Opinion issued March 8, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00936-CV

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R. Scott Brown, Appellant

V.

Allan D. Keel, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Concurring and Dissenting Memorandum Opinion

The trial court’s grant of JNOV on the ground that there was no evidence of a partnership was error, and I join the majority in so holding.  I dissent, however, from the majority’s conclusion that there was not more than a scintilla of evidence to support the jury’s verdict as to causation.

As long as a reasonable jury could infer that Keel’s actions were a substantial factor in having brought about Brown’s injury (the loss of the compensation package that he had negotiated), without which Brown’s injuries would not have occurred, the trial court should not have disregarded the jury’s finding of causation and rendered the JNOV.

Brown was informed by the Oaktree managing director on January 30th that he had been excluded as GulfWest’s prospective CFO.  During this same conversation, he was told of Oaktree’s interest in his enjoying some measure of ownership participation to compensate his facilitation of the deal, or perhaps service as a director or some other management position at which he would receive “the compensation package that [he] had negotiated” (for both Keel and himself).  When the same Oaktree managing director sought Keel’s input on placing Brown with the company, Keel began confessing his “difficulties seeing (Brown’s) role if it is not that of CFO.”  Keel also stated, “If that [CFO position] wasn’t going to be an option, then it was going to be tough to find a spot,” “I don’t see much room for compromise,” and, most telling: “I would expect [a new CFO] to want a meaningful piece of the upside, which would have to be extracted from [Brown’s] share of the management equity.”  Despite Brown’s consideration for other slots following his exclusion as prospective CFO, Skarden Baker, Oaktree principal and lead negotiator, testified, “Keel said: No, I don’t want him,” and thus ended  Brown’s actual participation with, and prospective benefit from, the very deal he had discovered and negotiated.

A reasonable jury could have inferred Keel’s actions caused Brown’s loss of the compensation package that he had negotiated.  As a death knell is composed of more than a single peal of the bell, here, Keel’s substantial role in Brown’s loss need not be the sole cause.

                                                                   Jim Sharp

                                                                    Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Sharp, concurring and dissenting.