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Cause No. 2011-61780
GULF COAST ASPHALT COMPANY, IN THE DISTRICT COURT OF
L.L.C. AND TRIFINERY, INC.
VS. HARRIS COUNTY, TEXAS
RUSSELL T. LLOYD AND
JOHN M. O’QUINN AND
ASSOCIATES, L.L.P. JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR
RECONSIDERATION OF MARCH 21, 2013, ORDER GRANTING PARTIAL
SUMMARY JUDGMENT ON PLAINTIFFS’ UNDERLYING FRAUD CLAIMS
Defendants John M. O’Quinn & Associates, L.L.P., John M. O’Quinn & Associates,
P.L.L.C., and Russell T. Lloyd (collectively the “O’ Quinn Firm’) file this Response to Plaintiffs’
Motion for Reconsideration of March 21, 2013, Order Granting Partial Summary Judgment on
Plaintiffs’ Underlying Fraud Claims, and in support thereof will sho
I
SUMMARY OF ARGUMENT
The Court’s Summary Judgment Order of March 21, 2013 was proper on multiple
grounds, each of which wes independently sufficient to support the conclusion that GCAC’s
underlying fraud/tort claims against Chevron had no merit as a matter of law. The undisputed
evidence conclusively established that no misrepresentationsor any representations at all
were ever made by Chevron to GCAC. GCAC did not even exist at the time that the 1993
Purchase and Sale Agreement (“PSA”) was entered into. GCAC was three parties removed from
the original purchaser and was never assigned the rights under the PSA between Chevron and
Trifinery. The property was sold to the original purchaser (__ GCAC) “as is” and “with all
Separately, Trifinery never disputed that it lacked standing to sue for fraud based damages, since it resold the
property at issue immediately after the 1993 sale. As such, summary judgment was proper as to any
fraud/misrepresentation based claim by Trifinery. See, e. Defendants’ Reply in Support of Their M otion for
Partial Summary J udgment Based on Invalidity of Plaintiffs’ Underlying Fraud/ Deceit/ M isrepresentation
Claims and Damages, dated February 14, 2013.
faults,” and with a disclaimer of any and all warranties of fitness for any particular use. Under
Alabama law, which the PSA contractually mandated, fraud claims are not assignable. Indeed,
the two predecessor in title to GCAC were not even affiliates of GCAC; they were Hunt Oil
ompanies.
GCAC’s purported basis for asking the Court to reconsider its prior order is disingenuous
and based upon a flawed premiseTex. Civ. Prac. & Rem. Code §§ 9.011, 9.012First, asa
basis for reconsideration of the ruling that GCAC’s fraud claims are not legally sustainable,
GCAC inconectly interprets the holding of Elizondo v. Krist, a Texas Supreme Court case
addressing malpractice damagesnot causation Elizondo does not support the relief sought
by GCAC and does not warrant reconsideration. In prior hearings, this ourt has previously
advised that it did not agree with Plaintiffs’ arguments about the purported application of the
Elizondoopinion to the legal issues in this case.
Second, GCAC implies that this Court granted partial summary judgment on the
underlying fraud/tort issues solely because the Califomia trial court had granted summary
judgment on the same issues. That is false. This Court has made it clear in various hearings that
any motion it has considered dealing with legal issues raised in the underlying case are being
addressed by this Court independently of the Califomia tial court’s nilings. This Court
specifically made this point during the original hearing on Defendants’ motion when it was
arguedin March 2013. The fact that the Califomia
trial judge ruled the same way establishes
nothing more than that two separate courts have both found that GCAC’s fraud/tort claims were
devoid of any merit under Alabama law and the iron clad terms of the PSA.
GCAC also raises secondary arguments that have no bearing on the Coutt’s analysis.
Importantly, Elizondo was decided in A ugust of 2013, prior to Plaintiffs October 2013 assertion that they are
not criticizing Lloyd for his settlement advice.
GCAC injects its own rank speculation, false as it is, claiming that Chevron was “worried” about
GCAC’s legally unsustainable fraud claims, and that the legally unsustainable claims had
“settlement value.” It should speak volumes that during the prior mediations in the underlying
case, Chevron was so “worried” about the fraud claim that they made an offer of zero. Failure to
offer any money prior to the dismissal of any fraud claim is the best evidence that Chevron had.
“wore ” about the lack of merit of the underlying fraud/tort claimsRegardless, there is no
basis in the law for ajury to consider “settlement value” of claims that are not legally viable.
Finally, GCAC argues there are fact issues that preclude summary judgment, all while
failing to address the insurmountable legal hurdles that preclude its fraud claims, and which
served as the basis for this Court’s order See, eg,, enith Star Ins. Co. v. Wilkerson, 150
S.W.3d 525 (Tex. App.Austin 2004, no pet.) (holding court must address legal issues, such as
validity underlying affirmative defense, before any malpractice issue could be presented to jury
TheCourt should deny Plaintiffs’ motion to re consider.
FACTUAL BACKGROUND
As the Court is already familiar with the facts supporting the motion, the O’ Quinn Fim
will only provide a brief summary of the basis for why summary judgment was proper:
(1) Trifinery lacked standing to sue for damages ‘Trifinery’s underlying
claims were dismissed by the Califomia trial judge in their entirety pursuant
to a motion for summary judgment filed by Chevron, because Trifinery had
conveyed the property to another company almost immediately after the
sale, and thus Trifinery had no standing to seek damages from Chevron.
See, e.g., O’ Quinn Firm's Motion for Partial Summary Judgment Based on.
Invalidity of Plaintiffs’ Underlying Fraud / Deceit / Misrepresentation
Claims and Damages (“Motion for Partial Summary Judgment”) at 5.
The Motion for Partial Summary Judgment Based on Invalidity of Plaintiffs’ Underlying Fraud/ Deceit/
Misrepresentation Claims and Damages, accompanying exhibits, and Reply in upport of same are incorporated by
reference. Tex. R. Civ. P. 58.
(2) No pre sale fraud, deceit, or negligent misrepresentation GCAC could
not have prevailed on its pre sale fraud/misrepresentation claim as a matter
of law, because GCAC was not a party to the contract between Chevron and
Trifinery, and GCAC did not even exist at the time of the contract in 1993.
Further, fraud and similar claims are not assignable under the applicable
Alabama law, so any potential fraud or misrepresentation claim of Trifinery
could not be transferred to GCAC. In short, GCAC’s pre sale fraud and
related claims fail because no pre sale misrepresentations could have been
made to GCAC.
(3) Doctrine of caveat emptor and “as is” clause barred GCAC’s fraud,
deceit, and misrepresentation claims against Chevron Assuming
contrary to law that GCAC could get past the “no pre sale fraud” defense,
under caveat emptor, it was limited to the remedies provided by warranties
or representations in the contract between Trifinery and Chevron. Here, all
warranties as to fitness for use for purpose were expressly disclaimed,
and the property was sold “as is”, which negates the element of reliance
essential to any fraud or misrepresentation cause of action. até.
(4) No post sale promissory fraud There was no evidence that Chevron
made any post sale promise to GCAC without the intent to perform, no
evidence that Chevron made any post sale misrepresentations to GCAC, and
no evidence of detrimental relianceby GCAC. Each of these is a required
element under any promissory fraud theory, and, therefore, GCAC’s post
sale fraud claim fails.
On March 21, 2013, exercising its independent judgment, this Court granted the O’ Quinn.
Firm's Motion for Partial Summary Judgment. The March 21, 2013 order specifically states that
GCAC’s “underlying pre sale fraud and deceit, pre sale negligent misrepresentation, and post
sale fraud and deceit claims are not legally sustainable” and that “Trifinery’s underlying pre sale
fraud
and deceit, pre sale negligent misrepresentation, and post sale fraud and deceit claims are
not legally sustainable.” Exhibit 1, March 21, 2013 Order Granting Motion for Partial Summary
Judgment.
ARGUMENT& AUTHORITIES
LIZONDOV_ RISITDOES NOT PROVIDE A BASIS FOR RECONSIDERATION
Plaintiffs erroneously allege the Supreme Court of Texas’ decision in Elizondo v. Krist
415 S.W.3d 259 (Tex. 2013) warrants reconsideration. It does not. Elizondo was a legal
malpractice case decided after a no evidence motion for summary judgment was granted on the
element of malpractice damagesnot causation See Exhibit 2, Elizondo, 415 S.W.3d at 261
(“The trial court granted some of the summary judgment motions, induding the motions
regarding damages. The court of appeals affirmed, holding that because the Elizondos had not
presented more than a scintilla of competent evidence of damages, the trial court did not er in
granting summary judgment on this ground.”) (emphasis added); see also Exhibit Defendant
Krist’s No Evidence Motion for Summary Judgment The Defendants’ Motion for Summary
Judgment made the basis of Plaintiffs’ motion for reconsideration was __ based on malpractice
damages, and thatin and of itself makes Elizondoinapplicable.
Conversely, the issue addressed in the Motion for Partial Summary Judgment in this case
addressed the legal viability of Plaintiffs’ underlying fraud and misrepresentation based claims
ie, alack of causation issue Establishing the legal viability of an underlying claim is essential
to the case within case requirement
of every legal malpractice claim. See Cantu v. Horany
195 S.W.3d 867, 873 (Tex. App.Dallas 2006, no pet.) (holding causation element of legal
malpractice requires plaintiff
to prove that “but for’ attomey’s negligent conduct, the plaintiff’s
claims would have been successful in the underlying lawsuit) Absent a legally sustainable
Claim, a plaintiff
cannot recover damages Indeed, an attomey cannot be the cause of damages if
there was no viable cause of action to begin with.
Elizondo does not change this analysis and does not preclude summary judgment. Nor
does it abdicate Plaintiffs’ burden to prove their caseAccepting GCAC’s flawed argument
would be to agree that summary judgment is never allowed in legal malpractice cases because a
It is axiomatic that without legally viable claims, Plaintiffs cannot be entitled to damages.
“Jury. . . will necessarily be required to weigh all aspects of the underlying case in determining
to what extent. . . a different result (i.e, settlement) might have been obtained with competent
counsel.” Not surprisingly, GCAC cites no case to support this proposition. GCAC requests that
this Court skip any analysis of the legal viability of its underlying claims (i.e., the causation
analysis), instead allowing the jury to speculate as to any “value” of legally unsustainable claims.
Accepting such a ridiculous assertion would lead to absurd results. Parties would be able to
allege baseless claims, would have no burden to prove viability of same, and would then ask a
jury to speculate how much these worthless claims would have yielded. The law requires legally
viable claims in order
for a party to recover. E.g., Tex. Civ. Prac. & Rem. Code Ch. 10.
Furthermore, Plaintiffs’ own quotations of Elizondo make clear that decision s limited,
at the very least, to the element of malpractice mages, not causation.See Plaintiffs’ Motion at
“The Court explained that prior case law ‘does not require that damagescan only be measured
against the result the client would have obtained if the case had been tried to a final judgment.’”
and “[T]he Court rejected the malpractice defendant’s claim that the measure of damages in a
legal malpractice case is limited to what the plaintiff ‘would have recovered
if the case had
proceeded to judgment after a trial.’” (emphasis added)Separatel jy, Elizondo is further
distinguishable as it was a case that dealt with an underlying mass tort settlement from the
explosion at BP’s Texas City facility. The Supreme Court of Texas recognized BP “made the
business decision to settle all cases and not try any to verdict... .” Elizondo, 415 S.W.3d at
263. Thus, there was potential evidence of what a BP settlement was worth. Conversely, there
is no evidence of any decision by Chevron to settle, nor is there evidence of comparable
settlements made by Chevron in similar situations. GCAC would instead have the jury
speculate, without any evidence, as to what Chevron would have paid GCAC for claims that
were not even legally viable. This is not what the law permits.
But GCAC cannot reach the damages element of analysis without first addressing the
causation element (i.e, are the fraud and misrepresentation claims legally valid?). Thus,
GCAC’s unsupported speculation that the fraud claim had “settlement value” is irrelevant to the
analysis. Similarly, AC’s purely speculative argument that Chevron was “worried about the
fraud claim on the eve of trial” is also irrelevant (and unsupported by the record evidence)
Indeed, here is no decision that warrants recovery of “settlement value” for legally unsustainable
claims. _ ontrary to Plaintiffs’ misconstrued and emoneous analysis of Elizondo, reconsideration
is not warranted.
HE OURT MADE CLEAR THAT ITS ORDER OF SUMMARY JUDGMENT IN THIS CASE WAS
MADE INDEPENDENTLY OF THE ALIFORNIA TRIAL COUR ORDER GRANTING
SUMMARY ADJUDICATION
Plaintiffs attempt to create a fact issue where none exists. This Court has been clear that
it has exercised its independent judgment in issuing rulings in this case, including in granting
summary judgment on GCAC’s fraud claims. Thus, it is irrelevant what the Califomia trial court
did in the underlying case. Likewise, the opinion of Plaintiffs’ expert is irrelevant as it deals
with a pure question of law, not a question of factSee | Greenberg Trauig of NY., P.C. v.
Moody, 161 S.W.3d 56, 94 (Tex. App Houston [14th Dist] 2005, no pet) (citing Mega Child
Care, Inc. v. Tex. Dep't of Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.
Houston [14th Dist.] 2000, no pet.)).
Additionally, the plain language of the California court s minute order reflects that the order of summary
adjudication on GCAC s fraud claim was more than a tentative order. Chevron s motion for summary
adjudication of the Second Cause of Action for Fraud is hereby granted. The final judgment ultimately rendered
in this action shall include a summary adjudication in Chevron’s favor and inst Gulf Coast, on all counts
set forth in the Second Cause of Action for fraud. Exhibit , Trial Court Minute Order (emphasis added).
Indeed, this was essentially an interlocutory order of summary judgment. GCAC s argument that the California
court could have vacated its tentative ruling is pure speculation and without merit, as the law supporting summary
adjudication was (and is) clear.
GCAC’ COLLATERAL ATTACK ON THE OURT S RULING THAT THE O’QUINN IRM
COMPLIED WITH SECTIO ARE OFFENSIVE AND IMPROPER
Dissatisfied with the Court’s prior ruling that the O’ Quinn Finm complied with Section
583.330 of the Califomia
Code of Civil Procedure, GCAC attempts an end mm around that
ruling. Armed with nothing but rank speculation, GCAC sunmises that the 5 year deadline being
an issue on the eve of trial removed Chevron’s motivation to settle The Court has already
determined that the O’Quinn Firm complied with Section 583.330, and that dismissal was
improper. Ignoring this nuling, GCAC attempts to blame Lloyd for the dismissal and then
attempts to bootstrap Lloyd's “beliefs” about settlement value, as though it is evidence of what
Chevron would have paid to settle the baseless fraud claims.As explained above, the Elizondo
decision does support such illogical arguments. Legal viability of claims must be established
before a plaintiff can proceed or seek damagesSee, e.g. | Campbell v. Doherty, 899 S.W.2d 395
(Tex. App.Houston [14th Dist.] 1995, writ denied) (holding thata court not jury must
determine whether jury instruction was legally valid; if jury instruction was valid, attomey could
not have been negligent
in failing to object to the instruction Zenith Star Ins. Co. v. Wilkerson.
150 S.W.3d 525 (Tex. App.Austin 2004, no pet.) (holding that the court must address legal
issues, such as validity underlying affirmative defense, before any issue could be presented to
jury) see also Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 37.18 (2012) (“Issues
of law do not become issues of fact for the jury in a legal malpractice action.”). here is simply
no basis for reconsideration of the order determining that GCAC’s fraud claims are legally
unsustainable. And as such, there is no basis for GCAC to recover damages on the flawed
premise that Chevron was “worried” aboutlegally invalid fraud/tort claims
HERE ARE NO FACT QUESTIONS FOR A JURY S DETERMINATION
In a final act of desperation, GCAC haphazardly argues that fact issues preclude
summary judgment. Plaintiffs go so far as to grossly misrepresent
the facts, alleging “there is no
question that Gulf Coast relied on Chevron’ s misrepresentations regarding the 1976 spill when it
entered into the 1993 PSA.” In reality, GCAC was not formed until 1994, several months after
the PSA was executed between Trifinery and Chevron. Eg. Exhibit , GCAC Articles of
Incorporation.As such, it was legally and factually impossible for Chevron to have made any
representations to GCACor for GCAC to have relied on any representation
Regardless of th nonsensical arguments that GCAC makes, the legal hurdles preclude
consideration of any alleged fact issues relative to the fraud claims (see supra i.e. no standing;
the iron clad “as is” clause; the disclaimer of all warranties; fraud and misrepresentation claims
may not be assigned, as a matter
of law; etc.).Indeed, the law is clear that the fraud and
misrepresentation claims were legally unsustainable. This Court’s determination of summary
judgment in favor of Defendants should not be reconsidered.
PRAYER
WHEREFORE, Defendants respectfully pray the Court deny Plaintiffs’ motion for
reconsideration, and further pray for all relief
at law or in equity to which they may be entitled.
Respectfully submitted,
ALL REITBEIL IDMAN P.C.
By: /s/ KennethR. Breitbeil
Donald B. McFall
State Bar Number 13595000
dmcfall@mcfall law.com
Kenneth R. Breitbeil
State Bar Number 02947690
kbreitbeil@mcfall law.com
David L. Louie
State Bar Number 24074621
dlouie@mcfall_ law.com
1250 Four Houston Center
1331 Lamar Street, Suite 1250
Houston, Texas 77010
Telephone (713) 590 9300
Facsimile (713) 590 93899
Attorneys in Charge for Defendant John M. O’ Quinn
& Associates, L.L.P. and John M. O’ Quinn&
Associates, P
AW FFICEOF COTT INK
By: /s/ Scott Link
Scott Link
State Bar Number 12390900
Scol il.com.
1331 Lamar St, Suite 1250
Houston, Texas 77010
Telephone (713) 225 1118
Facsimile (713) 481 1713
Attorney in Charge for Defendant Russell T. Lloyd
CERTIFICATE OF SERVICE
T hereby certify that a true and correct copy of the foregoing pleading has been forwarded.
to all counsel of record in accordance
with the Texas Rules of Civil Procedure, on this 8th day of
Anil, as follows:
Donald M. Hudgins Via ail
dhudgins@hudgins law.com
Michael D. Hudgins
mihudgins@hudgins law.com
Steven F. Hudgins
shudgins@hudgins law.com.
Spencer L. Edwards
sedwards@hudgins law.com
The Hudgins Law Firm
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Constance H. Pfeiffer Via Ennil
cpfieffer@beckredden.com
Chad Flores
cflores@beckredden.com
ECK EDDEN L.L.P.
1221 McKinney, Suite 4500
Houston, Texas 77010
/s/ David L. Louie
David L. Louie
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Cause No. 2011-61780 GULF COAST ASPHALT COMPANY, IN THE DISTRICT COURT OF L.L.C. AND TRIFINERY, INC. VS. HARRIS COUNTY, TEXAS RUSSELL T. LLOYD AND JOHN M. O’QUINN AND ASSOCIATES, L.L.P. JUDICIAL DISTRICT DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR RECONSIDERATION OF MARCH 21, 2013, ORDER GRANTING PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS’ UNDERLYING FRAUD CLAIMS Defendants John M. O’Quinn & Associates, L.L.P., John M. O’Quinn & Associates, P.L.L.C., and Russell T. Lloyd (collectively the “O’ Quinn Firm’) file this Response to Plaintiffs’ Motion for Reconsideration of March 21, 2013, Order Granting Partial Summary Judgment on Plaintiffs’ Underlying Fraud Claims, and in support thereof will sho I SUMMARY OF ARGUMENT The Court’s Summary Judgment Order of March 21, 2013 was proper on multiple grounds, each of which wes independently sufficient to support the conclusion that GCAC’s underlying fraud/tort claims against Chevron had no merit as a matter of law. The undisputed evidence conclusively established that no misrepresentationsor any representations at all were ever made by Chevron to GCAC. GCAC did not even exist at the time that the 1993 Purchase and Sale Agreement (“PSA”) was entered into. GCAC was three parties removed from the original purchaser and was never assigned the rights under the PSA between Chevron and Trifinery. The property was sold to the original purchaser (__ GCAC) “as is” and “with all Separately, Trifinery never disputed that it lacked standing to sue for fraud based damages, since it resold the property at issue immediately after the 1993 sale. As such, summary judgment was proper as to any fraud/misrepresentation based claim by Trifinery. See, e. Defendants’ Reply in Support of Their M otion for Partial Summary J udgment Based on Invalidity of Plaintiffs’ Underlying Fraud/ Deceit/ M isrepresentation Claims and Damages, dated February 14, 2013. faults,” and with a disclaimer of any and all warranties of fitness for any particular use. Under Alabama law, which the PSA contractually mandated, fraud claims are not assignable. Indeed, the two predecessor in title to GCAC were not even affiliates of GCAC; they were Hunt Oil ompanies. GCAC’s purported basis for asking the Court to reconsider its prior order is disingenuous and based upon a flawed premiseTex. Civ. Prac. & Rem. Code §§ 9.011, 9.012First, asa basis for reconsideration of the ruling that GCAC’s fraud claims are not legally sustainable, GCAC inconectly interprets the holding of Elizondo v. Krist, a Texas Supreme Court case addressing malpractice damagesnot causation Elizondo does not support the relief sought by GCAC and does not warrant reconsideration. In prior hearings, this ourt has previously advised that it did not agree with Plaintiffs’ arguments about the purported application of the Elizondoopinion to the legal issues in this case. Second, GCAC implies that this Court granted partial summary judgment on the underlying fraud/tort issues solely because the Califomia trial court had granted summary judgment on the same issues. That is false. This Court has made it clear in various hearings that any motion it has considered dealing with legal issues raised in the underlying case are being addressed by this Court independently of the Califomia tial court’s nilings. This Court specifically made this point during the original hearing on Defendants’ motion when it was arguedin March 2013. The fact that the Califomia trial judge ruled the same way establishes nothing more than that two separate courts have both found that GCAC’s fraud/tort claims were devoid of any merit under Alabama law and the iron clad terms of the PSA. GCAC also raises secondary arguments that have no bearing on the Coutt’s analysis. Importantly, Elizondo was decided in A ugust of 2013, prior to Plaintiffs October 2013 assertion that they are not criticizing Lloyd for his settlement advice. GCAC injects its own rank speculation, false as it is, claiming that Chevron was “worried” about GCAC’s legally unsustainable fraud claims, and that the legally unsustainable claims had “settlement value.” It should speak volumes that during the prior mediations in the underlying case, Chevron was so “worried” about the fraud claim that they made an offer of zero. Failure to offer any money prior to the dismissal of any fraud claim is the best evidence that Chevron had. “wore ” about the lack of merit of the underlying fraud/tort claimsRegardless, there is no basis in the law for ajury to consider “settlement value” of claims that are not legally viable. Finally, GCAC argues there are fact issues that preclude summary judgment, all while failing to address the insurmountable legal hurdles that preclude its fraud claims, and which served as the basis for this Court’s order See, eg,, enith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525 (Tex. App.Austin 2004, no pet.) (holding court must address legal issues, such as validity underlying affirmative defense, before any malpractice issue could be presented to jury TheCourt should deny Plaintiffs’ motion to re consider. FACTUAL BACKGROUND As the Court is already familiar with the facts supporting the motion, the O’ Quinn Fim will only provide a brief summary of the basis for why summary judgment was proper: (1) Trifinery lacked standing to sue for damages ‘Trifinery’s underlying claims were dismissed by the Califomia trial judge in their entirety pursuant to a motion for summary judgment filed by Chevron, because Trifinery had conveyed the property to another company almost immediately after the sale, and thus Trifinery had no standing to seek damages from Chevron. See, e.g., O’ Quinn Firm's Motion for Partial Summary Judgment Based on. Invalidity of Plaintiffs’ Underlying Fraud / Deceit / Misrepresentation Claims and Damages (“Motion for Partial Summary Judgment”) at 5. The Motion for Partial Summary Judgment Based on Invalidity of Plaintiffs’ Underlying Fraud/ Deceit/ Misrepresentation Claims and Damages, accompanying exhibits, and Reply in upport of same are incorporated by reference. Tex. R. Civ. P. 58. (2) No pre sale fraud, deceit, or negligent misrepresentation GCAC could not have prevailed on its pre sale fraud/misrepresentation claim as a matter of law, because GCAC was not a party to the contract between Chevron and Trifinery, and GCAC did not even exist at the time of the contract in 1993. Further, fraud and similar claims are not assignable under the applicable Alabama law, so any potential fraud or misrepresentation claim of Trifinery could not be transferred to GCAC. In short, GCAC’s pre sale fraud and related claims fail because no pre sale misrepresentations could have been made to GCAC. (3) Doctrine of caveat emptor and “as is” clause barred GCAC’s fraud, deceit, and misrepresentation claims against Chevron Assuming contrary to law that GCAC could get past the “no pre sale fraud” defense, under caveat emptor, it was limited to the remedies provided by warranties or representations in the contract between Trifinery and Chevron. Here, all warranties as to fitness for use for purpose were expressly disclaimed, and the property was sold “as is”, which negates the element of reliance essential to any fraud or misrepresentation cause of action. até. (4) No post sale promissory fraud There was no evidence that Chevron made any post sale promise to GCAC without the intent to perform, no evidence that Chevron made any post sale misrepresentations to GCAC, and no evidence of detrimental relianceby GCAC. Each of these is a required element under any promissory fraud theory, and, therefore, GCAC’s post sale fraud claim fails. On March 21, 2013, exercising its independent judgment, this Court granted the O’ Quinn. Firm's Motion for Partial Summary Judgment. The March 21, 2013 order specifically states that GCAC’s “underlying pre sale fraud and deceit, pre sale negligent misrepresentation, and post sale fraud and deceit claims are not legally sustainable” and that “Trifinery’s underlying pre sale fraud and deceit, pre sale negligent misrepresentation, and post sale fraud and deceit claims are not legally sustainable.” Exhibit 1, March 21, 2013 Order Granting Motion for Partial Summary Judgment. ARGUMENT& AUTHORITIES LIZONDOV_ RISITDOES NOT PROVIDE A BASIS FOR RECONSIDERATION Plaintiffs erroneously allege the Supreme Court of Texas’ decision in Elizondo v. Krist 415 S.W.3d 259 (Tex. 2013) warrants reconsideration. It does not. Elizondo was a legal malpractice case decided after a no evidence motion for summary judgment was granted on the element of malpractice damagesnot causation See Exhibit 2, Elizondo, 415 S.W.3d at 261 (“The trial court granted some of the summary judgment motions, induding the motions regarding damages. The court of appeals affirmed, holding that because the Elizondos had not presented more than a scintilla of competent evidence of damages, the trial court did not er in granting summary judgment on this ground.”) (emphasis added); see also Exhibit Defendant Krist’s No Evidence Motion for Summary Judgment The Defendants’ Motion for Summary Judgment made the basis of Plaintiffs’ motion for reconsideration was __ based on malpractice damages, and thatin and of itself makes Elizondoinapplicable. Conversely, the issue addressed in the Motion for Partial Summary Judgment in this case addressed the legal viability of Plaintiffs’ underlying fraud and misrepresentation based claims ie, alack of causation issue Establishing the legal viability of an underlying claim is essential to the case within case requirement of every legal malpractice claim. See Cantu v. Horany 195 S.W.3d 867, 873 (Tex. App.Dallas 2006, no pet.) (holding causation element of legal malpractice requires plaintiff to prove that “but for’ attomey’s negligent conduct, the plaintiff’s claims would have been successful in the underlying lawsuit) Absent a legally sustainable Claim, a plaintiff cannot recover damages Indeed, an attomey cannot be the cause of damages if there was no viable cause of action to begin with. Elizondo does not change this analysis and does not preclude summary judgment. Nor does it abdicate Plaintiffs’ burden to prove their caseAccepting GCAC’s flawed argument would be to agree that summary judgment is never allowed in legal malpractice cases because a It is axiomatic that without legally viable claims, Plaintiffs cannot be entitled to damages. “Jury. . . will necessarily be required to weigh all aspects of the underlying case in determining to what extent. . . a different result (i.e, settlement) might have been obtained with competent counsel.” Not surprisingly, GCAC cites no case to support this proposition. GCAC requests that this Court skip any analysis of the legal viability of its underlying claims (i.e., the causation analysis), instead allowing the jury to speculate as to any “value” of legally unsustainable claims. Accepting such a ridiculous assertion would lead to absurd results. Parties would be able to allege baseless claims, would have no burden to prove viability of same, and would then ask a jury to speculate how much these worthless claims would have yielded. The law requires legally viable claims in order for a party to recover. E.g., Tex. Civ. Prac. & Rem. Code Ch. 10. Furthermore, Plaintiffs’ own quotations of Elizondo make clear that decision s limited, at the very least, to the element of malpractice mages, not causation.See Plaintiffs’ Motion at “The Court explained that prior case law ‘does not require that damagescan only be measured against the result the client would have obtained if the case had been tried to a final judgment.’” and “[T]he Court rejected the malpractice defendant’s claim that the measure of damages in a legal malpractice case is limited to what the plaintiff ‘would have recovered if the case had proceeded to judgment after a trial.’” (emphasis added)Separatel jy, Elizondo is further distinguishable as it was a case that dealt with an underlying mass tort settlement from the explosion at BP’s Texas City facility. The Supreme Court of Texas recognized BP “made the business decision to settle all cases and not try any to verdict... .” Elizondo, 415 S.W.3d at 263. Thus, there was potential evidence of what a BP settlement was worth. Conversely, there is no evidence of any decision by Chevron to settle, nor is there evidence of comparable settlements made by Chevron in similar situations. GCAC would instead have the jury speculate, without any evidence, as to what Chevron would have paid GCAC for claims that were not even legally viable. This is not what the law permits. But GCAC cannot reach the damages element of analysis without first addressing the causation element (i.e, are the fraud and misrepresentation claims legally valid?). Thus, GCAC’s unsupported speculation that the fraud claim had “settlement value” is irrelevant to the analysis. Similarly, AC’s purely speculative argument that Chevron was “worried about the fraud claim on the eve of trial” is also irrelevant (and unsupported by the record evidence) Indeed, here is no decision that warrants recovery of “settlement value” for legally unsustainable claims. _ ontrary to Plaintiffs’ misconstrued and emoneous analysis of Elizondo, reconsideration is not warranted. HE OURT MADE CLEAR THAT ITS ORDER OF SUMMARY JUDGMENT IN THIS CASE WAS MADE INDEPENDENTLY OF THE ALIFORNIA TRIAL COUR ORDER GRANTING SUMMARY ADJUDICATION Plaintiffs attempt to create a fact issue where none exists. This Court has been clear that it has exercised its independent judgment in issuing rulings in this case, including in granting summary judgment on GCAC’s fraud claims. Thus, it is irrelevant what the Califomia trial court did in the underlying case. Likewise, the opinion of Plaintiffs’ expert is irrelevant as it deals with a pure question of law, not a question of factSee | Greenberg Trauig of NY., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App Houston [14th Dist] 2005, no pet) (citing Mega Child Care, Inc. v. Tex. Dep't of Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App. Houston [14th Dist.] 2000, no pet.)). Additionally, the plain language of the California court s minute order reflects that the order of summary adjudication on GCAC s fraud claim was more than a tentative order. Chevron s motion for summary adjudication of the Second Cause of Action for Fraud is hereby granted. The final judgment ultimately rendered in this action shall include a summary adjudication in Chevron’s favor and inst Gulf Coast, on all counts set forth in the Second Cause of Action for fraud. Exhibit , Trial Court Minute Order (emphasis added). Indeed, this was essentially an interlocutory order of summary judgment. GCAC s argument that the California court could have vacated its tentative ruling is pure speculation and without merit, as the law supporting summary adjudication was (and is) clear. GCAC’ COLLATERAL ATTACK ON THE OURT S RULING THAT THE O’QUINN IRM COMPLIED WITH SECTIO ARE OFFENSIVE AND IMPROPER Dissatisfied with the Court’s prior ruling that the O’ Quinn Finm complied with Section 583.330 of the Califomia Code of Civil Procedure, GCAC attempts an end mm around that ruling. Armed with nothing but rank speculation, GCAC sunmises that the 5 year deadline being an issue on the eve of trial removed Chevron’s motivation to settle The Court has already determined that the O’Quinn Firm complied with Section 583.330, and that dismissal was improper. Ignoring this nuling, GCAC attempts to blame Lloyd for the dismissal and then attempts to bootstrap Lloyd's “beliefs” about settlement value, as though it is evidence of what Chevron would have paid to settle the baseless fraud claims.As explained above, the Elizondo decision does support such illogical arguments. Legal viability of claims must be established before a plaintiff can proceed or seek damagesSee, e.g. | Campbell v. Doherty, 899 S.W.2d 395 (Tex. App.Houston [14th Dist.] 1995, writ denied) (holding thata court not jury must determine whether jury instruction was legally valid; if jury instruction was valid, attomey could not have been negligent in failing to object to the instruction Zenith Star Ins. Co. v. Wilkerson. 150 S.W.3d 525 (Tex. App.Austin 2004, no pet.) (holding that the court must address legal issues, such as validity underlying affirmative defense, before any issue could be presented to jury) see also Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 37.18 (2012) (“Issues of law do not become issues of fact for the jury in a legal malpractice action.”). here is simply no basis for reconsideration of the order determining that GCAC’s fraud claims are legally unsustainable. And as such, there is no basis for GCAC to recover damages on the flawed premise that Chevron was “worried” aboutlegally invalid fraud/tort claims HERE ARE NO FACT QUESTIONS FOR A JURY S DETERMINATION In a final act of desperation, GCAC haphazardly argues that fact issues preclude summary judgment. Plaintiffs go so far as to grossly misrepresent the facts, alleging “there is no question that Gulf Coast relied on Chevron’ s misrepresentations regarding the 1976 spill when it entered into the 1993 PSA.” In reality, GCAC was not formed until 1994, several months after the PSA was executed between Trifinery and Chevron. Eg. Exhibit , GCAC Articles of Incorporation.As such, it was legally and factually impossible for Chevron to have made any representations to GCACor for GCAC to have relied on any representation Regardless of th nonsensical arguments that GCAC makes, the legal hurdles preclude consideration of any alleged fact issues relative to the fraud claims (see supra i.e. no standing; the iron clad “as is” clause; the disclaimer of all warranties; fraud and misrepresentation claims may not be assigned, as a matter of law; etc.).Indeed, the law is clear that the fraud and misrepresentation claims were legally unsustainable. This Court’s determination of summary judgment in favor of Defendants should not be reconsidered. PRAYER WHEREFORE, Defendants respectfully pray the Court deny Plaintiffs’ motion for reconsideration, and further pray for all relief at law or in equity to which they may be entitled. Respectfully submitted, ALL REITBEIL IDMAN P.C. By: /s/ KennethR. Breitbeil Donald B. McFall State Bar Number 13595000 dmcfall@mcfall law.com Kenneth R. Breitbeil State Bar Number 02947690 kbreitbeil@mcfall law.com David L. Louie State Bar Number 24074621 dlouie@mcfall_ law.com 1250 Four Houston Center 1331 Lamar Street, Suite 1250 Houston, Texas 77010 Telephone (713) 590 9300 Facsimile (713) 590 93899 Attorneys in Charge for Defendant John M. O’ Quinn & Associates, L.L.P. and John M. O’ Quinn& Associates, P AW FFICEOF COTT INK By: /s/ Scott Link Scott Link State Bar Number 12390900 Scol il.com. 1331 Lamar St, Suite 1250 Houston, Texas 77010 Telephone (713) 225 1118 Facsimile (713) 481 1713 Attorney in Charge for Defendant Russell T. Lloyd CERTIFICATE OF SERVICE T hereby certify that a true and correct copy of the foregoing pleading has been forwarded. to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this 8th day of Anil, as follows: Donald M. Hudgins Via ail dhudgins@hudgins law.com Michael D. Hudgins mihudgins@hudgins law.com Steven F. Hudgins shudgins@hudgins law.com. Spencer L. Edwards sedwards@hudgins law.com The Hudgins Law Firm 24 Greenway Plaza, Suite 2000 Houston, Texas 77046 Constance H. Pfeiffer Via Ennil cpfieffer@beckredden.com Chad Flores cflores@beckredden.com ECK EDDEN L.L.P. 1221 McKinney, Suite 4500 Houston, Texas 77010 /s/ David L. Louie David L. Louie