understood the
volatility of the PIUs, and he did not actually or justifiably rely on the one-page hypothetical
example or any other representation by Exeter as a representation of material fact. Thus, the
preponderance of evidence shows that Le has not proven the trial court would have concluded
any differently on Le’s fraudulent inducement claim against Exeter.
47 The preponderance of the evidence does not show that Le would have prevailed on any other
fraudulent inducement, promissory estoppel, quantum meruit, or any other claim that was not
presented in the underlying lawsuit.
48 Le failed to prove by a preponderance of the evidence the amount of damages that would have
been recoverable and collectible ifthe case had been properly prosecuted. Akin, Gump, Strauss,
Hauer & Feld, LL.P., 299 S.W.3d at 112. The District Court’s Order conclusively
demonstrates that Le’s claimed damages did not exist. Binh Hoa Le v. Exeter Finance Corp.
et al., No. 3:15-CV-3839-L in the U.S. District Court for the Northern District of Texas, Dallas
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 16
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Division at 32-36, 61-68, 96-98. And, the Fifth Circuit affirmed the District Court’s Order,
conducting its own review of all the damages evidence Le had to offer. Le, 990 F.3d at 414,
416.
49. Le claims the same damages here as in the underlying lawsuit. The Fifth Circuit’s opinion and
judgment determines the causation and damages issues in this case. In the underlying case, Le
sought damages for his lost equity grant (PIUs) in Exeter’s parent Enzo. He alleges those
damages here. Le sought Lennox damages for the lost equity he allegedly walked away from
when he accepted the job at Exeter, and he again alleges them here. Finally, Le claimed he was
damaged by not receiving a promised retention bonus and 18 months of severance pay, as he
is in this lawsuit. To prevail here, Le was required to prove that had his stricken evidence been
presented timely, or with leave of court, he would have recovered and collected a judgment
against Exeter.
50 But the Fifth Circuit has already judged that that evidence would not have supported a
recovery, even assuming it had been timely submitted and considered on its merits.” A final
judgment existed in the underlying lawsuit. The Fifth Circuit Court of Appeals affirmed the
District Court’s judgment and concluded that the expert reports and summary judgment
submissions which Le claims were late-filed without leave of court, and subsequently stricken,
would not have mattered to the summary judgment result or caused a different judgment if
considered. These facts were fully and fairly litigated in the underlying lawsuit, and they were
essential to the judgment in the underlying lawsuit. Moreover, Le as plaintiff in the underlying
lawsuit lost on these issues against another defendant and may not relitigate these same issues
against the McCathern Lawyers. Thus, Le is barred by defensive collateral estoppel from
relitigating the issue in this lawsuit, collaterally attacking the judgment of the underlying court.
? The District Court’s Order reaches the same conclusion en route to striking the evidence.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 17
594885
Collateral estoppel prevents a party from relitigating an issue he already litigated and lost in
an earlier proceeding. State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).
To relitigate the sufficiency of the damages claims Le asserted in the underlying case would
be a collateral attack on the Fifth Circuit’s judgment, barred by collateral estoppel. See also
Haddock v. Gruber, No. 05—16-01113-CV, 2018 WL 1417453, *5-12 (Tex.App.—Dallas
March 22, 2018, pet. denied).
Sl Le’s own acts and/or omissions were the sole cause or at least more than 50% contributing
cause of Le’s alleged damage such that the McCathern Lawyers are not liable to Le.
52 Le’s claim for negligence is barred in whole or in part by Le’s prior material breach of the
agreement for representation with the McCathern Lawyers.
53 Le’s claim for negligence is barred in whole or in part by Le’s material misrepresentations that,
at the time he made the representations, he knew were false and induced the McCathern
Lawyers into the acts of which Le now complains.
54 Le’s claim for negligence is barred in whole or in part by Le’s own unclean hands, false
representations to the McCathern Lawyers and in his pleadings and testimony in the underlying
lawsuit.
55 Thus, no negligent conduct of the McCathern Lawyers proximately caused injury to Le.
56 Because the preponderance of the evidence shows that the McCathern Lawyers were not
negligent or any conduct undertaken by the McCathern Lawyers was the proximate cause of
any injury to Le, Le cannot prevail on a gross negligence claim. See Haddock v. Gruber, No.
05-16-0113-CV, 2018 WL 1417453, at *14 (Tex. App.—Dallas March 22, 2018, pet. denied)
(“In order to prevail on a claim for gross negligence, a plaintiff must first show ordinary
negligence.”).
57 Additionally, there is factually and legally insufficient evidence to support a claim for gross
negligence. To prevail on a cause of action for gross negligence, a plaintiff must prove that a
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 18
594885
defendant’s conduct: (1) when viewed objectively from the standpoint of the defendant, the act
or omission must involve an extreme degree of risk, considering the probability and magnitude
of the potential harm to others; and (2) the defendant must have actual, subjective awareness
of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or
welfare of others. Lee Lewis Constr., Inc. v. Harrison, 70 s.W.3d 778, 785 (Tex. 2001) (citing
Transp. Ins. Co. v. Moriel, 879 s.W.2d 10, 23 (Tex. 1994); see Tex. Civ. Prac. & Rem. Code
§ 41.001(11).
58 In this lawsuit, Le has failed to present any evidence that the McCathern Lawyers’ conduct:
(1) when viewed objectively from the standpoint of the McCathern Lawyers, involved an
extreme degree of risk, considering the probability and magnitude of the potential harm to
others; and (2) the McCathern Lawyers had actual, subjective awareness of the risk involved,
but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
59 In sum, there is no factually or legally sufficient evidence that Le would have prevailed on the
merits of his case at trial. All of Le’s claims fail because Le has no competent admissible
evidence that he suffered an injury or damages as a result of any acts or omissions of the
McCathern Lawyers.
60. This Court previously entered summary judgment in favor of the McCathern Lawyers and
against Le on Le’s breach of contract claim. Thus, Le cannot recover on his claim for attorney’s
fees under Chapter 38. See Tex. Civ. Prac. & Rem. Code § 38.001; In re Nalle Plastics, F.L.P.,
406 S.W.3d 168, 173 (Tex. 2013) (“[T]o recover attorney’s fees under [Chapter 38], a party
must first prevail on the underlying claim and recover damages.”).
61 Thus, this Court concludes that Le should take nothing on his claims for negligence (legal
malpractice) and gross negligence.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 19
594885
B. McCathern, PLLC’s Breach of Contract Counterclaim [McCathern, PLLC’s breach
of contract counterclaim was resolved by the parties’ Rule 11 agreement — applicable
to COL Nos. 62-70.]
62 McCathern, PLLC proved by a preponderance of the evidence that Le entered into a valid and
enforceable contract with McCathern, PLLC for legal services.
63 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC rendered
the legal services and presented its invoices to Le for payment for such legal services.
64 McCathern, PLLC proved by a preponderance of the evidence that Le materially breached the
Contract with McCathern, PLLC by failing to pay McCathern, PLLC for the legal services
rendered by McCathern, PLLC on Le’s behalf. McCathern, PLLC proved by a preponderance
of the evidence that payment for the legal services rendered was a material obligation of the
Contract.
65 McCathern, PLLC proved by a preponderance of the evidence that Le failed to pay $5,878.00,
after McCathern, PLLC performed under the Contract and made demand for payment.
66 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC fully
and substantially complied with its contractual obligations and performed under the Contract.
67 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC has been
and will continue to be injured by Le’s failure to pay the contract balance owed. Le’s failure
to pay for the work performed is the direct and sole cause of McCathern, PLLC’s injury. Such
failure is a natural, probable, and foreseeable consequence of Le’s breach because payment for
the legal services rendered by McCathern, PLLC was negotiated and anticipated.
68 Thus, this Court concludes McCathern, PLLC is the prevailing party to its breach of contract
counterclaim against Le and should recover for breach of contract against Le in the amount of
$5,878.00.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 20
594885
69. As counsel for the prevailing party in this case, McCathern, PLLC, Cobb Martinez Woodward,
is entitled to recover its reasonable and necessary attorney’s fees under Tex. Civ. Prac. & Rem.
Code § 38.001 against Le for McCathern PLLC’s breach of contract claim. The preponderance
of the evidence shows that Cobb Martinez Woodward performed necessary legal services for
McCathern PLLC’s breach of contract claim. Using the lodestar method as set forth in
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 568 S.W.3d 469, 494 (Tex. 2019), as well
as the billing records introduced as evidence, the preponderance of the evidence shows that
Cobb Martinez Woodward worked hours, which is a reasonable number of hours,
at the reasonable hourly rate of $___ per attorney for its representation on McCathern PLLC’s
breach of contract claim, and is therefore entitled to reasonable and necessary attorney’s fees
in the amounts set forth below:
For representation in the trial court:
For representation in the court of appeals:
For representation at the petition for review stage in the Supreme Court of Texas:
|
For representation at the merits briefing stage in the Supreme Court of Texas:
For representation through oral argument and the completion of proceedings in the Supreme
Court of Texas: =
Cobb Martinez Woodward is also entitled to its expenses and court costs in the amount of
70 The Court finds that Cobb Martinez Woodward has properly segregated its attorney’s fees and
has limited the fees submitted to those for which recovery is permitted under Tex. Civ. Prac.
& Rem. Code 38.001(b).
71. To the extent necessary, the Court declares that any finding of fact may be considered a
conclusion of law and any conclusion of law may be construed as a finding of fact.
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 21
594885
Signed , 2024.
HONORABLE JUDGE PRESIDING
DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 22
594885
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Laura West on behalf of William Cobb
Bar No. 4444150
lwest@cobbmartinez.com
Envelope ID: 86584582
Filing Code Description: Objection
Filing Description: DEFENDANTS' FIRST AMENDED OBJECTION TO
PLAINTIFF'S TRIAL EXHIBIT LIST
Status as of 4/12/2024 9:29 AM CST
Associated Case Party: BINH LE
Name BarNumber | Email TimestampSubmitted Status
Lance Kassab eserve@kassab.law 4/12/2024 8:49:35 AM SENT
Kelly Clark kclark@seilermitby.com 4/12/2024 8:49:35 AM ERROR
Geoff Litke glitke@seilermitby.com 4/12/2024 8:49:35 AM ERROR
Steven Mitby smitby@seilermitby.com 4/12/2024 8:49:35 AM ERROR
Associated Case Party: MACCTHERN, PLLC
Name BarNumber | Email TimestampSubmitted Status
William D.Cobb wcobb@cobbmartinez.com 4/12/2024 8:49:35 AM SENT
Lindsey K.Rattikin LRattikin@cobbmartinez.com 4/12/2024 8:49:35 AM SENT
Michelle D.Daniel mdaniel@cobbmartinez.com 4/12/2024 8:49:35 AM SENT
Laura West lwest@cobbmartinez.com 4/12/2024 8:49:35 AM SENT
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Michael A. Mills 14161000 mickey@millsmediation.com | 4/12/2024 8:49:35 AM | SENT
Preview
FILED 4/12/2024 8:49 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rosa Delacerda DEPUTY, CAUSE NO. DC-21- 07876 BINH LE, 116™ DISTRICT COURT DALLAS COUNTY, TEXAS Plaintiff, Vv. LEVI MCCATHERN, II, [Hon. Tonya Parker] MATTHEW MUCKLEROY, JAMES SHERRY, and MCCATHERN, PLLC, Defendants. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendants Levi McCathern, II, Matthew Muckleroy, James Sherry, and McCathern, PLLC, (collectively “Defendants” or “the McCathern Lawyers”) submit the following initial pre- trial Proposed Findings of Fact and Conclusions of Law. By submitting these proposed findings of fact and conclusions of law, Defendants do not waive the right to later modify or request modifications, whether by addition or deletion, of these proposed findings of fact and conclusions of law as may be appropriate under subsequent Court rulings, the controlling law, and the evidence admitted at trial. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE I 594885 Respectfully submitted, By: /s/ William D. Cobb, Jr. WILLIAM D. COBB, JR. Texas Bar No. 04444150 weobb@cobbmartinez.com LINDSEY RATTIKIN COMSTOCK Texas Bar No. 24095977 lcomstock@cobbmartinez.com COBB MARTINEZ WOODWARD PLLC 1700 Pacific Avenue, Suite 3100 Dallas, Texas 75201 Phone: 214.220.5200 Facsimile: 214.220.5299 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on counsel ofrecord in accordance with the Texas Rules of Civil Procedure on April 12, 2024. /s/ Lindsey Rattikin Comstock LINDSEY RATTIKIN COMSTOCK DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 2 594885 CAUSE NO. DC-21- 07876 BINH LE, 116™ DISTRICT COURT DALLAS COUNTY, TEXAS Plaintiff, Vv. LEVI MCCATHERN, II, [Hon. Tonya Parker] MATTHEW MUCKLEROY, JAMES SHERRY, and MCCATHERN, PLLC, Defendants. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW I PROPOSED FINDINGS OF FACT 1 In August 2015, Plaintiff Binh Le (“Le”) retained Defendants Matthew Muckleroy, James Sherry, and McCathern, PLLC (collectively, “the McCathern Lawyers”) to represent Le in litigation against Le’s former employer, Exeter Finance Corporation (“Exeter”) and Enzo Parent, LLC (“Enzo”). Prior to the litigation against Exeter and Enzo, Le worked as a human resource professional for Lennox until he was terminated. On June 28, 2013, Le signed a Separation and General Release Agreement with Lennox, in which he released any claims and any rights to Lennox equity in return for severance pay. Le had no further rights to Lennox compensation or equity as of June 28, 2013. A month later, on July 25, 2013, Le received an offer of employment from Exeter, which he then accepted on July 26, 2013. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 3 594885 4. Asa part of his Exeter compensation package, Le had a written agreement related to profit interest units (“PIU”) in Exeter’s parent, Enzo. Exeter fired Le on February 23, 2015. On March 9, 2015, as permitted by the terms of the agreement, Enzo called any PIU which had vested and repurchased them from Le at the Enzo board’s assigned value of $0.00. In the underlying suit, Le sued Exeter and Enzo in state district court. Exeter removed the case to the federal district court for the Northern District of Texas where it was assigned to United States District Judge Sam Lindsay. Binh Hoa Le v. Exeter Fin. Corp., No. 3:15-CV-3839-L, 2019 WL 1436375 (N.D. Tex. Mar. 31, 2019), aff'd, 990 F.3d 410 (Sth Cir. 2021) (the “underlying lawsuit”). From the beginning of the case, the McCathern Lawyers and Le developed a damages model based on two distinct claims — one known as the “Lennox damages” and a second as the “PIU damages.” During the preparation for filing suit, Le provided the McCathern Lawyers a “Claim Summary” memo stating that he had been “proactively” recruited away from Lennox by Exeter, and that in joining Exeter he had left $1.5 million in unvested equity “on the table” at Lennox because of Exeter’s fraudulent representations to him. Le’s claim to the Lennox damages was premised on Le’s story that Exeter had recruited Le away from a secure position at Lennox and that Le had walked away from a significant compensation package including millions of dollars in equity at Lennox in order to join Exeter. But Le misrepresented to the court and to the McCathern Lawyers in the underlying lawsuit the true facts about being fraudulently induced to resign his position at Lennox to join Exeter. Le had been given his Separation Agreement on June 4, 2013. By June 6, 2013, Lennox had publicly announced Le’s departure from the company and identified his replacement. Le had already signed a Separation Agreement with Lennox by June 28, 2013 and had released and abandoned any claim to Lennox compensation or Lennox equity no later than that date. He did DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~ PAGE 4 594885 not accept a job at Exeter until being presented with an offer on July 25, 2013, which he did not accept until only after receiving on July 17 and 18 written “representations” about the Exeter PIU program, on which he testified in the underlying lawsuit that he relied to take the Exeter job. On July 17, on July 18, on July 25, and on July 26, Le had no Lennox position or Lennox equity from which to walk away. On December 15, 2016, Exeter deposed David Moon, Le’s former boss at Lennox, who testified that he had fired Le for cause well before Le had accepted a job at Exeter, and not that Le had resigned. He also identified a never-seen or produced written Separation Agreement between Lennox and Le. In the Separation Agreement, Le released Lennox from all claims including claims to any unpaid stock awards or incentive compensation. Le had never revealed the Separation and Release Agreement to the McCathern Lawyers and they did not know the document existed before the deposition. Nor had Le ever informed the McCathern Lawyers of the true chronology of events that had him unemployed at Lennox well before he took a new job with Exeter. The fact that Le had departed Lennox weeks before Le received the Exeter documents on which he said he relied when he took the Exeter job, and that Le had given up the allegedly lost Lennox compensation in the Lennox Separation and Release Agreement, destroyed any good faith claim Le ever had for the Lennox damages. The McCathern Lawyers had already filed a timely expert report in September 2019 (three months before the Moon deposition) with a well- constructed theory supporting Le’s Lennox-related damages. Le’s failure to be truthful about the facts had doomed his expert’s earlier opinions. The result of Moon deposition was that Le’s Lennox damages had no good faith legal or factual basis in the underlying suit. 10. The District Court in the underlying lawsuit noted the following false claims by Le: e Plaintiff executed the Employment Agreement and walked away from a multi-million-dollar equity plan with his prior employer. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 5 594885 e Plaintiff left behind “about 2 million” in equity to work for Exeter. e Plaintiff negotiated another $20,000.00 to his sign-on bonus at Exeter BECAUSE “Lennox was on track to hit 2x its bonus, and Exeter was not. And so, the sign-on bonus was an attempt to make up the difference” and “was under what I would have been paid had I stayed at Lennox.” “Le told Floyd that he was leaving Lennox, a publicly traded company, and going to Exeter, a private company, which inherently contains a certain degree of ‘risk involved.’” 11. In its decision affirming the summary judgment for Exeter, the Fifth Circuit wrote: The record establishes that Le made statements referencing his employment with Lennox that were not true. Therefore, the district court correctly determined that Le’s conduct in connection with the transactions before the court was inequitable, precluding any equitable remedy. See Le v. Exeter Finance Corp., 990 F.3d 410, 416 (5th Cir. 2021). 12. In a PowerPoint presentation titled “Exeter Case Analysis” which Le prepared for the McCathern Lawyers afier the Moon deposition, Le wrote: “I sincerely apologize for not providing the full picture of my departure from Lennox.” 13. After the Moon deposition, Le was obligated to, and agreed to, abandon his claim to Lennox damages because they lacked any factual bases. It was a late stage in the litigation. The deadline to designate experts had been September 6, 2016, so by the time the Moon deposition occurred in December 2016, the discovery period had closed, and the expert deadlines had passed. 14 Despite the revelations in Moon’s deposition, the McCathern Lawyers worked quickly and diligently to present alternative theories of damages. The supplemental expert reports Le argues were “late” were attempts to rescue what little damage claim could still be constructed after Le had failed in his responsibility to truthfully report the facts of his employment. 15 All that was left was Le’s claim that Exeter and Enzo owed him holdings in PIU, and a claim for unpaid retention bonus and severance benefits. The PIU damage claim was that Exeter should have paid Le “profit interest units” in Enzo upon his termination. The parties performed significant fact and expert discovery on the PIU issues, and the McCathern Lawyers advocated for a favorable valuation of Le’s PIU. The McCathern Lawyers ultimately prevailed on its DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 6 594885 motion to compel the production of the “Duff & Phelps” audit reports that Le asserted would place a value on Le’s PIU. But, the District Court and Court of Appeals ruled as a matter of law that the PIU had no value, because Exeter had the unreviewable authority in the PIU Agreement to call awarded PIU at any value — including $0 - in the event of an employee’s termination. As to severance, the District Court observed that Le’s signed offer letter was no more than an “agreement to agree” based on future conditions, and that Le had rejected those conditions. And so, Le could not prevail on his claim to severance benefits. 16 The day after the Moon deposition testimony, Exeter filed a motion for summary judgment, and a motion to exclude Le’s expert damages testimony. Le filed responses (abandoning the Lennox damages claim while supporting the remaining claims) and a motion for continuance to allow the pending discovery motions to be adjudicated. More than a year later, the court tuled on the various motions. In its memorandum opinion and order, the District Court evaluated Le’s PIU damages claim. Binh Hoa Le v. Exeter Finance Corp. et al., No. 3:15-CV- 3839-L in the U.S. District Court for the Northern District of Texas, Dallas Division at 32-36, 61-68, 96-98. The court determined that the PIU damages claim was “entirely hypothetical in nature.” /d. at 36. The court noted that: (1) Le conceded that Exeter could call! the PIU, (2) Le’s method for valuing the PIU was hypothetical, and (3) Exeter had a contractual right to call the value of the PIU at $0.00. /d. at 65. Finally, the court ruled that Le “cannot establish that he suffered any damages as a result of the alleged breach of the PIU Agreement.” /d. at 98. After evaluating Le’s breach of contract claim for PIU damages, the District Court granted Exeter’s motion summary judgment. /d. 1 Judge Lindsay explained that Le acknowledged that the PIU would be valued in accordance with the agreement he had with Exeter related to the PIU. See Id. at 34. The PIU Le possessed were “time-based” in that Enzo was required to provide its good faith calculation of the fair market value of the PIU within ten days of a “call notice.” Jd. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 7 594885 17. The District Court considered Le’s damage claims and rejected them. The District Court’s Memorandum Opinion and Order confirms that it reviewed each of Le’s expert report filings, both original and supplemental, and each of Le’s attempts to prove a damage claim. The court tuled that those alleged damages were not recoverable. /d. at 62-63. 18 While the District Court struck the later expert filings from the record, its opinion establishes that the result of the case would have been no different had the stricken filings been made earlier or made with express leave of court. The District Court determined that “... exceptional circumstances [did] not exist to warrant granting leave to file these materials...” so that any motion for leave would have been futile. See id. at 12. The District Court’s ruling on Le’s PIU damage claim was based on the fact that Le’s supporting valuation was based on a 2013 hypothetical, speculative projection Exeter provided to Le during his employment negotiations. /d. at 63. 19 On appeal, the Fifth Circuit Court of Appeals ruled that the stricken material would not have mattered, answering the question “whether the Duff & Phelps audit reports would have affected the summary-judgment analysis. The analysis would not have changed, the [trial] court concluded, because the reports did not create a genuine dispute of material fact.” And the Fifth Circuit added its conclusion: “We agree.” Le v. Exeter Finance Corp., 990 F.3d at 414. 20. The Fifth Circuit concluded: The PIU Agreement assigns to the board of directors the task of determining the fair market value of PIUs at the time of a call. The Duff & Phelps audit reports indicate that their PIU valuations rely on methods and dates tailored to the limited financial-reporting purpose of the reports. The reports do not provide a valuation of the PIUs using the methods or dates required by the PIU Agreement. Therefore, on the record before us, the audit reports do not create a genuine dispute of material fact as to the PIUs’ value under the PIU Agreement’s terms. Jd. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~ PAGE 8 594885 Therefore, the filings stricken in the trial court were adjudicated by the Fifth Circuit not to create a fact issue precluding Exeter’s summary judgment whether or not they were in evidence. 21 Additionally, the Fifth Circuit examined Le’s fraudulent inducement claim against Exeter and affirmed the district court’s conclusion that the undisputed evidenced shows that Le did not rely on Exeter’s representation as to the PIU’s projected value when he decided to join the company. Le, 990 F.3d at 415-16. In the underlying case, the preponderance of the evidence shows that Exeter did not knowingly or recklessly make a material representation that was false. Exeter’s representations to Le about the PIU’s projected value were not representations of an existing material fact. Le did not actually or justifiably rely on any representation made by Exeter. Le stated that the PIU opportunity sounded “outlandish.” Moreover, Le was a sophisticated party who understood the volatility of the PIUs, and he did not actually or justifiably rely on the one-page example or any other representation by Exeter as a representation of material fact. 22. The preponderance of the evidence does not show that Le would have prevailed on any other fraudulent inducement, promissory estoppel, quantum meruit, or any other claim that was not presented in the underlying lawsuit. 23 The PIUs were the subject of written agreements, which governed their terms. By the time Le was terminated by Exeter, no buyout or other triggering event had occurred to realize any payments under the PIUs. Le was not entitled to keep any vested or unvested PIU upon his termination by Exeter. Those PIUs were always subject to being called by Enzo at a value determined by Enzo. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW~PAGE9 594885 24. Le and his new counsel at Seiler Mitby chose not to appeal the rulings on his wrongful terminations and employment-based lost wage claims, which had been adjudicated against him in the trial court. The McCathern lawyers had nothing to do with that choice. 25, On June 18, 2021, Le filed this lawsuit against the McCathern Lawyers. In this lawsuit, Le asserts five acts of professional negligence against the McCathern Lawyers: (1) failure to present relevant evidence in the underlying lawsuit; (2) failure to meet court deadlines; (3) failure to appropriately hire and prepare an acceptable expert report for damages; (4) failure to follow the orders from the federal court and move for leave to file additional pleadings, which resulted in evidence and pleadings being struck from the record; and (5) failure to rehabilitate Le during depositions to enhance his credibility. 26 But the preponderance of the evidence shows that the McCathern Lawyers did not fail to exercise ordinary care and therefore did not breach the standard of ordinary care. Moreover, the preponderance of the evidence shows that the McCathern Lawyers’ conduct did not proximately cause damages, if any, to Le. The preponderance of the evidence shows Le’s damages, if any, were caused by Le’s own acts and/or omissions for which the McCathern Lawyers were not responsible. The preponderance of the evidence shows Le’s underlying claims have no merit. 27 Le filed claims of professional negligence, gross negligence, and breach of fiduciary duty as to all Defendants. 28 Le filed a breach of contract and unjust enrichment claims as to McCathern, PLLC. 29 McCathern, PLLC filed a breach of contract counterclaim for outstanding fees due and owing by Le for the legal services rendered by McCathern, PLLC. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 10 594885 30. On January 6, 2023, this Court granted summary judgment in part, awarding a take nothing judgment to all the Defendants as to the breach of fiduciary duty claim and awarding a take nothing judgment to McCathern, PLLC as to Le’s breach of contract and unjust enrichment claims. The court denied summary judgment as to the professional negligence and gross negligence claims. The court conducted a bench trial on Le’s professional negligence and gross negligence claims, as well as McCathern, PLLC’s breach of contract counterclaim against Le. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement. ] 31 As to McCathern, PLLC’s breach of contract counterclaim, Le and the McCathern Lawyers entered into a valid and enforceable contract whereby Le agreed to pay McCathern, PLLC for legal services rendered. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] 32 The McCathern Lawyers performed their obligations under the contract. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement. ] 33 Le failed to pay $5,878.00 owed to McCathern, PLLC under the contract. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] 34 Le’s breach of the parties’ contract has caused damage to McCathern, PLLC in the amount of Le’s unpaid bills of $5,878.00. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] 35 McCathern, PLLC is the proper party to sue for breach of contract. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] 36 McCathern, PLLC met all conditions precedent to its claim for breach of contract, including presenting its claim to Le for breach of contract. But Le has not paid the outstanding balance DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~~ PAGE IL 594885 due and owing. McCathern, PLLC is the prevailing party to its breach of contract counterclaim against Le and is entitled to $5,787.00 in damages. [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement.] 37 McCathern PLLC is represented by counsel, Cobb Martinez Woodward PLLC (“Cobb Martinez Woodward’) in this lawsuit. Cobb Martinez Woodward performed necessary legal services for McCathern PLLC’s breach of contract claim. The preponderance of the evidence shows that Cobb Martinez Woodward worked hours, which is a reasonable number of hours, at the reasonable hourly rate of $___ per attorney for its representation on McCathern PLLC’s breach of contract claim, and is therefore entitled to reasonable and necessary attorney’s fees in the amounts set forth below: For representation in the trial court: For representation in the court of appeals: For representation at the petition for review stage in the Supreme Court of Texas: Ss For representation at the merits briefing stage in the Supreme Court of Texas: For representation through oral argument and the completion of proceedings in the Supreme Court of Texas: [McCathern, PLLC’s breach of contract counterclaim and attorney’s fee claim was resolved by the parties’ Rule 11 agreement.] 38 The preponderance of the evidence shows Cobb Martinez Woodward is also entitled to its expenses and court costs in the amount of . [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement. ] DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 12 594885 IL. PROPOSED CONCLUSIONS OF LAW A. Le’s Negligence and Gross Negligence Claims. 39. To prove a legal-malpractice claim, the client must establish by a preponderance of the evidence that: (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer’s breach proximately caused damage to the client.” Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017). 40 While the McCathern Lawyers owed a duty of care to Le during their representation of Le in the underlying lawsuit, Le failed to prove by a preponderance of the evidence that the McCathern Lawyers breached that duty of care. Le failed to prove by a preponderance of the evidence that the McCathern Lawyers failed to exercise ordinary care and thus, failed to prove by a preponderance of the evidence the McCathern Lawyers breached the standard of ordinary care. The preponderance of the evidence shows that the McCathern Lawyers did not fail to obtain and present relevant evidence to the District Court in the underlying lawsuit that would have changed the outcome of the underlying lawsuit. Next, the McCathern Lawyers met all deadlines in the case. The McCathern Lawyers had timely filed an expert report based on Le’s Lennox-related damages, that later, through no fault of the McCathern Lawyers, turned out to be based on a misrepresentation by Le. By the time the McCathern Lawyers learned of Le’s misrepresentations, which were revealed in the Moon deposition, the expert deadline had already passed. Even before Moon’s deposition, the McCathern Lawyers timely propounded discovery to Exeter, moved to compel that discovery, and timely filed Le’s initial expert damages report. Le gave his own deposition testimony on November 14, 2016, failing to mention that Lennox had terminated him, or that he had signed a Separation and Release Agreement in June, well before Exeter’s critical July representations and July 25 job offer. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 13 594885 After the Moon deposition, the McCathern Lawyers worked to rehabilitate Le’s broken damages model, but the expert deadline had already passed. 41 The Magistrate Judge finally conducted a January 31, 2017 hearing on the long-pending Motion to Compel. In its ruling the court compelled production by Exeter of audit reports by Duff & Phelps related to valuing the PIU and granted Le his attorney’s fees in connection with the dispute. The McCathern Lawyers’ diligence in pursuing Le’s motion to compel the PIU valuation documents provided the basis for Le’s supplemental expert reports. 42 The McCathern Lawyers attempted to present alternative theories of damages through the supplemental expert reports. The District Court considered the alternative theories and reviewed each of Le’s expert report filings but ruled that such damages were entirely hypothetical and not recoverable and granted summary judgment. Le did not have recoverable Lennox damages, PIU damages, or severance pay in the underlying lawsuit. Additionally, the District Court ruled (and the Fifth Circuit affirmed) that the stricken filings would not have affected the summary judgment analysis in the underlying lawsuit. Finally, Le’s complaint about the failure to rehabilitate Le during depositions to enhance his credibility has no bearing on summary judgment. Credibility issues are not determined at the summary judgment stage. Green v. Unauthorized Practice of Law Committee, 883 S.W.2d 293, 297 (Tex. App.—Dallas 1994, no writ). 43 Next, Le failed to prove by a preponderance of the evidence that the McCathern Lawyers’ conduct proximately caused Le’s damages, if any. “When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the client would have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper standard of care.” Rogers, 518 S.W.3d at 401 (citing Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013)). Traditionally, this is shown by recreating the underlying case, or proving a “‘case-within-a- case.” See Rogers, 518 S.W.3d at 401. The Texas Supreme Court in Rogers v. Zanetti, 518 DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 14 594885 S.W.3d 394, 400 (Tex. 2017), determined that the “cause-in-fact standard requires not only that the act or omission be a substantial factor but also that it be a but-for cause of the injury or occurrence.” 44 The preponderance of the evidence shows that the McCathern Lawyers’ conduct during their representation of Le was not the proximate cause of any damage to Le. Le did not have provable damages in the underlying lawsuit. Additionally, the preponderance of the evidence shows that Le sustained no damages in the underlying lawsuit. Instead, Le’s claims are an impermissible collateral attack on the prior judgment. 45 The proximate-cause element of a legal-malpractice case requires proof of a cause in fact: proof that, but for the attorney’s alleged mistake, the claimed harm would not have occurred. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Rsch. Corp., 299 S.W.3d 106, 122 (Tex. 2009). Here, that cannot be established. There is no factually or legally sufficient evidence that any failure to follow the orders from the federal court and move for leave to file additional pleadings, causing pleadings to be struck from the record, caused Le to lose the underlying case. There is also no evidence that a Motion for Leave would have been granted to amend pleadings or to file supplemental or amended filings. There is no evidence that leave would have been granted to amend expert reports after the deadline. In fact, the underlying case decision says there was no sufficient reason to grant such leave. The Fifth Circuit determined that Le could “not create a genuine dispute of material fact” even if the expert filings were properly before the district court and given full credit. The Fifth Circuit held that the filings stricken in the trial court would not have created a fact issue precluding summary judgment. Le, 990 F.3d at 414. Thus, the preponderance of the evidence shows that the result of the case would have been no different had the stricken filings been made earlier or with leave of court. Le has no legally or factually sufficient evidence of his underlying claims having any merit. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 15 594885 46. Additionally, the Fifth Circuit examined Le’s fraudulent inducement claim against Exeter and affirmed the district court’s conclusion that Le did not rely on Exeter’s representation as to the PIU’s projected value when he decided to join the company. Le, 990 F.3d at 415-16. To prove a fraudulent inducement claim, Le was required to show by a preponderance of the evidence: (1) the defendant knowingly or recklessly made a material representation; (2) the representation was false; (3) the defendant intended the plaintiff to act on the representation; (4) the plaintiff actually and justifiably relied on the representation; and (5) the plaintiff thereby suffered an injury. /d. at 416. The preponderance of the evidence shows that Exeter did not knowingly or recklessly make a material representation that was false. Exeter’s representations to Le about the PIU’s projected value were not representations of an existing material fact. Le did not actually or justifiably rely on any representation made by Exeter. Le stated that the PIU opportunity sounded “outlandish.” Moreover, Le was a sophisticated party who understood the volatility of the PIUs, and he did not actually or justifiably rely on the one-page hypothetical example or any other representation by Exeter as a representation of material fact. Thus, the preponderance of evidence shows that Le has not proven the trial court would have concluded any differently on Le’s fraudulent inducement claim against Exeter. 47 The preponderance of the evidence does not show that Le would have prevailed on any other fraudulent inducement, promissory estoppel, quantum meruit, or any other claim that was not presented in the underlying lawsuit. 48 Le failed to prove by a preponderance of the evidence the amount of damages that would have been recoverable and collectible ifthe case had been properly prosecuted. Akin, Gump, Strauss, Hauer & Feld, LL.P., 299 S.W.3d at 112. The District Court’s Order conclusively demonstrates that Le’s claimed damages did not exist. Binh Hoa Le v. Exeter Finance Corp. et al., No. 3:15-CV-3839-L in the U.S. District Court for the Northern District of Texas, Dallas DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 16 594885 Division at 32-36, 61-68, 96-98. And, the Fifth Circuit affirmed the District Court’s Order, conducting its own review of all the damages evidence Le had to offer. Le, 990 F.3d at 414, 416. 49. Le claims the same damages here as in the underlying lawsuit. The Fifth Circuit’s opinion and judgment determines the causation and damages issues in this case. In the underlying case, Le sought damages for his lost equity grant (PIUs) in Exeter’s parent Enzo. He alleges those damages here. Le sought Lennox damages for the lost equity he allegedly walked away from when he accepted the job at Exeter, and he again alleges them here. Finally, Le claimed he was damaged by not receiving a promised retention bonus and 18 months of severance pay, as he is in this lawsuit. To prevail here, Le was required to prove that had his stricken evidence been presented timely, or with leave of court, he would have recovered and collected a judgment against Exeter. 50 But the Fifth Circuit has already judged that that evidence would not have supported a recovery, even assuming it had been timely submitted and considered on its merits.” A final judgment existed in the underlying lawsuit. The Fifth Circuit Court of Appeals affirmed the District Court’s judgment and concluded that the expert reports and summary judgment submissions which Le claims were late-filed without leave of court, and subsequently stricken, would not have mattered to the summary judgment result or caused a different judgment if considered. These facts were fully and fairly litigated in the underlying lawsuit, and they were essential to the judgment in the underlying lawsuit. Moreover, Le as plaintiff in the underlying lawsuit lost on these issues against another defendant and may not relitigate these same issues against the McCathern Lawyers. Thus, Le is barred by defensive collateral estoppel from relitigating the issue in this lawsuit, collaterally attacking the judgment of the underlying court. ? The District Court’s Order reaches the same conclusion en route to striking the evidence. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 17 594885 Collateral estoppel prevents a party from relitigating an issue he already litigated and lost in an earlier proceeding. State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). To relitigate the sufficiency of the damages claims Le asserted in the underlying case would be a collateral attack on the Fifth Circuit’s judgment, barred by collateral estoppel. See also Haddock v. Gruber, No. 05—16-01113-CV, 2018 WL 1417453, *5-12 (Tex.App.—Dallas March 22, 2018, pet. denied). Sl Le’s own acts and/or omissions were the sole cause or at least more than 50% contributing cause of Le’s alleged damage such that the McCathern Lawyers are not liable to Le. 52 Le’s claim for negligence is barred in whole or in part by Le’s prior material breach of the agreement for representation with the McCathern Lawyers. 53 Le’s claim for negligence is barred in whole or in part by Le’s material misrepresentations that, at the time he made the representations, he knew were false and induced the McCathern Lawyers into the acts of which Le now complains. 54 Le’s claim for negligence is barred in whole or in part by Le’s own unclean hands, false representations to the McCathern Lawyers and in his pleadings and testimony in the underlying lawsuit. 55 Thus, no negligent conduct of the McCathern Lawyers proximately caused injury to Le. 56 Because the preponderance of the evidence shows that the McCathern Lawyers were not negligent or any conduct undertaken by the McCathern Lawyers was the proximate cause of any injury to Le, Le cannot prevail on a gross negligence claim. See Haddock v. Gruber, No. 05-16-0113-CV, 2018 WL 1417453, at *14 (Tex. App.—Dallas March 22, 2018, pet. denied) (“In order to prevail on a claim for gross negligence, a plaintiff must first show ordinary negligence.”). 57 Additionally, there is factually and legally insufficient evidence to support a claim for gross negligence. To prevail on a cause of action for gross negligence, a plaintiff must prove that a DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 18 594885 defendant’s conduct: (1) when viewed objectively from the standpoint of the defendant, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the defendant must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Lee Lewis Constr., Inc. v. Harrison, 70 s.W.3d 778, 785 (Tex. 2001) (citing Transp. Ins. Co. v. Moriel, 879 s.W.2d 10, 23 (Tex. 1994); see Tex. Civ. Prac. & Rem. Code § 41.001(11). 58 In this lawsuit, Le has failed to present any evidence that the McCathern Lawyers’ conduct: (1) when viewed objectively from the standpoint of the McCathern Lawyers, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the McCathern Lawyers had actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. 59 In sum, there is no factually or legally sufficient evidence that Le would have prevailed on the merits of his case at trial. All of Le’s claims fail because Le has no competent admissible evidence that he suffered an injury or damages as a result of any acts or omissions of the McCathern Lawyers. 60. This Court previously entered summary judgment in favor of the McCathern Lawyers and against Le on Le’s breach of contract claim. Thus, Le cannot recover on his claim for attorney’s fees under Chapter 38. See Tex. Civ. Prac. & Rem. Code § 38.001; In re Nalle Plastics, F.L.P., 406 S.W.3d 168, 173 (Tex. 2013) (“[T]o recover attorney’s fees under [Chapter 38], a party must first prevail on the underlying claim and recover damages.”). 61 Thus, this Court concludes that Le should take nothing on his claims for negligence (legal malpractice) and gross negligence. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 19 594885 B. McCathern, PLLC’s Breach of Contract Counterclaim [McCathern, PLLC’s breach of contract counterclaim was resolved by the parties’ Rule 11 agreement — applicable to COL Nos. 62-70.] 62 McCathern, PLLC proved by a preponderance of the evidence that Le entered into a valid and enforceable contract with McCathern, PLLC for legal services. 63 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC rendered the legal services and presented its invoices to Le for payment for such legal services. 64 McCathern, PLLC proved by a preponderance of the evidence that Le materially breached the Contract with McCathern, PLLC by failing to pay McCathern, PLLC for the legal services rendered by McCathern, PLLC on Le’s behalf. McCathern, PLLC proved by a preponderance of the evidence that payment for the legal services rendered was a material obligation of the Contract. 65 McCathern, PLLC proved by a preponderance of the evidence that Le failed to pay $5,878.00, after McCathern, PLLC performed under the Contract and made demand for payment. 66 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC fully and substantially complied with its contractual obligations and performed under the Contract. 67 McCathern, PLLC proved by a preponderance of the evidence that McCathern, PLLC has been and will continue to be injured by Le’s failure to pay the contract balance owed. Le’s failure to pay for the work performed is the direct and sole cause of McCathern, PLLC’s injury. Such failure is a natural, probable, and foreseeable consequence of Le’s breach because payment for the legal services rendered by McCathern, PLLC was negotiated and anticipated. 68 Thus, this Court concludes McCathern, PLLC is the prevailing party to its breach of contract counterclaim against Le and should recover for breach of contract against Le in the amount of $5,878.00. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 20 594885 69. As counsel for the prevailing party in this case, McCathern, PLLC, Cobb Martinez Woodward, is entitled to recover its reasonable and necessary attorney’s fees under Tex. Civ. Prac. & Rem. Code § 38.001 against Le for McCathern PLLC’s breach of contract claim. The preponderance of the evidence shows that Cobb Martinez Woodward performed necessary legal services for McCathern PLLC’s breach of contract claim. Using the lodestar method as set forth in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 568 S.W.3d 469, 494 (Tex. 2019), as well as the billing records introduced as evidence, the preponderance of the evidence shows that Cobb Martinez Woodward worked hours, which is a reasonable number of hours, at the reasonable hourly rate of $___ per attorney for its representation on McCathern PLLC’s breach of contract claim, and is therefore entitled to reasonable and necessary attorney’s fees in the amounts set forth below: For representation in the trial court: For representation in the court of appeals: For representation at the petition for review stage in the Supreme Court of Texas: | For representation at the merits briefing stage in the Supreme Court of Texas: For representation through oral argument and the completion of proceedings in the Supreme Court of Texas: = Cobb Martinez Woodward is also entitled to its expenses and court costs in the amount of 70 The Court finds that Cobb Martinez Woodward has properly segregated its attorney’s fees and has limited the fees submitted to those for which recovery is permitted under Tex. Civ. Prac. & Rem. Code 38.001(b). 71. To the extent necessary, the Court declares that any finding of fact may be considered a conclusion of law and any conclusion of law may be construed as a finding of fact. DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 21 594885 Signed , 2024. HONORABLE JUDGE PRESIDING DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ~ PAGE 22 594885 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Laura West on behalf of William Cobb Bar No. 4444150 lwest@cobbmartinez.com Envelope ID: 86584582 Filing Code Description: Objection Filing Description: DEFENDANTS' FIRST AMENDED OBJECTION TO PLAINTIFF'S TRIAL EXHIBIT LIST Status as of 4/12/2024 9:29 AM CST Associated Case Party: BINH LE Name BarNumber | Email TimestampSubmitted Status Lance Kassab eserve@kassab.law 4/12/2024 8:49:35 AM SENT Kelly Clark kclark@seilermitby.com 4/12/2024 8:49:35 AM ERROR Geoff Litke glitke@seilermitby.com 4/12/2024 8:49:35 AM ERROR Steven Mitby smitby@seilermitby.com 4/12/2024 8:49:35 AM ERROR Associated Case Party: MACCTHERN, PLLC Name BarNumber | Email TimestampSubmitted Status William D.Cobb wcobb@cobbmartinez.com 4/12/2024 8:49:35 AM SENT Lindsey K.Rattikin LRattikin@cobbmartinez.com 4/12/2024 8:49:35 AM SENT Michelle D.Daniel mdaniel@cobbmartinez.com 4/12/2024 8:49:35 AM SENT Laura West lwest@cobbmartinez.com 4/12/2024 8:49:35 AM SENT Case Contacts Name BarNumber | Email TimestampSubmitted | Status Michael A. Mills 14161000 mickey@millsmediation.com | 4/12/2024 8:49:35 AM | SENT