                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-14-00666-CV

IN RE Dean DAVENPORT, Dillon Water Resources, Ltd., 5D Drilling and Pump Service, Inc.
  f/k/a Davenport Drilling & Pump Service, Inc., 5D Water Resources, LLC f/k/a Davenport
  Oper., LLC, Water Exploration Co., Ltd., WAD, Inc., Water Investment Leasing Company,
   LLC, Blue Gold Resources Management, LLC, Blue Gold Properties, LLC and Blue Gold
                                    Development, LLC

                                     Original Mandamus Proceeding 1

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 11, 2015

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART

           On September 23, 2014, relators filed this petition for writ of mandamus complaining of

the trial court’s order setting aside the judgment rendered on a jury’s verdict and granting a new

trial in the underlying breach of contract dispute between attorneys and their former clients.

Because we conclude the trial court’s order is insufficient to meet the standards articulated by the

Texas Supreme Court for orders granting a new trial after a jury verdict, we conditionally grant




1
  This proceeding arises out of Cause No. 2012-CI-03086, styled Tom Hall, Thomas C. Hall, P.C. as Successor in
Interest to Hall & Bates, L.L.P., Blake Dietzmann, Tim Patton and Timothy Patton, P.C. v. Dillon Water Resources,
Ltd., 5D Drilling and Pump Service, Inc. f/k/a Davenport Drilling & Pump Service, Inc., 5D Water Resources, LLC
f/k/a Davenport Oper., LLC, Dean Davenport, WAD, Inc., Water Exploration Co., Ltd., Water Investment Leasing
Company, LLC, Blue Gold Resources Management, LLC, Blue Gold Properties, LLC and Blue Gold Development,
LLC, pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter A. Sakai presiding.
                                                                                   04-14-00666-CV


the petition for writ of mandamus in part and deny it in part. See In re United Scaffolding, Inc.,

377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding).

                     FACTUAL AND PROCEDURAL BACKGROUND

       Tom Hall, Blake Dietzmann, Tim Patton, and their respective law firms (collectively “the

Attorneys”) sued Dean Davenport, Dillon Water Resources, Ltd., and several related entities

(collectively “Davenport”) in 2012 alleging, among other things, that the former clients had

breached a contingency fee agreement which the attorneys claimed entitled them to ownership

interests in Water Exploration Co., Ltd. (“WECO”) and WAD, Inc., two water exploration

companies.

       WECO was formed as a limited partnership in 1999 by Dean Davenport, James Allen and

Mark Wynne, with each partner owning a 33% interest. The remaining 1% interest was owned by

WAD, Inc., a general partnership involving all three partners. Davenport hired Hall, Dietzmann,

and Patton in 2008 to bring claims against Allen and Wynne for allegedly attempting to convert

Davenport’s interests in WECO, limiting his involvement in the company. In January 2009, a jury

found that Allen and Wynne had converted Davenport’s interest in WECO, and valued the interest

at the time and place of conversion at $70 million.

       In April 2009, Davenport entered into a post-verdict settlement agreement with Allen under

which Davenport acquired all of Allen’s interest in WECO and WAD in exchange for a take-

nothing judgment as to Davenport’s claims against Allen. In August 2010, Davenport entered into

a separate settlement agreement with Wynne under which Davenport similarly acquired all of

Wynne’s interest in WECO and WAD. As a result of these two agreements, Davenport became

the sole owner of WECO and WAD.

       The Attorneys filed suit in 2012 alleging, in relevant part, that Davenport breached their

contingent fee agreement by failing to transfer ownership interests in WECO and WAD to the
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Attorneys after Davenport had purchased or acquired the interests from Allen and Wynne as part

of the settlement of the underlying suit for conversion.

       The trial court in the fee dispute litigation declined to find the parties’ contingent fee

agreement unambiguous and to construe it as a matter of law. Accordingly, the jury was asked in

Question 1 to interpret the following language contained in the contingent fee agreement:

               Client agrees to sell, transfer, assign and convey to HALL & BATES, L.L.P.
       AND BLAKE DIETZMANN an undivided interest in the above claim to be
       calculated as follows:
       Forty percent (40%) of the gross amount recovered
       Except that Attorneys will not take a fee out of the ownership of 5D Water
       Resources and Dillon Water Services
       Any recovery of Attorney’s fees that have been incurred as of the date of this
       contract shall be on a contingency of 25%
       By “GROSS AMOUNT” is meant the total sums recovered.

The jury was asked to decide whether this language entitled the Attorneys to an interest in WECO

and WAD in addition to a percentage of any cash Davenport recovered in his suit against Allen

and Wynne. The jury answered “no” to Question 1. The jury also found, in response to other

questions in its charge, that Davenport had failed to reimburse all of the Attorneys’ expenses as

agreed; the Attorneys were estopped from seeking any ownership interest in WECO; and the

Attorneys had waived their right, if any, to seek an ownership interest in WECO. The Attorneys

filed a motion for judgment notwithstanding the jury’s verdict, which was denied, and the trial

court rendered judgment on the verdict.

       The Attorneys then filed a motion for new trial on three grounds: (1) the fee agreement is

unambiguous and should have been construed by the court as a matter of law, rather than by the

jury; (2) the jury’s findings of estoppel and waiver are against the great weight and preponderance

of the evidence; and (3) the defendants must be afforded an opportunity to present an

unconscionability defense to the unambiguous agreement that entitles the Attorneys to an interest



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in the companies. The motion for new trial was overruled by operation of law and both sides filed

notices of appeal. 2

           Before the end of its plenary power, the trial court signed an order vacating the judgment

in its entirety, and granting the Attorneys’ motion for new trial. Davenport filed this mandamus

proceeding seeking an order directing the trial court to withdraw its order granting a new trial and

reinstate the judgment on the jury’s verdict.

                                                     ANALYSIS

           Mandamus relief is an extraordinary remedy and will issue only to correct a clear abuse of

discretion when the relator has no other adequate remedy by appeal. See In re Reece, 341 S.W.3d

360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-

36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so

arbitrary and unreasonable that it constitutes a clear and prejudicial error of law, or if it clearly

fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,

382 (Tex. 2005) (orig. proceeding).

           Rule 320 of the Texas Rules of Civil Procedure gives the trial court broad discretion to

grant a new trial “for good cause, on motion or on the court’s own motion.” TEX. R. CIV. P. 320.

This discretion, however, is not without limits and does not, “permit a trial judge to substitute his

or her own views for that of the jury without a valid basis.” In re Columbia Med. Ctr. of Las

Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding). The trial court

must provide an understandable, reasonably specific explanation of its reasons for setting aside a

jury verdict. Id. at 213; In re C.R.S., 310 S.W.3d 897, 898 (Tex. App.—San Antonio 2010, orig.

proceeding).



2
    Appeal No. 04-14-00581-CV, styled Davenport, et al. v. Hall, et al., remains pending in this court.

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         A trial court does not abuse its discretion so long as its stated reasons for granting a new

trial are both legally appropriate and specific enough to indicate that the trial court derived its

articulated reasons from the particular facts and circumstances present in the case. United

Scaffolding, 377 S.W.3d at 688-89. If the trial court’s articulated reasons are facially valid, an

appellate court may conduct a merits-based review of the reasons on mandamus. In re Toyota

Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 755-59 (Tex. 2013) (orig. proceeding). If the articulated

and reasonably specific reasons are not supported by the law and the record, mandamus relief is

appropriate. Id. at 761.

         As an initial matter, we must determine whether the trial court’s order meets the threshold

requirements established in United Scaffolding. United Scaffolding, 377 S.W.3d at 688-89.

         The order granting new trial in the fee dispute case states:

         (1) Looking at the parties’ Contract of Employment and Power of Attorney (the
         “Contract”) as a whole, in light of the circumstances present when the parties
         entered into the contract, the Court finds the Contract is unambiguous.

         (2) The Court notes with great deference the answer of the jury in regards to
         Question 1 wherein the jury answered negatively to the issue of whether the
         Defendants agreed that Plaintiffs’ attorney fees could include an ownership interest
         in Defendant’s corporations. Notwithstanding the answer to Question 1, the Court
         takes note of the jury’s answers [to the remaining questions].

After merely reciting the jury’s remaining answers and findings, the new trial order goes on to

state:

         Therefore, the Court does not make a specific finding that any of the jury answers
         or findings, in themselves, justifies the granting of the new trial, but rather the Court
         finds that the Court findings, as stated herein, the admissible testimony of the trial
         and the jury’s answers be taken, in totality, in determining that the verdict is against
         the great weight and preponderance of the admissible evidence.

         The trial court’s post-verdict finding that “the Contract is unambiguous” does not, by itself,

provide an adequate explanation of the trial court’s reasoning for granting a new trial. See, e.g.,

Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997) (jury finding is immaterial if the question
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should not have been submitted); see also Hall v. Hubco, Inc., 292 S.W.3d 22, 27 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (trial court may disregard finding on an immaterial jury

question without a motion).

        While the trial court’s second stated reason, the finding that the jury’s answers are against

the great weight and preponderance of the admissible evidence, is a legally sound reason for

granting a new trial, that statement alone is not specific enough to indicate that the trial court based

its determination on the particular facts and evidence in this case. United Scaffolding, 377 S.W.3d

at 688-89. The Texas Supreme Court has directed:

        [M]andamus may lie if the order, though rubber-stamped with a valid new-trial
        rationale, provides little or no insight into the judge’s reasoning. Usually, the mere
        recitation of a legal standard, such as a statement that a finding is against the great
        weight and preponderance of the evidence, will not suffice. The order must indicate
        that the trial judge considered the specific facts and circumstances of the case at
        hand and explain how the evidence (or lack of evidence) undermines the jury’s
        findings. A trial court abuses its discretion if its new-trial order provides no more
        than a pro forma template rather than the trial judge’s analysis.

Id. at 689.

        While the new trial order in this instance provides a general rationale for the court’s

decision, it does not discuss any evidence, reference any specific facts, or explain how any

particular set of facts, evidence or testimony undermines the jury’s specific findings, thus

warranting a new trial. See United Scaffolding, 377 S.W.3d at 689. A new trial order must

“elaborate, with reference to the evidence adduced at trial, how the jury’s answers are contrary to

the great weight and preponderance of the evidence.” Id. Given the requirements outlined by the

Texas Supreme Court, the trial court’s stated reasons for granting a new trial in this instance are

not sufficiently specific, and thus the order granting a new trial constitutes an abuse of the trial

court’s discretion. See Columbia Med. Ctr., 290 S.W.3d at 212-13.




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                                          CONCLUSION

       Davenport requests that this court issue a writ of mandamus directing the trial court to

vacate the new trial order and reinstate the judgment entered on the jury’s verdict. However, an

order directing the trial court to enter judgment on the verdict is not appropriate where the trial

court does not adequately state its reasons for granting the new trial. See, e.g., United Scaffolding,

377 S.W.3d at 690 (trial court not required to enter judgment on the verdict where trial court’s

reasoning for new trial is unclear); Columbia Med. Ctr., 290 S.W.3d at 214 (declining to order

judgment on the verdict where trial court had not stated grounds for new trial); see also In re City

of Houston, 418 S.W.3d 388, 397-98 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding)

(ordering judgment on verdict where merits review revealed invalid reasons for new trial).

Therefore, we deny mandamus relief to the extent that Davenport seeks an order directing

reinstatement of judgment on the verdict at this time. Because we conclude that the new trial order

is insufficient to meet the standards articulated by the Texas Supreme Court for orders granting a

new trial after a jury verdict, we conditionally grant mandamus relief and direct the trial court to

vacate its new trial order and issue a new order, specifying its reasons for disregarding the jury

verdict and entering a new trial order in compliance with United Scaffolding. See United

Scaffolding, 377 S.W.3d at 689. The writ will only issue if we are advised the trial court has failed

to comply with this court’s order.


                                                  Rebeca C. Martinez, Justice




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