CB Legal Search, L.L.C. v. Lewis Brisbois Bisgaard & Smith, L.L.P. ( 2011 )

Case: 11-20127 Document: 00511604595 Page: 1 Date Filed: 09/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2011
No. 11-20127 Lyle W. Cayce
Summary Calendar Clerk
CB LEGAL SEARCH, L..L.C.,
Plaintiff–Appellee
v.
LEWIS BRISBOIS BISGAARD AND SMITH, L.L.P.,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-03130
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Lewis Brisbois Bisgaard and Smith (“LBBS”), a law firm, appeals the
district court’s judgment against it in a suit brought by CB Legal Search (“CB
Legal”), a legal recruiter, for recovery of finder’s fees. LBBS bases this appeal
on the district court’s improper finding of facts and conclusions of law drawn
from those facts. Because we find that the district court did not commit
reversible error, we AFFIRM the district court’s judgement against LBBS.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-20127 Document: 00511604595 Page: 2 Date Filed: 09/16/2011
No. 11-20127
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of a series of conversations between attorneys at
Bolinger, Ruberry & Garvey (“BRG”) and attorneys at LBBS regarding an LBBS
acquisition of BRG attorneys. In Februrary 2006, Esquire, Inc., a legal recruiter
not involved in this action, introduced two BRG partners—Jeffrey Goldwater
and George Manos—to LBBS. Goldwater and Manos had expressed interest to
Esquire in making the lateral move to LBBS. Negotiations commenced between
Goldwater and Manos on the one hand and Robert Lewis and Danny Worker of
LBBS on the other. During this period, Esquire provided LBBS with
information about Goldwater and Manos, including billing information, client
data, and other associates who might make the move to LBBS along with
Goldwater and Manos. In October 2006, LBBS offered employment to
Goldwater, Manos, and affiliated associates, who declined. In spite of this, the
“door was left open” for future negotiations as to Goldwater and Manos joining
LBBS. Throughout 2007 and 2008, no formal negotiations took place between
Goldwater and Manos and LBBS, but Manos and Worker stayed in touch. The
conversations between Worker and Manos were mostly social in nature though
they did sometimes discuss business.
In 2009, Elizabeth Turpin, CB Legal’s Chicago recruiter, contacted Ed
Ruberry of BRG to discuss the possibility of him and other BRG attorneys
joining LBBS. Ruberry told Turpin that the group of attorneys he wished to
move with included himself, Goldwater, Manos, and some associates. In
February 2009, Turpin contacted LBBS about Ruberry’s group, and LBBS
expressed interest in having them join LBBS. Around the same time, Worker
reached out to Manos in hopes of “rekindl[ing]” the dialogue of Goldwater and
Manos coming to work at LBBS.
Turpin, on February 26, 2009, emailed Les Sullivan of LBBS Ruberry’s
biographical and billing information. This email also specifically mentioned that
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No. 11-20127
Goldwater, and alluded that Manos, would be a part of the group looking to move
to LBBS. On March 2, 2009, Sullivan and Turpin arranged a meeting between
Ruberry and LBBS. Worker and Manos had a phone conversation on March 3,
2009, discussing the possibility of Goldwater and Manos joining LBBS. On
March 12, 2009, Ruberry met with four LBBS partners at which time it was
confirmed that Goldwater and Manos would be part of the group coming over to
LBBS from BRG. At this meeting, LBBS requested additional information about
the attorneys who would be joining Ruberry in the move. Turpin sent LBBS this
information, including billing and client data on Goldwater and Manos, on
March 18, 2009. The next day, CB Legal sent LBBS its form fee agreement
detailing the fees owed to CB Legal if LBBS decided to hire the Ruberry group.
On April 14, 2009, LBBS informed CB Legal that it had chosen not to hire
the Ruberry group. Between March 3 and April 14, 2009, Goldwater and Manos
continued to negotiate their own transfer to LBBS without Ruberry. On April
15, LBBS and Goldwater and Manos agreed to maintain confidentiality about
the negotiations for Goldwater and Manos to join LBBS. Then, in July 2009,
LBBS announced its acquisition of ten members of the Ruberry group, including
Goldwater and Manos. CB Legal demanded its finder’s fee from LBBS, but
LBBS refused.
CB Legal filed suit in the Southern District of Texas to recover those fees
from LBBS. Both parties consented to proceed before a magistrate judge, who
conducted a bench trial. On February 9, 2011, the magistrate judge filed an
order finding for CB Legal on the basis of quantum meruit and entered a
judgement against LBBS, which LBBS appealed.
II. STANDARD OF REVIEW
“The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Kona
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Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000). We will
only reverse based on clear error if:
(1) the [district court’s] findings are without substantial evidence to
support them, (2) the court misapprehended the effect of the
evidence, and (3) although there is evidence which if credible would
be substantial, the force and effect of the testimony, considered as
a whole, convinces the court that the findings are so against the
preponderance of credible testimony that they do not reflect or
represent the truth and right of the case.
World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752
(5th Cir. 2009) (citations omitted). For example, “[w]here there are two
permissible views of the evidence, the factfinder's choice between them cannot
be clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985).
Embodied in this standard is significant deference to the district court. This
deference is even greater when the factual findings are “based on the credibility
of witnesses.” Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 970
(5th Cir. 2001) (citing FED. R. CIV. P. 52(a)[(6)]; Anderson, 470 U.S. at 575).
III. DISCUSSION
LBBS argues that CB Legal was not the “procuring cause” of its hiring of
Goldwater and Manos and the eight affiliated associates and therefore is not
entitled to a finder’s fee under Texas law. See Tower View, Inc. v. Hopkins, 679
S.W.2d 632, 635 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.). Though a
procuring cause needs to be a “but-for” cause of the transaction, see Embrey v.
W.L. Ligon & Co., 12 S.W.2d 262, 635 (Tex. 1929), a procuring cause need not be
the sole cause of the hiring because a “contributing or concurrent” causecan
sustain an award of a finders fee. West v. Richards, 298 S.W.2d 528, 529 (Tex.
Comm’n App. 1927, judgm’t adopted). So long as the fee claimant is a “cause
that in the natural and continuing sequence, unbroken by any independent
intervening cause, produces the [hiring], without which the [hiring] would not
have occurred.” Tower View, 679 S.W.2d at 636; see also Hutchings v. Slemons,
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174 S.W.2d 487, 489 (Tex. 1943). Here, though there was some testimony by
LBBS that would support its theory that the hiring of Goldwater and Manos was
independent of CB Legal’s efforts, the district court found that the “credible
evidence” was sufficient to prove that CB Legal was a procuring cause. As stated
above, especially where there are credibility determinations involved, the district
court’s finding cannot be clearly erroneous so long as its interpretation was
plausible, even though the testimony could have led to a different conclusion.
Matthews v. Remington Arms Co., 641 F.3d 635, 644 (5th Cir. 2011). We find
that the district court did not commit clear error in finding facts as to the issue
of procuring cause.
LBBS also contends that the district court’s conclusion that CB Legal had
proved its quantum meruit claim was erroneous. Such legal conclusions are
reviewed de novo. Kona Tech., 225 F.3d at 601. LBBS’s only contention of error
is that the facts upon which the district court made this conclusion were wrongly
found. As we have found that those facts were not found in error, the district
court did not err on this basis. In its reply brief, LBBS expands its argument on
the quantum meruit claim beyond incorrect fact-finding, but those arguments
are waived. In re Katrina Canal Breaches Litig., 620 F.3d 455, 459 n.3 (5th Cir.
2010); see also FED. R. APP. P. 28(a)(9).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment for CB
Legal.
AFFIRMED.
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