Preview
EXHIBIT
663”
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CAUSE NO. 2010-63264
ENCORE BANK 8 IN THE DISTRICT COURT OF
§
VS. § HARRIS COUNTY, TEXAS
ALLEN L. BERRY; JOSEPH D. McCORD, §
and ROBERT G. TAYLOR, § 152"4 FUDECIAL DISTRICT
STATE OF TEXAS §
COUNTY OF HARRIS §
AFFIDAVIT OF DAVID C. REDFORD
Before me the undersigned notary, on this day personally appeared David R.
Blancett the affiant, a person whose identity is known to me. After I administered an
oath to affiant, affiant testified:
“My name is David C. Redford, 1 am over 18 years of age, of sound mind, and capable
of making this affidavit. I have never been convicted of a felony or a crime involving
moral turpitude. I have personal knowledge of the facts stated in this affidavit. The facts
stated within this affidavit are true and correct.
I graduated from Texas Christian University, with a Bachelor of Arts degrec and earned
Juris Doctor from the University of Texas School of Law in 1964. Maritime Law has
been part of my practice since 1966 when I joined Royston, Rayzor, Vickery & Williams.
I have been a member of the Maritime Law Association of the United States. In 1972 T
taught the admiralty course at South Texas Law School.
I was admitted to the State Bar of Texas in 1964 and am a Member in Good Standing. I
have also been admitted to practice before the United States Supreme Court, United
States Court of Appeals for the Fifth Circuit and the United States District Courts fer the
Northern, Southern, Eastern and Western Districts of Texas.
in formulating my opinions | have relied upen my education, training, and experience
and upon the information and materials I have reviewed. My opinions are also based on
my review of relevant literature, texts, statutes, regulations, guidelines, and/or
authoritative materials over the course of my career. [ am familiar with what constitutes
reasonable and necessary atlorney’s fees in cases such as those at issue in this matter. My
education, training, and experience has provided me with the basis to provide the
opinions which | express in this affidavit.
For purposes of this affidavit, the following definitions shall apply:
“Galveston Lawsuit” shall mean Cause No. 08-CV-0445; BLynn H Holding, LLC
v, Horizon Shipbuilding. Inc., Travis Short, Breathwit Marine Shi ard, Inc., and
EXHIBIT
1762.
08/30/2013 04:37:57 PM 713-755-1451 Page 3/6
Overing Yacht Designs, LLC; in the 152™ District Cot of Galveston County,
Texas and shall include any court to which this case was removed, consolidated,
or appealed.
“Alabama Lawsuit” shall mean Cause No. 08-334-WS-C; Horizon Shipbuilding,
Inc. v, BLyn I Hoiding, Inc.; in the United States Disirict Court for the Southern
District of Alabama, and shall include any court to which this case was removed
or consolidated, and any court of appeals to which the case was appealed.
“Corpus Christi Bankruptey Lawsuit’ shall mean Cause Nos. 10-62061, 10-
20642, 10-02057; bankruptcy proceedings of BLyn H Holding, LLC; the U.S.
Bankruptcy Court, Southern District of Texas (Corpus Christi), and shall include
any court to which this case was removed, consolidated, or appealed.
“Houston Lawsuit” shall mean Cause No. 4:1 1-ev-00513, Crimson Yachis v. Betty
i3n If Motor Yacht ef al; in the U.S, District Court, Southern District of Texas
(Houston}, and shall include any court to which this case was removed,
consolidated, or appcaicd.,
I have received and/or reviewed the depositions of James Flynn, John Lingor, Preston
Moore, James D’Agostino, David Webster with exhibits and Chuck Jenness. My review
of documents includes, but is not limited to Plaintiff's Petitions and Motions for
Summary Judgment in this lawsuit, certain pleadings from this matier and the Alabama
Lawsuit and the Bankruptcy Lawsuit, Findings of Fact and Conclusions of Law issued by
the United States Bankruptey Court for the Southern District of Texas, Corpus Christi
Division's, an order denying Encore Bank’s motion for summary judgment issued by the
United States District Court for the Souther District of Alabama, the Bankruptcy Ceurt’s
Final Judgment, as well as the invoices from Plaintiff's counsel from Bracewell &
Giuliani, LLP, Phelps Dunbar, LLP, Vinson & Elkins, LLP, Lyons, Pipes & Cook, PC,
and Dobrowski, Larkin & Johnson, LLP. | have also examined Exhibits B, C, D and E of
Plaintiff's Motion for Summary Judgment in this case,
Plaintiff's pleadings in the Alabama Lawsuit and Corpus Christi Bankruptcy Lawsuit
reflect that the primary issue in that litigation with respect te Encore Bank was whether
the bank’s First Preferred Ship Mortgage (*FPSM”) or the shipyard’s maritime lien
would have priority over the vessel. According to the briefings and legal authorities cited
in Crimson Yachts’ and Encore Bank’s pleadings in the Alabama Lawsuit and Corpus
Christi Bankruptcy Lawsuit, the Findings of Fact and Conclusions of Law and orders
issues by the Bankrupicy Court and U.S. District Court in Alabama, and in my
experience and briefing. it appears that the issues of maritime law and lien priority
relevant to this matter are well established. The determination of lien priority is a matter
which is readily determined by review of whether the shipyard began work prior to the
execution of the First Preferred Ship Mortgage’s filing with the U.S. Coast Guard.
08/30/2013 04:37:57 PM 713-755-1451 Page 4/6
As is reflected in Encore Bank’s pleadings in the Alabama Lawsuit and Corpus Christi
Bankruptcy Lawsuit, and in documents produced by the parties in this instant litigation
Plaintiff was aware that the vessel was in the shipyard and work was ongoing prior to the
date the First Preferred Ship Mortgage was executed on March 28, 2007 and prior to its
filing on June 11, 2007. As such, the pursuit of Plaintiffs claims under the FPSM was
unnecessary and unreasonable because the shipyard had a preferred maritime lien which
existed as of 2006, and this lien primed the FPSM.
Rather than conceding its second lien to the shipyard when joined in the Alabama
Lawsuit, Plaintiff made the tactical decision to vigorously defend the FPSM in the
Alabama Lawsuit, Houston Lawsuit, Galveston Lawsuit, and the Corpus Christi
Bankruptey Lawsuit by asserting lien priority when none existed. The Alabama Lawsuit,
Houston Lawsuit, and Galveston Lawsuit were eventually consolidated into the Corpus
Christi Bankruptcy Lawsuit. Plaintiff did not assert any claims, defenses, or other legal
contentions thal were warranted by existing law and did not offer a viable argument for
extending. modifying, or reversing existing law or for establishing new law. This was
not prudent or reasonable. The attorney’s fees incurred by Plaintiff in the Alabama
Lawsuit, Galvesion Lawsuit, Houston Lawsuit, and Corpus Christi Bankruptcy Lawsuit
were not reasonable or necessary.
Further Affiant Sayeth Not.
fu C
DAVID C. REDFORD
G
- Then
SWORN to and SUBSCRIBED before me, the undersigned authority, on ther) day of
August, 2013 by David C. Redford.
$e Sih
wi
ry Ol
Notary Public, State of Texas
he
ef, KRISTINA RICE BURKE
Fe) Notary Publis, State of Texas
@oh
ip
hi
My Commission Expires 10-30-2015, |
Seoee ASSSISSATSISSSSESI
08/30/2013 04:37:57 PM 713-755-1451 Page 5/6
if
uo
i
David C. Redford
M Counsel, Hotston
1177 West Loop South, 10th Floor
Houston, Texas 77027
P: 713.629.1580
Fi 713.629.5027
E: dredford@brownsims.corn
Areas Of Lexpertise
« Persona! Injury/Death
+ Maritime
+ Medical Malpractice
+ Professional Malpractice
¢ Toxic Tort
+ Commercial & Securities
® Construction
. Employment
° Family
* Probate
Most attorneys settle far more cases than they take fo court. The high cost of litigation, in time, energy
and actual expense, compels many parties into compromise.
David Redford knows all the reasons settlement is so important. Whether he is litigating a case or acting
as a mediator or arbitrator, he works to bring peaple together and move forward. But he has tried many
08/30/2013 04:37:57 PM 713-755-1451 Page 6/6
types of cases and knows the only way to successfully resolve a case is to have the reputation of being
effective and ready ta take a case to trial.
“| have many years of experience in a wide range of legal areas, acting as an advocate at times and a
third-party neutral at athers,” he says. “Dispute resolution requires some qualities that are different from
a litigator, but experience is a plus in hath.”
Mr. Redford has hanced litigation fora pipeline contracting company for the past 30 years. He advises
an international chemical trading company on commercial contracts. In the past year, he successfully
reclaimed a living trust for the beneficiary after a trustee depleted it.
He also represented a Polish company that purchased defective geophysical equipment from an
Oklahoma firm and was able to negotiate a resolution to the dispute without litigation
Mr, Redford is a graduate of Texas Christian University, with a Bachelor of Arts degree in 1962. He
eamed his Juris Doctor from the University of Texas School of Law. He received mediator training at the
Attorney-Mediator Institute and the Dispute Resolution Center and is certified by the Association of
Attorney Mediators, the Dispute Resolution Center and the Houston Maritime Arbitrater's Association.
Education
Dispute Resolution Center 2002
Mediator Training at Attorney — Mediator Institute 1991-1983 (Basic & Advanced)
University of Texas Law School, J.D. 1964
Texas Christian University, B.A., 1962
Certifications
Mediator certified by Assaciation of Attorney Mediators and Dispute Resolution Center, Hauston
Maritime Arbitrator's Association
Admissions
Admitted to bar: 1964, Texas; United States Supreme Court, United States Court of Appeals for the Fifth
Circuit; United States District Court, Northern, Southern, Eastern and Western Districts of Texas
Memberships & Services
Adjunct Professor, Admiralty, South Texas Law School (1972); President, Houston Young Lawyers
(1972), Chairman of several Houston Bar Association committeas.
rown Sines + Housten « New Orleans + Miami + Dis AUTO!
Preview
EXHIBIT 663” 08/30/2013 04:37:57 PM 713-755-1451 Page 2/6 CAUSE NO. 2010-63264 ENCORE BANK 8 IN THE DISTRICT COURT OF § VS. § HARRIS COUNTY, TEXAS ALLEN L. BERRY; JOSEPH D. McCORD, § and ROBERT G. TAYLOR, § 152"4 FUDECIAL DISTRICT STATE OF TEXAS § COUNTY OF HARRIS § AFFIDAVIT OF DAVID C. REDFORD Before me the undersigned notary, on this day personally appeared David R. Blancett the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified: “My name is David C. Redford, 1 am over 18 years of age, of sound mind, and capable of making this affidavit. I have never been convicted of a felony or a crime involving moral turpitude. I have personal knowledge of the facts stated in this affidavit. The facts stated within this affidavit are true and correct. I graduated from Texas Christian University, with a Bachelor of Arts degrec and earned Juris Doctor from the University of Texas School of Law in 1964. Maritime Law has been part of my practice since 1966 when I joined Royston, Rayzor, Vickery & Williams. I have been a member of the Maritime Law Association of the United States. In 1972 T taught the admiralty course at South Texas Law School. I was admitted to the State Bar of Texas in 1964 and am a Member in Good Standing. I have also been admitted to practice before the United States Supreme Court, United States Court of Appeals for the Fifth Circuit and the United States District Courts fer the Northern, Southern, Eastern and Western Districts of Texas. in formulating my opinions | have relied upen my education, training, and experience and upon the information and materials I have reviewed. My opinions are also based on my review of relevant literature, texts, statutes, regulations, guidelines, and/or authoritative materials over the course of my career. [ am familiar with what constitutes reasonable and necessary atlorney’s fees in cases such as those at issue in this matter. My education, training, and experience has provided me with the basis to provide the opinions which | express in this affidavit. For purposes of this affidavit, the following definitions shall apply: “Galveston Lawsuit” shall mean Cause No. 08-CV-0445; BLynn H Holding, LLC v, Horizon Shipbuilding. Inc., Travis Short, Breathwit Marine Shi ard, Inc., and EXHIBIT 1762. 08/30/2013 04:37:57 PM 713-755-1451 Page 3/6 Overing Yacht Designs, LLC; in the 152™ District Cot of Galveston County, Texas and shall include any court to which this case was removed, consolidated, or appealed. “Alabama Lawsuit” shall mean Cause No. 08-334-WS-C; Horizon Shipbuilding, Inc. v, BLyn I Hoiding, Inc.; in the United States Disirict Court for the Southern District of Alabama, and shall include any court to which this case was removed or consolidated, and any court of appeals to which the case was appealed. “Corpus Christi Bankruptey Lawsuit’ shall mean Cause Nos. 10-62061, 10- 20642, 10-02057; bankruptcy proceedings of BLyn H Holding, LLC; the U.S. Bankruptcy Court, Southern District of Texas (Corpus Christi), and shall include any court to which this case was removed, consolidated, or appealed. “Houston Lawsuit” shall mean Cause No. 4:1 1-ev-00513, Crimson Yachis v. Betty i3n If Motor Yacht ef al; in the U.S, District Court, Southern District of Texas (Houston}, and shall include any court to which this case was removed, consolidated, or appcaicd., I have received and/or reviewed the depositions of James Flynn, John Lingor, Preston Moore, James D’Agostino, David Webster with exhibits and Chuck Jenness. My review of documents includes, but is not limited to Plaintiff's Petitions and Motions for Summary Judgment in this lawsuit, certain pleadings from this matier and the Alabama Lawsuit and the Bankruptcy Lawsuit, Findings of Fact and Conclusions of Law issued by the United States Bankruptey Court for the Southern District of Texas, Corpus Christi Division's, an order denying Encore Bank’s motion for summary judgment issued by the United States District Court for the Souther District of Alabama, the Bankruptcy Ceurt’s Final Judgment, as well as the invoices from Plaintiff's counsel from Bracewell & Giuliani, LLP, Phelps Dunbar, LLP, Vinson & Elkins, LLP, Lyons, Pipes & Cook, PC, and Dobrowski, Larkin & Johnson, LLP. | have also examined Exhibits B, C, D and E of Plaintiff's Motion for Summary Judgment in this case, Plaintiff's pleadings in the Alabama Lawsuit and Corpus Christi Bankruptcy Lawsuit reflect that the primary issue in that litigation with respect te Encore Bank was whether the bank’s First Preferred Ship Mortgage (*FPSM”) or the shipyard’s maritime lien would have priority over the vessel. According to the briefings and legal authorities cited in Crimson Yachts’ and Encore Bank’s pleadings in the Alabama Lawsuit and Corpus Christi Bankruptcy Lawsuit, the Findings of Fact and Conclusions of Law and orders issues by the Bankrupicy Court and U.S. District Court in Alabama, and in my experience and briefing. it appears that the issues of maritime law and lien priority relevant to this matter are well established. The determination of lien priority is a matter which is readily determined by review of whether the shipyard began work prior to the execution of the First Preferred Ship Mortgage’s filing with the U.S. Coast Guard. 08/30/2013 04:37:57 PM 713-755-1451 Page 4/6 As is reflected in Encore Bank’s pleadings in the Alabama Lawsuit and Corpus Christi Bankruptcy Lawsuit, and in documents produced by the parties in this instant litigation Plaintiff was aware that the vessel was in the shipyard and work was ongoing prior to the date the First Preferred Ship Mortgage was executed on March 28, 2007 and prior to its filing on June 11, 2007. As such, the pursuit of Plaintiffs claims under the FPSM was unnecessary and unreasonable because the shipyard had a preferred maritime lien which existed as of 2006, and this lien primed the FPSM. Rather than conceding its second lien to the shipyard when joined in the Alabama Lawsuit, Plaintiff made the tactical decision to vigorously defend the FPSM in the Alabama Lawsuit, Houston Lawsuit, Galveston Lawsuit, and the Corpus Christi Bankruptey Lawsuit by asserting lien priority when none existed. The Alabama Lawsuit, Houston Lawsuit, and Galveston Lawsuit were eventually consolidated into the Corpus Christi Bankruptcy Lawsuit. Plaintiff did not assert any claims, defenses, or other legal contentions thal were warranted by existing law and did not offer a viable argument for extending. modifying, or reversing existing law or for establishing new law. This was not prudent or reasonable. The attorney’s fees incurred by Plaintiff in the Alabama Lawsuit, Galvesion Lawsuit, Houston Lawsuit, and Corpus Christi Bankruptcy Lawsuit were not reasonable or necessary. Further Affiant Sayeth Not. fu C DAVID C. REDFORD G - Then SWORN to and SUBSCRIBED before me, the undersigned authority, on ther) day of August, 2013 by David C. Redford. $e Sih wi ry Ol Notary Public, State of Texas he ef, KRISTINA RICE BURKE Fe) Notary Publis, State of Texas @oh ip hi My Commission Expires 10-30-2015, | Seoee ASSSISSATSISSSSESI 08/30/2013 04:37:57 PM 713-755-1451 Page 5/6 if uo i David C. Redford M Counsel, Hotston 1177 West Loop South, 10th Floor Houston, Texas 77027 P: 713.629.1580 Fi 713.629.5027 E: dredford@brownsims.corn Areas Of Lexpertise « Persona! Injury/Death + Maritime + Medical Malpractice + Professional Malpractice ¢ Toxic Tort + Commercial & Securities ® Construction . Employment ° Family * Probate Most attorneys settle far more cases than they take fo court. The high cost of litigation, in time, energy and actual expense, compels many parties into compromise. David Redford knows all the reasons settlement is so important. Whether he is litigating a case or acting as a mediator or arbitrator, he works to bring peaple together and move forward. But he has tried many 08/30/2013 04:37:57 PM 713-755-1451 Page 6/6 types of cases and knows the only way to successfully resolve a case is to have the reputation of being effective and ready ta take a case to trial. “| have many years of experience in a wide range of legal areas, acting as an advocate at times and a third-party neutral at athers,” he says. “Dispute resolution requires some qualities that are different from a litigator, but experience is a plus in hath.” Mr. Redford has hanced litigation fora pipeline contracting company for the past 30 years. He advises an international chemical trading company on commercial contracts. In the past year, he successfully reclaimed a living trust for the beneficiary after a trustee depleted it. He also represented a Polish company that purchased defective geophysical equipment from an Oklahoma firm and was able to negotiate a resolution to the dispute without litigation Mr, Redford is a graduate of Texas Christian University, with a Bachelor of Arts degree in 1962. He eamed his Juris Doctor from the University of Texas School of Law. He received mediator training at the Attorney-Mediator Institute and the Dispute Resolution Center and is certified by the Association of Attorney Mediators, the Dispute Resolution Center and the Houston Maritime Arbitrater's Association. Education Dispute Resolution Center 2002 Mediator Training at Attorney — Mediator Institute 1991-1983 (Basic & Advanced) University of Texas Law School, J.D. 1964 Texas Christian University, B.A., 1962 Certifications Mediator certified by Assaciation of Attorney Mediators and Dispute Resolution Center, Hauston Maritime Arbitrator's Association Admissions Admitted to bar: 1964, Texas; United States Supreme Court, United States Court of Appeals for the Fifth Circuit; United States District Court, Northern, Southern, Eastern and Western Districts of Texas Memberships & Services Adjunct Professor, Admiralty, South Texas Law School (1972); President, Houston Young Lawyers (1972), Chairman of several Houston Bar Association committeas. rown Sines + Housten « New Orleans + Miami + Dis AUTO!