Compass Bank v. Jerry Durant ( 2015 )

Filed: 11/20/2015 9:03 A.M.
Sharena Gilliland
District Clerk
No. CV13-0933 Parker County, Texas
Natalie Matthews
JERRY DURANT, § FILED IN
§ 2nd COURT
IN THE DISTRICT COURT OFOF
APPEALS
FORT WORTH, TEXAS
Plaintiff, §
12/23/2015 9:44:51 AM
§
v. § PARKER COUNTY,DEBRA
TEXAS SPISAK
Clerk
§
COMPASS BANK, §
§ 43RD JUDICIAL DISTRICT
Defendant. §
FINAL JUDGMENT
19th
This matter came on for final hearing on November _______, 2015. Jerry
Durant appeared through his attorneys of record, Ralph Duggins and Philip
Vickers, and Compass Bank appeared through its attorney of record, Michael A.
Logan and C. Jeffrey Novel. This Court has previously considered the First and
Second Motions for Partial Summary Judgment filed by Jerry Durant and the
Motion for Summary Judgment filed by Compass Bank. The Court also
considered the response and reply briefs, exhibits and oral argument of counsel
relating to the summary judgment motions. After considering these items, the
Court entered orders granting partial summary judgments for Jerry Durant and
denying the motion for summary judgment filed by Compass Bank. The Court’s
June 6, 2014 and August 25, 2015 Orders granting partial summary judgments are
incorporated as if set forth fully in this Final Judgment. Accordingly, it is hereby
ORDERED, ADJUDGED, DECREED and DECLARED that after June 1, 2011
Jerry Durant had the right to prepay the amount owed under the Promissory Note
FINAL JUDGMENT Page 1
without payment of any penalty or fee, including any fee claimed by Compass
under the Master Agreement, Schedule, and Confirmation.
The Court finds that Durant paid $790,350.00 on August 29, 2013 as a
termination fee Compass demanded under the terms of the Master Agreement,
Schedule and Confirmation. It is therefore ORDERED, ADJUDGED and
DECREED that Jerry Durant have and recover from Compass Bank actual
damages in the amount of $790,350.00 and prejudgment interest thereon at the rate
of 5% per annum from August 29, 2013 until the date of this Final Judgment, in
the amount of $79,361.91 through September 1, 2015, with per diem interest
thereafter of $108.27 until the date this Final Judgment is signed.
Based upon the summary judgment rulings previously made by the Court,
the Court finds and concludes as a matter of law that Jerry Durant is entitled to
recover attorneys’ fees under Chapter 38 of the Texas Civil Practice & Remedies
Code for breach of contract. In the alternative to relief awarded Jerry Durant
under Chapter 38 of the Texas Civil Practice & Remedies Code, the Court finds
and concludes that it would be equitable and just for Jerry Durant to recover costs
and reasonable and necessary attorneys’ fees associated with prosecuting his
declaratory judgment claims.
Based on the agreement of Jerry Durant and Compass Bank solely as to the
amount of attorneys’ fees to be awarded, the Court awards attorneys’ fees to Jerry
Durant which the Court finds are reasonable and necessary. It is therefore
ORDERED, ADJUDGED and DECREED that Jerry Durant have and recover
FINAL JUDGMENT Page 2
from Compass Bank reasonable and necessary attorneys’ fees in the amount of
$157,000.00 for prosecution of his breach of contract claim or, in the alternative,
his declaratory judgment claims, through Final Judgment. It is further
ORDERED, ADJUDGED and DECREED that if Compass Bank appeals this
Final Judgment and Jerry Durant prevails on such appeal, he shall recover from
Compass Bank the following additional amounts for prosecution of his breach of
contract claim, or in the alternative, his declaratory judgment claims, representing
the reasonable and necessary attorneys’ fees and expenses that would be incurred
by Jerry Durant in defending that appeal: in successfully defending an appeal to
the Court of Appeals, $40,000.00; in the event Compass Bank files a Petition for
Review with the Supreme Court of Texas that is ultimately unsuccessful,
$10,000.00; in the event that the Court of Appeals reverses the trial court and Jerry
Durant files a Petition for Review with the Supreme Court of Texas that ultimately
results in a reversal of the Court of Appeals, $15,000.00; in the event the Supreme
Court of Texas orders full briefing on the merits and Jerry Durant prevails,
$25,000.00; in the event the Supreme Court of Texas holds oral argument and
Jerry Durant prevails, an additional $10,000.00; in the event either party files a
motion for rehearing with the Texas Supreme Court and Jerry Durant prevails,
$8,000.00.
It is further ORDERED, ADJUDGED and DECREED that Jerry Durant
have and recover from Compass Bank all taxable costs of court.
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It is further ORDERED, that the total amounts awarded by this Final
Judgment here rendered shall bear post-judgment interest at the rate of 5% from
the date of this Final Judgment to be compounded annually until all amounts are
paid in full.
All writs and processes for the enforcement and collection of amounts
awarded by this Final Judgment may issue. All relief requested in this case and
not expressly granted in partial summary judgments incorporated herein or in this
Final Judgment be and hereby is denied. This Final Judgment finally disposes of
all parties and claims in this action and is final and appealable.
SIGNED this 19th
_ _ day ofNovember 2015.
CRAIG TOWSON
Judge Presiding
APPROVED AS TO FORM:
`` 0~
Ralph H. Duggms
Philip A. Vickers
Counsel for Jerry Durant
0
Counsel or Compass Bank
FINAL JUDGM ENT Page 4