HOUSTON – The First Court of Appeals recently affirmed rulings freeing the Arnold & Itkin law firm from a lawsuit alleging illegal solicitation.
Court records show that on Dec. 29, 2006, Larry Gauthia was killed when an Amtrak train at a railroad crossing in Louisiana struck his vehicle. At the same time of the accident, R. Fleisher, a private investigator hired by Arnold & Itkin, was in the area investigating a case for a firm client.
Arnold & Itkin believed the details Gauthia’s accident were relevant to their client’s lawsuit to show that the railroad crossing was dangerous and instructed Fleisher to locate and meet the Gauthia family.
Days after Gauthia’s death, Felisher and the client met with his family. During the meeting, Fleisher allegedly solicited Judy to hire Arnold & Itkin and arranged a telephone call between Gauthia’s widow, Judy, and Jason Itkin, a partner at Arnold & Itkin.
Soon after the phone call, the Gauthias retained Arnold & Itkin to represent them and signed a contingency fee agreement. A lawsuit was filed in January 2007, which settled in August 2009.
In December 2009, the firm provided the Gauthias with an itemized list of expenses, three of which reflect expenses incurred for Fleisher’s services. The Gauthias raised no complaints about the outcome of their case.
Six years later, Fleisher sued Arnold & Itkin for breach of an oral contract. Fleisher alleged that in 2006 Kurt Arnold (a firm partner) asked him to send the firm some personal injury cases and offered to pay him 10 percent of the gross settlement amount of each referral.
Fleisher further alleged that he performed his duties between January 2006 through July 2011, but Arnold & Itkin failed to pay him $4 million for referring the Gauthias and many others.
His lawsuit was dismissed on summary judgment in December 2015, court records show.
In September 2015, the Gauthias retained attorney Lance Kassab and sued Arnold & Itkin for breach of fiduciary duty, fraud, fraud by nondisclosure, civil conspiracy, aiding and abetting, and commercial bribery.
The Gauthias also accused the firm of barratry (the unlawful solicitation of clients).
Court records show the parties disputed the intended purpose of Fleisher’s meeting.
The Gauthias contend that Fleisher met them to unlawfully and unethically solicit them to retain Arnold & Itkin to represent them against Amtrak.
Arnold & Itkin, on the other hand, contends that Fleisher met with the Gauthias to investigate the accident in order to gather key facts for their client’s lawsuit.
In an amended petition, the Gauthias asserted violations under the Texas Deceptive Trade Practices Act, alleging the firm failed to disclose the “deceptive barratry scheme” and that “the illegal obtainment and representation of (them) constitutes an unconscionable action.”
Court records show Arnold & Itkin moved for summary judgment, arguing the statute of limitations barred the Gauthias’ claims. A trial court dismissed the Gauthias’ claims, prompting them to appeal.
On Sept. 17, the First Court affirmed the lower court’s rulings in the case, finding the
Gauthias cannot rely on a discovery rule to toll the accrual date for their claims until 2015 – the year when they learned of Fleisher’s lawsuit.
“Because the discovery rule does not apply, we therefore hold that the Gauthias’ claims accrued in January 2007 and became time-barred in January 2011, about four years before the Gauthias filed suit against A&I (Arnold & Itkin),” the opinion states. “The trial court did not err by granting summary judgment in favor of A&I based on statute of limitations.”
Arnold & Itkin is represented by John Black of Daly & Black and Jeremy Doyle of Reynolds Frizzell.
Appeals case No. 01-19-00143-CV