RECEIVED
Court of Appeals
5th Court of Appeals
FILED: 9-21-15
Lisa Matz, Clerk
SEP 1 6 2015
CAUSE NO. 05-14-01575-CV
Lisa Matz
IN THE COURT OF APPEALS Glerk, 5th District
FIFTH DISTRICT OF TEXAS
AT DALLAS
WILLIAM T.DICKSON
Appellant
v.
BNSF RAILWAY COMPANY
And
FELLERS SNIDER BLANKENSHIP BAILEY & TIPPENS P.C.
Appellees
APPELLANT WILLIAM T. DICKSON'S REPLY BRIEF TO RESPONSE OF
BNSF RAILWAY COMPANY
Appeal from Grant of Summary Judgment by the 193rd District Court
Honorable Carl Ginsberg, Presiding
William T.Dickson.
Pro Se Plaintiff/Appellant
2626 Maple Avenue,
Suite 200
Dallas, Texas 75201
(214)696-1100
(214)740-0112
Wtdickson7@aol.com
TABLE OF CONTENTS
I. Fact in Dispute That Precludes Summary Judgment 1
A. Did the Claims BeingLitigated inAppeal 10-5096 Settle On Or About
August 31, 2010? 1
II. BNSF's Statement of Facts 2
A. The Underlying Federal Litigation 2
B. The Dismissal of Willis Claims by the Federal District Court 3
C. The Tenth Circuit Decision With Respect to BNSF 4
D. The Claims Willis Pursued Against BNSF On Remand and In
Appeal 10-5096 Were Not Non-Existent 5
E. BNSF's Statement ofFacts Is Riddled With False Statements 6
F. Dickson Did Not Voluntarily Withdraw as Willis' Attorney 8
G. The Hearing Held on February 17, 2011 Is Completely Irrelevant
to This Case 8
H. Dickson Is Not Seeking a Contingency Fee From a Lawsuit Lost in 2006 9
IE. TheTiM(^urtEniedbyNotCondnuingthe Summary Judgment Hearing 11
A. Dickson Was Diligent inPursuing Discovery 11
B. Dickson Showed That TheDiscovery Needed Was Material 12
IV. The Trial Court Erred in Sustaining Fellers Snider's Objections
to Dickson's Summary Judgment Evidence 13
V. The Court Should Reverse the Summary Judgment Granted to BNSF 13
A. Dickson's Claims Are Not Barred by Issue Preclusion 13
B. Dickson's Claims Are NotBarred by Waiver 15
C. Dickson's Claims Are Not Barred By Quasi-Estoppel 15
D. The Court Should Reverse the Summary Judgment on Settlement
in Breach of 5 O.S. §8 16
1. The No Evidence Summary Judgment 16
2. The Traditional Summary Judgment 17
a. Willis CPA Did Not Lose Its Lawsuit 17
b. This ClaimIs Not Barred By Limitations 18
E. This The Court Should Reverse the Summary Judgment
For Tortious Interference With a Contract 19
1. The No-Evidence Summary Judgment Was Error 19
2. Thetraditional summary judgment was error 20
CONCLUSION AND PRAYER 22
TABLE OF
AUTHORITIES
Cases
B Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282
(10th Cir. 2008) 3,4,5,6,9,10,14,20,21
Public Service Company v. B. Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997) 4
Statutes
5 O.S. §8 18,19,21
5 O.S. §9 16
in
CAUSE NO. 05-14-01575-CV
IN THE COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
WILLIAM T DICKSON
Appellant
v.
BNSF RAILWAY COMPANY
And
FELLERS SNIDER BLANKENSHIP BAILEY & TIPPENS P.C.
Appellees
APPELLANT WILLIAM T. DICKSON'S REPLY BRIEF TO
RESPONSE OF BNSF RAILWAY COMPANY
TO THE HONORABLE FIFTH COURT OF APPEALS:
Appellant, William T. Dickson ("Dickson"), files this brief in reply to the
response brief filed by Appellee, BNSF Railway Company ("BNSF") and respectfully
shows the Court the following:
I. Fact in Dispute That Precludes Summary Judgment.
Throughout its brief BNSF makes factual assertions that it claims are
undisputed or established as amatter of law. In fact, there is one fact very much in
dispute that make the summary judgment BNSF obtained reversible error.
A. Did the Claims Being Lifted in Appeal 10-5096 Settle On OrAbout August 31,
2010?
BNSF alleges that Dickson can show no damages because the alleged damages
arose from the settlement between Willis and PSO/BNSF that occurred in February
2011. Specifically, BNSF asserts that Willis and PSO/BNSF announced their settlement on
February 17,2011.
In fact, PSO filed a motion in the U.S. District Court on December 28, 2010
that explicitly stated that no settlement had been reached but that if the Court were to
hold a hearing the parties could reach a settlement. (CR 284) Then, at the hearing on
February 17,2011, Stratton Taylor stated (CR 290):
Trans. Page 8, Line 17-Page 9, Line 2
Mr. Taylor: That's fundamentally correct, Judge. I think what we'd
reallyliketo have happen today, ifpossible, would be if we couldhave
the motionto approve settlement heard, because ifwecould reach an
agreement on that with B. Wilis. C.P.A.. that would dispose of one
matter .andthen we couldthem go ahead and withdraw the motionfcr
the settlement conference. If can't proceed with motion to approve the
settlement agreement that we would hope to get done today... (Emphasis
added.)
In fact, Dickson's damages arose from the tortious acts of BNSF and Public
Service Company of Oklahoma ("PSO") in secretly settling Tenth Circuit Appeal 10-
5096 with Willis' new counsel Fellers Snider Blankenship Bailey & Tippens P.C.
("Fellers Snider") without Dickson's knowledge or consent. As shown by the e-mails
((CR 323-340, 343-375, 531-562, 562-597, 756-787, 789-822), Fellers Snider effected
a settlement on behalf of Willis with PSO/BNSF on or about August 31,2010.
Thus, there isvery much a dispute as towhen Willis and PSO/BNSF entered into
a settlement agreement with respect to the claims being litigated in Tenth Circuit Appeal 10-
5096.
II. BNSF's Statement of Facts.
A. The Underlying Federal Litigation
In its first alleged fact, BNSF states:
BNSF was a defendant in several of those actions, all of which grew out of
the taking of part Willis CPA's property via eminent domain.
While Willis was engaged in litigation with PSO and BNSF over many years,
the only previous litigation that isrelevant tothis case are two appeals to the U.S. Court
of Appeals for the Tenth Circuit, B. Willis C.P.A., Inc. v. BNSF Railway Company,
531 F.3d 1282 (10th Cir. 2008) and Appeal No. 10-5096,5. Willis C.P.A., Inc .v. BNSF
Railway Company. These cases did not grow out of PSO's taking Willis' property by
eminent domain but by PSO seizing a portion of Willis' property without complying
with Oklahoma's eminent domain requirements. See Public Service Company v. B.
Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997).
In Appeal No. 10-5096,5. Willis C.P.A., Inc .v. BNSF Railway Company, Willis
asserted a claim under 42 U.S.C. § 1983 that PSO had located a portion of its track off
of the easement or right of way on a portion of Willis property PSO had never filed
condemnation proceedings against. Specifically, Willis pleaded that PSO, as a state
actor, located its track beneath the surface easement it had impressed on Willis'
property. See CR 232 and CR 272. The Tenth Circuit held that Willis had a 'Viable
claim" for removal of coal and limestone from 'beneath the surface easement." B.
Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282, 1306 (10th Cir. 2008) If
the coal seam was 'beneath the surface easement," obviously the track, located even
further down, is alsobeneath or off ofthe surface easement.
This claim was completely independent ofPSO's eminent domain proceeding.
B. The Dismissal of Willis Claims by the Federal District Court.
BNSF asserts on page 2of its brief that Willis alleged "the wrongful possession
and use of a surface easement across its property. Willis alleged first, that there was
no easement across Willis' property1 and secondly, even if there was an easement, it
was only a surface easement, as the Tenth Circuit held in B. Willis C.P.A., Inc. v.
BNSF Railway Company, 531 F.3d 1282 (10*1 Cir. 2008) at 1306 and when PSO cut
beneath the surface easement, it was trespassing offthe easement.
When the U.S. District Court dismissed Willis claims in 2006, it did so without
prejudice as unripe. When the Tenth Circuit ruled on July 16, 2008, it found that during
the pendency of the appeal, some of the claims had become ripe and some were still
unripe. B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282,1287,1288 (10th
Cir.2008)(CR Supp. #11228).
C. The Tenth Circuit Decision With Respect to BNSF.
BNSF asserts that the Tenth Circuit affirmed the dismissal of all of Willis claims
against BNSF. What BNSF has overlooked since the Tenth Circuit rendered its
decision in 2008 is that it held that Willis' claims under 42 U.S.C. § 1983 were still
viable so long as they were based on a claim other than PSO did not have right to use
the easement it filed to condemn during the course of the state condemnation
proceeding. B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282, 1306
(10th Cir. 2008) In other words, Willis still had a viable claim that PSO given Willis a
cause of action by seizing property against which it had never filed condemnation
proceedings and located its track off of the easement or right of way. And further, the
Tenth Circuit went to great lengths to be clear that BNSF was in privity with PSO
See Public Service Company v. B. Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997).
because of the Industrial Track and Operating Agreement by which BNSF took
possession and control of the track and ran trains over it. B. Willis C.P.A., Inc. v.
BNSF Railway Company, 531 F.3d 1282,1302 (10thCir. 2008).
D. The Claims Willis Pursued Against BNSF On Remand and In Appeal
10-5096 Were Not Non-Existent.
After the Tenth Circuit issued its decision on July 16, 2008 holding that Willis
had viable but unripe claims, Willis dismissed the pending state appeal on just
compensation for a surface easement on of September 9, 2008. The U.S. District Court
held that Willis' remaining claims were then ripe. (1st Supp. CR 1247, 1248).
Willis' primary claim was the 42 U.S.C. § 1983 claim against PSO for locating
its track other than where it had condemned a surface easement. However, what BNSF
is ignoring, and wants this Court to ignore, is that when Willis' primary claim became
ripe on September 9, 2008, a derivative tort claim against BNSF also became ripe atthe
same time. If Willis did not have a claim against PSO for locating a portion of its track
offofthe right ofway, then Willis would have no claim against BNSF for operating and
using that track as PSO's contractor. But, as the Tenth Circuit held that that BNSF was
in privity with PSO pursuant to the Industrial Track and Operating Agreement, ifWillis
had such a claim against PSO, Willis had the same claim against BNSF for operating
the track and running trains over it as PSO contractor.
However, since this claim did not become ripe until September 9, 2008. after
the ruling of the Tenth Circuit in B. Willis C.P.A., Inc. v. BNSF Railway Company, 531
F.3d 1282 (10th Cir. 2008) on July 16,2008, the claim could not have been rendered non-existent
ordefunct bythat decisioa.
E. BNSF's Statement ofFacts Is Riddled With False Statements.
Beginning onpage 5 under Section V, BNSF begins a narrative that isriddled with false
statements. Onpage 6 BNSF asserts that what PSO really wanted was for it and Willis CPA to
simply walk away. What PSO really wanted for Willis todrop the appeal against bothBNSFand
PSO since PSO was responsible for obtaining the right of way under the Industrial Track and
Operating Agreement (CR 246)and the Tenth Circuit had held BNSF and PSO were in privity as a
result ofthat agreement B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d
1282,1302 (10th Cir. 2008).
Then BNSF falsely states that "Dickson did not tell Willis about the letter, but Willis
saw it on Dickson's fax machine." Dickson did not have a fax machine. The letter was
faxed to Willis' fax machine as Dickson used Willis' office as his Tulsa office. Willis
received the fax and then called Dickson and told him about it. (CR 1st Supp. 303)
Next, BNSF falsely states that Willis "promptly told Dickson that he wanted him to
accept the proposal on behalf ofWillis CPA." Willis did no such thing. Willis and Dickson
had several discussions about how to proceed, but Willis initially made no decision onhow
to respond. (CR 834, 836- 837). Then, Willis called Dickson and informed him that he was
not to respond to PSO's letter because Fellers Snider was going to contact PSO's attorney
and accept its offer. When Dickson attempted to discuss the matter further, Willis abruptly
hung up. (CR 187,628, 834, 837)
Dickson filed his attorney lien while the case was being actively litigated at the
U.S. Court of Appeals and Willis had made no decisions about dropping the case. (CR
300). At the time Dickson sent his letter to PSO's attorney reminding him of Dickson's
attorney lien, Willis had given Dickson no instruction to accept PSO's offer. Dickson's
instructions were not to accept PSO's offer because Fellers Snider were going to. (CR
187, 628, 834, 837). In fact, Fellers Snider did exactly that. (CR 323-340, 343-375,
531-562, 562-597, 756-787, 789-822)
On page 6 BNSF falsely asserts that "because Dickson had defied his
instructions regarding settlement, Wills contacted Steve Adams, an attorney at Fellers
Snider, to get a second opinion." Willis informed Dickson on August 26, 2010 thai
Adams was going to contact PSO's attorney to accept PSO's offer. CR 187, 628, 834,
837). As shown by e-mails (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-
822) Adams called PSO's attorney by Friday, August 28, 2010 to do exactly that.
Subsequent to that, Willis began demanding that Dickson contact PSO's attorney and
accept PSO's offer, even though Fellers Snider had already settled the case on Willis'
behalf.
On page 8 BNSF asserts that, "Willis wanted to hire Adams, but Adams would
not agree to represent Willis CPA because ofDickson's threat to sue Fellers Snider." In
fact, Steve Adams, as a shareholder of Fellers Snider represented Willis in the federal
litigation and settled the case on Willis' behalf. (CR Supp #3 21) (CR 323-340, 343-375,
531-562, 562- 597, 756-787, 789-822)
What BNSF completely ignores in its narrative, is that PSO, BNSF and Willis,
represented by Fellers Snider had settled the case on or about August 31, 2010 (CR 323-
340, 343-375, 531-562, 562- 597, 756-787, 789-822) but hid this settlement while they
attempted to get Dickson to agree to or at least participate in the settlement so that he
would lose his claims against all of them to get paid for years of work under a
contingent fee contract.
F. Dickson Did Not Voluntarily Withdraw as Willis' Attorney.
BNSF assert that Dickson voluntarily withdrew as Willis' attorney in the
underlying federal litigation. In fact, Dickson was compelled to withdraw after Willis
withdrew Dickson's authority to prosecute the case. After Tenth Circuit Appeal No. 10-
5096 was docketed, the Court entered a briefing schedule. After Dickson filed Willis'
brief in chief, Willis informed Dickson that he did not have authority to file the brief.2
(CR Supp. # 1 444) Shortly there after, Dickson contacted Willis about having a
mediation hearing under the auspices of the Tenth Circuit mediation office. Willis agreed
to the concept and such mediation was arranged. When Dickson notified Willis of the
mediation date, Willis denied ever having agreed, accused Dickson of acting without
authority and refused to participate. (CR 408, 409, 635, 636, 835.) Since Willis had
withdrawn Dickson's authority to prosecute the case in Willis' name, Dickson had no
choice but to withdraw.
However, by the time Dickson withdrew, unknown to both Dickson and the Tenth
Circuit, Willis, represented by Fellers Snider, had already settled the case. (CR 323-340,
343-375, 531-562, 562- 597, 756-787, 789-822).
G. The Hearing Held on February 17, 2011 Is Completely Irrelevant to
This Case.
Beginning on page 10 of its brief under Section VII, BNSF, has a narrative,
replete of legal argument, about the "settlement hearing" held in the U.S. District Court
on February 17, 2011. As BNSF acknowledges, this hearing was held after the Tenth
Circuit dismissed appeal 10-5096 for failure to prosecute. This "settlement hearing" is
2In his sworn affidavit filed in case under appeal, Willis stated that he allowed Dickson
to file the brief. (CR 1st Supp. 371)
8
completely irrelevant to the case at bar for two reasons.
The claims that Dickson was litigating as Willis' attorney in appeal 10-5096 that
underlie this lawsuit, were settled by Willis, PSO and BNSF on or about August 31,
2010. (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-822). Since this
settlement was hidden from both Dickson and the Tenth Circuit3, the Court, with Willis'
acquiescence (CR Supp. #1 612, Paragraph 25, 764), dismissed the claims for failure to
prosecute prior to the hearing in question. As a result, the claims Dickson had been
litigating on behalf of Willis at the Tenth Circuit in Appeal 10-5096 could not have
been settled at the hearing on February 17, 2011.
H. Dickson Is Not Seeking a Contingency Fee From a Lawsuit Lost in
2006.
BNSF assert that Dickson is seeking a contingency fee when the federal district
court dismissed all of Willis CPA's claims by January 2006. What BNSF is ignoring,
and hopes this Court will ignore is that Willis' claims dismissed in January 2006 were
dismissed without prejudice as unripe. Such an adjudication is not an adjudication on
the merits. In B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d 1282 (10th
Cir. 2008) the Tenth Circuit held that decisions in the related state condemnation
proceeding had rendered some of Willis' claims ripe during the pendency of the appeal
while other claims were still unripe.4 But since the claims Willis was litigating in Appeal
3It was also presumable hidden from the District Court as well. Dickson was sanctioned
and ordered to pay PSO for its attorney fees incurred after PSO had secretly settled the
case with Fellers Snider on behalf ofWillis. The fees Dickson was ordered to pay
included fees for PSO's attorneys dealing with Fellers Snider to secretly settle the case.
(CR Supp. #3 16-18) Not until the e-mails were produced (CR 323-340, 343-375, 531-
562, 562- 597, 756-787, 789-822) was Dickson aware ofthe fraud that PSO had
perpetrated on both Dickson and the U.S. District Court. ?
*BNSF incorrectly states that the Tenth Circuit "affirmed the dismissal of Willis
10-5096 were not ripe when B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d
1282 (10th Cir. 2008) was filed with the Tenth Circuit, the claims could not have been lost
or rendered defunct by the U.S. District Court in January 2006.
Moreover, the ruling of the Tenth Circuit in no way decided the claims against
BNSF that Willis was litigating in Appeal 10-5096. The Tenth Circuit ruled that Willis'
claims based on asserting that a portion of the track that PSO constructed across Willis'
property was located offof the right of way PSO had condemned by eminent domain were
not ripe at the time of its decision on July 16, 2008. B. Willis C.P.A., Inc. v. BNSF
Railway Corrpany, 531 F.3d 1282, 1306 (10th Cir. 2008). Subsequently, the U.S.
District Court held that Willis' remaining claims were now ripe as of September 9,
2008. (CR Supp. #1 229, 232, 233) When Willis' primary claim became ripe on
September 9, 2008, a derivative tort claim against BNSF also became ripe at the same
time. If Willis did not have a claim against PSO for locating a portion of itstrack offof
the right ofway, then Willis would have no claim against BNSF for operating and using
that track as PSO's contractor. But, as the Tenth Circuit held that that BNSF was in
privity with PSO pursuant to the Industrial Track and Operating Agreement, ifWillis
had such a claim against PSO, Willis had the same claim against BNSF for operating
the track and runningtrains over it as PSO's contractor.
However, since this claim did not become ripe until September 9, 2008, after
the ruling of the Tenth Circuit in B. Willis C.P.A., Inc. v. BNSF Railway Company, 531
claims. The dismissal by the district court had been without prejudice as unripe. The
Tenth Circuit, finding that decisions in the state proceedings had rendered some claims
ripe while the appeal was pending, then proceeded to adjudicate those claims on the
merits. It remanded the claims Willis would later litigate in Appeal 10-5096 to be
dismissed without prejudice as unripe.
10
,'t >lfe!<;3^Jt^M<**4g$!!K£*r
F.3d 1282 (10th Cir. 2008) on Jury 16,2008, Hie claim could not have been rendered non-existent
or defunctby that decision..
BX The TrialCourtErredby Not Continuing the Summary JudgmentHearing.
A. Dickson Was Diligent in Pursuing Discovery.
Dickson served Fellers Snider with discovery requests, including request for
production of e-mails (CR 31,37) that were not produced until May, 2 014.
(CR 323-340, 343-375, 531-562, 562-597, 756-787, 789-822).
In Fellers Snider's response in 2012, it asserted that it had no responsive
documents. (CR Supp. #1 325). There was no reason for Dickson to file a motion to
compel the production ofdocuments that Fellers Snider had already denied existed.
BNSF falsely asserts on page 19 of its brief that Dickson confronted Fellers
Snider on the relevancy objection.5 In fact, Dickson confronted Fellers Snider's
attorney with copies ofthe e-mails obtained from PSO by a third party subpoena after
PSO obtained a summary judgment and was severed out of the case. Confronted with
the existence of e-mails between Fellers Snider and PSO's attorneys, Fellers Snider then
produced certain e-mails from itsfiles.
Dickson then moved to obtain an un-redacted copy of a critical e-mail PSO
had produced. Once PSO refused to voluntarily produce it, Dickson filed a motion to
conpel on August 28, 2014 that was set for hearing on September 19,2014, which was
5BNSF's brief on page 19 is cleverly drafted to confuse the Court between Fellers
Snider's claim ofrelevancy and PSO's claim of privilege. It states that Fellers Snider
produced "the e-mail." But Fellers Snider did not have "the e-mail." "The e-mail" was
from PSO's out side counsel to its in-house counsel. (CR 339). PSO had asserted an
attorney client privilege. If Fellers Snider had an un-redacted copy of the e-mail there
could have been no privilege because Fellers Snider did not represent PSO. Fellers
Snider represented Willis. (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-
822).
11
after the hearing on the motions for summary judgment filed by BNSF and Fellers
Snider. (CR Supp. #3 60)Due to the materiality of an un-redacted copy of that e-mail, it
was error for the trial court not to have granted a continuance.
B. Dickson Showed That The Discovery Needed Was Material.
There is clear evidence that shows that Willis/Fellers Snider and PSO/BNSF
settled Tenth Circuit Appeal No. 10-5096 on or about August 31, 2010 and then
acted hide it by representing that no settlement had been entered into until after
Willis allowed the appeal to be dismissed for failure to prosecute, thereby
extinguishing Dickson's attorney lien. As a result of BNSF's actions in settling the
case, Dickson was unable earn a contingent fee. Under Oklahoma law, parties who
settle around a contingent fee attorney are liable under 5 O.S. § 8 and for tortious
interference with a contract.
An un-redacted copy of the e-mail (CR 339) PSO's attorney sent to five in-
house attorneys at American Electric Power Co., Inc. after getting off the phone
with Adams/Fellers Snider and a few days before notifying Adams/Fellers Snider that
he had a draft agreement ready to review, was clearly material to showing that
PSO/BNSF settled Appeal No. 10- 5096 while Dickson's attorney lien was in place and
well before the Willis allowed the appeal to be dismissed for failure to prosecute. (1st
Supp. CR 612, paragraph 25, 764).
Moreover. BNSF's argument that Dickson could not have earned a contingency
fee because Willis claims were dismissed by the U.S. District Court in 2006 and the
Tenth Circuit affirmed the dismissal in July 2008 is completely bogus. As described
above, the claims against BNSF Dickson was litigating at the Tenth Circuit on behalf of
12
Willis in Appeal No. 10-5096 did not become ripe until September 9, 2008, after the
decisions BNSF is attempting to rely on.
IV. The Trial Court Erred in Sustaining Fellers Snider's Objections to
Dickson's Summary Judgment Evidence.
Whether the trial court erred in sustaining Fellers Snider's objections to
Dickson's summary judgment evidence is completely irrelevant to Dickson's claims
against BNSF for two reasons. First, Dickson's response to BNSF's Motions for
Summary Judgment contained essentially the same summary judgment evidence (CR
182-375) and it was not excluded against BNSF. Thus, it is the record against BNSF.
Second, after Fellers Snider filed its objection to Dickson's affidavit,
Dickson filed a supplemental affidavit (CR 831) that neither Fellers Snider's motion
nor the trial court's order addressed. As a result it is still in the record and
supports Dickson case that summaryjudgment was improper.
V. The Court Should Reverse the Summary Judgment Granted to BNSF.
A. Dickson's Claims Are Not Barred by Issue Preclusion.
BNSF asserts that Dickson's claims were litigated in the "first action" and that
outcome precluded Dickson from earning a contingent fee. First, Dickson is not suing
for a contingent fee but for tort damages based on BNSF's tortious conduct. Moreover,
the first action was Appeal 10-5096. The facts sought to be litigated in the "second
action," the case at bar, were not fully and fairly litigated in the first action because the
case was secretly settled and then, after Dickson was compelled to withdraw (CR 188,
189, 835-836), Willis allowed the appeal to be dismissed for failure to prosecute. (1st
Supp. CR 612, Paragraph 25, 764). As aresult, at the time ofthe dismissal Dickson was
no longer in privity with Willis and Willis' counsel was Fellers Snider. (CR 323-340,
13
343-375, 531-562, 562- 597, 756-787, 789-822)
The action BNSF is trying pass off as the "first action" is, in fact, irrelevant, as
the claims Willis was litigating in Appeal 10-5096 did not exist as justicible claims
("ripe") until after the case BNSF is relying on had concluded. As a result, those claims
could not have been adjudicated in what BNSF misconstrues as the "first action".
BNSF cites irrelevant cases from irrelevant jurisdictions to claim the ruling of
the U.S. District Court under appeal when PSO/BNSF secretly settled Willis' claims
against them is preclusive. The controlling law on this matter is B. Willis C.P.A., Inc. v.
BNSF Railway Corrpany, 531 F.3d 1282 (10th Cir. 2008) at N. 24. "A final judgment is
one in which no appeal has been perfected within the time allotted by law or one in
which an appeal has been properly perfected and acted upon by the highest court whose
review has been sought." Because Willis timely appealed the District Court's ruling, it
was not a final judgment for purposes ofpreclusion. Moreover, it was not preclusive
with respect to Dickson after Willis allowed Appeal 10-5096 to be dismissed for failure
to prosecute as Dickson was no longer in privity with Willis.
BNSF makes the argument that the 2006 decision by the U.S. District Court was
final. However, that decision was a dismissal of Willis' claims without prejudice as
unripe. As noted above, in B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d
1282 (10th Cir. 2008) the Tenth Circuit held that some of those claims became ripe
during while the appeal was pending and adjudicated those claims on the merits. But
the claims at issue in Appeal 10-5096 did not become ripe and justicible until after the
decisions BNSF is relying on. As a result, the claim at issue could not have been
rendered "defunct" by the decisions BNSF is relying on.
14
B. Dickson's Claims Are Not Barred by Waiver.
BNSF asserts that Dickson cannot recover because he waived his right to a fee
by voluntarily withdrawing as Willis' attorney. As previously stated, Dickson is not
seeking to collect a fee but tort damages for BNSF's tortious conduct. However, as
previous explained, Dickson did not voluntarily withdraw. (CR 188, 189, 835-836). He
was compelled to withdraw after Willis withdrew his authority to prosecute the case. To
the extent that whether Dickson voluntarily withdrew is material, there is a clear factual
dispute the made summaryjudgment improper.
However, the tortious conduct that Dickson complains of is the secret settlement
around Dickson by PSO/BNSF with Willis' other counsel, Fellers Snider. This occurred
on or about August 31, 2015 (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-
822), several months before Dickson filed his motions to withdraw. As aresult, BNSF's
waiver argument has no merit.
C. Dickson's Claims Are Not Barred By Quasi-Estoppel.
BNSF asserts that the Court should affirm the summary judgment because
Dickson's claims are barred by quasi-estoppel. To support this claim BNSF asserts
Dickson voluntarily withdrew as Willis' attorney and intentionally relinquished his right
to acontingency fee but now claims he is somehow still entitled to acontingency fee.
As previously stated, Dickson is not seeking to collect afee but tort damages for
BNSF's tortious conduct. However, as previous explained, Dickson did not voluntarily
withdraw. (CR 188,189, 835-836). He was compelled to withdraw after Willis withdrew
his authority to prosecute the case. Moreover, Willis did not lose that case. He secretly
15
settled it with PSO/BNSF while the case was being actively litigated in Appeal 10-5096
by Dickson as Willis' attorney.
D. The Court Should Reverse the Summary Judgment on Settlement in
Breach of 5 O.S. §8.
1. The No Evidence Summary Judgment.
BNSF begins by asserting that all of Willis' claims against BNSF were
adjudicated in BNSF's favor by the federal courts in 2006 and 2008. Once again, the
claims Dickson was litigating on behalf ofWillis in Appeal 10-5096 in 2010 when that
appeal was secretly settled by PSO/BNSF were not even ripe and justicible until after
the decisions BNSF is relying on. Dickson suffered damages in not being able to
prosecute the appeal to asuccessful conclusion and earn acontingency fee.
BNSF completely misrepresent 5O.S. §9 on pages 48-50 of its response brief.
It asserts that the settlement by Fellers Snider with PSO/BNSF fell under the third
scenario covered by 5 O.S. § 9, "when there is a contingent fee with the amount
specified for which the action is tobefiled. " Dickson's contingent fee contract (CR Supp.
#1 361) did not specify the amount for which the action was to be filed and the
third scenario does not apply. It is the second scenario that applies. Because Dickson
had acontingent fee contract for apercentage of the recovery, the dollar amount of the
fee is unknown and therefore, not fixed by contract. That is why the fee is called
"contingent." As aresult, under Oklahoma law contingent fee attorneys suing on a lien
claim are entitled to try the case to establish or "fix" the dollar amount that they
would have recovered had not the case been settled around them. In Re Western Real
Estate Fund, Inc., 922F.2d 592 (10th Circuit 1990).
Contrary to the assertion of BNSF, Dickson was not able to complete his
16
contract with respect to Tenth Circuit Appeal 10-5096 and Willis did not lose that
appeal. It was secretly settled on or about August 31, 2010. (CR 323-340, 343-375,
531-562, 562-597, 756-787, 789-822). At a minimum, there was sufficient evidence to
preclude a summaryjudgment.
BNSF asserts on pages 51-52 of its brief that there is no authority that anything
about PSO and BNSF's business relationship ever made PSO or its attorneys the agent
of BNSF. In Mayor v. Wilkerson, 111 P.2d 1069 the Oklahoma Supreme Court held
that even when a case was dismissed prior to any recovery by a contingent fee attorney,
a defendant was liable to the attorney if others acting on behalf of the defendant
procured the dismissal of the action. Under the terms of the Industrial Track and
Operating Agreement between PSO and BNSF, PSO was responsible for obtaining the
right of way for the track. (CR 246-252). The Tenth Circuit held that PSO and BNSF
were in privity because of that agreement. B. Willis C.P.A., Inc. v. BNSF Railway
Corrpany, 531 F.3d 1282, 1302 (10th Cir. 2008). In refusing to comply with a
discovery request in the underlying federal litigation, BNSF pleaded that it had joint
defense agreements with PSO (CR 266). At a minimum, there was sufficient evidence
to preclude a summaryjudgment.
BNSF on pages 52 and 53 quotes from a report and recommendation in the U.S.
District after the case was remanded in July 2008. What BNSF is ignoring is that this is
what was on appeal in Tenth Circuit Appeal 10-5096 when PSO/BNSF secretly settled the
case.
2. The Traditional Summary Judgment,
a. Willis CPA Did Not Lose Its Lawsuit.
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BNSF first argues that Willis lost its lawsuit and then made a settlement after
judgment. This assertion is absurd. The settlement at issue was made on or about
August 31, 2010 while Tenth Circuit Appeal 10-5096 was pending. (CR 323-340, 343-
375, 531-562, 562- 597, 756-787, 789-822). Willis had not lost Appeal 10-5096 and
Dickson's contractual fee was not zero. It was at yet undetermined as the case was
being actively litigated at the Tenth Circuit when PSO/BNSF and Fellers Snider on
behalf of Willis secretly settled the case. That settlement triggered liability under 5
O.S. § 8.
b. This Claim Is Not Barred By Limitations.
BNSF asserts that this claim is barred by limitations, citing 5 O.S. § 8 that
provides in part that '[a]n attorney may enforce any lien provided for by this act in any
court of competent jurisdiction by action filed within one (1) year after the attorney
becomes aware of such compromise or payment of such judgment, orjudgment may be
rendered on motion in the case in the court in which the suit was brought." BNSF
response brief at page 56. BNSF then asserts that Willis, PSO, and BNSF settled at the
hearing on February 17, 2011. However, the claims that Dickson was litigating on
behalf of Willis in Tenth Circuit Appeal 10-5096 and to which Dickson's lien attached
were secretly settled on or about August 2010. (CR 323-340, 343-375, 531-562, 562-
597, 756-787, 789-822). Dickson was completely unaware ofthis settlement until the
e-mails were produced in May 2014 and therefore the limitations period did not start
running until that date.
Subsequent to the secret settlement, Willis allowed Appeal 10-5096 to be
dismissed for failure to prosecute. (CR Supp. #1 612, paragraph 25, 764). Had the case
18
not have been previously secretly settled, this would have extinguished Dickson's
attorney lien. The settlement entered into at the hearing on February 17, 2011 did not
did not trigger the limitations period under 5 O.S. § 8 because that settlement did not
cover the claims litigated in Appeal 10-5096 as Willis had allowed those claims to be
dismissed for failure to prosecute pursuant to the secret settlement agreement.
E. The Court Should Reverse the Summary Judgment For Tortious
Interference With a Contract.
1. The No-Evidence Summary Judgment Was Error.
On page 57 and 58 of its brief BNSF asserts authority that blanket citation to
voluminous records is not a proper response to a no evidence motion for summary
judgment and that merely citing generally to voluminous summary judgment evidence
in response to either a no-evidence summary judgment or traditional motion for
summaryjudgment is not sufficient to raise an issue of actto defeat summaryjudgment.
What BNSF is ignoring is on pages 18, 19, 20, 23 of Dickson's Response to BNSF
Motions for Summary Judgment (CR 163-165, 168), Dickson quoted and discussed the
evidence in detail and cited to this discussion by reference else where in his brief.
Dickson did not make blanket citation to voluminous records. He discussed and quoted
the evidence in detail and then rather than repeat the same discussion of the evidence
over and over, incorporated the same discussion of the evidence by reference to else
where in his pleading.
On page 58 BNSF continues to attempt to obscure the real issues. Dickson has
never claimed that Oklahoma statutes forbid BNSF from prevailing against Willis CPA.
Oklahoma does have a statute that makes BNSF liable for secretly settling around an
attorney with a perfected attorney lien a case being actively litigated. That same statue
19
makes BNSF liable for the contingency fee that attorney would have earned had BNSF
not settled the case around the attorney and prevented him from recovering for his
client. Furthermore, the case, Tenth Circuit Appeal 10-5096 did not settle after BNSF
prevailed. Willis (and therefore Dickson) received no money because BSNF and Willis
settled before the case, Tenth Circuit Appeal 10-5096, was decided by the Tenth
Circuit.
Finally, BNSF asserts once again, that "long before any settlement ...the federal
courts already had adjudicated Willis CPA's claims against it." This assertion
completely ignores the fact that, under the holding of the Tenth Circuit in B. Willis
C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282,1306 (10th Cir. 2008), the
claims Willis CPA was litigating against BNSF in Tenth Circuit Appeal 10-5096 were
not even ripe or justiciable when the federal court rulings BNSF isattempting to rely on
were issued.
2. The traditional summary judgment was error.
On page 59 ofits brief BNSF again claims that the federal district court granted
judgment to BNSF in 2006. With respect to the claims being litigated in Tenth Circuit
Appeal 10-5096, the federal district court dismissed them without prejudice as unripe. In
2008 the Tenth Circuit held that these claims were not ripe or justicable. B. Willis
C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 12 82, 1306 (10th Cir. 2008).
Dickson could collect a fee under the contingency fee contract for the claims being
litigated in Tenth Circuit Appeal 10-5096 because PSO/BNSF secretly settled the case on
or about August 31,2010. BNSF then complete misrepresents Dickson's argument in
his brief inchief. BNSF quotes Dickson's brief as saying:
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"[t]he fact that the trial court dismissed Willis's claims [before the first
appeal to the Tenth Circuit] is completely irrelevant, as Willis immediately
appealed that ruling which transferred all jurisdiction to the appellate court
This also meant that the ruling of the trial court was not a final order that
would be preclusive between the parties." (Emphasis added.)
The insertion "before the first appeal to the Tenth Circuit" is a complete
fabrication by BNSF. What Dickson asserted was that the fact the trial court dismissed
Willis' claims in July 2010 was completely irrelevant because Willis immediately filed
Appeal 10-5096. Under the holding of the Tenth Circuit in B. Willis C.P.A., Inc. v.
BNSF Railway Company, 531 F.3d 1282 (10th Cir. 2008) at N. 24,6 once this appeal was
filed, there was no adjudication on the merits that was preclusive against the parties until
the appeal was decided. And that holding by the Tenth Circuit is preclusive on BNSF as it
was a party in that case and Dickson was Willis' attorney.
BNSF then once again repeats its claim that, "BNSF could not have tortiously
interfered in 2010 with a contingency fee under which it was determined in 2006 and
2008, Dickson was not due any fee." BNSF response brief at page 60. What BNSF is
once again ignoring is that the 2006 dismissal was without prejudice as unripe and the
2008 decision only granted a judgment to BNSF on the claims that were justiciable and
ripe as ofthat date. The claims being litigated in Appeal 10-5096 were not justiciable and
ripe at the time of the 2008 decision. Because they were being actively litigated when
PSO/BNSF secretly settled Appeal 10-5096, PSO/BNSF became liable for both tortious
interference with a contract and under 5 O.S. § 8.
6"A final judgment is one in which no appeal has been perfected within the time
allotted by law or one in which an appeal has been properly perfected and acted upon by
the highest courtwhose review hasbeen sought."
21
CONCLUSION AND PRAYER
The granting of a summary judgment was reversible error and this Court should
reverse the ruling of the trial court and remand for further proceedings. .
Respectfully submitted,
By: ^////,r^^W
William T. Dickson,
Pro Se Plaintiff
2626 Maple Avenue, Suife 200
Dallas, Texas 75201
(214)696-1100
Wtdickson7@aol.com
CERTIFICATE OF SERVICE
I certify that on September 16, 2015 that I served a true and correct copy
of the foregoing pleading to the attorneys listed below in accordance with the
Texas Rules of Civil Procedure.
s/Wilham T. Dickson
William T. Dickson
Jonathan LaMendola
Cobb Martinez Woodward
PLLC 1700 Pacific Avenue
Suite 3100
Dallas, Texas 75201
Fax 214-220-5299
214-220-5204
jlamendola@cobbmartinez.com
Levon Hovnatanian
Martin, Disiere, Jefferson & Wisdom, LLP
808 Travis Street
Suite 1800
Houston, Texas 75248
22
hovnatanian@mdjwlaw.com
713-632-1700
Fax 713-222-0101
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word and
contains 5884 words as determined by the computer software word count function,
excluding the sections of the document listed in Texas Rule of Appellate Procedure
9.4(1)0).
s/Wiimam T. Dickson
William T. Dickson
23