Compass Bank v. Jerry Durant

Opinion

Filed: 11/20/2015 9:03 A.M. Sharena Gilliland District Clerk No. CV13-0933 Parker County, Texas Natalie Matthews JERRY DURANT, § FILED IN § 2nd COURT IN THE DISTRICT COURT OFOF APPEALS FORT WORTH, TEXAS Plaintiff, § 12/23/2015 9:44:51 AM § v. § PARKER COUNTY,DEBRA TEXAS SPISAK Clerk § COMPASS BANK, § § 43RD JUDICIAL DISTRICT Defendant. §

FINAL JUDGMENT

19th This matter came on for final hearing on November _______, 2015. Jerry

Durant appeared through his attorneys of record, Ralph Duggins and Philip

Vickers, and Compass Bank appeared through its attorney of record, Michael A.

Logan and C. Jeffrey Novel. This Court has previously considered the First and

Second Motions for Partial Summary Judgment filed by Jerry Durant and the

Motion for Summary Judgment filed by Compass Bank. The Court also

considered the response and reply briefs, exhibits and oral argument of counsel

relating to the summary judgment motions. After considering these items, the

Court entered orders granting partial summary judgments for Jerry Durant and

denying the motion for summary judgment filed by Compass Bank. The Court’s

June 6, 2014 and August 25, 2015 Orders granting partial summary judgments are

incorporated as if set forth fully in this Final Judgment. Accordingly, it is hereby

ORDERED, ADJUDGED, DECREED and DECLARED that after June 1, 2011

Jerry Durant had the right to prepay the amount owed under the Promissory Note

FINAL JUDGMENT Page 1 without payment of any penalty or fee, including any fee claimed by Compass

under the Master Agreement, Schedule, and Confirmation.

The Court finds that Durant paid $790,350.00 on August 29, 2013 as a

termination fee Compass demanded under the terms of the Master Agreement,

Schedule and Confirmation. It is therefore ORDERED, ADJUDGED and

DECREED that Jerry Durant have and recover from Compass Bank actual

damages in the amount of $790,350.00 and prejudgment interest thereon at the rate

of 5% per annum from August 29, 2013 until the date of this Final Judgment, in

the amount of $79,361.91 through September 1, 2015, with per diem interest

thereafter of $108.27 until the date this Final Judgment is signed.

Based upon the summary judgment rulings previously made by the Court,

the Court finds and concludes as a matter of law that Jerry Durant is entitled to

recover attorneys’ fees under Chapter 38 of the Texas Civil Practice & Remedies

Code for breach of contract. In the alternative to relief awarded Jerry Durant

under Chapter 38 of the Texas Civil Practice & Remedies Code, the Court finds

and concludes that it would be equitable and just for Jerry Durant to recover costs

and reasonable and necessary attorneys’ fees associated with prosecuting his

declaratory judgment claims.

Based on the agreement of Jerry Durant and Compass Bank solely as to the

amount of attorneys’ fees to be awarded, the Court awards attorneys’ fees to Jerry

Durant which the Court finds are reasonable and necessary. It is therefore

ORDERED, ADJUDGED and DECREED that Jerry Durant have and recover

FINAL JUDGMENT Page 2 from Compass Bank reasonable and necessary attorneys’ fees in the amount of

$157,000.00 for prosecution of his breach of contract claim or, in the alternative,

his declaratory judgment claims, through Final Judgment. It is further

ORDERED, ADJUDGED and DECREED that if Compass Bank appeals this

Final Judgment and Jerry Durant prevails on such appeal, he shall recover from

Compass Bank the following additional amounts for prosecution of his breach of

contract claim, or in the alternative, his declaratory judgment claims, representing

the reasonable and necessary attorneys’ fees and expenses that would be incurred

by Jerry Durant in defending that appeal: in successfully defending an appeal to

the Court of Appeals, $40,000.00; in the event Compass Bank files a Petition for

Review with the Supreme Court of Texas that is ultimately unsuccessful,

$10,000.00; in the event that the Court of Appeals reverses the trial court and Jerry

Durant files a Petition for Review with the Supreme Court of Texas that ultimately

results in a reversal of the Court of Appeals, $15,000.00; in the event the Supreme

Court of Texas orders full briefing on the merits and Jerry Durant prevails,

$25,000.00; in the event the Supreme Court of Texas holds oral argument and

Jerry Durant prevails, an additional $10,000.00; in the event either party files a

motion for rehearing with the Texas Supreme Court and Jerry Durant prevails,

$8,000.00.

It is further ORDERED, ADJUDGED and DECREED that Jerry Durant

have and recover from Compass Bank all taxable costs of court.

FINAL JUDGMENT Page 3 It is further ORDERED, that the total amounts awarded by this Final

Judgment here rendered shall bear post-judgment interest at the rate of 5% from

the date of this Final Judgment to be compounded annually until all amounts are

paid in full.

All writs and processes for the enforcement and collection of amounts

awarded by this Final Judgment may issue. All relief requested in this case and

not expressly granted in partial summary judgments incorporated herein or in this

Final Judgment be and hereby is denied. This Final Judgment finally disposes of

all parties and claims in this action and is final and appealable.

SIGNED this 19th _ _ day ofNovember 2015.

CRAIG TOWSON Judge Presiding

APPROVED AS TO FORM:

~~ 0~ Ralph H. Duggms Philip A. Vickers Counsel for Jerry Durant

0 Counsel or Compass Bank

FINAL JUDGM ENT Page 4