BEAUMONT – A local district judge is being accused of acting beyond his authority by attempting to supply terms to a settlement agreement, telling a defendant entrepreneur in his court that he didn’t want him “hustling business” in Harris County and then doing business in Jefferson County.
On May 25, Sherman Moore and his company, S&S Security, submitted a petition for review to the Texas Supreme Court, arguing Judge Kent Walston, 58th District Court, abused his discretion when he signed off on a judgment against the defendants.
Two months earlier, on March 8, the Ninth Court of Appeals affirmed Walston’s ruling awarding plaintiff Patriot Security summary judgment – a motion the company brought when Moore failed to comply with an “alleged” settlement agreement.
Walston
In 2011, Patriot Security, a local business that provides guard services, brought suit against Moore and his company, a Houston-area firm in the same line of work.
The litigation started after Moore hired George Adams, a former Patriot Security employee and a defendant in the suit.
Patriot Security accused Moore and Adams of misappropriating trade secrets and waged a lengthy legal campaign to keep S&S Security from expanding into Jefferson County, Patriot Security’s home turf.
Following four years of litigation, the case was called up for trial on Dec. 8, 2015. A few hours in, the trial broke for lunch. At that point, only one witness had been called, court records show.
Instead of the trial resuming after lunch, the parties began settlement proceedings – a discussion before the court Moore’s brief refers to as the “recitation,” which he asserts did not have "all the necessary elements of an agreement.”
“The anticipated or discussed settlement never reached fruition and all terms and obligations under the settlement were never presented or realized,” the brief states.
Specifically, at issue was the cementing of a non-compete agreement between the parties and a liquidated damages provision.
“Even the Court attempted to provide terms of the non-compete clause … the Court stated ‘No I don’t want you hustling business in Harris County and then doing business here’ without being provided all the evidence to be contemplated by the parties,” the brief states.
“The Court further indicates to the Defendant when questioned about the scope and (breadth) of the contemplated noncompete the Court was not even sure if the Appellants could continue to do business in areas of the state of Texas 50 miles from where the Plaintiff is located.”
Walston’s remark about not wanting Moore to hustle business in Jefferson County is in the official court transcript.
Three days after the trial and recitation, Moore moved for a mistrial, which he argues indicates a withdrawal from the proposed settlement since a final judgment had not been entered in the record.
In turn, Patriot Security filed an amended petition and moved for summary judgment on the pleading. Walston granted the motion and awarded the company liquidated damages.
“The allegations of (the) Fifth Amended Petition are disputed and demonstrate the failure of a complete meeting of the minds to support a contractual relationship and the attendant obligations,” the brief states.
The brief also asks the high court how Patriot Security can “recover without an allegation or pleading of a breach” without identifying any breach of the proposed confidentiality agreement referred to in the recitation.
Moore further maintains there was never a binding agreement between the parties.
“The terms of the contract cannot be just some promise to do something in the future,” the brief states. “While it is true that the case was called to Trial and the Jury was seated, the concept that there was any final presentation of evidence is greatly disputed.”
Moore told the Record he wanted to take his chances at trial but was pressured into agreeing to the settlement recitation when his lawyer, Dan Ducote Jr. of Moore and Landry, told him Walston was going to cut the trial short and enter a directed verdict against him.
A directed verdict is one the judge enters without jury deliberation. A court can issue a directed verdict on its own or at the behest of a plaintiff or defendant.
When the Record sought to interview Ducote, who no longer represents Moore, the attorney issued the following statement: “I deny his (Moore’s) rendition of what occurred. I wish him well however.”
Walston also said he knew nothing about a directed verdict in the case.
However, Carl Parker, the attorney for Adams (the other defendant in the case), told the Record he and the other attorneys did have a conference with the judge when the trial paused for lunch and that Walston “had indicated he was probably going to give a directed verdict” in the case.
“I don’t remember the amount, but he (Walston) said he was inclined at that point to give a directed verdict,” Parker said.
Patriot Security’s response is due by June 25.
Moore is represented by Pasadena attorney Walter Mahoney Jr.
Case No. 18-0466