On December 27, 2006 a
Motion,Ex Parte
was filed
involving a dispute between
Carlton Energy Group Llc,
and
A&B Capital Corporation,
Basic Capital Management Inc,
Cabeltel International Corporation,
Envicon Development Corp,
Eurenergy Resources Corporation,
Eurenergy Texas L L C,
May Trust,
Natron Investments Inc,
O S Holdings Inc,
Phillips, Gene E,
Phillips Oil Interests L L C,
Southmark Corporation,
Syntek West Inc,
Trust For The Benefit Of The Children Of Gene E Phillips,
for BREACH OF CONTRACT
in the District Court of Harris County.
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CAUSE NO. 2006-80212
PA
CARLTON ENERGY GROUP, LLC § IN THE DISTRICT COURT OF
Plaintiff,
vs. HARRIS COUNTY, TEXAS
PHILLIPS OIL INTEREST, L.L.C.,
ETAL. 4 FIOre!L
Nn Jackson
Defendants JUDICIAL DISTRI! I$trict Clerk
MOTION FOR MISTRIAL Time:
APR 11709
TO THE HONORABLE JUDGE OF SAID COURT: oy Rg
eputy
COMES now Gene E. Phillips, Individually and d/b/a Phillips Oil Interests, L.L.C.,
Syntek West, Inc., and EurEnergy Resources Corporation, and CabelTel International
Corporation, Defendants in the above-referenced matter, make this motion that the Court
order a mistrial in this cause and in support thereof would show:
l
The Plaintiff contended to the jury that the fair market value of its interest in the
project was $31,160,000 (Closing Arg. at 52 attached hereto and incorporated herein by
reference as Exhibit A) and requested that the jury so answer Questions Nos. 6 and 12.
Nonetheless, the jury found in its answers to Questions No. 6 and 12 that the fair market
value, if any, of Carlton Energy Group's interest in the project, if any, was $66,500,000. In
short, the jury found that Carlton Energy Group’s interest was worth $35,340,000 more
than Carlton Energy Group itself claimed and that the value of its interest was identical at
both times.
MOTION FOR MISTRIAL - Page 1
i.
The jury's answer can be attributed to one of only two alternatives:
4
Despite the Court's instructions, the jury included exemplary damages in its
award in order to punish EurEnergy and Gene Phillips; or
The jury became confused and gave a quotient verdict based upon Mr.
Huddleston’s minimum and maximum valuations of the entire project. Mr.
Huddleston testified that his calculations were based upon 100% of the
project. (See excerpt from Trial Testimony of Peter Huddleston attached
hereto as Exhibit B at 6.) He further testified that his maximum calculation
was about $100 million dollars and midpoint of his minimum calculation was
$33 million. (Ex. B at pp. 9-11.) The average those two amounts ($100
million plus $33 million divided by 2) is $66,500,000. However, Carlton
Energy Group itself only claimed 38% of the entire project. (Exhibit A at 52.)
Thus, its damages, as a matter of law, cannot exceed 38% of the value of
the entire project.
I.
The Court is limited in its ability to determine which of these two scenarios was the
cause of the jury’s answers to Questions Nos. 6 and 12. See Tex.R. Ev. 606(b). The Court
has already accepted this portion of the jury's verdict. The Court therefore cannot have the
jury redo its answers. Moreover, the exemplary damages must relate to the compensatory
damages. The jury's award of the grossly excessive compensatory damages therefore
impacts the amount of exemplary damages. Due to the above-described impropreties, the
MOTION FOR MISTRIAL - Page 2
tights of the Defendants have been prejudiced to the extent that a proper verdict and
judgment is not possible and the above-described impropriety cannot be effectively cured
by admonishment or instruction to the jury.
WHEREFORE, Defendants request that the Court order mistrial in the above
entitled and numbered cause, and make such other orders as the Court deems fair and
just.
Respectfully submitted,
mf , (
bay reer
Mitchell Madden
State Bar No. 12783950
MaddenSewell, LLP
1755 Wittington Place, Suite 300
Dallas, Texas 75234
(972) 484-7780
(972) 484-7743 Facsimile
a
aK
Peter M. Kelly
State Bar No. 00791011
Law Office of Peter M. Kelly, P.C.
1005 Heights Boulevard
Houston, Texas 77008
(713) 529-0048
(713) 529-2498 Facsimile
ATTORNEY FOR DEFENDANTS GENE E.
PHILLIPS, INDIVIDUALLY AND D/B/A PHILLIPS
OIL INTEREST, LLC, AND SYNTEK WEST,
INC.
MOTION FOR MISTRIAL - Page 3
State Bar No. 20419200 #4 fe
Uzick & Oncken, P.C.
238 Westcott
Houston, Texas 77007
(713) 869-2900
(713) 869-6699 facsimile
ATTORNEY FOR DEFENDANTS
EURENERGY RESOURCES CORPORATION
AND CABELTEL INTERNATIONAL
CORPORATION
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been
served upon all counsel of record via facsimile this day of April VY _, 2009.
-
At
Peter M. Kelly
MOTION FOR MISTRIAL - Page 4
Preview
CAUSE NO. 2006-80212 PA CARLTON ENERGY GROUP, LLC § IN THE DISTRICT COURT OF Plaintiff, vs. HARRIS COUNTY, TEXAS PHILLIPS OIL INTEREST, L.L.C., ETAL. 4 FIOre!L Nn Jackson Defendants JUDICIAL DISTRI! I$trict Clerk MOTION FOR MISTRIAL Time: APR 11709 TO THE HONORABLE JUDGE OF SAID COURT: oy Rg eputy COMES now Gene E. Phillips, Individually and d/b/a Phillips Oil Interests, L.L.C., Syntek West, Inc., and EurEnergy Resources Corporation, and CabelTel International Corporation, Defendants in the above-referenced matter, make this motion that the Court order a mistrial in this cause and in support thereof would show: l The Plaintiff contended to the jury that the fair market value of its interest in the project was $31,160,000 (Closing Arg. at 52 attached hereto and incorporated herein by reference as Exhibit A) and requested that the jury so answer Questions Nos. 6 and 12. Nonetheless, the jury found in its answers to Questions No. 6 and 12 that the fair market value, if any, of Carlton Energy Group's interest in the project, if any, was $66,500,000. In short, the jury found that Carlton Energy Group’s interest was worth $35,340,000 more than Carlton Energy Group itself claimed and that the value of its interest was identical at both times. MOTION FOR MISTRIAL - Page 1 i. The jury's answer can be attributed to one of only two alternatives: 4 Despite the Court's instructions, the jury included exemplary damages in its award in order to punish EurEnergy and Gene Phillips; or The jury became confused and gave a quotient verdict based upon Mr. Huddleston’s minimum and maximum valuations of the entire project. Mr. Huddleston testified that his calculations were based upon 100% of the project. (See excerpt from Trial Testimony of Peter Huddleston attached hereto as Exhibit B at 6.) He further testified that his maximum calculation was about $100 million dollars and midpoint of his minimum calculation was $33 million. (Ex. B at pp. 9-11.) The average those two amounts ($100 million plus $33 million divided by 2) is $66,500,000. However, Carlton Energy Group itself only claimed 38% of the entire project. (Exhibit A at 52.) Thus, its damages, as a matter of law, cannot exceed 38% of the value of the entire project. I. The Court is limited in its ability to determine which of these two scenarios was the cause of the jury’s answers to Questions Nos. 6 and 12. See Tex.R. Ev. 606(b). The Court has already accepted this portion of the jury's verdict. The Court therefore cannot have the jury redo its answers. Moreover, the exemplary damages must relate to the compensatory damages. The jury's award of the grossly excessive compensatory damages therefore impacts the amount of exemplary damages. Due to the above-described impropreties, the MOTION FOR MISTRIAL - Page 2 tights of the Defendants have been prejudiced to the extent that a proper verdict and judgment is not possible and the above-described impropriety cannot be effectively cured by admonishment or instruction to the jury. WHEREFORE, Defendants request that the Court order mistrial in the above entitled and numbered cause, and make such other orders as the Court deems fair and just. Respectfully submitted, mf , ( bay reer Mitchell Madden State Bar No. 12783950 MaddenSewell, LLP 1755 Wittington Place, Suite 300 Dallas, Texas 75234 (972) 484-7780 (972) 484-7743 Facsimile a aK Peter M. Kelly State Bar No. 00791011 Law Office of Peter M. Kelly, P.C. 1005 Heights Boulevard Houston, Texas 77008 (713) 529-0048 (713) 529-2498 Facsimile ATTORNEY FOR DEFENDANTS GENE E. PHILLIPS, INDIVIDUALLY AND D/B/A PHILLIPS OIL INTEREST, LLC, AND SYNTEK WEST, INC. MOTION FOR MISTRIAL - Page 3 State Bar No. 20419200 #4 fe Uzick & Oncken, P.C. 238 Westcott Houston, Texas 77007 (713) 869-2900 (713) 869-6699 facsimile ATTORNEY FOR DEFENDANTS EURENERGY RESOURCES CORPORATION AND CABELTEL INTERNATIONAL CORPORATION CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served upon all counsel of record via facsimile this day of April VY _, 2009. - At Peter M. Kelly MOTION FOR MISTRIAL - Page 4