Nathan Halsey and Bonamour Pacific, Inc. v. Pam J. Halter

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

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 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

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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

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 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
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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

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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

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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].

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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].

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 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).

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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

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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 failed to 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.

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 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.

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 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

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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

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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

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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].

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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.

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 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

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 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

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 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~,){ BAL:'!'i:Y

:)::~~:;q~;i:.:,_? ···~;'{

00007
029
TAB 2

030
 I ,

DALLAS ! HOUSTON I AUS!lN
Dlr~~~t.Dtnl2l4.S55 ..754.15
dwossi~l1iF;Inunsch.~l'll1

August 22. 2014

Znch T. Mayer Via E··Mnil
Sara l Krumholz
Kane Russell Coleman & Logan, PC
:noo Thanksgiving Tower
!60 l Elm Stn;ct
Dallns,TX 75201

Re: Cause No. DC>l2-1286g.t: Pam.!. Haller v /'.'ttlhM ifufsf!y. ef a/

Dear Counsel:

Si<1ce your clients' breach of the scttkmcnt agreement. we have beenndviseJ on a
number of occasions to expect pnyment of the settlement umount befbre triaL m the latest. Trial
is now \lpon us, and we have yet to receive pnyment.

As the breach persisted, we have become increasing concerned that .\vfr. Hulsey had no
intention of ever p\.lrfonning the agreement. We learned t1tst that he hnd suffered ""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 3300
):._ ~ KOPF & HARR PC Dallas. Texas 75201-6659
Mmn 214 855.7500
AnQRNEVS & COUNSELORS
f-a~ 214.855.758~
DALLAS I HOUSTON I AUSTIN rnun$ch.com

Pam Halter
1126 Whispering Oaks Drive
DeSoto, TX 75115
Invoice Date: August 22, 2014
FileNo. 013271.0000 I
Invoice No. 10308682

Matter Description: BONAMOUR

Total Fees for Services Rendered through April30, 2014 ........................... $17,910.00

Total Disbursements .........................................................................................$135.11

Total Amount Due This Iuvoice .................................................................$18,045.11

Previous Balance Due ....................................................................... $92,812.39

Grand Total Due ........................................................................... $! 10.857.50

Wire Instructions: Remittance Address:
Bank of Texas, N.A. Accounting
ABA Routing Number: I II 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.

FederaiUONumber:XX-XXXXXXX

FOR BILLING INQUIRIES, PLEASE CONTACT ACCOUNTING AT (214) 740-5198.

00026
049
~v!unsch Hnrdt Kopf & Harr, P.C.
Fi lc No. 0! 3271.0000! P682 !\ 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:nl
-«f MUNSCH HARDT St1ite ._1.300
),... .J. KOPF & HARR PC Dallas. Te~a~ 75201-6659
Mmn 214 855 7500
ATTORNEYS & COUNSELORS
Fa< 214.855.75$~
DALLAS I HOUSTON I AUSTIN rnunschxorn

Pam Halter
1126 Whispering Oaks Drive
DeSoto, TX 75115
Invoice Date: August 22, 2014
FileNo. 013271.0000 I
Invoice No. 10308683

Matter Description: BONAMOUR

Total Fees for Services Rendered through June 9, 2014 ................................ $1,800.00

Total Disbursements .............................................................................................$2.16

Total Amount Due This Invoice ................................................................... $1,802.16

Previous Balance Due .....................................................................$!! 0.857.50

Grand Total Due ........................................................................... $1 12.659.66

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.

00032
055
 I :

l\ 1unsch Hardt Kopf & !larr. I' .C.
File No. 013271.0000! Page 2 or5
Invoice No. I 03086ll3 August 22. 20 14
ivlatt<.Ot Dcscripiimi: BONt\tvlOUR

FEE DETAIL

5/l/14 DLR Direct follow-up in light of!ack of response 0.10 40.00
n·om opposing counsel on final comments to
Rule 11 agreement.
""""-" --·······~·-············· --······················· +······································+············· ••••••.•••••••••••••••••••.. I
5Jl!l4 DLR Continue to negotiate Rule 11 Agreement; 0.50 200.00
canter· with client regarding same; confer with
co~counsel regarding same; attention to
execution of same; direct fc)llow-up with Court.
5/2/14 DLR Con f1 rm court announcement made;
5/15/14 DLR Exchange correspondence with opposing 0.20 80.00
counsel regarding status or promised draft
settlement agreement.
5/19114 DLR Continue to fbllow-up with opposing counsel 0.10 40.00
regarding draft settlement motion.
5/20/!4 DLR Review response n·om opposing counsel 0.10 40.0()
regat'ding seltlemcnt.
5/23/14 DLR Correspondence to opposing counsel regarding uo 520.00
improper delay; develop plan in light or same;
calendar steps to be taken; review response;
draft responsive correspondence and proposed
motion; exchange further correspondence
regarding motion and hearing; direct !iling of
motion and setting ofhearing.
5/27114 DLR Telephone conH;rcnce with clerk regarding 40.00
lixtllcoJi1ing clismissal motion.
5/28114 DLR Review and revise drart settlement papers; l .20 480.00
various CtWrespondcnce with counsel relative to
same.
5/29/14 DLR Review and forward signed order to opposing 0.20 80.00
counsel; revien' response on chnngcs 10 draft
settlemenl papers.
6/2/14 DLR Correspondence to client regarding approval of' OJO 120.00
!lnal version of settlement; telephone conrcrence
with clk~nt regarding same; exchange
correspondence with opposing counsel regarding
final version and execution logistics.
6/9/14 DLR Follow-up to determine status of performance of 0.30 120,00

00033
056
 tvluns~:h llardt Kopl' & !!an<, P.C.
File No, Ol327Ul(l001 l'agc 3 of5
Invoke No. ·1 030S68J i\ugust 22. 20 1-l
1\luttcr Dt:scription: BON:\MOUR

Total Hours: .......................... ~ ................ 4.50

Total Fees: ....................................................... ., ........ $1 ,800.00

TIMEKEEPER SUMMARY

Total 4.50 $I ,800.00

DISBURSEMENTS SUMMARY

Filing Fee .............. ,........... ,.............................................................. $2.16

TotHl Disbursements: $2.16

PREVIOUS BALANCE DETAIL

09/21112 10274780 $5,448.05 $0.00 $5,448.05
11117/12 10277342 $3~695.97 $3,695.97
········~~···•v•7n,_v- A

12/2 I/12 10279242 $1,839.94 $1,839.94
01/31/13 10281244 $492.00.
•••o•M .. ov·--·~~.-•• ~.-.-• ., ••c,.>•• •
--- ---- . "'··"~-'"' .
02/19/13 10281610 $0.00 $960.00
················-·-···>·--· ...........................,....

03/21/13 10283175 $80.00 $0.00 $80.00
---~=---···~·--··.T."-~~'~
-----~·-·--"""'"'

04/17/13 10284631 $120.00 $0.00 $120.00
··-·-········-v·.··..wv~~-><~•-·•·''···-·····

06/13/13 10287467 $0.00 $432.00
06/18/13 10287664 $0.00 $456.00
08/21/ J 3 10290732 so.oo $80.00
09/26/13 $0.00 $1,040.(}0
J 0/22/13
........,._..
,,,~,~---. ·---~ ...

00034
057
 Munsch Hardt Kopf' & llurr, P.c.
File No. Ol327LOOOOI Page 4 of'S
Invoice No. l 0308683 August 22.20.14
1v!uttcr Dcs<:riptlon: BON/\MOUR

"tt!u·ifn '"'' , ~ :,:;s~ I,nv:JJ.;'·~··"·".t'
'"40~"'~~<:0)!

;w· t aletr:
!:""~"' ,_~~~
., " .... .'If..mo1nt
.. ·... . ••'· ""···
'>'
.•" ..;...."
.~~
x x~~£ 'X

·'"'''<" ~*"~:B.r'"''w"' ,.,li~.·
II!Dl~nt·z<".l\10~:.;·* .a agce:.!J,t.~
~!!; " :-;>
m·
<'~~
•• l
'"'""'' x'<:&ffi~""W ;gpe~;' xo'

'\%f''<,l:'fb""" ft",~"'~""''1""">., """""" ~ B" \ J)t."'~""-'li-;;_ ,"' ,"~ ,., "'' "'""',.~"'~"'~~ "'""'"' '«~<\f -"''*'"'""'fi'""«l;t.;.mm~ """"""""1!i ~ '~,"~"""(ohdii*

ll/23/13 10296214 $29.378.52 $0.00 $29,378.52
'<>>w·-~~-.~.v.~ .., .• _,_,~.=~~'·'~· ········-······ ....... ····--·.. ·--······· '·······-·-······..-······

12/18/t 3 10296878 $8,084.65 $0.00 $8,084,65
.................... ...... i •
'··· -¥W'

Ol/17!!4 10298090 $6,474.00 $0.00 $6.474.00
···-~··~- ....... .-........

02/19/14
·--··'" ........ _ 10299397
~~"~*"""'•
$17,436.49 $0.00
........... ,.................... $17.436.49
•-----·~·-'··M-·-------

03/19/14 10300698
_
·--.. ..--............. .. ,_....... ..............._.............
-·~- ~
$2,666.85 $0.00
··--···
$2,666.85
04/30/14 10303178 $8,559.00 $0.00 $8,559.00
....

08/22/14
·--·
.... ___ 10308682
---- ~ ...... ......
$18,045. I I $0.00 $18,045.11

I
Previous Balance: $I l 0,857.50

00035
058
Munsch Hardt Kopf & Harr, P .C.
File No. 013271.0000 I Page 5 of5
Invoice No. I 0308683 August22, 2014
Matter Description: BONAMOUR

PLEASE RETURN THIS PAGE WITH PAYMENT

Total Fees for Services Rendered through June 9, 2014 ................................$1,800.00

Total Disbursements .............................................................................................$2.16

Total Amount Due This Invoice ...................................................................$1,802.16

Previous Balance Due ..................................................................... $110,857.50

Grand Total Due ........................................................................... $112.659.6§

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

00036
059
 I : I ,

~MUNSCH
500 1-1 Akt
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