United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10918

____________

Antero Resources, Corporation, 

Plaintiff—Appellee/Cross-Appellant, 

versus

C&R Downhole Drilling Inc; Et al., 

Defendants, 

John Kawcak, 

Third Party Defendant— Appellant/Cross-Appellee. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:16-CV-668

______________________________

Before Clement, Elrod, and Willett, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge: 

This appeal involves several post-trial disagreements. Antero Resources, Corp., an oil and gas production company, sued former employee 

John Kawcak for breach of fiduciary duty, alleging that Kawcak abused his 

position of operations supervisor to award service contracts to companies 

owned by his close friend Tommy Robertson. Antero also alleged that, after 

winning the contracts, Robertson’s companies deliberately delayed providUnited States Court of Appeals

Fifth Circuit

FILED

October 31, 2023

Lyle W. Cayce

Clerk

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2

ing “drillout” operations, resulting in millions of dollars of overbilling.

A jury found Kawcak liable in the amount of $11,897,689.39, which 

consists of $11,112,140.00 in damages and $775,549.39 as recoupment for 

value Kawcak received as a result of the breach. The district court entered 

final judgment in the same amount, along with post-judgment interest. The 

district court ordered Kawcak to pay pre-judgment interest and to forfeit 

130,170 shares of stock in Antero Midstream.

Kawcak challenges the judgment on two bases. First, he says that Antero failed to prove that it was damaged as a result of his breach of fiduciary 

duty. Second, he argues that the district court should have allowed him to 

take post-trial discovery on the amount of a settlement between Antero and 

Robertson, and should have discounted the judgment by that amount. Antero cross-appeals, arguing that, if the court alters the judgment, it should 

also vacate the disgorgement award and remand for reconsideration.

We conclude that sufficient evidence supported the jury’s finding on 

damages. Accordingly, that portion of the judgment is AFFIRMED. We 

further hold that the district court’s decision to deny Kawcak the opportunity 

to pursue post-trial discovery was an abuse of discretion. The order denying 

Kawcak’s motion to amend the judgment is therefore VACATED. This 

case is REMANDED for the district court to reconsider whether to allow 

Kawcak to pursue discovery relating to Antero’s settlement with the Robertson companies and whether to offset the judgment in light of that settlement.

I

This case centers on Kawcak’s employment as operations supervisor 

for Antero from 2011 to 2015. Among other places, Antero owns assets in 

the Marcellus Shale—a geological formation that arcs through much of the 

Appalachian Mountains. The particular oil fields at issue are located in West 

Virginia. Kawcak was Antero’s most senior employee for those fields; he was 

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“responsible for supervising vendors, overseeing expenditures, and approving invoices of up to $100,000.”

Beginning in 2011, Kawcak arranged to hire service companies owned 

by his close friend Robertson. Robertson’s companies—C&R Downhole 

Drilling and Big Tex Well Services—performed what are known as 

“drillout” operations. In hydraulic fracturing (or fracking), sections of the 

horizontal pipe are “plugged” in order to isolate particular mineral deposits.

But the plugs must later be “drilled out” to allow the oil to flow to the surface. Robertson’s companies provided this service for over 200 of Antero’s 

wells. Eventually, Robertson’s companies became Antero’s exclusive provider of drillout operations.

According to Antero, Kawcak and Robertson were dealing under the 

table. Kawcak gave Robertson information on Antero’s other drillout vendors so that he could underbid the competition. And after winning the contracts, Robertson’s companies deliberately took longer than necessary to 

conduct drillout operations. Among other things, Robertson’s employees 

dropped tools down the well, brought faulty equipment to the site, and allowed other equipment to freeze, all of which resulted in lengthy delays.

Kawcak benefitted from this arrangement. Robertson’s companies 

made cash payments to him totaling $729,000. Robertson also gave Kawcak 

a private jet, though Kawcak maintains that he purchased the plane for between $390,000 and $430,000. In addition, Kawcak received substantial 

compensation from Antero: $2,666,828 in salary and bonuses, and restricted 

stock grants valued at $9,439,497 when they vested in 2015. He also received 

stock grants that had not yet vested at the time that he retired.

Eventually, Antero learned of the arrangement and sued Robertson 

and his companies in federal court, asserting fraud and breach of contract, 

among other things. Evidence of Kawcak’s role came out in discovery, and 

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Antero added claims against him too: breach of fiduciary duty, fraud (including exemplary damages), and unjust enrichment.1 Antero ultimately settled 

with Robertson, leaving only the claims against Kawcak. Those claims proceeded to trial in April of 2022.

The post-trial disputes center on the testimony given by Antero’s expert, Steve Taylor. Taylor utilized a three-step analysis to establish the value 

of Antero’s loss. First, he concluded that Robertson’s companies took longer 

than other drillout vendors. Taylor did this by comparing the invoices and 

daily completion reports submitted by C&R Drilling/Big Tex Well Services 

and those submitted by drillout companies Antero had used in the past. Second, Taylor concluded that Robertson’s companies faced similar working 

conditions as those faced by prior vendors.2

Third, and last, Taylor estimated the loss caused by the Robertson 

companies’ alleged inefficiency. He started by calculating a discount rate; 

the ratio of how long the Robertson companies should have taken to perform 

drillout services to how long it actually took them. Taylor then multiplied 

the percent difference by the total amount paid to the Robertson companies 

across its several years of work—$150,000,000. The product of those two 

figures is $11,122,140; according to Taylor, the total amount of overbilling.

Taylor also testified that the drillout delays caused “ripple effects” that impeded other contractors and resulted in an additional $20 million of damages.

One way Kawcak defended against Antero’s case was to argue that 

_____________________

1 Antero also asserted a RICO claim, but the district court declined to present it to 

the jury, apparently granting Kawcak’s motion for judgment as a matter of law. The claim 

is not at issue here.

2 Drillout operations might take significantly more time if a particular well poses 

greater difficulty. This could be the case if, among other reasons, the well is deeper or the 

geological composition is more resistant to drilling.

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Antero failed to prove damages. That is so, Kawcak said, because Antero 

profited from its arrangement with the Robertson companies, and no drillout 

provider would have cost Antero less. In addition, Kawcak offered his own 

testimony for the proposition that the only other available drillout provider, 

Fortis Energy, billed at a substantially higher daily rate than the Robertson 

companies. C&R Drilling and Big Tex Well Services charged $30,000 a day 

whereas Fortis charged $38,000 a day.

The jury returned a verdict that was mostly favorable to Antero. It 

found that Kawcak breached his fiduciary duty to Antero and that Antero 

should be compensated in the amount of $11,122,140.00—the amount the 

Robertson companies overbilled, according to Antero’s expert. The jury also 

found that Kawcak received $775,549.39 as a result of the breach. It further 

found that Kawcak committed fraud (including exemplary damages) against 

Antero but awarded $0 as relief. Finally, the jury found that Kawcak did not 

receive unjust enrichment.

The parties then exchanged post-trial motions. Kawcak filed a renewed motion for judgment as a matter of law, Fed. R. Civ. P. 50(b), or 

in the alternative, to alter or amend the judgment, Fed. R. Civ. P. 59(e). 

He renewed his argument that Antero had failed to prove damages associated 

with the breach of fiduciary duty and asked the district court to set aside the 

$11,122,140 damages award. Kawcak also argued that the district court 

should reduce the damages award by an amount equal to Antero’s settlement 

with Robertson. Post-trial, Kawcak maintained that the district court should 

order Antero to disclose the amount of the settlement, or else allow him to 

take discovery on that topic.

In addition to opposing the relief Kawcak sought, Antero moved for 

an order of disgorgement of the benefits Kawcak received in connection with 

his breach of fiduciary duty. Specifically, Antero moved to alter the judgment 

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6 

to add $12,106,325.20 in salary and vested stock, as well as 130,170 shares of 

restricted stock, which Antero held after Kawcak resigned.

The district court denied Kawcak’s motions. It found that Kawcak 

had not timely presented his damages argument; and in the alternative, that 

the argument failed on the merits. The district court also declined to apply a 

settlement offset on the basis that Kawcak had failed to introduce evidence 

at trial proving the settlement and its amount.

As to disgorgement, the district court granted the motion in part. It 

denied relief as to Kawcak’s salary and vested stock, reasoning both that Antero profited as a result of the arrangement and that it was already made substantially whole by the damages award. Finally, the court granted relief as to 

the restricted stock and awarded prejudgment interest. This appeal followed.

II

Kawcak presents two issues for review. First, he contends that the 

damages award relating to the alleged overbilling ($11,122,140) should be vacated because Antero failed to prove that it was injured by Kawcak’s breach 

of fiduciary duty. And second, he argues that the judgment should be offset 

by the amount of the Antero-Robertson settlement, and that he should be 

allowed to discover the relevant evidence and present it to the district court. 

A 

In reviewing Kawcak’s challenge to the damages award, we give great 

deference to the jury verdict. See Vetter v. McAtee, 850 F.3d 178, 185 (5th Cir. 

2017). Legal conclusions are reviewed de novo, but we will overturn the verdict only if “the facts and inferences point so strongly and overwhelmingly in 

favor of one party” that no reasonably jury could have found as it did. Id.

This issue is whether Antero proved that it was damaged by Kawcak’s 

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breach of fiduciary duty.3 The parties agree that, in this diversity-jurisdiction 

case, Texas law applies to that question of substantive law. See Ayres v. Sears, 

Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir. 1986). In Texas, a plaintiff may 

recover “actual damages” that were caused by a breach of fiduciary duty. 

ERI Consulting Engineers v. Swinnea, 318 S.W.3d 867, 873–74 (Tex. 2010); see 

also Restatement (Second) of Torts § 874 cmt. b (explaining that the beneficiary in a fiduciary relationship may recover damages for “harm caused by 

the breach of duty arising from the relation”).

One recognized measure of actual damages is out-of-pocket damages. 

See, e.g., Jerry L. Starkey, TBDL v. Graves, 448 S.W.3d 88, 108–09 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.); Rogers v. Alexander, 244 S.W.3d 

370, 387–88 (Tex. App.—Dallas 2007, pet. denied). This is the method that 

Antero relies on here. Out-of-pocket damages are “measured by the difference between the value expended versus the value received.” Anderson v. 

Durant, 550 S.W.3d 605, 614 (Tex. 2018).

1 

Kawcak offers two reasons why Antero failed to prove damages. First, 

he argues that Antero’s expert, Taylor, did not prove the amount of damages 

that the Robertson companies allegedly overbilled. Kawcak maintains that 

Taylor only discussed isolated examples of time wasting, but never connected those instances to actual days of work lost. As such, Kawcak says, 

there is uncertainty as to the fact of damages, which in Texas is fatal to re-

_____________________

3 Antero also argues that Kawcak forfeited the argument that Antero did not 

introduce sufficient evidence of damages. But, for the reasons explained below, we 

concluded that Antero did introduce sufficient evidence. As such, we assume arguendo that 

Kawcak adequately preserved this argument. See United States v. Hunt, No. 20-50993, 

2021 WL 6102487, at *1 (5th Cir. Dec. 23, 2021) (assuming argument was preserved, 

rejecting argument on the merits); Wells v. J-M Mfg. Co., 652 F. App’x 268, 268 (5th Cir. 

2016) (same).

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covery. See Dyll v. Adams, 167 F.3d 945, 946–47 (5th Cir. 1999).

As an initial matter, we conclude that Kawcak’s argument goes to the 

amount of damages, not the fact of them. That is, his argument is really that 

Taylor’s testimony does not prove $11,122,140 worth of overbilling, not that 

the testimony fails to prove overbilling at all. This difference matters because 

Texas law allows for some uncertainty in the amount of damages. See 

McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 207 (Tex. 1985); 

Jefferson v. Parra, 651 S.W.3d 643, 650 (Tex. App.—Houston [14th Dist.] 

2022, no pet.). Specifically, the amount of damages need only be proven 

“with a reasonable degree of certainty.” C&C Rd. Constr., Inc. v. SAAB Site 

Contractors, LP, 574 S.W.3d 576, 590 (Tex. App.—El Paso 2019, no pet.).

Taylor’s testimony calculated Antero’s out-of-pocket damages to a 

reasonable degree of certainty, especially when viewing the evidence in favor 

of the verdict. Taylor followed sound analytical methods to determine how 

long the Robertson companies should have taken to complete the drillout services. He reviewed the hundreds of completion reports and tens of thousands 

of invoices, accounting for uncontrollable delays and site-specific conditions. 

Taylor then compared the time spent to the time taken by previous drillout 

providers and concluded that the Robertson companies took some percentage longer than those companies. Applied to the rates charged by the Robertson companies, Taylor calculated damages in the amount of $11,122,140. 

That is a perfectly rational way of approximating overbilling. Cf. O & B 

Farms, Inc. v. Black, 300 S.W.3d 418, 422 (Tex. App. 2009) (upholding damages based on estimates of number loads hauled and fuel surcharge per load).

It is true that Taylor did not conduct an invoice-by-invoice analysis, 

as Kawcak argues he should have done. But it does not follow that Taylor’s 

testimony is no evidence at all. Perhaps Antero might have offered a more 

precise estimation of how much the Robertson companies overbilled. But all 

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that was required was for Antero estimate its damages “with a reasonable 

degree of certainty.” C&C, 574 S.W.3d at 590. Taylor’s testimony clears 

that bar, especially when viewed against the favorable standard of review that 

we apply to a jury verdict. See Vetter, 850 F.3d at 185.

2

Kawcak also contends that Taylor’s testimony was deficient because 

it did not consider what rates competing drillout providers might have paid. 

Even if the Robertson companies took longer, so the argument goes, if they 

charged significantly less than other companies, Antero might have ended up 

paying less than if it had hired someone else. And indeed, Kawcak himself 

testified that the Robertson companies’ daily rate ($30,000 a day) was less 

than the only available alternative (Fortis Energy, $38,000 a day).

This argument fails because evidence of a competitor’s rate is not necessary to prove out-of-pocket damages. See, e.g., Aquaplex, Inc. v. Rancho La 

Valencia, Inc., 297 S.W.3d 768, 775 (Tex. 2009) (calculating out-of-pocket 

damages using the value paid and the value received). To show damages, Antero need only prove that the Robertson companies charged it more than the 

“value [Antero] received.” Anderson, 550 S.W.3d at 614. By billing Antero 

more than the services it rendered, Kawcak caused Antero to incur out-ofpocket expenses. That is, Antero paid $150,000,000 in exchange for a certain number of days of work. But because the Robertson companies did not 

actually work on all of the days they billed, the value of the work Antero received was only $138,877,860. The difference in value is the amount overbilled. No reference to competitors’ rates is needed for that statement to be 

true.

Moreover, the jury was not required to accept Kawcak’s testimony 

regarding Fortis Energy’s rates. As Antero points out, there are multiple reasons why the jury might not have credited Kawcak’s assertion that Fortis 

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Energy was the only other available drillout provider, and that it would have 

charged more than the Robertson companies. Kawcak gave the rates strictly 

from memory, and his credibility was already in question because of his inconsistent answers to previous questions. In short, even if there was evidence 

that the Robertson companies were the cheapest drillout provider, and even 

if such evidence were relevant, the jury had discretion to reject that evidence. 

See City of Keller v. Wilson, 168 S.W.3d 802, 820, 827 (Tex. 2005).

Sufficient evidence supports the jury’s finding that Kawcak’s breach 

of fiduciary duty harmed Antero in the amount of $11,122,140.00. See Vetter, 

850 F.3d at 185. We affirm the damages award relating to Kawcak’s breach 

of fiduciary duty.4

B

We next consider the district court’s denial of Kawcak’s motion to

amend the judgment, in which the court rejected Kawcak’s request to take 

post-trial discovery on the Antero-Robertson settlement.

5

 The denial of such 

a motion is reviewed for an abuse of discretion. Franlink Inc. v. BACE Servs., 

Inc., 50 F.4th 432, 438 (5th Cir. 2022). And discovery orders that form the 

basis of the district court’s reason to deny a motion to amend the judgment 

are reviewed under the same standard. Moore v. Willis Indep. Sch. Dist., 233 

F.3d 871, 876 (5th Cir. 2000).

_____________________

4 On cross appeal, Antero argues that, if we vacate or reverse the damages award, 

we should also vacate the disgorgement award and remand for the district court to consider 

whether a different disgorgement remedy is appropriate. But we affirm the damages award, 

so we do not reach Antero’s conditional argument.

5 Citing Texas’s one-satisfaction rule, Kawcak argued that the damages judgment 

should have been offset by an amount equal to the settlement between Antero and 

Robertson. The one-satisfaction rule applies when multiple parties cause the same damage. 

See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991).

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Because this issue involves procedure and substance, it involves a mixture of state and federal law. Camacho v. Ford Motor Co., 993 F.3d 308, 311 

(5th Cir. 2021) (“In diversity cases, we apply state substantive law and federal procedural rules.”). As a matter of substance, Texas state law explains 

that the defendant bears the burden to prove “its right” to a settlement 

credit. Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 107 (Tex. 

2018); see Chevron Oronite Co. v. Jacobs Field Servs. N. Am., Inc., 951 F.3d 219, 

232 (5th Cir. 2020) (applying Texas law on allocation of burden of proof). 

Texas law also provides that the judge, not the jury, decides whether a defendant is entitled to a settlement credit. See Utts v. Short, 81 S.W.3d 822, 

829 (Tex. 2002); Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773, 

784 (Tex. App.—Fort Worth 2014, no pet.) (explaining that a “nonsettling 

defendant should raise a settlement-credit issue ‘to the trial court[,] not the 

jury’”) (quoting Utts, 81 S.W.3d at 829).

But because discovery is procedural, federal law governs the question 

of whether a party is entitled to take post-trial discovery. See Camacho, 993 

F.3d at 311. Discovery after evidence has closed is typically reserved for situations where the trial reveals a new basis for seeking further information. 

See United States v. Corp. Mgmt., Inc., 78 F.4th 727, 750 (5th Cir. 2023); Brill 

v. Cochran, No. 98-31229, 1999 WL 511904, at *2 (5th Cir. July 1, 1999) (per 

curiam); see also Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008) (“Posttrial discovery is usually reserved for when a party becomes aware of new 

information after trial.”).

In denying Kawcak’s motion to amend the judgment, the district court 

appears to have assumed that Kawcak was required to present evidence of 

the settlement at trial and was categorically prohibited from pursuing that 

evidence after trial. That was legal error, and by definition, an abuse of discretion. See In re Planned Parenthood Fed. of Am., Inc., 52 F.4th 625, 631 (5th 

Cir. 2022) (explaining that a district court abuses its discretion when it 

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applies “incorrect legal principles”). We are aware of no precedent obligating a defendant to prove the existence of a settlement credit at trial. 

On the contrary, district courts frequently defer discovery relating to

a third-party settlement until after trial. See Morris v. Aircon Corp., No. 9:16-

CV-35, 2017 WL 11630439, at *1, *3–5 (E.D. Tex. Sept. 27, 2017); Hoerchler 

v. Equifax Info. Servs., LLC, 568 F. Supp. 3d 931, 936 (N.D. Ill. 2021); Zook 

v. Equifax Info. Servs., LLC, No. 3:17-cv-2003, 2018 WL 10604347, at *3 (D. 

Or. July 2, 2018). Indeed, as Kawcak observes, the amount of a third-party 

settlement does not become relevant until after the jury reaches a verdict.6 

See Sky View, 555 S.W.3d at 106 (defendant did not request production of 

settlement documents until plaintiff moved for judgment on the verdict). In 

other words, a jury verdict is “new information” that puts the defendant on 

notice that he now needs to pursue discovery on the plaintiff’s settlement 

with a third party. Griffin, 542 F.3d at 223. 

Because the district court’s order denying Kawcak’s motion to amend 

the judgment rested on an erroneous understanding of the law, it must be 

vacated. But that does not necessarily mean that Kawcak will be entitled to 

take post-trial discovery on the Antero-Robertson settlement. District courts 

have “broad discretion . . . on discovery issues,” and this discretion permits 

a range of allowable outcomes. O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 

494, 499 (5th Cir. 1985).

The parties disagree over whether Kawcak timely requested evidence 

of Antero’s settlement with the Robertson companies. Kawcak maintains 

that he included a request for the settlement in his initial requests for 

_____________________

6 The lack of relevance during trial is underscored by the fact that the district court 

prohibited the parties from mentioning the terms of the settlement without first obtaining 

the permission of the court.

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production and points out that, in his pre-trial brief, he asked the district 

court to order Antero to disclose the amount of settlement. Antero responds 

that Kawcak’s pre-trial brief was filed only after the discovery period had 

closed.

We do not decide whether Kawcak is or is not entitled to conduct posttrial discovery. It appears to be common for district courts to take up the 

subject of a settlement credit after trial. And Texas state courts follow that 

approach in the usual course. See, e.g., Dalworth Restoration, 433 S.W.3d at 

784; Polk v. St. Angelo, No. 03-01-356-CV, 2002 WL 1070550, at *4 (Tex. 

App.—Austin May 31, 2002, pet. denied); Borg-Warner Corp. v. Flores, 153 

S.W.3d 209, 221 (Tex. App.—Corpus Christi-Edinburg 2004), rev’d on other 

grounds, 232 S.W.3d 765 (Tex. 2007). The district court is entitled to weigh 

these and any other appropriate considerations in the first instance. But in 

making that determination, the district court must account for the fact that 

the law generally allows for post-trial discovery of a third-party settlement.

* * *

For the foregoing reasons, the component of the final judgment corresponding to the $11,122,140.00 that the jury awarded as damages for Kawcak’s breach of fiduciary duty is AFFIRMED. The district court’s order 

denying Kawcak’s motion to amend the judgment is VACATED. The case 

is REMANDED for the district court to, consistent with this opinion, consider whether to allow Kawcak to pursue discovery relating to Antero’s settlement with the Robertson companies and whether to offset the final judgment in light of that settlement.

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