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Litigator of the Week: Long Route to Victory

Miriam Rozen

Tim HermanTim Herman says it took eight years for his client’s complicated breach-of-contract dispute against Dallas Area Rapid Transit (DART) and the Fort Worth Transportation Authority (The T) to get to trial, but it was worth the wait. In an Oct. 5 final judgment, his client Agent Systems Inc. won $1.41 million — $850,000 in damages plus $566,000 in prejudgment interest.

“It gives us some satisfaction because I’ve been trying to get them into court for years,” Herman, a partner in Austin’s Howry Breen & Herman, says of DART and The T, both quasi-government agencies.

In its Sept. 24, 2010, amended petition in Agent Systems Inc. v. Dallas Area Rapid Transit, et al., the plaintiff alleged it entered into a 2009 contract with the defendants to produce fare box systems, but the defendants refused to pay for them and for the material necessary for the prototypes.

In its Oct. 2, 2009, answer, The T argued among other things that Agent Systems was barred from recovery “pursuant to the doctrine of the law of the case” and that the statute of limitations barred the plaintiff’s claims. In its March 18, 2008, answer, DART alleged among other things that the court lacked subject matter jurisdiction and that Agent Systems had assumed risk when it produced the fare box systems.

After two weeks of trial testimony, the jury issued a verdict on Nov. 22, 2011, that found the defendants failed to comply with the contract. Jurors awarded Dallas-based Agent Systems $850,000 in damages for the costs to produce the fare box systems. In his final judgment, 236th District Judge Tom Lowe of Tarrant County added $566,000 in prejudgment interest for a total of $1.41 million.

Albon O. Head Jr., a partner in the Fort Worth office of Jackson Walker who represents The T, says his client will continue fighting the plaintiff in court. “We think that the judgment was entered incorrectly,” he says.

DART senior associate general counsel Harold McKeever says the agency will appeal the final judgment. McKeever says the case presented difficulties for both sides because the factual background was based on events that occurred more than a decade ago.

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