William T. Dickson v. BNSF Railway Company and Fellers Snider Blakenship Bailey & Tippens, P.C.
05-14-01575-CV
| Tex. App. | Nov 6, 2015Background
- Dickson represented Willis (B. Willis, C.P.A., Inc.) on a contingency-fee basis (one-third) in prolonged state and federal litigation over a condemned easement used by PSO and operated by BNSF.
- Willis lost substantial litigation: state courts upheld the condemnation and possession; federal courts dismissed or held Willis’s claims precluded; sanctions were entered against Dickson for unreasonable litigation conduct.
- While appeals and post-judgment proceedings were pending, Willis (with substitute counsel) reached a settlement with PSO and BNSF that resolved claims and foreclosed fees; Dickson claims settlement deprived him of his perfected attorney’s lien and contingency fee.
- Dickson sued in Texas alleging violations of Oklahoma statutes, tortious interference with contract, interference with prospective economic advantage, fraud, and a statutory claim for settlement in breach of Oklahoma law.
- The trial court granted summary judgment for BNSF and Fellers Snider; Dickson appealed arguing the court erred in denying a continuance for discovery, striking his evidence, and granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because material fact issues existed (representation, withdrawal, timing of settlement) | Dickson: disputed facts (who negotiated, whether he withdrew, when settlement occurred) preclude summary judgment. | BNSF/Fellers Snider: federal and state judgments preclude recovery; Willis had no recoverable sum, so Dickson has no damages. | Held: Affirmed summary judgment. Preclusion and privity (Dickson in privity with Willis) mean Willis had no recoverable funds; Dickson cannot prove damages. |
| Whether Dickson can recover under Oklahoma statute for settlement made without attorney consent (attorney’s lien) | Dickson: settlement without his consent entitles him to fee (statutory remedy/prima facie case). | Defendants: prior judgments and lack of recoverable recovery defeat damages; even a settlement rule is rebuttable and requires proof of probable recovery. | Held: Even assuming statutory theory, executive effect of prior judgments means no sums existed to which contingency fee would attach; damages not shown. |
| Whether denial of continuance to complete discovery was an abuse of discretion | Dickson: new email disclosures required more discovery; denial prevented adequate response. | Defendants: case pending >2 years; Dickson failed to show diligence or how additional discovery would change preclusion/damages outcome. | Held: No abuse of discretion; continuance not warranted. |
| Whether striking portions of Dickson’s evidence and objections to his affidavit was reversible error | Dickson: local rules required chance to cure and court erred in striking evidence. | Defendants: even considering Dickson’s affidavit and produced emails, preclusion/doctrine of res judicata forecloses recovery. | Held: Any error harmless; court’s rulings on summary judgment stand. |
Key Cases Cited
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (standard for no-evidence summary judgment)
- Taylor v. Sturgell, 553 U.S. 880 (2008) (overview of claim and issue preclusion/res judicata)
- Deposit Bank of Frankfurt v. Board of Councilmen, 191 U.S. 499 (1903) (pendency of appeal does not defeat finality/preclusive effect of trial court judgment)
- Miller v. Dyess, 151 S.W.2d 186 (Tex. 1941) (attorney with contingent interest bound by client’s adverse judgment via privity)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (standards for reviewing denial of continuance for discovery)
- Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) (damages element for fraud claims)
- B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282 (10th Cir. 2008) (preclusive effect of state-court judgments discussed on appeal)
- Weinberger v. Tucker, 510 F.3d 486 (4th Cir. 2007) (circumstances where attorney-client relationship establishes privity)
- Dodge v. Cotter Corp., 203 F.3d 1190 (10th Cir. 2000) (federal law governs preclusive effect of prior federal judgments)