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ACCEPTED 05-14-01603-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 3/26/2015 1:49:12 PM LISA MATZ CLERK NO. 05-14-01603-CV FILED IN 5th COURT OF APPEALS IN THE FIFTH DISTRICT COURT OF APPEALSDALLAS, TEXAS DALLAS, TEXAS 3/26/2015 1:49:12 PM LISA MATZ Clerk NATHAN HALSEY AND BONAMOUR PACIFIC, INC., Appellants, V. PAM HALTER, Individually and Derivatively on Behalf of Nominal Defendant, BONAMOUR PACIFIC, INC., Appellee. On Appeal from Cause No. DC-12-12868, In the 162nd Judicial District Court of Dallas County, Texas, The Honorable Phyllis Lister Brown, Presiding. APPELLANTS NATHAN HALSEY AND BONAMOUR PACIFIC, INC.'S BRIEF KANE RUSSELL COLEMAN & LOGAN PC Zach T. Mayer State Bar No. 24013118 zmayer@krcl.com Sara J. Krumholz State Bar No. 24060579 skrumholz@krcl.com 1601 ELM STREET, SUITE 3700 DALLAS, TEXAS 75201 (214) 777-4200 / FAX (214) 777-4299 ATTORNEYS FOR APPELLANTS 001 IDENTITY OF PARTIES AND COUNSEL Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following constitutes a complete list of parties and the names and addresses of all counsel involved in this case: I. APPELLANTS: II. APPELLEE: NATHAN HALSEY AND PAM HALTER, INDIVIDUALLY BONAMOUR PACIFIC, INC. AND DERIVATIVELY ON BEHALF c/o their counsel of record: OF NOMINAL DEFENDANT, Zach T. Mayer BONAMOUR PACIFIC, INC. State Bar No. 24013118 c/o their counsel of record: zmayer@krcl.com Mr. Dennis Roossien Sara J. Krumholz droossien@munsch.com State Bar No. 24060579 State Bar No. 00784873 skrumholz@krcl.com MUNSCH HARDT KOPF & KANE RUSSELL COLEMAN & HARR, P.C. LOGAN PC 3800 Lincoln Plaza 1601 Elm Street, Suite 3700 500 N. Akard Street Dallas, Texas 75201 Dallas, Texas 75201-6659 (214) 777-4200 (214)855-7500 Fax (214) 777-4299 Fax (214)978-5327 Andrew B. Sommerman, Esq. State Bar No. 18842150 asommerman@textrial.com George (Tex) Quesada, Esq. State Bar No. 16427750 quesada@textrial.com SOMMERMAN & QUESADA, L.L.P. 3811 Turtle Creek Boulevard, Suite 1400 Dallas, Texas 75219-4461 (214) 720-0720 Fax (214) 720-0184 i 002 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................................ i TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iii RECORD REFERENCES .........................................................................................1 STATEMENT OF THE CASE ..................................................................................1 ISSUE PRESENTED .................................................................................................2 STATEMENT OF FACTS ........................................................................................2 SUMMARY OF ARGUMENT .................................................................................6 ARGUMENT .............................................................................................................6 I. Standard of Review..........................................................................................6 II. The Trial Court Abused its Discretion in Awarding Appellee $28,333.00 in Attorneys' Fees.................................................................................................7 A. The Testimony Offered on Behalf of the Appellee Concerning the Andersen Factors was not Sufficient Evidence to Support her Attorney Fee Award. ....................................................................................... 8 B. Appellee's Claimed Attorneys' Fees Were Excessive, Unreasonable and Unnecessary. ........................................................................................... 10 CONCLUSION AND PRAYER .............................................................................14 CERTIFICATE OF COMPLIANCE .......................................................................15 CERTIFICATE OF SERVICE ................................................................................16 APPENDIX ................................................................................................... Tabs 1-4 ii 003 INDEX OF AUTHORITIES Cases Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818-19 (Tex. 1997) .............................................................................................................. 7, 8, 9 Bocquet v. Herring,
972 S.W.2d 19, 20–21 (Tex.1998) ............................................6 Burgmann Seals Am., Inc. v. Cadenhead,
135 S.W.3d 854, 860–61 (Tex.App.- Houston [1st Dist.] 2004, pet. denied)..................................................................11 City of Burlington v. Dague,
505 U.S. 557, 567 (1992) ..........................................12 Cleveland v. Taylor,
397 S.W.3d 683, 701 (Tex. App. 2012) ...................................6 Compare Gisbrecht v. Barnhart,
535 U.S. 789, 802 (2002) ...................................12 El Apple I, Ltd. v. Olivas,
370 S.W.3d 757, 365 (Tex. 2012)..................... 10, 11, 12 Elgaghil v. Tarrant Cnty. Junior Coll.,
45 S.W.3d 133, 144–45 (Tex.App.-Fort Worth 2000, pet. denied) ......................................................................................11 Gill Savings Ass'n. v. International Supply,
759 S.W.2d 697, 702 (Tex. App. – Dallas, 1988, writ denied.) ...................................................................................13 Phillips & Akers, P.C. v. Cornwell,
927 S.W.2d 276, 279 (Tex.App.-Houston [1st Dist.] 1996, no writ.) ..............................................................................................6 Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1, 10 (Tex.1991) ...........................7 Sw. Bell Mobile Sys., Inc. v. Franco,
971 S.W.2d 52, 55–56 (Tex.1998) ...............11 Statutes Texas Civil Practice & Remedies Code Section § 38.001................................ 11, 12 Rules Rule 38.1(a) of the Texas Rules of Appellate Procedure .......................................... i iii 004 RECORD REFERENCES Appellants Nathan Halsey and Bonamour Pacific, Inc. will cite the record as follows: Clerk's Record -- CR: Vol. [page] Court Reporter's Record -- RR: [page] Appendix -- TAB: [number] STATEMENT OF THE CASE This is a breach of contract case where Appellee was awarded attorneys' fees. Appellant disputes the amount of the awarded attorney's fees. The original issues in this matter involved a shareholder suit filed against Appellants for breach of fiduciary duties and unjust enrichment as a result of a stock purchase agreement. [CR: 9-14]. In relation to the shareholder suit, on or about June 2, 2014 the parties entered into a settlement agreement for the total sum of $85,000.00 which included Appellee's claim for attorneys' fees. [RR: 17:6-17; 23:9-22]. Appellants were not able to pay the settlement amount as intended and breached the agreement. The case was reset for trial on August 27, 2014. The only live issues at trial were the breach of settlement agreement and related attorneys' fees. [RR: 11:20-12:8]. The Appellee has a 1/3 contingency fee agreement with her counsel. [RR: 8:18-22]. On September 30, 2014, the Court 1 005 signed a Final Judgment awarding Plaintiff $85,000.00 in the principal amount, plus an additional $28,333.00 in attorneys' fees. [See CR: 1267-1268]. Appellants assert Appellee's alleged attorneys' fees were not supported by factually sufficient evidence or, alternatively, are against the great weight and preponderance of the evidence and the trial court abused its discretion in awarding the excessive, unreasonable and unnecessary fees. ISSUE PRESENTED Did the Appellee provide legally sufficient evidence to support the award of $28,333.00 in attorneys' fees at the trial of contract action that was less than three months old. STATEMENT OF FACTS Appellee filed a shareholder suit against Appellants for breach of fiduciary duties and unjust enrichment as a result of a stock purchase agreement involving the company Millennia, Inc., which eventually became Bonamour Pacific, Inc. [CR: 9-14]. On the eve of the April 28, 2014 trial date, the parties reached an agreement to settle. On June 2, 2014 Appellee signed the settlement agreement that provided Appellee was to be paid $85,000.00 in full and final settlement of all claims and the settlement amount included all attorneys' fees and other costs associated with the lawsuit. [RR: 23:9-19]. The settlement agreement further provided that 2 006 Appellants continue to vigorously deny liability and the settlement was not be construed as an acceptance of liability. [RR: 23:24-25:7]. Pursuant to the terms of the settlement agreement, Appellants were to pay the $85,000.00 by June 9, 2014. [RR: 20-23]. However, Appellants were unable to come up with the settlement funds as they had anticipated. As a result, the trial court reset the case for trial on August 27, 2014. On August 18, 2014, Appellee filed her initial claims for breach of contract and promissory estoppel as a result of the breached settlement agreement. [CR: Vol 2., 1189-1196]. The parties reached an Agreed Judgment prior to trial and presented it to the trial court on August 27, 2014. The trial court rejected the terms of the Agreed Judgment and the matter was tried before the bench that same day. [RR: 6:7- 10:7; 11:1-8]. Because the underlying matter had been settled for $85,000.00 the parties agreed the only live issues to be tried were the breach of settlement agreement and related attorneys' fees. [RR: 11:20-12:8]. Appellee acknowledged that she was not "seeking fees beyond the fees for breach [of settlement agreement] and enforcement of the settlement agreement." [RR: 29:12-14; 54:3-19]. Appellee has been represented by two law firms, Munsch Hardt Kopf & Harr, P.C ("Munsch Hardt") with Mr. Dennis Roosien acting as lead counsel, and Sommerman & Quesada, L.L.P., with Andrew Sommerman acting as lead counsel. [RR: 2; 25:24-26:2]. During trial, Appellee represented that her attorneys were 3 007 being compensated on a 1/3 contingency fee basis and that she was accordingly seeking $28,333.00 in attorneys' fees. [RR: 8:18-22]. Appellee entered into evidence fee statements from one of the law firms, Munsch Hardt reflecting $15,280.00 in attorney's fees from June 9, 2014 through August 20, 2014. [TAB 2: 00037-00041]. The fee statements for this time period were composed entirely of time by a firm partner. [TAB 2: 00037-00041]. Mr. Sommerman provided live testimony as Appellee's expert witness on attorney's fees. Mr. Sommerman testified that since June 9, 2014, he and his associates prepared all witnesses he intended to bring to trial, including "expert witnesses as well as the plaintiffs involved."[RR: 27:9]. There is only one physical Plaintiff in this matter and the only experts designated that related to the trial on breach of the settlement agreement was Mr. Sommerman himself and Mr. Roosien for the issue of attorneys' fees. [RR: 100-101]. The only other person Appellee brought to trial was her husband, Mr. Kevin Halter, Sr., who was not called as a witness. Mr. Sommerman further testified that his associate, Jodi Rodenberg, prepared direct examinations of "all of the individuals that were involved along with Mr. Roosien." [RR: 27:10-13]. The only witnesses called to testify were Plaintiff on the issue of the terms of the settlement agreement and Mr. Sommerman regarding attorneys' fees. [RR: 3]. 4 008 Mr. Sommerman testified that he is solely a contingency fee attorney and never bills. [RR: 29:2-4]. When asked if there was any documentation of the work he performed on this case, including emails, he testified there were "[a]bsolutely none." [RR: 45:6-8]. Mr. Sommerman further testified that the hours spent by Munsch Hardt are representative of the hours spent by his firm. [RR: 29:5-7].1 Mr. Sommerman testified the amounts charged should be doubled to account for the work of his office. [RR: 42:21-43:17]. Mr. Sommerman also acknowledged that the Munsch Hardt time records started over once the settlement agreement was reached and that Appellee is only looking to recover "post-settlement fees." [RR: 46:16-17; 54:6-19]. From June 9, 2014, the date the settlement proceeds were to have been paid, through August 20, 2014, the Munsch Hardt invoice reflected 38.2 hours spent by Mr. Roosien, totaling $15,280.00 in fees. [RR:46:16-24]. Mr. Sommerman testified that Mr. Roosien's hourly fee is $400 an hour. He provided no specific testimony as to what his hourly fee would customarily be or that of his associates for this type of case. 1 Mr. Sommerman testified "you would have to multiply [the hours Munsch Hardt spent] times two" to include the hours Sommerman & Quesada spent on the case since June 9, 2014. [RR:42:21-43:17]. Yet, Mr. Sommerman did not know how many hours Munsch Hardt has spent on the case since the settlement agreement had been breached. [RR:42:21-43:17]. 5 009 SUMMARY OF ARGUMENT Appellants argue that the trial court erred in awarding Appellee $28,333.00 in attorneys' fees, representing their 1/3 contingency fee of the $85,000.00 judgment. Appellee's attorneys' fees are redundant, without adequate evidentiary support and should not have been considered by the trial court. Appellants further argue that any evidence of attorneys' fees from before the breach of the settlement agreement on June 9, 2014 should not have been considered by the trial court as they were unrelated to the breach of settlement agreement, which was the only issue tried to the Court. ARGUMENT I. Standard of Review On appeal, a trial court's award of attorneys' fees is reviewed for abuse of discretion. Bocquet v. Herring,972 S.W.2d 19, 20–21 (Tex.1998). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles.
Id. at 21.When reviewing a trial court's decision under this standard, this Court must view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Phillips & Akers, P.C. v. Cornwell,
927 S.W.2d 276, 279 (Tex.App.-Houston [1st Dist.] 1996, no writ.); Cleveland v. Taylor,
397 S.W.3d 683, 701 (Tex. App. 2012). 6 010 II. The Trial Court Abused its Discretion in Awarding Appellee $28,333.00 in Attorneys' Fees. There are a number of methods by which attorneys may determine fees to charge to clients, including the annual retainer method, the fee-for-service method, and contingency fee methods, but, as the Texas Supreme Court in Arthur Andersen recognized, considerations are different when a party seeks to shift its fee to another party. Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818-19 (Tex. 1997). The Texas Supreme Court has specified that while a contingent fee may indeed be a reasonable fee from the standpoint of the parties to the contract it does not agree that the mere fact that a party and a lawyer have agreed to a contingent fee means that the fee arrangement is in and of itself reasonable for purposes of shifting that fee to the defendant. Arthur Andersen &
Co., 945 S.W.2d at 812, 818- 19. Rather, Texas law confers the burden of proof on the party seeking attorney's fees. Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1, 10 (Tex.1991). A party's contingent fee agreement should be considered by the factfinder, but that agreement cannot alone support an award of attorney's fees. See Arthur Andersen &
Co., 945 S.W.2d at 818-19. In other words, the plaintiff cannot simply ask the jury to award a percentage of the recovery as a fee because without evidence of the 7 011 factors identified in Disciplinary Rule 1.04, the jury has no meaningful way to determine if the fees were in fact reasonable and necessary.
Id. Appellee failedto meet its burden under the Andersen factors and failed to otherwise provide reliable, competent evidence with which the trial court could rely to award $28,333.00 in attorneys' fees. A. The Testimony Offered on Behalf of the Appellee Concerning the Andersen Factors was not Sufficient Evidence to Support her Attorney Fee Award. As laid out in Andersen, factors that a factfinder should consider when determining the reasonableness of an attorney fee include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and, (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen &
Co., 945 S.W.2d at 818. 8 012 Under Andersen, the plaintiff must prove that the amount of fees was both reasonably incurred and necessary to the prosecution of the case at bar, and must ask the trier of fact to award the fees in a specific dollar amount, not as a percentage of the judgment.
Id. at 19(emphasis added). In addressing the Andersen factors, Mr. Sommerman testified in vague statements such as "the rates are reasonable in terms of staff . . .the other rates are reasonable", without identifying what those rates were or the qualifications of the staff and associates for which he was addressing. [RR: 36:21-37:6; 38:10-39:5]. Mr. Sommerman further testified that "we did forgo a number of pieces of litigation in order to take this one" without identifying a single example. [RR: 36:21-37:6].Mr. Sommerman's testimony concerning the Andersen Factors provided no details or specific examples by which a trier of fact could properly rely. [RR: 36:21-37:6; 38:10-39:5]. Further, Mr. Sommerman testified that the $85,000.00 settlement, which included Appellee's claims for attorneys' fees, was a good result and was "about all [Appellee] can hope for." [RR: 39:6-19]. Because the 85,000.00 settlement was to include all attorneys' fees up until June 9, 2014, the $85,000.00 already contained Appellees' 1/3 contingency fee for the underlying shareholder claims and Appellee is now improperly seeking a double recovery. 9 013 But what is most critical from Mr. Sommerman's testimony was that he was almost wholly testifying concerning the previous SEC litigation and did not specify the Andersen Factors concerning the simple breach of settlement agreement that was the case at bar. [RR: 36:21-40:25]. Appellee by her own admission is only seeking fees from after the breach of settlement agreement, which took place on June 9, 2014. [RR: 46:16-17; 54:6-19]. Here, Appellee has not complied with the Andersen holding because she failed to prove the attorneys' fees sought were both reasonable and necessarily incurred in the prosecution of the case at hand and as a result, the trial court abused its discretion in awarding Appellee the one third contingency of $28,333.00. B. Appellee's Claimed Attorneys' Fees Were Excessive, Unreasonable and Unnecessary. Appellee is attempting to collect $28,333.00 on a breach of settlement agreement action that was less than three months old at the time of trial and required no written discovery or depositions. Such an award on a straightforward issue is excessive and Appellee's evidence presented at trial demonstrated that much of the work performed was unreasonable and unnecessary. Under the Andersen ruling, attorneys' fees must be both reasonable and necessary. But the Texas Supreme Court has gone further since reaching its ruling in Andersen. In El Apple I, Ltd. v. Olivas,
370 S.W.3d 757, 365 (Tex. 2012) the Texas Supreme Court, when considering a lodestar case, required “proof 10 014 documenting the performance of specific tasks, the time required for those tasks, the person who performed the work, and his or her specific rate.”
370 S.W.3d 757, 365 (Tex. 2012). The Court emphasized that the documentation provided must be sufficient for the trial court to make a meaningful evaluation of the application for attorney's fees.
Id. at 762.Appellants contend that the Texas Supreme Court, if squarely presented with the issue, would most likely apply its reasoning and holdings in El Apple to require the lodestar factors under Texas Civil Practice & Remedies Code Section § 38.001 or at least some documentation of the time and tasks spent so a trial court can make a meaningful evaluation of the claimed attorneys' fees. Here, Mr. Sommerman has no documented proof of his efforts in this case. In reaching its holding in El Apple, I, the Court recognized that although state procedural rules govern the determination of attorney's fees in a suit brought under state law, Texas courts have looked to federal law on the issue.
Id. at 760;See, e.g., Sw. Bell Mobile Sys., Inc. v. Franco,
971 S.W.2d 52, 55–56 (Tex.1998); Burgmann Seals Am., Inc. v. Cadenhead,
135 S.W.3d 854, 860–61 (Tex.App.- Houston [1st Dist.] 2004, pet. denied); Elgaghil v. Tarrant Cnty. Junior Coll.,
45 S.W.3d 133, 144–45 (Tex.App.-Fort Worth 2000, pet. denied). In fact, developing Texas law has been consistent with federal precedent approving attorney fees based on a “contingency fee” or “percentage” method 11 015 when the client is solely responsible for the fee, while denying it in fee-shifting cases. Compare Gisbrecht v. Barnhart,
535 U.S. 789, 802 (2002) and City of Burlington v. Dague,
505 U.S. 557, 567 (1992). In Dague, the Supreme Court, noting that it has “generally turned away from the contingent-fee model,” held that enhancement of the lodestar by a multiplier based on a contingent fee agreement is not allowed when fees are awarded under fee-shifting statutes.
Dague, 505 U.S. at 567. In this context the Texas Supreme Court would likely require at least some information set out in El Apple in a case under § 38.001. Disregarding the contingent percentage agreement in this case clarifies how the evidence Appellee submitted is insufficient and reflects unreasonable fees. For instance, Mr. Sommerman testified that Mr. Brown, an SEC expert was prepared for the August 27, 2014 trial setting, which tried only the breach of settlement issue and Mr. Brown was not even brought to trial. [RR: 50:16-20]. Appellee also entered into evidence fee statements from Munsch Hardt reflecting $15,280 in attorney's fees from June 9, 2014 through August 20, 2014. [TAB 2: 00037-00041]. The fee statements for this time period were composed entirely of time by a firm partner. [TAB 2: 00037-00041]. Time spent by associates and legal assistants was not segregated into any separate time entries, though at least two Munsch Hardt associates had billed extensively leading up to the April 28, 2014 12 016 trial setting.2 [See TAB 2:10-29]. Munsch Hardt made no effort to segregate out any paralegal time incurred since June 9, 2014, although Mr. Sommerman testified that staff at both his firm and Munsch Hardt worked on this matter, including secretaries and paralegals. [RR:38:10-24]. See Gill Savings Ass'n. v. International Supply,
759 S.W.2d 697, 702 (Tex. App. – Dallas, 1988, writ denied.) (holding compensation for legal assistants work may only be "included in the award of attorneys' fees if a legal assistant performs work that has traditionally been done by an attorney." ) Mr. Sommerman's testimony provided little more than broad vague statements with an uncertainty of the hours spent beyond repeatedly testifying Sommerman & Quesada spent the exact same number of hours as Musch Hardt, even with "absolutely no" documentation of their work. [RR: 28:5-7; 42:21-43:17] This is not reliable or adequate evidence of fees. His testimony consisted scant detail and seemed to mostly reference work performed for the original April 28, 2015 trial, not the work needed for the breach of contract issue. He provided little or no descriptions of the particular services provided, no indication who performed the service, or how long each task took, among other things. Any fees from Plaintiff's original fiduciary claims against 2 When asked how much of the invoiced work since June 9, 2014 was Mr. Roosien and how much was staff, Mr. Sommerman testified vaguely "the vast majority of it was Dennis Roosien. I mean, significantly the vast majority." [RR:42:21-43:17]. It is believed that both of those associates had left Munsch Hardt before or shortly after the April 28, 2014 trial setting. [53:22- 54:11]. 13 017 Appellants were from before the breach of the settlement agreement and were already encompassed in the terms of the settlement agreement. To consider fees from before the breach would be to allow Appellee double recovery of her fees. The breach of settlement agreement was a straightforward issue that was litigated for less than three months before trial. An award of $28,333.00, one third of the $85,000 judgment, is excessive and unsupported by the evidence. The evidence Appellee submitted to support her award of attorneys' fees was legally insufficient under Texas law to allow the trial court to calculate a reasonable fee award. Rather, the evidence presented by Appellee at the trial and the facts of the case show that the $28,333.00 sought is an excessive award for unreasonable and unnecessary attorneys' fees concerning the case at bar. This Court should vacate the award below and remand for further proceedings based on a correct application of Texas' requirements to recover attorney's fees under § 38.001. CONCLUSION AND PRAYER For the foregoing reasons, Appellants ask this Court to vacate the trial court's Final Judgment awarding Appellee $28,333.00 in attorneys' fees and requests this Court either reduce the fees awarded or remand this case for further proceedings. 14 018 Respectfully submitted, KANE RUSSELL COLEMAN & LOGAN PC By: /s/ Sara J. Krumholz Zach T. Mayer State Bar No. 24013118 zmayer@krcl.com Sara J. Krumholz State Bar No. 24060579 skrumholz@krcl.com 1601 ELM STREET, SUITE 3700 DALLAS, TEXAS 75201 (214) 777-4200 / FAX (214) 777-4299 ATTORNEYS FOR APPELLANTS NATHAN HALSEY AND BON AMOUR PACIFIC, INC. CERTIFICATE OF COMPLIANCE I hereby certify that Appellants' Brief complies with the word-count limitations of Tex. R. App. P. 9.4(i) because it contains 4,006 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1). The word-count was obtained using the word-count function of Microsoft Word, the computer program used to prepare the document. /s/ Sara J. Krumholz SARA J. KRUMHOLZ 15 019 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of March, 2015, a true and correct copy was forwarded to each attorney of record listed below: VIA E-FILE AND FACSIMILE Mr. Dennis Roossien MUNSCH HARDT KOPF & HARR, P.C. 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659 Andrew B. Sommerman, Esq. George (Tex) Quesada, Esq. SOMMERMAN & QUESADA, L.L.P. 3811 Turtle Creek Boulevard, Suite 1400 Dallas, Texas 75219-4461 ATTORNEYS FOR APPELLEE, PAM HALTER, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF NOMINAL DEFENDANT, BONAMOUR PACIFIC, INC. /s/ Sara J. Krumholz SARA J. KRUMHOLZ 16 020 APPENDIX TAB DOCUMENT Bates # 1 Plaintiff's Trial Exhibit 1: Confidential Settlement 00001- Agreement and Mutual Release 00007 2 Plaintiff's Trial Exhibit 2: August 22, 2014 00008- Correspondence with Attached Fee Statements 00044 3 Final Judgment CR:1267 4 Order Denying Defendants' Motion for a New Trial CR: 1313 021 TAB 1 022 CONFIDENTIAL SETTLltMENT AGREEMENT AND MUTUAL RELEASE This Confidential Settlement Agreement and Mutual Release (''Agreement <\nd Release") is made and entered into on this 2nd day ofJune, 2014 (the ''Effective Date") by and bCl\Veen Pam Halter, Kevin B. Halter, Sr. (collectively ''The Halters"), Nathan Halsey, and Bonamour Pacific, Inc.("Bonamour")(collectivdy "The Parties"). RECITALS WHEREAS, on October 31, 2012, Pam J. Halter flled suiL against Nathan Halsey, individually, and Bonamour in the 162 11 ..t Judicial District Court, Harris County, Texas, Cam;e No. DC-12-J 2868, styled Pam J. Halter, Individually and Derivatively on Beha(l of Nominal Dejendant, Bonamour Pacific, Inc. vs. l'·lathan Halsey and Bonamour Pacijic. Inc. (hereafter referred to as "THE LA WSUIT 11 ); and, WHEREAS, Pam Halter, individually and derivatively on behalf of notnina! defendant Bonamour, bas asserted various claims in the Lawsuit against Nathan Halsey and Bonamour relating to damages Pam Halter allegedly suffered in connection with a series of transactioris relating w Bonamour stock; and, \VHEREAS, Nathan 1~falsey and Bonamour have answered Pam Halter's claims and allegations in the Lavmtit by filing a genernl denial nnd asserting vnrious affirmative defenses, and both Nathan Halsey and Bcmamour continue to deny (a) any wrongdoing whatsoever in connection with the subject transactions or (b) any liability for any alleged wrongful acts or omissioi1s with respect to Bonamom or any of the other matters that form the basis of the Lawsuit; and, WHEREAS, the Halters have represented that Pam Halter's claims are entirdy her st!parate property, and Kevin Halter has agreed to. aflirm that he has no claims ogainst :.Jat!um Halsey or Bonamour; and, WHEREAS, in order to avoid the expense and uncertainties of continued litigation, Pmn Halter, Nathan Halsey and Bonamour, have agreed to t:ompromise and settle all issues and claims between them that have been or could have been ruised in the Litigation; and, WHEREAS, The Parties, through their respective counsel, have negotiated a compromise and settlement of all of the claims Pam Halter asserted or could have asserted against Nathan Halsey and/or Bonatnotir or any of Bonmnours owners, members, officers or directors in the L:n-vsuit and any claims or counterclaims Nathan Halsey or Bonnmour could have osst:rted in the lawsuit against Pnm Halter or Kevin lt Halter, Sr.: and, WHEREAS, liability is vigorously denied by all Parties and agreements on the part of the Parties herein me not and should not be construed as an admission of liability or any wrongdoing whutsoe'Ver; and, N()\V, THEREFORE, in consideration of the mu:t:al promises, covenants and monetary terms stated in this Agreement, the Pnrtics agree and contract as follows; ``.\· u..- ;:::zx- e ··\·.....· .. .. llALI.F!VIIM.SF YIBON:\~10UR SETTLE~vlENT 3~ D. . 00001 023 AGREEMENT: 1. Release by Pam Halter. Pam Halter agrees to dismiss with prejudice all of the claims brought or which could have brought in the Lawsuit against Nathan Halsey and Bonamour and to waive and relinquish all rights, claims or causes of action of any kind she have or may claim to have against Nathan Halsey, Bonamour, Znch T. Mayer, Sara J. Krumholz, and Kane Russell Coleman & Logan PC, their respective heirs, assigns, successors, representatives, agents, servants, attorneys, assigns, executors, administrators, officers, directors, shareholders, partners, employees, servants, affiliate companies, insurers, and any other person, firm or corporation in privity with them (hereinafter collectively referred to as the "Released Parties") growing out of, relating to, or arising from the actions complained of in The Lawsuit. Pam Halter hereby releases, relinquishes, discharges and quitclaims the Released Parties of and from any and all claims, demands, rights or causes of action of any kind, whether now known, asserted or not, she may have or may claim to have growing out of or resulting from the series of transactions made the subject of The Lawsuit and any and all actual and alleged injuries and damages resulting, whether directly or indirectly, from such transactions. Since Kevin B. Halter, Sr. hereby warrants and affirms that all such claims are Pam Halter's separate property and he holds no such claims, it is expressly understood and agreed that this Release completely and totally releases any and all claims the Halters have, could have or may claim to have in the future against the Released Parties arising out of or relating to the Lawsuit, including but not limited to claims of breach of fiduciary duty, unjust enrichment, breach of contract, breach of the duty of good faith and fair dealing, violation of any state or federal statutory provision (including, but not limited to the Tex. Bus. Orgs. Code § 21.561(b), failure to investigate, negligence, negligence per se, gross negligence, strict liability, intentional tort, fraud, or breach of any other statutory, contractual, common law, or other duties of any type or nature whatsoever on the part of Released Parties, and any actual or compensatory damages, special damages, punitive damages, mental anguish, attorneys' fees, and any other damages or expenses arising out of or in any way connected to the facts, incidents, transactions, omissions and occurrences giving rise to the Lawsuit, and/or any other matter directly or indirectly arising from or in any other way related to the acts or omissions of any Party to this Agreement, whether or not now known or asserted by the Halters. The releases contained in this Agreement do not and are not intended to release any rights or obligations of the Parties created by this Agreement. 2. Settlement Payment. In consideration of the releases and agreements set forth in this Agreement, the Released Parties agree to pay and deliver to Pam Halter, on or before June 9, 2014, an aggregate settlement amount of$85,000.00 (EIGHTY FIVE THOUSAND AND 00/100 DOLLARS) (the "Settlement Amount") to fully and finatry settle the claims and causes of action which are asserted against Released Parties in The Lawsuit or which could have been asserted against the Released Parties surrounding the transactions at issue in The Lawsuit. The Parties acknowledge the adequacy of this consideration and hereby waive any right or ability to contest the adequacy of the consideration. HALTER/HALSEY/BON AMOUR SETTLEMENT PAGE 2 00002 024 3. Dismissal of the Lawsuit With Prejudice. Pam Halter, individually and derivatively on behalf of nominal defendant Bonamour Pacific Inc., and Nathan Halsey and Bonamour agree to file a Joint Dismissal with Prejudice as to all Claims filed in The Lawsuit within one (1) day of the tender of the Settlement Amount by Released Parties. 4. No Filing of Other Claims. The Parties represent and covenant that neither themselves, nor any person or entity acting on their behalf will claim or file, or cause or permit to be filed, any action for damages or other relief against any other Party involving any matter related to those released herein. Nothing in this paragraph shall constitute a waiver of any of the Parties' rights to file a claim to enforce the terms of this Agreement. 5. No Admission of Liability. Neither this Agreement and Release, nor anything contained herein, shall be construed as an admission by any Party that they have in any respect breached any obligation to any of the other Parties. No Party will claim to be the prevailing party to any degree or extent, nor will this Agreement and Release or its terms be admissible in any proceedings other than a proceeding for breach of the terms contained herein, except as otherwise required by law or court order. 6. Attorneys' Fees and Costs. Each Party to this Agreement and Release acknowledges and agrees that it is responsible for its own attorneys' fees, litigation expenses, and costs of court with respect to the claims released between the Parties. 7. Confidentiality. The Parties agree that they shall keep the terms of this settlement confidential, ·and that they will not disclose, directly or indirectly, specifically or generally, such terms to third persons except as provided herein or except as otherwise required by law, including applicable securities laws, subpoena, or court order. On the condition that the persons receiving such information agree to maintain its confidentiality, each Party may disclose the terms of this Agreement and Release to its owners and executive level employees with a business need to know such information, and to their attorneys, financial advisors and accountants. Notwithstanding this confidentiality provision, the Parties may publicly disclose the releases recited above and that they have settled their differences. Disclosure of the mere existence of this Agreement shall not constitute a breach of this provision. The Parties agree that the confidentiality provision herein. is a material component of this settlement agreement, and that a breach of this provision may cause immediate and irreparable harm. HALTERIIIALSEY/BONAMOUR SETTLEMENT PAGE 3 00003 025 8. Entire Agreement. This Agreement and Release may not be modified, altered or changed except by a written agreement signed by the Parties hereto. The Parties acknowledge that this document constitutes the entire agreement between them superseding all prior written and oral agreements. If any provision of this Agreement and Release is held to be invalid, the remaining provisions shall not be affected. 9. Entire Consideration. The Parties acknowledge that the provisions of this Agreement provide mutually sufficient consideration for any and all rights, duties, or obligations created herein. The Parties further acknowledge that they have made no agreement or promise to do or omit to do any act or thing not set forth in this Agreement. It is agreed that this Agreement is given solely upon the consideration herein expressed and is not an express or implied admission of misconduct, responsibility or liability of Halsey, Bonamour or of anyone else, and that Halsey and Bonamour expressly and specifically deny all such claims. The releases contained in this Agreement do not and are not intended to release any rights or obligations of the Parties created by this Agreement. 10. Warranties, Representations, and Interpretation. Each signatory hereto warrants and represents that he or she has the authority to bind the partylies for whom that signatory acts. Each Party warrants and represents that the claims, suits, rights and/or interests which are the subject of this Settlement Agreement and Release (the "Claims") are owned by the Party that has asserted the Claims, and the Claims have not been assigned, transferred, sold or encumbered. Each Party hereto acknowledges that in entering into this Settlement and Release Agreement, it has had the opportunity to consult with, and has consulted with, counsel of its choice as to the meaning and effect of this agreement. In interpreting this Settlement Agreement and Release, words are to be given their ordinary and plain meanings, the masculine includes the feminine, and in the event of any ambiguity, the agreement should be construed in a manner to provide the fullest possible release and discharge of claims between the Parties. Each of the Parties acknowledges that it has had. full opportunity to review, revise and suggest changes to this agreement, and that this agreement is the product of each sides arms' length negotiation and draftsmanship. Accordingly, each of the Parties acknowledges that in the event of a dispute over the meaning of any provision herein, this agreement shall not be construed "for" or "against" any party, but instead in light of the mutual intent to finally resolve disputes between the Parties. HALTER/HALSEYIBONAMOUR SETILEMENT rAGE 4 00004 026 .. 11. Governing Law and Venue. This Agreement and Release shall be governed by the laws of the State of Texas. The parties also agree that the state and federal courts with jurisdiction in Dallas County, Texas shall have personal jurisdiction over them to hear all disputes arising under this Agreement and Release and that venue shall lie in Dallas County or the federal district covering Dallas County for all purposes. 12. No Reliance on Representations or Assumed Facts. THE PARTIES ALSO ACKNOWLEDGE THE CONTESTED AND ADVERSARIAL NATURE OF THE LITIGATION AND UNDERLYING DISPUTE, AND STIPULATE THAT TN EXECUTING THIS AGREMENT THEY ARE NOT RELYING ON ANY REPRESENTATION BY ANY OTHER PARTY OR ITS (OR HIS) EMPLOYEES, AGENTS, REPRESENTATIVES, OR ATTORNEYS WITH REGARD TO (1) FACTS UNDERLYING THE LITIGATION, (2) THE SUBJECT MATTER OR EFFECT OF THIS AGREEMENT, AND (3) ANY OTHER FACTS OR ISSUES THAT MIGHT BE DEEMED MATERIAL TO THE DECISION TO ENTER INTO THIS AGREEMENT, OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. 13. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be .illegal, invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect an~ shall in no way be affected, impaired, invalidated, or voided. · 14. No Waiver. The failure of any of the Parties to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way affect the validity of this Agreement or any part thereof or any right of any person thereafter to enforce each and every provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other breach. 15. Section Numbers and Headings. Section numbers and section titles have been set forth herein for convenience only, and shall not be construed to limit or extend the meaning or interpretation of any part of this Agreement. 16. Taxes. The Parties understand and agree that none of the Parties or their attorneys have made any representations or warranties regarding the taxability or non-taxability of any of the consideration exchanged pursuant to this Agreement. HALTERIHALSEY IBONAMOUR SETI'LEMENT PAGE 5 00005 027 17. Survival of Representations and WlUJ'llnties. All representations and warranties set forth in this Agreement shall be deemed continuing and shall survive the Effective Date. 18. Succe..~sors in Jntere.d. This Agreement shall inure to the benefit of the Parties, and their respective legal representatives, and permitted assigns. 19. Execution In Counteroarts. lbis Agreement may be signed in any number of counterparts or copies, or on separate signature pages, or by facsimile transmission, which when taken together shall be deemed to be an original and constitute one and the same instrument for all purposes. IN WITNESS WHEREOF, the Parties hereto have set their hands effective as of the date specified above. ACCEPTED AND AGREED: Date: & - ¢ - l 'i KEVIN B. HALTER, SR. NATHAN HALSEY Date:_ _ _ _ _ _ _ _ _ _ __ BONAMOUR PACIFIC, INC. By:______________________ Date:_ _ _ _ _ _ _ _ _ _ __ HALTERMAI.SEY/BONAMOl/1!. SETTLEMENT PAGF. 6 00006 028 .s ,, ;. ,\.U t~E~··.:::~-.Utiun~ owJ wan•m.k:·. ~1 ft.~ do JU ;bh Ar.;~eo.."!nt::c\l !1-t.&.ll C.: 1!~1~td (lvtrhtttirt~ "'' ,1~,11 ~"'~" tht·I;Jil:o~w•ll"r". Thi~ A~"N,,,, ••••m -..~.·--·~··-···•••• 1/29/14 DLR Assist witness preparation. ..•.....•.....- ----·-····"'· l/30/ !4 UFU Continue depo preparation ofMt'. !·htlli.'r; 8.90 2;;()3.00 Defend deposition; ConH:renee with Mr. Halter; Conference with opposing counsel; Correspondence to l'vlr. Roossien regurding deposition . .. 2/3/14 DLR Work with l'vlr. Umana on preparation of pre- 0.80 320.00 trial materials; confer with same regarding recent developments and case evaluation; confer with client regarding same, 2/3/14 UFU Work on exhibit/witness list. ¥"'~ ~·' .``w--.• ~- 2/4/14 UFU Work on exhibit/witness list 324.00 2!5ii..J. DLR Conlcr with Mr. Umam1 regarding dran .:10.00 -···--·•-'>~··--vc-·.,·-•-·-'- w-HN-,~----"·· ..... -.--~-··¥> 00011 034 Mun~d1 Hardt Kopl' & llarr, I' .C. File No. D13271.00001 Page 3 of() Invoke No. J0299397 February 19, 20 14 1v!ancr Dcscripthm: BONAlv!OUR .. ··~'-~·-········-····· ·····-~---- ~-·-·--•"NW"7 2/6/14 Receive update on motion for continuance . ·"``---~-"--~--- • • • • - •••-.-•• -.-...--------·- ``><#" ~-------- 2/7/14 DLR Review and evaluation motion for coi11inunnce; 3.00 1200.00 receive updnte regarding client position on same;ll1rther consideration of case evaluation in tight of developments; consultation with Mr. McGee regarding same; consultation with Mr. Sommennan regarding same; lbllow-up with client to schedule meeting; review drafi witness and exhibit list; review exhibits; revise same: correspondence to client regarding simn:: update pretrial task list • ...-...,....·.·.. ·-····~·,. :·.,h>·~-- ················ ...... ..... ~ 2/ I0/14 DLR Review and consider client comments to draft 0.30 120.00 exhibit list; preparation fbr client meeting; review and calendar hearing notice. •• ••• , . , - · - · · · -•-•••••••.••••>••,<•.c:·•-··••••••w•u- 2/11/14 DLR Continue preparation of exhibits; continue 8.90 3560.00 preparation lor and attend client meeting; condttct supplemental research; various follow- up correspondence with client. .... ·````---·-······ . ,.· .. -.~o·~'·'"'"w.····- LCD Meeting with D. Roossien regarding upcoming trial; review documents in anticipation of use in exhibit list. 2/12/14 DLR Review correspondence fh)m client; confer with 2.20 880.00 co-cotmsel to evaluate additional potential exhibits; review and consider inquiry from opposing counsel; tltrther conference with client regarding additional exhibits and follow-up investigation to be conducted in light of same. ·~·~---·~···., ·' .......... ~ ....___...... .. ,.~---``~ .. ·. 2/13/14 DLR Review update ti·om client on research enbrts; 0.90 360.00 confirm inclusion ofexhibit; respond to client ·correspondence; telephone conference with opposing counsel regarding deadlines, continuance compromise, and settlement; t·evlcw update n·om opptJsing counsel; coordinate with co-counsel: exchange further correspcmdcncc with client. ....................,, .... 2/14/14 DLR Attention to Rule I J agreement; work on 120.00 resolving motion for continuance. •••••••••••••••••••••u«n~--"-'' '·····•······``"' 2/!4114 LCD Coordinate new trial date. 0.10 33.00 00012 035 ivlunsch llarJt Kopf & Hurr. P.C File No. 0 I 3271.0000 l Page 4 or6 lnvoic\.) No. I 0299397 February 19. 201-l i'v!attcr Description: BONAlvlOUR Total I·l 682 !\ ugusl 21. 20 l·l 1v!utter Description: BONM,10UR 4/24/14 DLR Review update regarding late filed amended 2.50 1000.00 pleading; memorandum to Ms. Dearing regarding comparison of smne; direci Ms. Dearing to make annc>Unccment regarding readiness for trial; assist preparation ofjury charge; review defense filings relative to pretrial matte1·s; review delendants' proposed charge. -··-~-¥·····-··-·····'·'=··'---······-·····''·····``--- 4/25/14 DLR Consideration of possible opposing jury 5.60 2240.00 questions; preparation of cross-examinations of defendant's witnesses; work with Pam Halter and Kevin Halter in preparation for their testimony. 4125114 LCD Witness preparation and meetings and olher trial 7.00 2310.00 preparation~ ,-~•---o,,- .• ~w··.,.••··-··-·-···• .-,-·->···-...,.,.,..,~.h,, _______ -----~-h-.•----------···· -·----------------·-··········--- 4/28/!4 DLR Preparation of voir dire outline; determine stntus 7.80 3120.00 of other cases ahead in trinl queue; coordinate with co"counscl regarding trial preparation; keep client updated; assist preparation ofobjections DeH:n t HARDT Suitr, 3300 ~ -4 KOPF & HARR PC Dnllas. Te~a;; 75201-6659 M<1in 2!4.855.7500 ATTORNEYS & COUNSElOR$ Fax :!14.855_758.! DALLAS I HOUSTON I AUSTIN munsch.('om Pam Halter 1126 Whispering Oaks Drive DeSoto, TX 75115 Invoice Date: August 22, 20 14 File No. 013271.00001 Invoice No. 10308684 Matter Description: BONAMOUR Total Fees for Services Rendered through August 20,2014 ........................ $15,280.00 Total Disbursements ......................................................................................... $531.96 Total Amount Due This Invoice .................................................................$15,811.96 Previous Balance Due ..................................................................... $112.659 .66 Grand Total Due ...........................................................................$128.471.62 Wire Instructions: Remittance Address: Bank of Texas, N.A. Accounting ABA Routing Number: Ill 014325 Munsch Hardt Kopf & Harr, P.C. Account Number: 2880510762 500 N. Akard St., Suite 3800 Swift Code: BAOKUS44 Dallas, TX 75201-6659 File Number and Invoice Number Required. Federal ID Number: XX-XXXXXXX FOR BILLING INQUIRIES, PLEASE CONTACT ACCOUNTING AT (214) 740-5198. 00037 060 Munsch Hardt Kopr & Harr. I' .C Fih: No. 0 !327!.0000 I Pugc 2 ofS Invoice No. 10308684 Auguol 22, 20 1<1 iv!atter Dcscriptinn: BON!\i'vfOUR FEE DETAIL 6110114 DLR Review correspondence from opposing coui1sel 2.20 880.00 regarding execution of settlement agreement and lack of timely payment; consideration of appmpl'iute course of action in light of same; confer with client regarding same; oraft correspondence to Court regarding submission date. 6/ll/14 DLR Conferences with client regarding lack of 0.70 280.00 payment and alternatives; confer with Mr. Sommcrman regarding same; cotTcspondencc .to opposing counsel regarding status; attempt to contact opposing counsel regarding possible motion in light of continuing brench; review response n·om opposing counsel indicating fl1rther delay in payment '---------·----4---~---i ··························---·~·~· "~-·············--------f-----············-+--·························· ---·········· I 6/12/14 DLR Conflrm lack ofcure ofbrcach; drull motion to 1.20 480.00 enforce/reset; correspondence to opposing counsel regarding same; draft afl1davit in support of motion; conl1rm lack of response; telephone conference with coordinator to conl1r111 Court is carrying case and ch:termine status of motion it1 system; calendur for fbllow- up to get motitm set. 6/!3/J 4 DLR Receive update regarding extension of dismissnl 0.20 80.00 date: correspondence to r;lient providing updme; correspondence to opposing counsel regarding status. 1 ... ·. . . . . . . . . ·.· . ! 6/J 6/!4 DLR Review correspondence fi·om opposing counsel 0.30 120.00 regarding continued assurance and continued delays in payment; telephone con!Crence wilh clerkrcgardingsetting motion; provide notice or same; update client; provide courtesy copy of .l motion to Conrt. 1 1 6··-/-1-8···/-1···4··--·-l··-D-··L·····R-·········+-E_-xc-l·~····n·····n···-·g···e····-c-·o····-n···-.c-·s··-pon tl``~ ~·~.'vi tl~ ``i~·;, ;``g``~·di;,-~ 0.!0 40.00 status and proposed course of action. 1 1·····-··················'-·-+-'-··········''··-t---············· ·········-·-·····-···--····· .... , · - ...... ·-~·····---········-· ....•. , ... . 6/26/14 DLR Efforts to contact opposing counsel regarding 0.30 120.00 continued deluy and upcoming hearing; I correspondence regarding same and again ~·---·-··-············-·········-'--·-·-·-···'--.._"_"'"in,_~-``ZE~!::!!````L<:>l]...``.,.``!!.c?!~;!~J.~pl!l?ll.~.. -·-···· ·'·················-·················'····-····· ······--···· ...... 00038 061 Munsch llurdt Kopf & Ilw-r, I' .C. File No.() 13271.0000 I l'ag<: J ors Invoke No. l OJOl\684 August 22, 2014 1vhnkr Description: BONAtv!OUR conference with opposing counsel regarding same; confet with co-counsel regarding same . ................... ··!········~··· +·········-·····-········ ··j··"' ............. l...... ·--~- ....... 6/27/14 DLR Review correspondence from opposing counsel 0.40 160.00 regarding possible agreed order; telephone con terence with same; confer with client regarding status and proposed course of action . ............,. . . . -·+ i 7/1114 DLR Preparation for and attend hearing on motion to !.90 760.00 enforce settlement; conl'cr with client and witnesses regarding new trinl date; confer !lrrther \Vith Court Coordinator regarding same; !bllow-up correspondence with co-counsel. client, and opposing counsel regarding potential trial date; review dicnt correspolldcncc regarding potential additional lawsuit; research regarding smne; update client; make inquiries to counsel in case. 7/2/14 DLR Review response n·om opposing counsel; 0.60 240.00 confirm new trial date with Coordinator; revkw update fi·om client regarding investigation into whether judgment involves the same Nathan Halsey; raise issue with opposing counsel; exchange further correspondence with client. 7/3114 DLR Review response n~om opposing counsel; 0.90 360.00 consideration of next steps in light of same; research regarding potential admissibility: correspondence to cliem regarding satne; direct el1brts to obtain certified copies pleadings in or Rockwall matter. 717114 DLR Continue (o evaluate appropriate strategy in light 0.30 120.00 of discovery of parallel judgment; receive update n·om client conllrming witness avaibbility. 7/8/14 DLR Review documents obtained fl·om Rockwall 0.60 240.00 County Clerk; consideration of ne.\1 steps; correspLmdence to co-counsel m1d dknt regarding same; correspondence to opposing counsclt·cgarding same. 7/9/14 IDLR Confirm regarding reset oftrial date to 8/25. 0.10 40.00 7/23/!4 IDLR . Review certified copies of pleadings in parallel 1.20 480.00 J. -···w J.tl!~!``Ei.PI'~P?f.~!i(:)~}..c!f.!?~tpp!~!~t)t_tg ........:.....:.::..:.. . .. 00039 062 1vlunsch Hun.Jt Knpf & Harr, l' .C. Fik No. 013171.0000 I Page 4 of8 Invoice No. I 030S684 t\ugust 22,2014 Matter Deocription: BONAMOUR direct tiling and service of same; direct updating of trial materials; correspondence tb opposing counsel; telephone conJcrcnce with same. 7/24/!4 DLR Confer with Mr. Sommcr111an regardingncxt 0.20 80.00 steps; direct efforts to collect additional docuinents n·om Abbey Homes file. "''········.. !················----~--·~ 7/29/14 DLR Review and forward documents to client 0.20 80.00 ~-- .........- ... 8/5/14 DLR Confer with co~counsel regarding next steps. 0.10 40.00 .............. .. .. 8/7tl4·--~-·~ Dt~r~ .... ·C``~f~r with counsel for creditor regarding """~--- ``----- 0.40 160.00 alternatives . . . ........ . . .... .............. . . . ........ ,.......................... . .. .. . ............................,,, ___ .....________ ....................................._.................... +· .............. 8/8/14 DLR Obtnin credit report on Halsey; review and ll60.00 analyze same; confer with clietit regarding implications or same and alternatives; confer with co-counsel regarding developments and Inext steps. _______ ._......... , ......._____, ............................................................. !··-------- ...................... ,....... ...........~---··-- ..•···· 8/ll/14 DLR ConJcr with counsel in parallel matter; detailed 5.20 2080.00 review of Halsey affidavit and balance sheet; work on contacting other creditors; confer with co-counsel regarding intended course of action~ correspondence to Mr. Shaw regarding results of records search and request reciprocnl information, if any, on other creditors; , correspondence to Halsey counsel regarding , resu-lts of res.earch, need !or trEu.lspurency, and I requesting information concerning other creditors. if any; direct efforts to research status of mortgage; consultation with private investigator regarding alternatives to determine basis of continued l'ailure to honor settlement agreement; consultation with Mr. McGee regarding possible additional sources of information regarding other creditors. .. .. .. .......... - ..... 8/!2/14 DLR Revtew fbllow-up emnlls n·om client; revtew 0.30 120.00 exchanges among other creditors; advise Halsey counsel of concerns andrcqucst settlement conference. 8/13/14 OAO 160.00 8/14/14 DLR Updute co-counsel regarding developments and 0.10 40.00 discuss next steps. 00040 063 I , ivlunsch Hardt Kopr& Harr. P.C. l·'ik No. 013271.00001 Page 5 ofH lnvoic;,: No. 10308684 i\ ugust 22. 20 14 i\lalh:r !)~scription: BONA!'vlOUR 8118114 DLR Review correspondence forwarded by counsel in 6.80 2720.00! Abbey Homes matter;review clicnl correspondence and documents forwnrded by sa1ne; prepare trial checklist; correspondence to client regarding same; draft amended Petition; various correspondence to opposing counsel regarding pretrial matters; draft amended pretrial report; gather additional exhibits; confer with client regarding preparation for tdul; confer with co-counsel regarding same; draft alncnded proposed charge; update proof outline; review defendant's limine motion and prepare arguments regarding same; update Brown witness outline; prepare case task assignments; set up preparation sessions with witnesses and co~counsel. 8/19/14 DUt Telephone conference with opposing counsel 4.10 1640.00 regarding upcoming trial setting and possible means for resolution; telephone con terence with counsel for another creditor; update witness outlines to include additional inlonmnion, documents, and deve!opnients since earlier trial setting~ 8/201!4 DLR , Continue preparation ofwitness outlines; 6.40 2560.00 meeting with clients and co~counsel in prcpamtion ft)f testimony; conference with expert in preparation {{)r testimony. Totall-lours: ............................... ~ ......... 38.20 Total. Fees: ......................................................,. ... ,...$15,280.00 TllVIEKEEJ>ER SUMMARY Total 38.20 $15,280,00 00041 064 I I . I 1\lunsd1 ! !atdt Kopf & Harr. l' .C. File No. 013271.00001 f'agc 6or 8 Invoice No. 1030S6S4 August 22,:w 14 :''-'Inner D.:scription: HONAMOUR DISBURSEMENTS SUMMARY Courier Service ............................................................................. $21.48 Copies Of Court Documents ....................................................... $498.66 Filing Fee ................................................... ,.................................... $4.32· Overtin1e ........................................................................ ,................ $7.50 Total Disburscm~n ts: $531.96 PRl~VlOOS BALANCE DETAIL 11/17/l] $3,695.97 $0.00 . "``-----,·~-¥~, .., ........ _ .... .•.·.··""'"· -.~-·-·.- .. 12/21112 10279242 $1,839.94 $0.00 $1,839.94 01/31/13 10281244 $492.00 $0.00 $492.00 021!9/13 10281610 $960.00 $0.00 $960.00 03/21/13 10283175 $80.00 $0.00 $80.00 $120.00 $0.00 $120.00 $432.00 $0.00 $432.00 $456.00 $0.00 $456.00 $0.00 $80.00 $S,084.65 $6.474.00 $0.00 $17,436.49 10300698 $2,666.85 $0.00 $2,666.85 04/301!4 10303178 $8,559.00 08/22114 10308682 $18,045.11 08/22114 l 0308683 $1,802.16 00042 065 ~ ••• < -`` i'vhmsch Hardt Kopr& llarr, P.C. Fik No. 01327!.00001 Page 7 of'S Invoice Nn. 10308684 :\ ugust 2 2, 20 14 1\·l:mcr Description: BONA!\·iOUR 00043 066 I , ; -._ . ,_ Munsch Hardt Kopf & Harr, 1).C. FileNo. 013271.00001 Page 8 of8 Invoice No. I 0308684 August 22,2014 Matter Description: BONAMOUR PLEASE RETURN THIS PAGE WITH PAYMENT Total Fees for Services Rendered through August 20, 2014 ........................ $15,280.00 Total Disbursements .........................................................................................$531.96 Total Amount Due This Invoice .................................................................$15,811.96 Previous Balance Due .....................................................................$112.659 .66 Grand Total Due ........................................................................... $128.471 .62 Wire Instructions: Remittance Address: Bank of Texas, N.A. Accounting ABA Routing Number: 111014325 Munsch Hardt Kopf & Harr, P.C. Account Number: 288051 0762 500 N. Akard St., Suite 3800 Swift Code: BAOKUS44 Dallas, TX 75201-6659 File Number and Invoice Number Required. Federal ID Number: XX-XXXXXXX FOR BILLING INQUIRIES, PLEASE CONTACT ACCOUNTING AT (214) 740-5198 00044 067 TAB 3 068 ~· CAUSE NO. DC-12-12868-I PAM J. HALTER, Individually and § IN THE DISTRICT COURT Derivatively on Behalf of Nominal § Defendant, BONAMOUR PACIFIC, INC., § § Plaintiff, § § v. § OF DALLAS COUNTY, TEXAS § NATHAN HALSEY, § § Defendant. § § And § § BONAMOUR PACIFIC, INC., § § Nominal Defendant. § 162"d JUDICIAL DISTRICT COURT FINAL JUDGMENT This matter was called to trial on August 27, 2014, and the Parties, having announced ready, stipulated to trial of this matter to the Court, whereupon the case was tried to the Court. Based upon the evidence submitted and stipulations by the Parties, the Court made the following findings: (1) There was a contract that provided for payment by Defendants to Plaintiff of $85,000 on June 9, 2014; (2) Defendants failed to comply with the contract; (3) Plaintiff was accordingly denied the benefit of her bargain, and thus suffered damages of$85,000; (4) Additionally, Plaintiff reasonably relied to her detriment on Defendants' promise to pay $85,000, such that she is alternatively entitled to recover under the doctrine of promissory estoppel; FINAL JUDGMENT- PAGE 1 069 "'• I (5) Based upon the foregoing, Plaintiff is entitled to judgment in the principal amount of $85,000; (6) Plaintiff is therefore the prevailing party on a breach of contract, and therefore entitled to recover reasonable and necessary attorneys' fees; (7) To determine an appropriate fee award, the court considered the Anderson factors and after applying those factors to the evidence, the Court has determined that a reasonable and necessary attorneys' fee for pursuing the breach of the settlement agreement to judgment is $28,333.00. IT IS THEREFORE ORDERED that Defendants, jointly and severally, shall pay to Plaintiff the sum of $113,333.00, together with post-judgment interest in the amount of 5% per annum until paid in full, for which let execution issue; IT IS FURTHER ORDERD that Defendants take nothing by their counter-claims; IT IS FURTHER ORDERED that Plaintiff shall recover its court costs herein expended; IT IS FINALLY ORDERED that all relief not otherwise granted herein is hereby denied. SIGNED if"' this2...'l~ay of b..- , 2014 FINAL JUDGMENT- PAGE 2 070 TAB 4 071 CAUSE NO. DC-12-12868-I PAM I. HALTER, Individually and § IN THE DISTRICT COURT Derivatively on Behalf of Nominal § Defendant, BONAMOUR PACIFIC, INC., § § Plaintiff, § § OF DALLAS COUNTY, TEXAS "· §§ NATHAN HALSEY, § § Defendant. § § And § § BONAMOUR PACIFIC, INC., § § Nominal Defendant. § 16211 d JUDICIAL DISTRICT COURT ORDER DENYING DEFENDANTS' MOTION FOR NEW TRIAL ON THIS DAY came on for consideration Defendants' Motion for New Trial (the "Motion") filed by Defendants Nathan Halsey and Bonamour Pacific, Inc. (herein collectively known as "Defendants"). The Court, having considered Defendants' Motion and the arguments of counsel, finds that the Motion should be denied. It is, therefore, ORDERED, ADJUDGED AND DECREED that Defendants' Motion for New Trial is DENIED. Signed on this ~day of PRESIDING JUDGE HALTER -ORDER DENYING DEFENDANTS' MOTION FOR NEW TRIAL SOLO PAGE 3266I72v I (59280.00023.000) 072
Document Info
Docket Number： 05-14-01603-CV
Filed Date： 3/26/2015
Precedential Status： Precedential
Modified Date： 9/29/2016