Appellate Materials: GULF COAST ASPHALT COMPANY L L C vs. LLOYD, RUSSELL T

On October 13, 2011 a Appellate Materials was filed involving a dispute between Gulf Coast Asphalt Company L L C, Trifinery Inc, John M O'Quinn And Associates L L P (N K A John M O'Quinn And, John M O'Quinn & Associates L L P, Lloyd, Russell T, and Ed Mattingly & Associates Pllc (A Professional Limited Liability, Mattingly, Edward A, Tudzin, Ellis A, John M O'Quinn & Associates L L P, John M O'Quinn & Associates P L L C, Lloyd, Russell T, for MALPRACTICE/LEGAL in the District Court of Harris County.

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IN THE COURT OF APPEALS
FOR HE FOURTEENTH DISTRICT OF TEXAS
HOUSTON, EXAS
_________

Gulf Coast Asphalt Company .L.C. and
Trifinery, nc.,
Appellants

Russell . Lloyd John . O’Quinn Associates, .L.P. nd
John . O’Quinn ssociates, P.L.L.C.
Appellees
____________________
th
ppeal From Judicial District
Harris ounty, Texas
The onorable Larry eiman
____________________

PETITION OR PERMISSION TO APPEAL
INTERLOCUTORY RDER
____________________

Donald . Hudgins (10149000)
dhudgins@hudginslaw.com
Michael . Hudgins
mhudgins@hudginslaw.com
Steven .
shudgins@hudginslaw.com
Spencer . Edwards
sedwards@hudginslaw.com
HE UDGINS AW IRM P.C.
24 reenway Plaza, Suite 2000
Houston, exas 77046
Telephone 713) 623 2550
Facsimile (713) 623 2793

OUNSEL FOR PPELLANTS
ULF OAST SPHALT L.L.C. AND RIFINERY NC
IDENTITIES OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following

list of interested parties for the convenience of the Court.

Gulf Coast Asphalt Company, L.L.C. and
Trifinery, Inc.............................................................................................................. Appellants

Donald M. Hudgins
dhudgins@hudgins law.com
Michael D. Hudgins
mhudgins@hudgins law.com
Steven F. Hudgins
shudgins@hudgins law.com
Spencer L. Edwards
sedwards@hudgins law.com
HE UDGINS AW IRM P.C.
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Telephone (713) 62 2550
Facsimile (713) 623 2793 ....................................Trial and Appellate Counsel for Appellants

Russell T. Lloyd and
John M. O’Quinn and Associates, L.L.P.
John M. O’Quinn and Associates, P.L.L.C. ........................................................Appellees

Donald B. McFall
dmcfall@mcfall law.com
Kenneth R. Breitbeil
kbreitbeil@mcfall law.com
David L. Louie
dlouie@mcfall law.com
ALL REITBEIL MITH P.C.
1250 Four Houston Center
1331 Lamar Street
Houston, Texas 77010 3027
Telephone (713)
Facsimile (713) ........................................... Trial and Appellate Counsel for Appellees
IDENTITIES OF PARTIES AND COUNSEL (CONT’D)

The Honorable Scott Link
slinklaw@gmail.com
AW FFICE OF COTT INK
440 Louisiana, Suite 2330
Houston, Texas 77002
Telephone (713) 225 1118
Facsimile (713) 481 1713 ................................ Trial and Appellate Counsel for Appellees

Constance H. Pfeiffer
cpfeiffer@beckredden.com
Chad Flores
cflores@beckredden.com
ECK EDDEN L.L.P.
1221 McKinney, Suite 4500
Houston, Texas 77010
Telephone (713) 951 3700
Facsimile (713) 951 3720 ................................................ Appellate Counsel for Appellees

ii
DENTI YING INFORMATION

Plaintiffs Gulf Coast Asphalt Company, L.L.C. and Trifinery, Inc. give notice of

their intent to appeal the October 21, 2013, interlocutory Order in this case pursuant to

Rule 25.1 of the Texas Rules of Appellate Procedure and Section 51.014(d) of the Texas

Civil Practice Remedies Code

1. On October 21, 2013, the 80th Judicial District Court of Harris County,

Texas granted Defendants’Motion for Partial Summary Judgment dated April 27, 2012,

in cause number 2011 61780, styled Gulf oast Asphalt Company, L.L.C. and Trifinery,

Inc. v. Russell T. Lloyd and John M. O’Quinn and Associates, L.L.P against Plaintiffs.

(Tab A).

2. On October 21, 2013, the 80th Judicial District Court of Harris County,

Texas also entered an order granting an interlocutory appeal pursuant to Texas Civil

Practic and Remedies Code 51.014(d), which the parties have agreed to pursue. (Tab

A).

3. No post judgment motions have been filed.

4. Plaintiffs Gulf Coast Asphalt Company, L.L.C. and Trifinery, Inc wish to

pursue this interlocutory appeal.

5. Defendants, Russell T. Lloyd, John M. O’Quinn and Associates, L.L.P. and

John M. O’Quinn and Associates, P.L.L.C. have agreed to this interlocutory appeal as

evidenced in the October 21, 2013, order.

6. Pursuant to Section 51.014(f) of the Texas Rules of Civil Procedure, this

petition is being timely filed within fifteen (15) days or the order being appealed.

iii
TABLE OF CONTENTS

Page

IDENTITIES OF PARTIES AND COUNSEL ................................................................

IDENTIFYING INFORMATION .................................................................................. iii

TABLE OF CONTENTS................................................................................................

INDEX OF AUTHORITIES...........................................................................................

ISSUES PRESENTED ..................................................................................................

CONTROLLING ISSUES PRESENTED........................................................................

SUMMARY ....................................................................................................................

STATEMENT OF THE FACTS......................................................................................

1. Factual Background ...................................................................................

a. The Underlying Lawsuits ................................................................

1. The California Lawsuit .........................................................

2. The Alabama Lawsuit ...........................................................

3. The Settlement.................................................................... 10

2. Procedural Background ............................................................................ 11

ARGUMENT AND AUTHORITIES ............................................................................ 12

1. The controlling issue of law ..................................................................... 12

2. The determination will materially advance
termination of litigation............................................................................ 14

CONCLUSION AND PRAYER.................................................................................... 15

CERTIFICATE OF SERVICE ...................................................................................... 17

iv
TABLE OF CONTENTS (CONT’D)

APPENDI ................................................................................................................... 18
INDEX OF AUTHORITIES

Cases: Page(s)

Millhouse v. Weisenthal
775 S.W.2d 626 n.2 (Tex. 1989) ....................................................................... 13

Welch v. Heat Research Corp.
644 F.2d 487 (5th Cir. 1981)............................................................................. 13

Statutes and Rules Page(s

AL ODE IV P. §583..........................................................................................passim

AL ODE IV P. §583.330(a)................................................................................... 8,

AL ODE IV P. §583.330(b) .............................................................................2,
15

EX IV RAC EM ODE 51.014(d)........................................................................

EX IV RAC EM ODE 51.014(f).........................................................................
ISSUES PRESENTED

1. Whether trial judge can resolve th question of breach in case of legal
malpractice where the facts surrounding breach are disputed.

2. Whether the trial judge erred in concluding that Russell Lloyd complied with
Section 583.330 of the California Code of Civil Procedure.

3. Whether the trial judge erred in granting partial summary judgment.

vii
No. ___________________

IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
_________

Gulf Coast Asphalt Company L.L.C. and
Trifinery, Inc.,

Appellants

Russell T. Lloyd John M. O’Quinn Associates, L.L.P. and
John M. O’Quinn Associates, P.L.L.C.

Appellees
____________________
th
On Appeal From the Judicial District Court
Harris County, Texas
The Honorable Larry Weiman
____________________

PETITION FOR PERMISSION TO APPEAL
INTERLOCUTORY ORDER
___________________

TO THE HONORABLE JUSTICES OF THE FOURTEENTH COURT OF APPEALS:

Appellants, Gulf Coast Asphalt Company, L.L.C. and Trifinery, Inc. (collectively

“Gulf Coast”), and pursuant to Section 51.014(d) (f) file this petition requesting thi

Court grant itpermission to appeal the interlocutory order signed on October 21, 2013, by

the 80th Judicial District Court on October 21, 2013, granting partial summary judgment.

All parties agreed to this appeal. In support, Gulf Coast will show as ollows:
CONTROLLING ISSUE PRESENTED

The controlling issue of law presented in this petition for interlocutory appeal is

whether Texas trial judge can resolve the element of breach as matter of law in legal

malpractice case where the facts surroundin breach are disputed. In this case, Gulf

Coast’s lawsuit against Chevron in California was dismissed on the basis that Lloyd

failed to comply with Section 583 of the California Code of Civil Procedure (5 year trial

deadline), which mandates the dismissal of case if not tried within five years.

The year trial deadline can be extended by written or oral stipulation that

complies with Section 583.330, which Russell Lloyd (Lloyd) knew how to do as

evidenced by his prior written stipulation that extende the original year deadline. But

it is undisputed that second written stipulation was not obtained and the California trial

judge concluded Lloyd failed to obtain an oral agreement in accordance with Section

583.330(b), so the case was dismissed. Judge Weiman, Texas trial judge, has now

concluded the California trial judge was wrong about California law and that Lloyd had

obtained an oral agreement to extend the deadline in accordance with Section 583.330(b).

Judge Weiman’s decision not based on finding that there no genuine issue

of material fact as to whether loyd complied with Section 583. Instead, his decision

based on his determination that he, not jury, should resolve disputed fact issues

regarding the element of breach in legal malpractice case. ere is no legal precedent

for this decision. And, if allowed to stand it will effectively immunize attorneys from

the jury system because the trial judge would be vested with the authority to overrule the

decision of another judge regardless of an appeals court would have done the same.
SUMMARY

This is legal malpractice case that arises from the premature dismissal of two

separate lawsuits one in California and one in Alabama. (Exhibits ). In those two

suits, Lloyd and The O’Quinn Firm sought in excess of $400,000,000 in damages and

injunctive relief against Chevron U.SA, Inc. under claims for breach of contract and

fraud. Gulf Coast’s claims related to Chevron’s failure to comply with basic contractual

obligations tha required it to provide an accurate environmental assessment of the

property it had purchased with the intent of building an asphalt refinery and to remediate

the property to Gulf Coast’s reasonable satisfaction. But Gulf Coast was never able to

build that refinery because of Chevron’s refusal to comply with those contractual

obligations. And Gulf Coast was never able to try those claims because Lloyd’s negligent

acts and omissions caused both cases to be dismissed on procedural grounds.

So, what happened? Unbelievably, the California Lawsuit was dismissed on the

eve of trial because Lloyd failed to comply with Section 583 of the California Code of

Civil Procedure. The seventeen page order of dismissal, which chronicles Lloyd’s

negligent acts and omissions, ends by stating Lloyd must “bear the responsibility of the

case being dismissed.” But the problems for Lloyd did not end there. short time later,

the Alabama Lawsuit which he filed to assert settlement pressure on Chevron in

California and mostly sought injunctive type relief was dismissed because Lloyd filed

that suit in the name of the wrong party. Following that dismissal, Chevron was awarded

nearly $1,000,000 in attorneys’fees. After Chevron threatened to seek attorneys’fees in

the California Lawsuit which Lloyd estimated could be in excess of $10,000,000 Gulf
Coast was left no alternative but to pay Chevron $500,000 to settle both claims. This

settlement was recommended and orchestrated by Lloyd.

As part of the global settlement, both appeals were dismissed (and neither order

vacated). It should surprise no one that legal malpractice case followed. Although the

facts regarding Lloyd and The O’Quinn Firm’s negligence in handling both the California

Lawsuit and Alabama Lawsuit are inextricably intertwined (because both combined to

create scenario where Gulf Coast was left no alternative but to settle and mitigate

damages), this petition for interlocutory review involves only one aspect of Lloyd’s

negligent conduct in handling the California Lawsuit. Specifically, on October 21,

2013 after the parties had announced ready for trial and the jury was already

mpanelled and sworn Judge Weiman decided to revisit motion he had long ago

denied. In doing so, Judge Weiman contrary to his previous rulings, held the California

trial judge was wrong to dismiss the California Lawsuit because Lloyd had complied with

the requirements of Section 583.330(b). (Exhibit 3).

Fundamentally, Judge Weiman exceeded his authority by resolving the question of

breach as matter of law. This is because basic Texas law holds hat he issue of breach

in legal malpractice case is question of fact for the jury where the facts are in dispute.

Judge Weiman then compounded his error by getting basic Californi law wrong and

holding that Lloyd complied with Section 583.330(b) where the evidence shows Chevron

Perhaps as equally disturbing as the timing of the ruling is that Judge Weiman made it in the
face of uncontroverted evidence that shows Lloyd not only admitted to his associate that he
missed he deadline, but that Lloyd also undertook course of conduct to conceal his negligence
from his clients and others, adopting an after the fact excuse that he had an oral agreement to
extend the year trial deadline under Section 583.330(b).
did not agree to an extension of the year trial deadline, but instead shows Lloyd simply

forgot about the deadline.

The practical consequence of Judge eiman’s ruling is this: Gulf Coast’s case in

California was dismissed on the eve of trial because the California trial judge ruled that

Lloyd failed to comply with the mandatory year trial deadline under Section 583, and

Gulf Coast’s legal malpractice laim arising from Lloyd’s negligence in the California

Lawsuit was partially dismissed after trial already started because Judge Weiman,

Texas judge, believes Judge Craddock, California trial judge, is wrong about basic

California law. This is not, an cannot be, the law. Accordingly, and for the following

reasons, Gulf Coast request that this Court accept review of Judge Weiman’s order

pursuant to §51.014(d)

STATEMENT OF THE FACTS

To understand the overreaching nature of Judge Weiman’s belated decision to

grant partial “summary judgment”after trial had already started, and why interlocutory

review is now needed, some factual and procedural background is required.

1. Factual Background.

Plaintiffs Gulf Coast Asphalt Refinery, L.L.C. and Trifinery Inc. are both

companies created by Sanford Brass businessman who had spent more than forty

years of his successful career in the asphalt refinery business. (Exhibit at 3). For many

years he enjoyed business relationship with Chevron. Id When rass learned that the

site for Chevron’s old asphalt refinery on Blakely Island in Mobile, Alabama (the

Property) was for sale, he set out to purchase it Id. The sale was completed in
December of 1993 (Exhibit 5). The terms of the sale are memorialized in Purchase

and Sale Agreement which required Chevron to (1) provide an accurate environmental

assessment of the Property, and (2) remediate to Gulf Coast’s reasonable satisfaction Id.

As part of the transaction, Chevron disclosed that spill occurred on the Property

in 1976, but misrepresented both the scope of the 1976 spill and its remediation effort.

(Exhibit at ¶¶10 11). Following the discovery of internal memorandums and witnesses

that exposed Chevron’s cover up, Chevron exacerbated the problem by breaching its

contractual obligation to remediate the contamination to Gulf Coast’s reasonable

satisfaction. (Exhibit at ¶20 No doubt, this was career case for Lloyd and explains

why he spent in excess of $450,000 in expenses litigating the case for five years.

(Exhibit at 196 97). It also explains why John O’Quinn had made clear his intent to

try this case personally prior to his untimely death. Id. at 139

The Underlying Lawsuits.

It is undisputed that the California Lawsuit was the primary lawsuit that sought in

excess of $110,000,000 in actual damages (plus exemplary damages) and that the

Alabama Lawsuit was nothing more than an ill advised strategic effort by Lloyd to put

settlement pressure on Chevron. Here is brief overview of Lloyd’s negligent acts and

omissions legal train wreck that caused both cases to be prematurely dismissed.

The California Lawsuit.

The California Lawsuit was originally filed on June 15, 2004 this date is

procedurally significant because Section 583 of the Code of California Civil Procedure

requires all cases to be tried within years (Exhibit 4). The primary claims in the
California awsuit were for breach of contract and fraud, which primarily arose from

Chevron’s (1) failure to provid accurate environmental assessments as contractually

required under the 1993 PSA, and (2) refusal to remediate the Property to Gulf Coast’s

reasonable satisfaction following the discovery of buried asphalt residuum.

The original year trial deadline to try the California Lawsuit was June 15, 2009.

At some point prior to this deadline, the trial court reset the trial to August 31, 2009. So,

Lloyd requested and obtained from Chevron written stipulation for six month

extension of the year trial deadline up to and until December 31, 2009 demonstrating

his understanding of how to extend the deadline in accordance with Section 583.330. Id.

Lloyd’s written stipulation was filed with the trial court on June 15, 2009, and on June

16, 2009, the trial judg signed an order approving the stipulation. (Exhibits 9).

On August 4, 2009, pretrial hearing was held. (Exhibit 10). At this point, trial

was set to begin on August 31, 2009, date well within the year trial deadline of

December 31, 2009 uring that hearing, Lloyd rejected the trial court’s invitation to

start the first phase of the trial on August 31, 2009, and instead asked the trial judge to

remove the case from the court’s docket. (Exhibit 10 at 21). Lloyd then confirmed to the

trial judge that he was agreeable to set new trial date “after the first of the year.” Id. at

22. At the very end of the hearing, before the attorneys began discussions of new trial

setting, Lloyd was given an opportunity to make record by the trial judge, but he

declined. Id. at 23 (emphasis added). According to the trial judge’s order of dismissal, it

was at that point that she left the courtroom and all further conversations were held

outside of her presence. (Exhibit at 4). Critically, Lloyd admits that the year trial
deadline was never discussed at the August 4, 2009, hearing or off the record.

(Exhibit at 79; Exhibit 11 at 43). And it is undisputed there was no written stipulation

in accordance with Section 583.330(a).

On February 5, 2010, Chevron filed its motion to dismiss for failure to comply

with Section 583. (Exhibit 12). The trial court’s February 22, 2010, order of dismissal

damning and chronicles Lloyd and The O’Quinn Law Firm’s negligence that led to the

dismissal:

4. Th burden is on the Plaintiff’s attorney to keep track of significant
dates in the prosecution of his case, e.g. when the five year statute of
limitation will run. Defendant’s attorney said and did nothing to mislead
the attorney about the running of the year limitation period to cause him
to be estopped from moving to dismiss the case.

5. Plaintiff’s attorney had the obligation and ability from August 4,
2009 to December 31, 2009 to request the Court to advance the trial date
and avoid the bar of the year statute.

6. Plaintiff’s attorney requested that the trial date be continued from
August 31, 2009, the date on which it was already set for trial, knowing that
the five year statute had been extended to December 31, 2009. He agreed
that the trial date would be set “after the first of the year”and selected
(accepted? agreed to? acquiesced in?) the date of February 16, 2010
proposed by the Clerk. He never advised the Court, Clerk or opposing
counsel that the new trial date was being set after the ear statute would
expire and never thereafter objected or asked the Court to advance the case
or move to specially set the case before the year statute expired. He must
be deemed, therefore, to have acquiesced in the date and the failure to do
anything about it. Likewise, he must bear the responsibility of having
the case dismissed.

(Exhibit at 16 (emphasis added).

But disturbingly, the true facts about what happened are worse than what the trial

judge was led to believe. During his deposition, Lloyd reluctantly admitted that he
actually tried to obtain second written stipulation in accordance with Section 583.330(a)

from Chevron extending the year trial deadline, but that he did not request it until after

the original extension had already expired on December 31, 2009 (Exhibit at 101

103). This proposed stipulation was signed by Lloyd and forwarded to Chevron on

January 11, 2010. (Exhibit 13) In it, Lloyd expressly acknowledges that, in the absence

of the proposed stipulation being executed by both parties, the year trial deadline had

already expired on December 31, 2009. Id This fatal fact was later confirmed by

Lloyd’s associate who testified that on or about January 14 or 15, 2010, Lloyd admitted

to him that he had missed the year trial deadline. (Exhibit 14 at 14 15).

The Alabama Lawsuit.

The Alabama Lawsuit, which was based on the same transactions and occurrences

as the California Lawsuit, involved separate statutory claims against Chevron under the

citizen’s suit provisions of the Resource Conservation and Recovery Act, 42 U.S.C.

6972(a)(1)(A) (B) (RCRA). (Exhibit at 1). It sought injunctive relief compelling

Chevron to among other things, clean up thousands of gallons of crude oil it illegally

buried at its former refinery and storage facility on Blakely Island in Mobile, Alabama.

Id. An internal memorandum dated March 25, 2009, from Lloyd to John O’Quinn

exposed Lloyd’s ulterior motive; that is, to exert settlement pressure on Chevron ahead of

the June 2009, trial setting in the California Lawsuit. (Exhibit 15).

It is almost unbelievable, but it turns out that Lloyd knowingly filed the Alabama

Lawsuit on behalf of the wrong party. As the Alabama federal judge noted, the question

of standing is determined at the time the lawsuit is filed and because of Lloyd’s mistake
the RCRA lawsuit was dismissed with prejudice. But the Alabama federal judge did not

stop there; she also awarded Chevron nearly $1 million in attorneys’ fees risk

associated with the Alabam Lawsuit that Lloyd failed to fully disclose. (Exhibit at

154 55).

The Settlement.

The collateral consequences of Lloyd’s decision to pursue statutory claims as

pressure tactic were far reaching. Lloyd clearly had not given much thought to th

consequence of his “strategic”decision and, truth be told, likely never believed that the

Alabama Lawsuit would ever reach disposition before the California Lawsuit. In any

event, followin the award of nearly $1 million in attorney’s fees and costs, hevron

threatened to pursue its claims for attorneys’fees and costs in California. This threat was

disclosed to Plaintiffs on October 12, 2010 (Exhibit 17), at which point Lloyd’s advice on

the subject was requested. Delay followed.

Finally, on December 6, 2010, Lloyd sent letter recommending that Gulf Coast

“enter into negotiations with Chevron on the basis that we are negotiating to

compromise of their attorneys’fees and not in anticipation of Chevron paying anything.”

(Exhibit 17). In the letter, Lloyd stated that appellate counsel in Alabama was “not

sanguine about the possibility of reversing [that] decision on appeal,”and that appellate

counsel in California was only willing to state there was “fighting chance”of getting

the dismissal eversed. Id. So, on the advice of Lloyd and in order to avoid being sued

for an estimated $10 million in attorney fees in California Gulf Coast was forced to

abandon the appeals in both California and Alabama in return for Chevron’s agreement to
(1) ccept reduced $500,000 payment from Gulf Coast in settlement of its award of

attorney fees in he Alabama Lawsuit, and (2) Chevron’s agreement to forego any

attempts to recover its attorney fees in the California Lawsuit estimated by Lloyd to be

between $8 10 million. (Exhibit 18).

Procedural Background.

It is still mind numbing that Gulf Coast is briefing petition for interlocutory

appeal rather than trying this case to the jury that was empanelled on October 16, 2013.

What changed? Judge eiman twice denied the relief that Defendants’sought to sanitize

Lloyd’s bad acts. He had allowed the case to be litigated, at great expense to both parties,

in manner consistent with that denial. He allowed 90 Harris County citizens to take

time from their lives to serve on jury panel. But something changed.

The day after the jury was empanelled and while the parties were still finishing up

arguing extensive pre trial motion filed (i.e., exhibits, motions in limine and

Daubert/Robinson motions), udge Weiman decided to declare that the California trial

judge got it wrong, and that Lloyd did comply with Section 583(b). This issue came up

without notice, and without pending motion before the court and it is disingenuous for

anyone to suggest otherwise. Gulf Coast predictably requested and was granted

mistrial.

Judge Weiman’s inexplicable decision to revisit motion that he had twice denied

represents blatant waste of judicial resources and the parties’time on money. He

originally denied Defendants’initial motion for partial summary judgment on February

11, 2013, presumably because he understood then that the question of breach in legal
malpractice case is one for the jury and not the court. Since then, experts were

designated that opine regarding Lloyd’s conduct and whether it met the applicable

standard of care; no testimony was elicited about whether Lloyd’s efforts in

recommending and orchestrating global settlement was negligent (the theory Judge

Weiman suggested in open court was better argument). The parties have also taken

twenty nine (29) depositions, which have all focused on Plaintiffs’claims that Lloyd was

negligent in allowing the California and Alabama Lawsuits to be dismissed, and not that

Lloyd gave bad settlement advice. Many of these will have to be retaken if Judge

Weiman’s ruling is allowed to stand.

ARGUMENT AND AUTHORITIES

The interlocutory appeal provided for under Section 51.014(d) of the Texas Civil

Practice and Remedies Code could serve no better purpose han to allow for the

resolution of the issues presented here. Indeed, this case presents this Court with

controlling and threshold issue of law; that is, whether the question of breach can be

decided as matter of law in legal malpractice case where the facts surrounding the

alleged breach are disputed. Both parties agreed to this interlocutory appeal.

1. The controlling issue of law.

The controlling issue of law presented is whether trial judge can resolve the

question of breach in legal malpractice case as matter of law where the facts

surrounding breach are hotly contested.

In Texas, it is well settled that the determination of breach is question of fact for

the jury. Millhouse v. Weisenthal 775 S.W.2d 626, 627 n.2 (Tex. 1989) (holding the
determination of negligence and damages are questions of fact for the jury); Welch v.

Heat Research Corp. 644 F.2d 487, 489 (5th Cir. 1981) (recognizing well settled law

that question of negligence is to be determined by jury). On the other hand, th Supreme

Court created limited exception in Millhouse that causation is question of law in

cases involving appellate malpractice. Defendants know this is not case of appellate

malpractice. And they know breach is quintessential question of fact.

Nevertheless, Defendants invited Judge Weiman to ignore the Supreme Court’s

directive in Millhouse and decide the element of breach as matter of law. In doing so,

Defendants made the judicial representation that if the appeal had been “allowed to run

ts course, the dismissal would have been reversed,” which Defendants contend

would “negate as matter of law any claim of malpractice against Lloyd or the O’Quinn

Law Firm. (Exhibit 19; EFENDANTS OHN M. O’QUINN AND SSOCIATES L.L.P. AND

USSELL T. LOYD OTION FOR ARTIAL UMMARY UDGMENT at 2, 16). In essence,

Judge Weiman at Defendants’ invitation is relying on the Millhouse causation

exception as authority for his decision to decide the question of breach as matter of law.

But Judge Weiman is simply wrong that breach is decision for him to make.

This is because the facts surrounding the breach are hotly contested and this case does not

involve appellate malpractice. So, any reliance on Millhouse as support for his decision

to resolve the question of breach is grossly misplaced. Indeed, if Judge Weiman’s

decision withstands appellate scrutiny it would effectively immunize attorneys in

ordinary legal malpracti

Case Info

Judge

LARRY WEIMAN Track Judge’s New Case

Case No.

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Document Filed Date

January 14, 2014

Case Filing Date

October 13, 2011

County

Parties

BREITBEIL, KENNETH R. Attorney for the Defendant
ED MATTINGLY & ASSOCIATES PLLC (A PROFESSIONAL LIMITED LIABILITY Registered Agent
ED MATTINGLY & ASSOCIATES PLLC (A PROFESSIONAL LIMITED LIABILITY Third Party Defendant
GULF COAST ASPHALT COMPANY L L C Plaintiff
HARRELL, DAVID E. Attorney
HUDGINS, DONALD M. Attorney for the Plaintiff
JOHN M O'QUINN AND ASSOCIATES L L P (N/K/A JOHN M O'QUINN AND Third Party Plaintiff
JOHN M O'QUINN & ASSOCIATES L L P Defendant
JOHN M O'QUINN & ASSOCIATES L L P Third Party Plaintiff
JOHN M O'QUINN & ASSOCIATES L L P (LIMITED LIABILITY PARTNERSHIP) BY Registered Agent
JOHN M O'QUINN & ASSOCIATES P L L C Defendant
JOHN M O'QUINN & ASSOCIATES P L L C BY SERVING ITS PRESIDENT T GERALD Registered Agent
LEVIN, ALAN F. Mediator
LINK, SCOTT R Attorney
LINK, SCOTT R Attorney for the Defendant
LLOYD, RUSSELL T Defendant
LLOYD, RUSSELL T Third Party Plaintiff
MATTINGLY, EDWARD A Third Party Defendant
MCFALL, DONALD B. Attorney
PHELAN, SHAWN W. Attorneys for Defendants
TRIFINERY INC Plaintiff
TUDZIN, ELLIS A Third Party Defendant
Sarah Menendez Attorney
David Louie Attorney
Spencer Edwards Attorney
Michael Hudgins Attorneys for Plaintiffs
Steven Hudgins Attorneys for Plaintiffs
Norma Bennett Attorney
William Moye Attorneys for Defendants
David Gunn Attorney
Constance Pfeiffer Attorney
Gretchen Sween Attorneys for Plaintiffs
David Louis Attorney

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Appellate Materials: GULF COAST ASPHALT COMPANY L L C vs. LLOYD, RUSSELL T

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