© 2015 The Texas Lawbook.
By Kerry Curry
A Texas district judge ordered a waste management service provider to pay $1.5 million, including more than $500,000 in attorney fees and a $20,000 sanction, to electric delivery giant Oncor after a lengthy breach of contract battle between Oncor and metal recycler, GLM DFW Inc.
Oncor Electric Delivery had initially sought to recover what it said was an overcharge it discovered during an audit of scrap metal recycling services provided by GLM.
It’s not uncommon for business lawyers to have counterclaims in a dispute, but an attorney representing Oncor said what appeared to be a straight-forward breach of contract case went off the rails when opposing counsel was replaced and the new counsel filed numerous counterclaims.
“They threw everything they could — every possible claim, every conspiracy, three types of tortious interference, business disparagement, they threw in another contract and alleged breach of that,” said Jim Walker, with Cole Schotz’s Fort Worth office and the lead attorney for Oncor. He was assisted by associate Justin Levy.
Oncor ultimately prevailed but Walker said groundless and bad faith counterclaims by GLM stretched the case out about two years. Walker said the $20,000 sanction — which he called considerably high for Dallas County —will be paid to Oncor.
He said the case was challenging after the change in counsel altered the focus of the case into a defense of counterclaims.
“It doesn’t help your client to respond with frustration and anger,” Walker said.
The smartest thing to do, even if you think the counterclaims are nonsense, is to move forward: fashion objections, request a hearing and secure a ruling to see what you can do to limit the discovery, he said.
“Make sure your client is well informed about what is going on and then focus on the basics and try to get through it as quickly as you can,” Walker said. “We provided their discovery … then we focused on our discovery that held them accountable for all the claims. Where is all the proof that justified the filing? What was the factual basis? We chased all that down and filed a series of motions and at the end of the day, they had nothing. The court granted summary judgment and awarded sanctions and entered a final judgment in favor of our client.”
Walker said they methodically sought to learn whether there were any factual claims to support the counterclaims.
“You still have an obligation to the client to work through it. The best way to do that with the least amount of fees charged to your client is to be as focused and laser-like as possible,” Walker said.
“We wanted to get — as one old sage would say — to the bar of justice. Yes, it was ridiculous in my opinion. Yes, it was frustrating. Yes, it was unfortunately expensive for my client in relation to what it should have been, but we got a judgment to take care of all that.”
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