Integrity Global Security, LLC And Green Hills Software, Inc. v. Dell Marketing L.P., a Texas Limited Partnership, Dell Federal Systems, L.P., a Texas Limited Partnership And Dell Products, L.P., a Texas Limited Partnership ( 2018 )

ACCEPTED
03-17-00483-CV
21751755
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/10/2018 8:49 PM
JEFFREY D. KYLE
CLERK
No. 03-17-00483-CV
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
1/10/2018 8:49:07 PM
JEFFREY D. KYLE
INTEGRITY Global Security, LLC and Green Hills Software, Clerk
Inc.,
Appellants,
v.
Dell Marketing L.P., Dell Federal Systems, L.P., and Dell Products, L.P.,
Appellees.
On Appeal from the 345th Judicial District Court, Travis County, Texas
Trial Court Cause No. D-1-GN-16-000345
APPELLANTS’ REPLY BRIEF
Dale Wainwright Frank E. Merideth, Jr.
State Bar No. 00000049 [Pro Hac Vice]
wainwrightd@gtlaw.com meridethf@gtlaw.com
Alan W. Hersh GREENBERG TRAURIG, LLP
State Bar No. 24080944 1840 Century Park East, Suite 1900
hersha@gtlaw.com Los Angeles, California 90067
GREENBERG TRAURIG, LLP Telephone: (310) 586-7825
300 West 6th Street, Suite 2050 Facsimile: (310) 586-0275
Austin, Texas 78701
Telephone: (512) 320-7200
Facsimile: (512) 320-7210
COUNSEL FOR APPELLANTS INTEGRITY GLOBAL SECURITY, LLC AND
GREEN HILLS SOFTWARE, INC.
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES.....................................................................................iv
INTRODUCTION ..................................................................................................... 1
RESPONSE TO STATEMENT OF FACTS ............................................................. 2
ARGUMENT ............................................................................................................. 6
I. Dell’s Statement of Issues does not Address Matters that are the
Important Issues in this Case. .......................................................................... 7
II. Dell’s Summary of the Argument Presents Dell’s Spin on Appeal
Issues................................................................................................................ 8
III. Dell’s Statement of the Standard of Review for Summary Judgment is
Incomplete in Material Respects. .................................................................... 8
IV. Appellees’ Brief Fails to Address IGS’ Evidentiary Objections..................... 9
V. Dell Completely Ignores IGS’ Summary Judgment Evidence. ....................... 9
VI. Sections 4 and 5 of the Third Amendment are part of an Integrated
Agreement and Address the Same Subject Matter. ....................................... 10
VII. Dell’s Shifting Statute of Limitations Analysis is Flawed. ........................... 12
VIII. Business and Commerce Code Section 271.001 is Inapposite and
Does Not Support Dell’s Argument that Delaware Law Applies to the
Statute of Limitations. ................................................................................... 16
IX. Dell’s Argument Regarding Texas Civil Procedure and Remedy Code
§ 16.064 is Wrong.......................................................................................... 17
X. Dell’s Analysis on the Accrual Statute of Limitations is Incorrect............... 25
XI. The Court Should Have Addressed the Motion to Amend on its
Merits. ............................................................................................................ 26
XII. Dell’s Argument on the Motion to Amend Erroneously Assumes the
Trial Court Ruled on IGS’ Motion to Amend. .............................................. 29
ii
XIII. The Trial Court Should Have Granted IGS’ Motion for New Trial. ............. 31
CONCLUSION ........................................................................................................ 31
CERTIFICATE OF COMPLIANCE ....................................................................... 32
CERTIFICATE OF SERVICE ................................................................................ 32
iii
INDEX OF AUTHORITIES
Page(s)
Cases
Austin v. Countrywide Home Loans,
261 S.W.3d 68 (Tex. App.—Houston [1st Dist.] 1995, pet. denied) ................. 30
Bagwell v. Ridge at Alta Vista Invs. 1, LLC,
440 S.W.3d 287 (Tex. App.—Dallas 2014, pet. denied)..............................28, 29
Crandal Med. Consulting Servs. v. Harrell,
No 03-07-00689-CV, 2009 WL 280658 (Tex. App—Austin Feb. 5,
2009, pet. denied)............................................................................................ 9, 24
Healthronics, Inc. v. Lisa Laser USA, Inc.,
382 S.W.3d 567 (Tex. App.—Austin 2012, no pet.) .......................................... 12
Hill v. Milani,
678 S.W.2d 203 (Tex. App.—Austin 1984) ....................................................... 30
Hussong v. Schwan’s Sales Enters.,
896 S.W.2d 320 (Tex. App—Houston [1st Dist.] 1995, no writ) ...................... 30
Lubbock Cty., Tex. v. Trammel’s Lubbock Bail Bonds,
80 S.W.3d 580 (Tex. 2002)................................................................................. 25
Monsanto Co. v. Boustany,
73 S.W.3d 229 (Tex. 2002)................................................................................. 14
Sandt v. Energy Maint. Servs. Grp. I, LLC,
__ S.W.3d __, 2017 WL 31884747 (Tex. App.—Houston [14th
Dist.] 2017, no pet.) ............................................................................................ 13
Swilley v. McCain,
374 S.W.2d 871 (Tex. 1964) .............................................................................. 14
In re United Servs. Auto. Ass’n,
307 S.W.3d 299 (Tex. 2010) ............................................................18, 19, 20, 21
Valance Operating Co. v. Dorsette,
164 S.W.3d 656 (Tex. 2004) .............................................................................. 20
iv
Waffle House v. Williams,
313 S.W.3d 796 (Tex. 2010) .............................................................................. 31
Western-Southern Life Assurance Co. v. Kaleh,
193 F. Supp. 3d 756 (S.D. Tex. 2016) ..........................................................13, 17
Williamson v. John Deere Co.,
708 S.W.2d 38 (Tex. App.—Tyler 1986, no writ) .......................................24, 25
Ziegler v. Bank of Am. Nat’l Trust & Savings Ass’n,
182 F.3d 913 (5th Cir. 1999) .............................................................................. 13
Statutes
Tex. Bus. & Com. Code § 271.001 .......................................................................... 16
Tex. Bus. & Com. Code § 271.004 .......................................................................... 16
Tex. Bus. & Com. Code § 271.005(a)(1)................................................................. 16
Tex. Civ. Prac. & Rem. Code § 16.064 ............................................................passim
Tex. Loc. Gov’t. Code § 89.004(a) .......................................................................... 25
Other Authorities
Restatement (Second) of Conflicts of Law, § 142 .....................................2, 7, 14, 15
Restatement (Second) of Conflicts of Law, § 187 ............................................... 2, 13
Restatement (Second) of Conflicts of Law, § 6 ....................................................... 14
Tex. R. Civ. P. 63 ..................................................................................................... 28
Tex. R. Civ. P. 166a ................................................................................................... 9
Tex. R. Civ. P. 166a(c) ............................................................................................ 28
Tex. R. Civ. P. 324(b)(1) ......................................................................................... 31
v
Appellants INTEGRITY Global Security, LLC and Green Hills Software,
Inc. (collectively “IGS”) reply to Appellees Dell Marketing L.P., Dell Federal
Systems L.P. and Dell Products L.P.’s (collectively “Dell”) Appellees’ Brief
(“Appellees’ Brief”).
INTRODUCTION
IGS’ Opening Brief demonstrated that the Trial Court (i) failed to consider
and rule on IGS’ evidentiary objections to Dell’s Summary Judgment Evidence;
(ii) based its Summary Judgment Order on inadmissible evidence; (iii) failed to
consider IGS’ Summary Judgment Evidence which identified disputed issues of
material fact; (iv) erroneously decided the statute of limitations and breach of
contract issues; (v) failed to consider IGS’ Motions to Amend and Stay; and
(vi) erred in denying IGS’ Motion for a new trial. As shown by this Reply, Dell’s
Appellees’ Brief fails to address issues (i)-(iii) and is wrong on the facts and law
with regard to issues (iv)-(vi).
Dell’s restated Facts and its Summary of the Argument are replete with
inadmissible parol evidence; unsupported characterizations; and argument about
the parties’ unstated purposes, intentions, and expectations regarding the parties’
Agreements, and should not be considered on appeal.
Dell’s Argument, in addition to relying on inadmissible evidence and
characterized “facts,” ignores or glosses over troublesome issues like IGS’
Objections and Motion to Strike to Dell’s inadmissible Summary Judgment
Evidence, IGS’ Disputed Issues of Fact and the Trial Court’s “rush to judgment”
urged by Dell to emasculate IGS’ right to amend its Petition.
Furthermore, Dell shifts its choice of law analysis from its position in the
Trial Court, walking back its prior contention that the parties agreed that
Delaware’s statute of limitations would apply, and instead relies on the
Restatement (Second) of Conflicts of Law, § 187’s “states’ interest analysis.”
However, the Texas Supreme Court has expressly declined to adopt the
Restatement (Second) of Conflicts of Law, § 142 regarding the statute of
limitations, and overwhelming precedent establishes that for suits filed in Texas,
Texas’s statute of limitations apply, regardless of the parties’ choice-of-law
provisions.
Finally, Dell’s Argument gives only lip service to the legal standards for
appellate review of summary judgment, the amendment of pleadings and motions
for new trial all of which are critical to this appeal.
These flaws in Dell’s factual and legal analysis are addressed below.
RESPONSE TO STATEMENT OF FACTS
Dell’s Statement of Facts mischaracterizes the operative Agreements, relies
on inadmissible parol evidence, and makes assumptions and assertions that are not
2
supported by admissible evidence. IGS timely objected in the Trial Court to the
use of such inadmissible evidence and objects to its use in Appellees’ Brief.
Specifically, Dell argues in its Statement of Facts:
1. “The parties’ purpose in entering into the Original Agreement was to
market the DISCC solution to government agencies operating in Top Secret
Environments, which would require Top Secret certification.” Appellees’ Brief
p. 1 ¶ 2 (emphasis added). The parties’ purpose in entering into the Agreements is
parol evidence. Further, it is not a “fact” that is stated in any of the parties’
Agreements and it is not supported by any citation to the record. Finally, it is
undisputed that the Original Agreement was superseded and was of no force or
effect.
2. “Because DISCC had not received Top Secret Certification, Dell had
sold no licenses by June 2010, leaving Dell with a $10 million inventory of prepaid
licenses.” Appellees’ Brief p. 2 ¶ 1. The sale of licenses by Dell was never a
requirement in any of the Agreements. Under the terms of the Original
Agreement, Top Secret Certification was not expected until August 2010. Dell
being “left with $10 million of inventory” in June 2010 is a pejorative statement
which is a prelude to Dell’s argument and groundless excuse for stopping
payments to IGS because Dell never received a “return on its investment.”
3
3. “Like with the Original Agreement, the purpose of the Restated
Agreement was to sell DISCC to government agencies operating in Top Secret
environments.” Appellees’ Brief p. 2 ¶ 1 (emphasis added). That “purpose” is not
stated anywhere in the Original or Restated Agreements. Dell’s statement of the
parties’ “purpose” in entering into the Agreements is parol evidence. In fact, the
third “WHEREAS” clause of the Restated Agreement recites the purpose:
WHEREAS, on May 12, 2009, IGS and Dell executed a Global
Alliance Agreement (“Original Agreement”) establishing an alliance
(“Alliance”) to jointly innovate and cooperate in the development and
marketing of superior security products and services targeted at
governmental and general purpose enterprise computing, servers, thin
clients and workstations through both the installation of INTEGRITY
PC and INTEGRITY CSE (as defined below) through Dell’s Custom
Factory Integration process.
(CR 434).
4. “The MLC payment schedule under the Restated Agreement was
revised . . . . to allow time for the generation of post-Top Secret certification sales
and revenues to offset the higher MLC payments due later.” Appellees’ Brief p. 3
¶ 1. This reason for the revision of Table 2 is not reflected in the Restated
Agreement or the Third Amendment, and is inadmissible parol evidence.
5. “By January Top Secret Certification still had not occurred, and the
parties entered into an Amendment Three . . . .” Appellees’ Brief p. 3 ¶ 1. This
parol evidence does not appear in the Third Amendment, and it unfairly
characterizes the situation at the end of 2010 that required the Third Amendment,
4
specifically the parties’ need to replace AFRL with NASIC as a DISCC sponsor,
the software upgrade requirements of NASIC and the introduction by Dell of new
versions of Optiplex 980 and 990 computers.
6. “It [the Restated Agreement] provided that upon any such termination
‘Dell’s MLC shall terminate.’” Appellees’ Brief p. 3. This repeated assertion
regarding Dell’s disputed view of its obligation to pay $6 million required by the
Third Amendment is incomplete and incorrect under the express terms of both the
Restated Agreement and the Third Amendment. To be accurate, this assertion
must reference the language of Section 11.12 of the Restated Agreement which
states: Dell’s “obligation to pay amounts due hereunder shall survive expiration or
termination of this Agreement and shall continue in full force and effect.” (CR
452).
7. The Third Amendment also “created an additional MLC payment”
and a “new payment.” Appellees’ Brief p. 3 (emphasis added). These are Dell’s
characterizations of the Third Amendment, which are not supported by the plain
language of the agreements.
8. “The parties’ agreement [lower case in original] continued to provide
that upon termination ‘Dell’s MLC shall terminate.’” Appellees’ Brief p. 3. This
paraphrase is misleading because it omits reference to Section 11.12 of the
Restated Agreement. (CR 452).
5
9. “By this point [August 2011], Dell had paid IGS approximately $18
million in MLC payments without seeing any return on its investment.”
Appellees’ Brief p. 4. None of the parties’ Agreements refer to or mention Dell
“seeing any return on its investment” let alone condition MLC payments on such a
return. None of the Agreements provide that Dell can suspend or terminate the
Agreements if it failed to see any return on its investment.
10. “On August 10, 2011, Dell sent IGS a suspension-of-payment letter.”
Appellees’ Brief p. 4. There is no provision in the Agreements for a “suspension-
of-payment letter” or any other procedure to suspend or terminate the Agreements
before the end of the On-Hold Time Frame for any reason.
11. “By the end of October 2011, Top Secret certification still had not
been obtained by IGS.” Appellees’ Brief p. 4 (emphasis added). Neither the
Restated Agreement nor the Third Amendment require IGS to obtain Top Secret
certification. This statement is parol evidence. Appellees’ Brief p. 4.
ARGUMENT
As evident from Dell’s Response, the bases for which it sought summary
judgment are grounded largely in Dell’s self-serving recollection of the parties’
intent, rather than the plain language of the contract itself. Furthermore, given that
Dell has effectively conceded there is a material issue of fact regarding its right to
suspend its contractual payments, Dell’s sole basis for affirming summary
6
judgment as to those payments is a statute of limitations issues. In order to support
that position, Dell asks this Court to ignore well-established precedent that Texas
law governs the applicable statute of limitations, and instead apply § 142 of the
Restatement (Second) of Conflicts of Law. Similarly, Dell asserts that IGS was
required to review all of the Dell entity’s various tax filings in the off-chance that
such filings might contravene the apparent complete diversity between the parties.
Such argument finds no support in case law, and turns a presumption of equitable
tolling under section 16.064 of the Texas Civil Practice & Remedies Code on its
head.
I. Dell’s Statement of Issues does not Address Matters that are the
Important Issues in this Case.
Subsections a.-c. of Dell’s, Issue 1 (Appellees’ Brief p. ix) are based on
Dell’s rank speculation regarding what the Trial Court’s reasons may have been for
granting summary judgment. In fact, no reasons for the Trial Court’s decision
were stated in the Order.
Issue 2 is based on speculation since the Trial Court’s Order is on “all
grounds” and does not carve out the “isolated arguments” Dell withdrew.
Appellees’ Brief p. ix.
Regarding Issue 3, Dell erroneously states the issue to be whether the Trial
Court abused its discretion by not granting the Motion to Amend. Appellees’ Brief
p. ix. In fact, the Trial Court, at Dell’s urging, believed it could avoid ruling on the
7
Motion to Amend by rushing to sign the order less than a week before the
scheduled hearing on the Motion to Amend.
Issue 4 is flawed because its premise, that Muehleman’s testimony was
cumulative (Appellees’ Brief ix), is false. Muehleman’s testimony (that the
Parties’ Agreements were terminated) conflicted directly with Peterson’s testimony
(that the Parties’ Agreements merely were suspended).
In contrast to Dell’s recast issues, the IGS Issues Presented fairly presents
the key issues to be decided in this case. Appellants’ Brief, p. xiv.
II. Dell’s Summary of the Argument Presents Dell’s Spin on Appeal Issues.
Dell’s Summary of the Argument relies heavily on the inadmissible
evidence recited in the Statement of Facts and is not substantiated by a single
reference to the record. The alleged “facts” Dell relies on in its Summary of the
Argument are loaded and the conclusions are unwarranted.
III. Dell’s Statement of the Standard of Review for Summary Judgment is
Incomplete in Material Respects.
Dell agrees that review of a summary judgment is de novo. Appellees’ Brief
p. 14. However, Dell does not reference or address the basic principles for such
review of Summary Judgment as set forth in IGS’ Opening Brief:
1. The Summary Judgment Evidence considered by the Trial Court must
be admissible evidence;
2. The Reviewing Court must take evidence favorable to the non-movant
to be true;
8
3. The Reviewing Court must indulge in every favorable inference in
favor of the non-movant;
4. The Reviewing Court must resolve any doubts in favor of the non-
movant;
5. The movant must demonstrate there are no genuine issues of material
fact; and
6. The movant must show it is entitled to judgment as a matter of law.
See Tex. R. Civ. P. Rule 166a; Crandal Med. Consulting Servs. v.
Harrell, No 03-07-00689-CV, 2009 WL 280658, at *3 (Tex. App—
Austin Feb. 5, 2009, pet. denied) (collecting cases).
Appellants’ Brief pp. 18-20.
IV. Appellees’ Brief Fails to Address IGS’ Evidentiary Objections.
IGS’ Opening Brief points out that IGS timely objected and moved to strike
Dell’s inadmissible summary judgment evidence. Appellants’ Brief pp. 23-38.
Dell attempts to duck this key point by arguing that it withdrew “isolated
arguments in its motion for summary judgment, thereby [making] the evidence
supporting those arguments irrelevant and immaterial to the motion. . . .”
Appellees’ Brief pp. ix 2, 44-45. But, in fact, as demonstrated in IGS’ Response to
Statement of Facts, paragraphs 1-11, and throughout the Argument in this Reply,
Dell is still trotting out the same inadmissible evidence in support of the Argument
in the Appellee’s Brief.
V. Dell Completely Ignores IGS’ Summary Judgment Evidence.
IGS’ Opening Brief lists eighteen Disputed Issues of Fact that are supported
by admissible Summary Judgment Evidence. Appellants’ Brief pp. 29-38. The
9
Trial Court ignored those Disputed Issues of Fact, and so does Appellees’ Brief.
Admissible conflicting evidence must be considered as summary judgment
evidence and cannot be summarily dispatched by the characterizations offered by
Dell that such evidence consists of “cryptic statements” or “gross misreadings” of
the evidence. Id.
VI. Sections 4 and 5 of the Third Amendment are part of an Integrated
Agreement and Address the Same Subject Matter.
Dell argued on summary judgment that the provisions of the Third
Amendment are ambiguous as to whether Dell was required to make the $1.75
million and $1.25 million payment to IGS, but regarding the payment of the $6
million to IGS, the contract is unambiguous. Rather than citing to any specific
contract language, Dell merely characterizes the $6 million payment as a “new
MLC payment.” In fact, all three payments totaling $9 million are part of the total
$11,250,000 of MLC payments that Dell was already obligated to pay to IGS under
the terms of the Restated Agreement, and are the same amounts Dell is obligated to
pay under the inter-related provisions of Sections 4 and 5 of the Third Amendment.
(CR 439, 461).
None of the provisions in Sections 4 and 5 are ambiguous, and neither
paragraph creates a “new MLC payment.” Both sections describe precisely Dell’s
obligation to pay IGS $11,250,000 of MLC payments due during the On-Hold
Time Frame pursuant to paragraph 2.2.3 of the Restated Agreement for Periods 3,
10
4 and 5 (January 29, 2011 through October 28, 2011). (CR 461). These payment
obligations under Section 11.12 of the Restated Agreement survive termination.
(CR 452). With regard to Dell’s promised payments, IGS was required to continue
to grant Dell Top Secret Exclusivity through November 30, 2011 and make the
deliverables described in paragraph 3 of the Third Amendment. Dell now admits:
“[t]he Restated Agreement Amendment Three expressly required IGS to deliver
the third deliverable and grant Top Secret Exclusivity to sell during the On-Hold
Time Frame.” Appellees’ Brief p. 20. It is undisputed that the deliverables were
made on time and accepted by Dell and that IGS granted Dell Top Secret
Exclusivity though November 30, 2011.
Whether the Agreements were terminated in August 2011, as testified by
Muehleman,1 or suspended in August as claimed by Peterson, the point is Dell
stopped paying IGS in August 2011, which was a material breach that entitled IGS
to terminate or suspend performance during the On-Hold Time Frame. (CR 462);
see also Dell’s Letter Suspending Payments (CR 499-500). Based on Dell’s
promises, IGS continued to perform. If the Restated Agreement and Third
Amendment were terminated, as Muehleman testified, then there was nothing to
terminate on November 30, 2011. If the Agreements were suspended, as Peterson
1
Dell claims IGS’ position is based on a “gross misreading,” of Muehleman’s testimony.
IGS quoted Muehleman’s testimony verbatim in its Motion to Amend, its Motion for New Trial
and Appellants’ Brief and attached copies of the relevant transcript. (CR 668-71, 791-805).
11
testified, then IGS contends that Dell was equitably estopped to terminate without
cause for the reasons set forth in the Opening Brief.
Under Restated Agreement Section 2.2.3, the MLC payment for each period
is specified in Table 2. (CR 440). Sections 4 and 5 of the Third Amendment
change this procedure with respect to the $3,750,000 per quarter MLC payments
during the On-Hold Time Frame. (CR 834).
Recognizing that none of the Delaware substantive law it cites change the
terms of the Restated Agreement or the Third Amendment, Dell attempts to side-
step Section 11.12 of the Restated Agreement by mischaracterizing Section 5 of
the Third Amendment regarding the $6 million Dell obligation as creating a “new
MLC.” As shown by the Opening Brief, there is no basis for such a
mischaracterization. The $6 million obligation survives termination of the
Restated Agreement as provided in Section 11.12 and was an obligation of Dell
due under the Agreements.
VII. Dell’s Shifting Statute of Limitations Analysis is Flawed.
As this Court has repeatedly stated, where the parties’ contract contains a
choice-of-law provision, the court will apply that state’s law to substantive issues,
“and Texas law to procedural questions.” Healthronics, Inc. v. Lisa Laser USA,
Inc., 382 S.W.3d 567, 577 (Tex. App.—Austin 2012, no pet.) (collecting cases).
Furthermore, because statute of limitations are a question of “remedy and
12
procedure,” rather than substantive law, Texas courts and federal courts applying
Texas law have repeatedly recognized that Texas’s statute of limitations applies to
Texas lawsuits, regardless of the parties’ choice-of-law contract provision. See
Sandt v. Energy Maint. Servs. Grp. I, LLC, __ S.W.3d __, 2017 WL 31884747, at
*7 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (noting statute of limitations is
“procedural in nature”); Western-Southern Life Assurance Co. v. Kaleh, 193 F.
Supp. 3d 756, 770–71 (S.D. Tex. 2016) (expressly applying Texas statute of
limitations over choice-of-law provision); Ziegler v. Bank of Am. Nat’l Trust &
Savings Ass’n, 182 F.3d 913, 914 (5th Cir. 1999).
Dell attempts to sidestep this precedent by grossly overstating that “[t]he
parties made it clear that they intended for Delaware law to apply broadly to
matters relating to their agreement and that any general choice of law rule that may
require the application of the laws of another jurisdiction should not be given
effect.” Appellees’ Brief p. 27. The parties did not make this “clear” in any of
their Agreements. This is, at best, parol evidence. Section 11.2 expresses no such
intent and is expressly limited by its terms to the “validity, construction, scope and
performance of the Agreement . . . .” (CR 451).
In the Trial Court, Dell relied on § 187 of the Restatement (Second) of
Conflict of Law, contending the parties agreed Delaware law applied to both
substantive and procedural matters, including the statute of limitations. (CR 610).
13
No such “agreement” is reflected in any of the parties’ Agreements and is parol
evidence. In Section 11.2, the parties designated specifically what provisions of
Delaware law applied—and did not include the statute of limitations. (CR 451).
Dell never acknowledged Sections 6 and 142 of the Restatement existed, let alone
applied in this case. However, Appellees’ Brief immediately shifts to a
Restatement (Second) Conflict of Law “interest analysis.” Specifically, Dell cites
Sections 6 and 142. In doing so, Dell admits Texas law does not recognize such an
analysis.
Section 142 of the Restatement specifically applies to statutes of limitations.
But Section 142 has not been accepted by the Texas Supreme Court, as Dell
concedes. Monsanto Co. v. Boustany, 73 S.W.3d 229, 233 (Tex. 2002) (declining
to adopt the Restatement (Second) of Conflicts of Law). While Dell expresses
hope that the Texas Supreme Court will adopt the § 142 in the future, since it has
not done so, this Court is bound by the doctrine of stare decisis to follow existing
Texas law. Generally, the doctrine of stare decisis dictates that once the Supreme
Court announces a proposition of law, “the decision is accepted as binding
precedent.” Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964).
Section 6 of the Restatement addresses general choice of law principals.
Section 142 addresses the statute of limitations. It provides:
Whether a claim will be maintained against the defense of the statute
of limitations is determined under the principals stated in § 6. In
14
general, unless the exceptional circumstances of the case make such a
result unreasonable:
(1) The forum will apply its own statute of limitations
barring the claim.
(2) The forum will apply its own statute of limitations
permitting the claim unless:
a. Maintenance of the claim would serve no
substantial interest of the forum; and
b. The claim would be barred under the statute of
limitations of a state having a more significant
relationship to the parties and the occurrence.
Restatement (Second) of Choice of Law, § 142 (emphasis added).
Section 142(2) requires the forum to apply its own statute of limitations
unless the exceptional circumstances of (a) and (b) are shown. Assuming
arguendo that Section 142 applies, Dell failed to offer any evidence or argument
regarding the “state interests” to be evaluated by the Trial Court, and does not
argue “exceptional circumstances” exist in this case in Appellees’ Brief.
Section 11.2 of the Restated Agreement requires that any action by IGS
against Dell must be filed in federal or state court, Austin, Texas, Dell’s principal
place of business. Obviously, Texas has a substantial interest in the resolution of
disputes of businesses in Texas and parties doing business here. Between Texas
and Delaware, Texas is the state with the most significant relationship to the
occurrence and the parties in the action, including: (i) the mandatory venue for
actions initiated by IGS is Texas; (ii) the Defendants are Texas limited partnerships
15
with their principal places of business and headquarters in Texas; (iii) the contract
negotiations were conducted in Texas; (iv) both Dell and IGS employ Texas
residents who were involved in DISCC; (v) the deliverables were to be made in
Texas; and (vi) the integration of DISCC into Dell Optiplex computers was to
occur in Texas.
In contrast, (i) the parties’ Agreements prohibit contract litigation in
Delaware; (ii) neither IGS nor Dell are headquartered in Delaware nor, to IGS’
knowledge, have offices, facilities or employees in Delaware; (iii) Delaware had
no connection with the negotiation or performance of the Agreements or the
dispute of the parties; and (iv) Delaware had nothing to do with DISCC. None of
the relevant “factors” demonstrate any exceptional circumstances that might favor
application of the Delaware statute of limitations over established Texas law,
assuming arguendo an “interests analysis” is required.
VIII. Business and Commerce Code Section 271.001 is Inapposite and Does
Not Support Dell’s Argument that Delaware Law Applies to the Statute
of Limitations.
Dell’s reliance on Texas Business and Commerce Code § 271.001 et seq. is
unavailing because there is no “reasonable relationship” between the transaction at
issue and Delaware as required by § 271.004. Further, § 271.005(a)(1) applies to
an agreement of the parties for application of the law or a jurisdiction specific issue
in a qualified transaction and the transaction must bear a reasonable relationship to
16
that jurisdiction. There is no reasonable relationship between IGS and Dell
Agreements and Delaware. But most importantly here, the parties’ agreed in
Section 11.2 that Delaware law would apply only to issues related to “validity,
construction and performance” of the agreement, not to issues of remedy and
procedure. Specifically, there was no agreement that Delaware procedural law or
the Delaware statute of limitations would apply. (CR 451). Therefore, the plain
language of the parties’ contract does not support abandoning clear precedent that
Texas’s statute of limitations should apply, regardless of the existence of a choice-
of-law provision. Western-Southern Life Assurance Co., 193 F. Supp. 3d at 770–
71 (expressly applying Texas statute of limitations over choice-of-law provision).
IX. Dell’s Argument Regarding Texas Civil Procedure and Remedy Code
§ 16.064 is Wrong.
Texas Civil Practice and Remedies Code § 16.064, which tolls the statute of
limitations for 60 days after a dismissal based on lack of jurisdiction, applies
unless there are facts showing the original filing was made with intentional
disregard of proper jurisdiction.2 The only “evidence” Dell cites as establishing
2
Dell did not offer any evidence showing IGS’ intentional disregard of jurisdiction.
Certainly filing in one of the Texas federal or state jurisdictions required by the parties’
Agreement is not intentional disregard. Dell did not file the moving or opposing declarations or
documents filed with the U.S. District Court and exhibits filed by the parties on which the federal
court reached its conclusion. In the motion for summary judgment, Dell argued IGS acted
“intentionally or negligently” in making its originally filing in federal court. (CR 85) Dell also
argued that IGS “could easily have known the ownership structure of the Dell entities. . . .” But,
IGS contended that there were internal inconsistencies that made the Secretary of State’s
information unclear. It did not know the details of the complex ownership chain of the Dell
17
intentional disregard is the IGS’ federal complaint (CR 140-54) and the U.S.
District Court’s Order. (CR 156-60). The Order does not make any factual
findings other than its ultimate determination of the citizenship of the defendants
for federal diversity jurisdiction. Specifically, there is no finding in the U. S.
District Court was made as to the motive, intention or purpose of IGS in making
the filing in Federal Court. The Order demonstrates that there was a good faith
dispute between the parties as to the citizenship of “parent entities” of Dell for
purposes of diversity jurisdiction.
As the Texas Supreme Court has recognized, “section 16.064 was drafted
precisely because ‘capable lawyers’ often make ‘good faith’ mistakes about the
jurisdiction of Texas courts.” In re United Servs. Auto. Ass’n, 307 S.W.3d 299,
313 (Tex. 2010) (internal citations omitted). For this reason, the Court specifically
rejected the argument—now raised by Dell—that a legal mistake regarding a trial
court’s jurisdiction “would never satisfy the requirement” for tolling under this
equitable statute. Id. (noting that standard for intentional disregard “is similar to
that required to set aside a default judgment”). The Court went on to explain that
“the tolling statute protects plaintiffs who mistakenly file suit in a forum that lacks
entities until the Stidvent Declaration was signed and filed by Dell in the U.S. District Court.
(CR 158-159, 86). Dell filed no evidence showing IGS knew the Dell limited partnerships and
general partners were owned by another limited liability company which were owned by Dell
Delaware limited liability companies and Dell corporations. This was a convoluted ownership
structure which was not apparent without the Stidvent evidence. (CR 159).
18
jurisdiction, it does not apply to a strategic decision to seek relief from such a
court.” Id. Thus, the intentional disregard standard is implicated when a lawyer
knows or has clear reason to know that a trial court lacks jurisdiction, but chooses
to file suit in that court anyway for strategic advantage.
The jurisdiction and venue provisions of ¶ 11.2 of the Restated Agreement
require an action “[i]f filed first by IGS, [be] brought in the Texas State or Federal
Court in Travis County. . . .” (CR 461). It can be inferred from this provision that
both Dell and IGS had a good faith belief that jurisdiction was proper in the U.S.
District Court for the Western District of Texas Austin Division. IGS contends it
relied on that good faith belief in filing the federal action. However, the Federal
Court ruled that IGS “conflate[d] two different concepts,” and ruled that the parties
could not consent to federal jurisdiction, but rather, diversity of citizenship must be
determined at the time that the suit was filed. Order p. 4, n.1 (CR 159).
Dell’s Appellees’ Brief argues: “Dell argued and offered unrebutted
summary judgment evidence that IGS intentionally disregarded proper jurisdiction
with that federal filing, thereby precluding reliance on it to toll the statute of
limitations.” Appellees’ Brief, p. 12. However, no such Summary Judgment
Evidence is cited by Dell. And, in fact, no evidence was offered by Dell in the
federal court showing IGS intentionally disregarded proper jurisdiction. The
description of the Parties in the federal complaint is virtually identical to the
19
description of the parties in the Restated Agreement. (CR 343). No logical
conclusion of intentional disregard can be reached by considering that alleged
pleading error. Further, when reviewing a summary judgment, the reviewing court
must take all evidence favorable to the non-movant to be true, indulge in every
favorable inference and resolve all doubts in the non-movant’s favor. Valance
Operating Co. v. Dorsette, 164 S.W.3d 656, 661 (Tex. 2004).
The Appellees’ Brief relies on In re United Services Automobile Association,
307 S.W.3d 299 (Tex. 2010). In that case, the plaintiff filed an employment
discrimination action against his employer in Bexar County Court. The County
Court’s jurisdiction was limited to cases with damages of more than $500 but not
more than $100,000. The employee’s complaint alleged damages exceeding $500
but did not allege that the damages were less than $100,000. The employer,
believing the case involved far more than $100,000, moved twice to dismiss the
action, claiming the alleged damages exceed the jurisdictional limit. In response to
each motion, the plaintiff denied his damages exceeded the jurisdictional limit of
the court. The case was tried and a verdict for more than $800,000 (not including
punitive damages and attorneys’ fees) was returned in favor of plaintiff. The
Supreme Court reversed the judgment and dismissed the action because the
damages exceeded the jurisdictional limit of the county court.
20
Within 60 days the plaintiff refiled in the Bexar County District Court. The
employer moved for summary judgment based on the two-year statute of
limitations. The parties disagreed about the proper standard of care for “intentional
disregard.” The plaintiff, who never contended that he was confused or was
unaware of the jurisdictional limit of the county court, argued that Section 16.064
applied and intentional disregard was a factual issue for the jury to decide. The
employer contended it was a legal issue which could be decided on summary
judgment.
The Supreme Court held that the employer was required “to show in
abatement that the first filing was made with intentional disregard of proper
jurisdiction.” Id. at 312. Then “the non-movant must show that he did not
intentionally disregard proper jurisdiction when filing the case.” The Court held
that “while the tolling statute [Section 16.064] protects plaintiffs who mistakenly
file in a forum that lacks jurisdiction, it does not apply to a strategic decision to
seek relief from such a court—which is what happened here.” Id. at 313.
Dell posits merely legal conclusions, with no factual support, that it claims
show IGS “intentionally or negligently” filed in the wrong Court. (CR 86). Dell
concludes in Appellees’ Brief that IGS made a “strategic decision” to seek relief
from a court that did not have jurisdiction. These conclusions are not true.
The relevant facts are:
21
1. The Restated Agreement recites that the Dell parties are Texas limited
partnerships and that GHS and IGS are Delaware entities. (CR 434).
2. Paragraph 11.2 of the Restated Agreement requires that if Dell files
suit against IGS it must file in the U.S. District Court for the Central District of
California or the Superior Court for Santa Barbara County. If IGS files an action
against Dell, it must file either in the U.S. District Court in Austin or in the District
Court for Travis County. (CR 461).
3. From these provisions, it can be inferred that the parties believed that
there was diversity of citizenship between Dell and IGS regarding disputes arising
under their agreements. If they did not share that belief, they would not have
mandated actions be filed in the federal courts in their principal places of business
because complete diversity would be the only basis for federal jurisdiction.
4. The U.S. District Court order confirms that the parties filed opposing
memoranda and declarations supported by documentary evidence regarding their
opposing positions on diversity of citizenship. (CR 157-59). Dell did not file
copies of those pleadings as Summary Judgment evidence. It can be inferred from
this failure that the declarations and documents do not corroborate Dell’s “strategic
decision” claim.
5. Although the U.S. District Court ruled there was no diversity, it made
no factual or legal findings regarding either parties’ intentions or motivations. No
22
inference can be drawn from the ruling that IGS filed in the U.S. District Court
based on a strategic decision.
6. Dell did not allege “intentional disregard of jurisdiction” as an
affirmative defense in its Original or Amended Answer (CR 59) or in its Response
to Request for Disclosures (CR 921-31), i.e. a claim in abatement.
7. The Appellees’ Brief concedes that “[w]hile § 16.064 does suspend
the running of the statute of limitations between ‘the date of filing an action in a
trial court and the date of a second filing of the same action in a different court
under certain circumstances, it does not apply if the first filing was made with
intentional disregard of proper jurisdiction.’” Appellees’ Brief p. 37. Dell fails to
provide any evidence of intentional disregard, identify any of the “certain
circumstances,” or link them to the facts of this case. There is no “certain
circumstances” limitation to section 16.064.
8. The Restated Agreement and the U.S. District Court order
demonstrate that the parties were aware of the diversity of citizenship requirement
for federal jurisdiction, but, not being privy to the information contained in the
Stidvant Declaration on which the U.S. District Court relied, were mistaken as to
the citizenship of the ultimate owners of the Dell parties. (CR 158-59). Without
Stidvant’s Declaration—which was the Rosetta Stone to understanding the multi-
23
layered, highlight complex Dell ownership structure—IGS had no clear path to
determining the citizenship of the ultimate owners’ of the Dell entities pre suit.3
9. Dell offered no evidence that IGS knew of the ownership information
in the Stidvant Declaration before the Declaration was filed.
10. Dell made no effort to show through any facts or declarations that IGS
made a “strategic decision” to file in federal court knowing that court lacked
jurisdiction.
This is not the first instance in which a plaintiff unintentionally filed in
federal court, despite evidence that the plaintiff was mistaken as to complete
diversity of the parties. In Williamson v. John Deere Co., 708 S.W.2d 38, 38-39
(Tex. App.—Tyler 1986, no writ) the plaintiff filed a wrongful death action in the
U.S. District Court based on diversity jurisdiction, but alleged specifically that the
plaintiff was a Texas resident and one of the defendants was a Texas corporation.
The question on appeal was whether these facts demonstrated an intentional
disregard of jurisdiction as a matter of law. The Court held:
The case is one of first impression. The phrase “intentional disregard
of jurisdiction” is not defined in the statutes nor in our case law. The
only guidance that we have comes from Burford v. Sun Oil Co., 186
S.W.2d 306, 310 (Tex. Civ. App.—Austin 1944, writ ref’d w.o.m.),
which states that art. 5539a is to be liberally construed to give relief
3
Given that Dell failed to include this Stidvant Declaration within its summary judgment
motion—relying instead on a bald legal conclusion about its contents—the Court should view
Dell’s representations with suspicion. Crandall Med. Consulting Servs., 2009 WL 280658, at *3
(noting that every reasonable inference is drawn in favor of nonmovant).
24
from the bar of limitation to one who has “mistakenly but in good
faith” brought action in the wrong court.
The burden is on Austin and Deere to show that Williamson’s
filing in federal court was in “intentional disregard of jurisdiction.”
We hold that the affidavits filed by Williamson raise a genuine issue
of fact as to whether or not Williamson, in filing her initial action in
the United States District Court, did so as a result of a good faith
mistake or in intentional disregard of jurisdiction, and that Deere and
Austin have failed to establish as a matter of law that Williamson’s
action was in “intentional disregard of jurisdiction.”
708 S.W.2d at 40. Likewise, Dell has failed here to show that IGS’ honest and
understandable mistake regarding the diversity of citizenship among the parties
constitutes intentional disregard of the federal court’s jurisdiction.
X. Dell’s Analysis on the Accrual Statute of Limitations is Incorrect.
Lubbock County, Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580
(Tex. 2002)—cited in Appellees’ Brief—addresses a very specific and limited
issue under Texas Local Government Code § 89.004(a) relating to the pre-filing
presentment of claims to County Commissioners. The Supreme Court in Lubbock
County provided for a new rule for accrual of claims against county governments.
Section 89.004(a) does not apply to non-government claims, and Lubbock County
does not address accrual of the statute of limitations in a private contract that
expressly conditions commencing a lawsuit on initiation of a formal, presuit effort
to resolve the parties’ dispute through ADR.
The key issue under the ADR provision in the Restated Agreement is
whether the parties agreed that pre-filing ADR under § 8.1 is a mandatory
25
condition to filing a civil action. Restated Agreement § 8.1 (CR 445). The limited
exceptions in that section for filing preliminary equitable relief or to avoid the
expiration of a statute of limitations are inapplicable here, but even in such cases,
the Agreement requires “[t]he merits of the underlying dispute will be resolved in
accordance with this paragraph.” Section 8.2 provides that “[i]n the event the
Parties are unable to resolve the dispute within thirty days of notice of the dispute
to the other party, the Parties shall be free to pursue all remedies in law or in
equity.” Restated Agreement § 8.2 (CR 445).
XI. The Court Should Have Addressed the Motion to Amend on its Merits.
On February 11, 2017 at the Tormaschy deposition, IGS requested that Dell
produce Muehleman for deposition testimony and asked for dates because
Muehleman was a Dell employee and this was the procedure followed by the
parties for all employee depositions. (CR 675-76).
After the Motion for Summary Judgment was argued, Dell finally agreed to
a deposition date and waived the discovery cutoff for that limited purpose. (CR
676). Two days after the Muehleman testimony (but before the Trial Court
Summary Judgment Order), Counsel for IGS wrote to the Trial Court advising of
the Muehleman testimony and its important impact on Summary Judgment:
We represent Plaintiffs in the above-referenced lawsuit.
Defendants’ Motion for Summary Judgment hearing was heard by
you on March 28, 2017, and is pending. Based on admissions of
Frank Muehleman, Dell’s decision maker, during his deposition
26
testimony on April 19, 2017, that he terminated the Restated
Agreement and the Third Amendment for cause, we intend to file a
Motion for Leave to File a First Amended Petition on Monday, April
24, 2017. I write to alert you of our intent to file such a motion.
The new pleading will impact the issues addressed in the
Summary Judgment Motion because the amended petition will allege
that Dell terminated the Restated Agreement for cause in August
2011. . . . The April 19, 2017 deposition testimony creates a material
issue of disputed fact regarding the nature and date of the termination
and resulting damages . . . .
(CR 621-22).
On April 26, 2017, IGS filed its Motion for Leave to Amend Petition. (CR
624-82). The Motion alleges:
Plaintiffs seek leave to file their First Amended Petition after the
deadline of April 6, 2017 and while Defendants’ motion is pending
based on recent admissions in the Deposition testimony of Frank
Muehleman on April 19, 2017, which was taken after the amended
pleading cutoff and after the March 28, 2017 Motion for Summary
Judgment hearing.
(CR 625).
On May 3, 2017, IGS moved to stay the proceedings, pending the
disposition of its Motion to Amend. (CR 683-709). On May 5, 2017, Dell emailed
the Trial Court’s assistant urging the Court to rule on the Motion for Summary
Judgment before the pending May 10, 2016 hearing on the Motion to Amend. The
email erroneously cites Automaker and argues that such a ruling would cut off
IGS’ right to amend under Rule 63. (CR 740-45).
27
On May 5, 2017, Dell filed the Proposed Order for Summary Judgment,
which was granted within minutes after the Court received IGS’ Objections on that
same date, which obviously were not considered by the Trial Court. (CR 740-45,
1320-27). Also, on that date IGS again requested a ruling on its Objections. (CR
710-34).
Rule 166a(c)(ii) specifically contemplates that a party may offer evidence
after the summary judgment hearing and before judgment, but permission of the
Court must be obtained to file such evidence. This procedure was thwarted here
because the Court ignored IGS’ Motions to Amend and to Stay and rushed to enter
its Order on Summary Judgment before the May 10, 2017 hearing date set for IGS’
Motion to Amend. It appears that the Court’s intent was to cut off any of IGS’
post-hearing attempts to offer evidence with permission of the Court. Because the
post-hearing evidence was offered via two written motions (the Motion to Amend
and the Motion to Stay), under Rule 166a(c), it can be considered on appeal in
determining whether the Trial Court abused its discretion.
IGS submits it can be inferred that the Trial Court’s rush to judgment was
intended to cut off any hearing on the amendment and was an abuse of discretion.
Bagwell v. Ridge at Alta Vista Invs. 1, LLC, 440 S.W.3d 287, 292 (Tex. App.—
Dallas 2014, pet. denied) (“An abuse of discretion occurs when the trial court acts
28
in an unreasonable and arbitrary manner, or when it acts without reference to any
guiding rules or principles.”).
Generally, a party may amend its pleadings at any time prior to
seven days before trial unless the amended pleadings operate as a
surprise to the opposing party. Tex. R. Civ. P. 63; Gunn, 397 S.W.3d
at 377. That deadline may be altered by the trial court in a scheduling
order issued pursuant to rule 166. Tex. R. Civ. P . 63; see also Tex. R.
Civ. P. 166. A party may seek leave of court to amend its pleadings
after the deadline imposed by a scheduling order entered pursuant to
rule 166. Tex. R. Civ. P. 63. Leave “shall be granted” by the trial
court “unless there is a showing that such filing will operate as a
surprise to the opposing party.” Id. A trial court has no discretion to
refuse an amended pleading unless (1) the opposing party presents
evidence of surprise or prejudice; or (2) the amendment asserts a new
cause of action or defense, and is thus prejudicial on its face, and the
opposing party objects to the amendment. Halmos v. Bombardier
Aerospace Corp., 314 S.W.3d 606, 622 (Tex.App.—Dallas 2010, no
pet.).
Id. at 292-93.
When the Summary Judgment Order was signed, Dell had not filed any
opposition to the Motion to Amend or raised in any other way that amendment
would operate as a surprise. (CR 1186-96).
XII. Dell’s Argument on the Motion to Amend Erroneously Assumes the
Trial Court Ruled on IGS’ Motion to Amend.
Dell’s argument regarding IGS’ Motion to Amend is based on the erroneous
assertion by Dell that the Trial Court ruled on the Motion. Appellees’ Brief p. 46.
In fact, the Court, acting at Dell’s urging, rushed to enter the Summary Judgment
Order before the hearing date on the Motion for Leave to Amend so it would not
have to address the Amendment on the merits.
29
The Appellees’ Brief cites several cases, each of which is distinguishable
from the motion for new trial in this case. See Appellees’ Brief pp. 46-47. First,
Dell cites Austin v. Countrywide Home Loans, 261 S.W.3d 68 (Tex. App.—
Houston [1st Dist.] 1995, pet. denied), in support of its argument. Austin is
inapposite. In that case, the plaintiff filed a motion to amend on the same day the
summary judgment order was entered. The plaintiff contended that the trial court
had stated on the record he could file the amended pleading at any time. 261
S.W.3d at 75. The court of appeals found no such permission had been granted
and, thus, the trial court did not abuse its discretion in not granting the motion to
amend since it was not filed with the Trial Court’s approval. Id. at 75.
Similarly, in Hussong v. Schwan’s Sales Enterprises, 896 S.W.2d 320, 322
(Tex. App—Houston [1st Dist.] 1995, no writ), the motion to amend was filed a
month after the hearing on summary judgment without the trial court’s permission.
The Court found that it was not an abuse of discretion for the trial court not to
consider amended pleadings filed after the summary judgment hearing without
permission of the trial court. Id. Finally, Hill v. Milani, 678 S.W.2d 203 (Tex.
App.—Austin 1984), aff’d, 686 S.W.2d 610 (Tex. 1985), involved denial of a
motion for rehearing, not a motion to amend. Cf. Appellees’ Brief pp. 46-47.
30
XIII. The Trial Court Should Have Granted IGS’ Motion for New Trial.
IGS’ Motion for New Trial satisfies all of the requirements of Texas Rules
of Civil Procedure Rule 324(b)(1) and Waffle House v. Williams, 313 S.W.3d 796
(Tex. 2010), as fully set forth in IGS’ Brief. See Appellants’ Brief pp. 58-62.
Dell’s only argument—that IGS’ Motion for New Trial does not meet these
statutory requirements—is unsupported and unmeritorious. Appellees’ Brief pp.
51-59.
CONCLUSION
For the foregoing reasons, and for the reasons stated in IGS’ Opening Brief,
IGS respectfully requests the Court reverse the Order for Summary Judgment and
remand this case to the Trial Court for trial.
Respectfully submitted,
GREENBERG TRAURIG, LLP
Dale Wainwright By: /s/ Frank E. Merideth, Jr.
State Bar No. 00000049 Frank E. Merideth, Jr.
wainwrightd@gtlaw.com California State Bar No. 46266
Alan W. Hersh [Pro Hac Vice]
State Bar No. 24080944 1840 Century Park East, Suite 1900
hersha@gtlaw.com Los Angeles, CA 90067-2101
300 West 6th Street, Suite 2050 Telephone: (310) 586-7879
Austin, Texas 78701 Facsimile: (310) 586-0275
Telephone: (512) 320-7200 meridethf@gtlaw.com
Facsimile: (512) 320-7210
Counsel for Appellants
INTEGRITY Global Security, LLC and Green Hills Software, Inc.
31
CERTIFICATE OF COMPLIANCE
This brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3)
because this brief consists of 7,497 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Alan Hersh
Alan Hersh
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this letter was served on
counsel of record by using the Court’s CM/ECF system on this 10th day of
January, 2018, addressed as follows:
Beverly Reeves
State Bar No. 16716500
breeves@reevesbrightwell.com
Kim Brightwell
State Bar No. 02992700
kbrightwell@reevesbrightwell.com
Sinead O’Carroll
State Bar No. 24013253
socarroll@reevesbrightwell.com
REEVES & BRIGHTWELL LLP
221 West 6th Street, Suite 1000
Austin, Texas 78701
Phone: (512) 334-4500
Facsimile: (512) 334-4492;
Counsel for Appellees
Dell Marketing L.P.,
Dell Federal Systems L.P., and
Dell Products L.P.
/s/ Alan Hersh
Alan Hersh
32