CAUSE NO. 05-14-01575-CV

IN THE COURT OF APPEALS

FIFTH DISTRICT OF TEXAS

AT DALLAS

RECEIVED

Court of Appeals

SEP 1 6 2015

Lisa Matz

Glerk, 5th District

WILLIAM T.DICKSON

Appellant

v.

BNSF RAILWAY COMPANY

And

FELLERS SNIDERBLANKENSHIP BAILEY & TIPPENS P.C.

Appellees

APPELLANT WILLIAM T. DICKSON'S REPLY BRIEF TO RESPONSE OF

BNSF RAILWAY COMPANY

Appeal from Grant of Summary Judgment by the 193rd District Court

Honorable Carl Ginsberg, Presiding

William T.Dickson.

Pro Se Plaintiff/Appellant

2626 Maple Avenue,

Suite 200

Dallas, Texas 75201

(214)696-1100

(214)740-0112

Wtdickson7@aol.com

5th Court of Appeals

FILED: 9-21-15

Lisa Matz, Clerk
TABLE OFCONTENTS

I. Fact in Dispute That Precludes Summary Judgment 1

A. Did the Claims BeingLitigated inAppeal 10-5096 Settle On Or About

August 31, 2010? 1

II. BNSF's Statement of Facts 2

A. The Underlying Federal Litigation 2

B. The Dismissal of Willis Claims by the Federal District Court 3

C. The Tenth Circuit Decision With Respect to BNSF 4

D. The Claims Willis Pursued Against BNSF On Remand and In

Appeal 10-5096 Were Not Non-Existent 5

E. BNSF's Statement ofFactsIs Riddled With False Statements 6

F. Dickson Did Not Voluntarily Withdraw as Willis' Attorney 8

G. The Hearing Held on February 17, 2011 Is Completely Irrelevant

to This Case 8

H. DicksonIs Not Seeking a Contingency Fee From a Lawsuit Lost in 2006 9

IE. TheTiM(^urtEniedbyNotCondnuingthe Summary JudgmentHearing 11

A. Dickson Was Diligent inPursuing Discovery 11

B. Dickson Showed ThatTheDiscovery Needed WasMaterial 12

IV. The Trial Court Erred in Sustaining Fellers Snider's Objections

toDickson's Summary Judgment Evidence 13

V. The Court Should Reverse the Summary Judgment Granted to BNSF 13

A. Dickson's Claims Are Not Barred by Issue Preclusion 13

B. Dickson's Claims Are NotBarred byWaiver 15

C. Dickson's Claims Are Not Barred By Quasi-Estoppel 15
D. The Court Should Reverse the Summary Judgment on Settlement

in Breach of 5 O.S. §8 16

1. TheNo Evidence Summary Judgment 16

2. The Traditional Summary Judgment 17

a. Willis CPA Did Not Lose Its Lawsuit 17

b. This ClaimIs Not Barred By Limitations 18

E. This The Court Should Reverse the Summary Judgment

For Tortious Interference With a Contract 19

1. TheNo-Evidence Summary Judgment WasError 19

2. Thetraditional summary judgment waserror 20

CONCLUSION AND PRAYER 22
Cases

TABLE OF

AUTHORITIES

B Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282

(10th Cir. 2008) 3,4,5,6,9,10,14,20,21

Public Service Company v. B. Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997) 4

Statutes

5 O.S. §8 18,19,21

5 O.S. §9 16

in
CAUSE NO. 05-14-01575-CV

IN THE COURT OF APPEALS

FIFTH DISTRICT OF TEXAS AT DALLAS

WILLIAM T DICKSON

Appellant

v.

BNSF RAILWAY COMPANY

And

FELLERS SNIDERBLANKENSHIP BAILEY &TIPPENS P.C.

Appellees

APPELLANT WILLIAM T. DICKSON'S REPLY BRIEF TO

RESPONSE OF BNSF RAILWAY COMPANY

TO THE HONORABLE FIFTH COURT OF APPEALS:

Appellant, William T. Dickson ("Dickson"), files this brief in reply to the

response brief filed by Appellee, BNSF Railway Company ("BNSF") and respectfully

shows the Court the following:

I. Fact in Dispute That Precludes Summary Judgment.

Throughout its brief BNSF makes factual assertions that it claims are

undisputed or established as amatter of law. In fact, there is one fact very much in

dispute that make the summary judgment BNSF obtained reversible error.

A. Did the Claims BeingLifted in Appeal 10-5096 Settle On OrAbout August 31,

2010?

BNSF alleges that Dickson can show no damages because the alleged damages

arose from the settlement between Willis and PSO/BNSF that occurred in February
2011. Specifically, BNSF asserts that Willis and PSO/BNSF announced their settlement on

February 17,2011.

In fact, PSO filed a motion in the U.S. District Court on December 28, 2010

that explicitly stated that no settlement had been reached but that if the Court were to

hold a hearing the parties could reach a settlement. (CR 284) Then, at the hearing on

February 17,2011, Stratton Taylor stated (CR 290):

Trans. Page 8, Line 17-Page 9, Line 2

Mr. Taylor: That'sfundamentally correct, Judge. Ithink what we'd

reallyliketo have happen today, ifpossible, would be ifwe couldhave

the motionto approve settlement heard, because ifwecould reach an

agreement on that with B. Wilis. C.P.A.. that would dispose of one

matter .andthen we couldthemgoahead and withdrawthe motionfcr

the settlement conference. If can't proceed with motion to approve the

settlement agreement that we would hope to get done today...(Emphasis

added.)

In fact, Dickson's damages arose from the tortious acts of BNSF and Public

Service Company of Oklahoma ("PSO") in secretly settling Tenth Circuit Appeal 10-

5096 with Willis' new counsel Fellers Snider Blankenship Bailey & Tippens P.C.

("Fellers Snider") without Dickson's knowledge or consent. As shown by the e-mails

((CR 323-340, 343-375, 531-562, 562-597, 756-787, 789-822), Fellers Snider effected

a settlement on behalf of Willis with PSO/BNSF on or about August 31,2010.

Thus, there isvery much adispute as towhen Willis and PSO/BNSF entered into

a settlement agreement with respect to the claims being litigated in Tenth Circuit Appeal 10-

5096.

II. BNSF's Statement of Facts.

A. The Underlying Federal Litigation

In its first alleged fact, BNSF states:
BNSF was a defendant in several ofthose actions, all of which grew out of

the taking of part Willis CPA's property via eminent domain.

While Willis was engaged in litigation with PSO and BNSF over many years,

the only previous litigation that isrelevant tothis case are two appeals tothe U.S. Court

of Appeals for the Tenth Circuit, B. Willis C.P.A., Inc. v. BNSF Railway Company,

531 F.3d 1282 (10th Cir. 2008) and Appeal No. 10-5096,5. Willis C.P.A., Inc .v. BNSF

Railway Company. These cases did not grow out of PSO's taking Willis' property by

eminent domain but by PSO seizing a portion of Willis' property without complying

with Oklahoma's eminent domain requirements. See Public Service Company v. B.

Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997).

InAppeal No. 10-5096,5. Willis C.P.A., Inc .v. BNSF Railway Company, Willis

asserted a claim under 42 U.S.C. § 1983 that PSO had located a portion of itstrack off

of the easement or right of way on a portion of Willis property PSO had never filed

condemnation proceedings against. Specifically, Willis pleaded that PSO, as a state

actor, located its track beneath the surface easement it had impressed on Willis'

property. See CR 232 and CR 272. The Tenth Circuit held that Willis had a 'Viable

claim" for removal of coal and limestone from 'beneath the surface easement." B.

Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282, 1306 (10th Cir. 2008) If

the coal seam was 'beneath the surface easement," obviously the track, located even

further down, is alsobeneath oroffofthe surface easement.

This claim was completely independent ofPSO's eminent domain proceeding.

B. The Dismissal ofWillis Claims by the Federal District Court.

BNSF asserts on page 2of its briefthat Willis alleged "the wrongful possession
and use of a surface easement across its property. Willis alleged first, that there was

no easement across Willis' property1 and secondly, even ifthere was an easement, it

was only a surface easement, as the Tenth Circuit held in B. Willis C.P.A., Inc. v.

BNSF Railway Company, 531 F.3d 1282 (10*1 Cir. 2008) at 1306 and when PSO cut

beneath the surface easement, it was trespassing offthe easement.

When the U.S. District Court dismissed Willis claims in 2006, it did so without

prejudice as unripe. When the Tenth Circuit ruled on July 16, 2008, itfound that during

the pendency of the appeal, some of the claims had become ripe and some were still

unripe. B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282,1287,1288 (10th

Cir.2008)(CR Supp. #11228).

C. The Tenth Circuit Decision With Respect to BNSF.

BNSF asserts that the Tenth Circuit affirmed the dismissal of all of Willis claims

against BNSF. What BNSF has overlooked since the Tenth Circuit rendered its

decision in 2008 is that it held that Willis' claims under 42 U.S.C. § 1983 were still

viable so long as they were based on a claim other than PSO did not have right to use

the easement it filed to condemn during the course of the state condemnation

proceeding. B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282, 1306

(10th Cir. 2008) In other words, Willis still had a viable claim that PSO given Willis a

cause of action by seizing property against which it had never filed condemnation

proceedings and located its track off of the easement or right of way. And further, the

Tenth Circuit went to great lengths to be clear that BNSF was in privity with PSO

See Public Service Company v. B. Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997).
because of the Industrial Track and Operating Agreement by which BNSF took

possession and control of the track and ran trains over it. B. Willis C.P.A., Inc. v.

BNSF Railway Company, 531 F.3d 1282,1302 (10thCir. 2008).

D. The Claims Willis Pursued Against BNSF On Remand and In Appeal

10-5096 Were Not Non-Existent.

After the Tenth Circuit issued its decision on July 16, 2008 holding that Willis

had viable but unripe claims, Willis dismissed the pending state appeal on just

compensation for a surface easement onof September 9, 2008. The U.S. District Court

held that Willis' remaining claims were then ripe. (1st Supp. CR 1247, 1248).

Willis' primary claim was the 42 U.S.C. § 1983 claim against PSO for locating

its track other than where it had condemned a surface easement. However, what BNSF

isignoring, and wants this Court to ignore, isthat when Willis' primary claim became

ripe on September 9, 2008, a derivative tort claim against BNSF also became ripe atthe

same time. If Willis did not have a claim against PSO for locating a portion of itstrack

offofthe right ofway, then Willis would have no claim against BNSF for operating and

using that track as PSO's contractor. But, as the Tenth Circuit held that that BNSF was

in privity with PSO pursuant to the Industrial Track and Operating Agreement, ifWillis

had such a claim against PSO, Willis had the same claim against BNSF for operating

the track and running trains over it as PSO contractor.

However, since this claim did not become ripe until September 9, 2008. after

the ruling ofthe Tenth Circuit in B. Willis C.P.A., Inc. v. BNSF Railway Company, 531

F.3d 1282 (10th Cir. 2008) on July 16,2008, the claim could not have been rendered non-existent

ordefunctbythat decisioa.
E. BNSF's Statement ofFacts Is RiddledWith False Statements.

Beginning onpage 5 under Section V, BNSF begins a narrative that isriddled with false

statements. Onpage 6BNSF asserts that what PSO really wanted was for it and Willis CPA to

simply walk away. What PSO really wanted for Willistodrop the appeal against bothBNSFand

PSO since PSO was responsible for obtaining the right of way under the Industrial Track and

Operating Agreement (CR246)and the TenthCircuit had heldBNSF and PSO were in privity as a

result ofthat agreement B. Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d

1282,1302 (10th Cir. 2008).

Then BNSF falsely states that "Dickson did not tell Willis about the letter, but Willis

saw it on Dickson's fax machine." Dickson did not have a fax machine. The letter was

faxed to Willis' fax machine as Dickson used Willis' office as his Tulsa office. Willis

received the fax and then called Dickson and told him about it. (CR 1st Supp. 303)

Next, BNSF falsely states that Willis "promptly told Dickson that he wanted him to

accept the proposal on behalfofWillis CPA." Willis did no such thing. Willis and Dickson

had several discussions about how to proceed, but Willis initially made no decision onhow

to respond. (CR 834, 836- 837). Then, Willis called Dickson and informed him that he was

not to respond to PSO's letter because Fellers Snider was going to contact PSO's attorney

and accept its offer. When Dickson attempted to discuss the matter further, Willis abruptly

hung up. (CR187,628,834, 837)

Dickson filed his attorney lien while the case was being actively litigated at the

U.S. Court of Appeals and Willis had made no decisions about dropping the case. (CR

300). At the time Dickson sent his letter to PSO's attorney reminding him ofDickson's

attorney lien, Willis had given Dickson no instruction to accept PSO's offer. Dickson's
instructions were not to accept PSO's offer because Fellers Snider were going to. (CR

187, 628, 834, 837). In fact, Fellers Snider did exactly that. (CR 323-340, 343-375,

531-562, 562-597, 756-787, 789-822)

On page 6 BNSF falsely asserts that "because Dickson had defied his

instructions regarding settlement, Wills contacted Steve Adams, an attorney at Fellers

Snider, to get a second opinion." Willis informed Dickson on August 26, 2010 thai

Adams was going to contact PSO's attorney to accept PSO's offer. CR 187, 628, 834,

837). As shown by e-mails (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-

822) Adams called PSO's attorney by Friday, August 28, 2010 to do exactly that.

Subsequent to that, Willis began demanding that Dickson contact PSO's attorney and

accept PSO's offer, even though Fellers Snider had already settled the case on Willis'

behalf.

On page 8 BNSF asserts that, "Willis wanted to hire Adams, but Adams would

not agree to represent Willis CPA because ofDickson's threat to sue Fellers Snider." In

fact, Steve Adams, as a shareholder of Fellers Snider represented Willis in the federal

litigation and settled the case on Willis' behalf. (CR Supp #3 21) (CR 323-340, 343-375,

531-562, 562- 597, 756-787, 789-822)

What BNSF completely ignores in its narrative, isthat PSO, BNSF and Willis,

represented by Fellers Snider had settled the case on or about August 31, 2010 (CR 323-

340, 343-375, 531-562, 562- 597, 756-787, 789-822) but hid this settlement while they

attempted to get Dickson to agree to or at least participate in the settlement so that he

would lose his claims against all of them to get paid for years of work under a

contingent fee contract.
F. Dickson Did Not Voluntarily Withdraw as Willis' Attorney.

BNSF assert that Dickson voluntarily withdrew as Willis' attorney in the

underlying federal litigation. In fact, Dickson was compelled to withdraw after Willis

withdrew Dickson's authority to prosecute the case. After Tenth Circuit Appeal No. 10-

5096 was docketed, the Court entered a briefing schedule. After Dickson filed Willis'

brief in chief, Willis informed Dickson that he did not have authority to file the brief.2

(CR Supp. # 1 444) Shortly there after, Dickson contacted Willis about having a

mediation hearing under the auspices of the Tenth Circuit mediation office. Willis agreed

to the concept and such mediation was arranged. When Dickson notified Willis of the

mediation date, Willis denied ever having agreed, accused Dickson of acting without

authority and refused to participate. (CR 408, 409, 635, 636, 835.) Since Willis had

withdrawn Dickson's authority to prosecute the case in Willis' name, Dickson had no

choice but to withdraw.

However, by the time Dickson withdrew, unknown to both Dickson and the Tenth

Circuit, Willis, represented by Fellers Snider, had already settled the case. (CR 323-340,

343-375, 531-562, 562- 597, 756-787, 789-822).

G. The Hearing Held on February 17, 2011 Is Completely Irrelevant to

This Case.

Beginning on page 10 of its brief under Section VII, BNSF, has a narrative,

replete of legal argument, about the "settlement hearing" held in the U.S. District Court

on February 17, 2011. As BNSF acknowledges, this hearing was held after the Tenth

Circuit dismissed appeal 10-5096 for failure to prosecute. This "settlement hearing" is

2In his sworn affidavit filed in case under appeal, Willis stated that he allowed Dickson

to file the brief. (CR 1st Supp. 371)

8
completelyirrelevant to the case at bar for two reasons.

The claims that Dickson was litigating as Willis' attorney in appeal 10-5096that

underlie this lawsuit, were settled by Willis, PSO and BNSF on or about August 31,

2010. (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-822). Since this

settlement was hidden from both Dickson and the Tenth Circuit3, the Court, with Willis'

acquiescence (CR Supp. #1 612, Paragraph 25, 764), dismissed the claims for failure to

prosecute prior to the hearing in question. As a result, the claims Dickson had been

litigating on behalf of Willis at the Tenth Circuit in Appeal 10-5096 could not have

been settled at the hearing on February 17, 2011.

H. Dickson Is Not Seeking a Contingency Fee From a Lawsuit Lost in

2006.

BNSF assert thatDickson is seeking a contingency fee when the federal district

court dismissed all of Willis CPA's claims by January 2006. What BNSF is ignoring,

and hopes this Court will ignore is that Willis' claims dismissed in January 2006 were

dismissed without prejudice as unripe. Such an adjudication is not an adjudication on

the merits. In B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d 1282 (10th

Cir. 2008) the Tenth Circuit held that decisions in the related state condemnation

proceeding had rendered some of Willis' claims ripe during the pendency of the appeal

while other claims were still unripe.4 But since the claims Willis was litigating in Appeal

3It was also presumable hidden from the District Court as well. Dickson was sanctioned

and ordered to pay PSO for its attorney fees incurred after PSO had secretly settled the

case with Fellers Snider on behalf ofWillis. The fees Dickson was ordered to pay included fees for PSO's attorneys dealing with Fellers Snider to secretly settle the case.

(CR Supp. #3 16-18) Not until the e-mails were produced (CR 323-340, 343-375, 531-

562, 562- 597, 756-787, 789-822) was Dickson aware ofthe fraud that PSO had

perpetrated on both Dickson and the U.S. District Court. ?

*BNSF incorrectly states that the Tenth Circuit "affirmed the dismissal of Willis
10-5096 were notripe when B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d

1282 (10th Cir. 2008) was filed with the Tenth Circuit, the claims could not have been lost

or rendered defunct by the U.S. District Court in January 2006.

Moreover, the ruling of the Tenth Circuit in no way decided the claims against

BNSF that Willis was litigating in Appeal 10-5096. The Tenth Circuit ruled that Willis'

claims based on asserting that a portion of the track that PSO constructed across Willis'

property was located offofthe right of way PSO had condemned by eminent domain were

not ripe at the time of its decision on July 16, 2008. B. Willis C.P.A., Inc. v. BNSF

Railway Corrpany, 531 F.3d 1282, 1306 (10th Cir. 2008). Subsequently, the U.S.

District Court held that Willis' remaining claims were now ripe as of September 9,

2008. (CR Supp. #1 229, 232, 233) When Willis' primary claim became ripe on

September 9, 2008, a derivative tort claim against BNSF also became ripe atthe same

time. IfWillis did not have a claim against PSO for locating a portion of itstrack offof

the right ofway, then Willis would have no claim against BNSF for operating and using

that track as PSO's contractor. But, as the Tenth Circuit held that that BNSF was in

privity with PSO pursuant to the Industrial Track and Operating Agreement, ifWillis

had such a claim against PSO, Willis had the same claim against BNSF for operating

the track and runningtrains over it as PSO's contractor.

However, since this claim did not become ripe until September 9, 2008, after

the ruling of the Tenth Circuit in B. Willis C.P.A., Inc. v. BNSF Railway Company, 531

claims. The dismissal by the district court had been without prejudice as unripe. The

Tenth Circuit, finding that decisions in the state proceedings had rendered some claims

ripe while the appeal was pending, then proceeded to adjudicate those claims on the

merits. It remanded the claims Willis would later litigate in Appeal 10-5096 to be

dismissed without prejudice as unripe.

10
,'t>lfe!<;3^Jt^M<**4g$!!K£*r

F.3d 1282 (10th Cir. 2008) on Jury 16,2008, Hie claim could not have been rendered non-existent

ordefunctby thatdecision..

BX The TrialCourtErredby NotContinuing the Summary JudgmentHearing.

A. Dickson Was Diligent in Pursuing Discovery.

Dickson served Fellers Snider with discovery requests, including request for

production of e-mails (CR 31,37) that were not produced until May, 2 014.

(CR323-340, 343-375, 531-562, 562-597, 756-787, 789-822).

In Fellers Snider's response in 2012, it asserted that it had no responsive

documents. (CR Supp. #1 325). There was no reason for Dickson to file a motion to

compel the production ofdocuments that Fellers Snider had already denied existed.

BNSF falsely asserts on page 19 of its brief that Dickson confronted Fellers

Snider on the relevancy objection.5 In fact, Dickson confronted Fellers Snider's

attorney with copies ofthe e-mails obtained from PSO by a third party subpoena after

PSO obtained a summary judgment and was severed out ofthe case. Confronted with

the existence of e-mails between Fellers Snider and PSO's attorneys, Fellers Sniderthen

produced certain e-mails from itsfiles.

Dickson then moved to obtain an un-redacted copy of a critical e-mail PSO

had produced. Once PSO refused to voluntarily produce it, Dickson filed amotion to

conpel on August 28, 2014 that was set for hearing on September 19,2014, which was

5BNSF's brief on page 19 is cleverly drafted to confuse the Court between Fellers

Snider's claim ofrelevancy and PSO's claim of privilege. It states that Fellers Snider

produced "the e-mail." But Fellers Snider did not have "the e-mail." "The e-mail" was

from PSO's out side counsel to its in-house counsel. (CR 339). PSO had asserted an

attorney client privilege. If Fellers Snider had an un-redacted copy of the e-mail there

could have been no privilege because Fellers Snider did not represent PSO. Fellers

Snider represented Willis. (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-

822).

11
after the hearing on the motions for summary judgment filed by BNSF and Fellers

Snider. (CR Supp. #3 60)Due to the materiality of an un-redacted copy of that e-mail, it

was error for the trial court not to have granted a continuance.

B. Dickson Showed That The Discovery Needed Was Material.

There is clear evidence that shows that Willis/Fellers Snider and PSO/BNSF

settled Tenth Circuit Appeal No. 10-5096 on or about August 31, 2010 and then

acted hide it by representing that no settlement had been entered into until after

Willis allowed the appeal to be dismissed for failure to prosecute, thereby

extinguishing Dickson's attorney lien. As a result of BNSF's actions in settling the

case, Dickson was unable earn a contingent fee. Under Oklahoma law, parties who

settle around a contingent fee attorney are liable under 5 O.S. § 8 and for tortious

interference with a contract.

An un-redacted copy of the e-mail (CR 339) PSO's attorney sent to five inhouse attorneys at American Electric Power Co., Inc. after getting off the phone

with Adams/Fellers Snider and a few days before notifying Adams/Fellers Snider that

he had a draft agreement ready to review, was clearly material to showing that

PSO/BNSF settled Appeal No. 10- 5096 while Dickson's attorney lien was in place and

well before the Willis allowed the appeal to be dismissed for failure to prosecute. (1st

Supp. CR 612, paragraph 25, 764).

Moreover. BNSF's argument that Dickson could not have earned a contingency

fee because Willis claims were dismissed by the U.S. District Court in 2006 and the

Tenth Circuit affirmed the dismissal in July 2008 is completely bogus. As described

above, the claims against BNSF Dickson was litigating at the Tenth Circuit on behalf of

12
Willis in Appeal No. 10-5096 did not become ripe until September 9, 2008, after the

decisions BNSF is attempting to rely on.

IV. The Trial Court Erred in Sustaining Fellers Snider's Objections to

Dickson's Summary Judgment Evidence.

Whether the trial court erred in sustaining Fellers Snider's objections to

Dickson's summary judgment evidence is completely irrelevant to Dickson's claims

against BNSF for two reasons. First, Dickson's response to BNSF's Motions for

Summary Judgment contained essentially the same summary judgment evidence (CR

182-375) and it was not excluded against BNSF. Thus, it isthe record against BNSF.

Second, after Fellers Snider filed its objection to Dickson's affidavit,

Dickson filed a supplemental affidavit (CR 831) that neither Fellers Snider's motion

nor the trial court's order addressed. As a result it is still in the record and

supports Dickson case that summaryjudgment was improper.

V. The Court Should Reverse the Summary Judgment Granted to BNSF.

A. Dickson's Claims Are Not Barred by Issue Preclusion.

BNSF asserts that Dickson's claims were litigated in the "first action" and that

outcome precluded Dickson from earning a contingent fee. First, Dickson is not suing

for a contingent fee but for tort damages based on BNSF's tortious conduct. Moreover,

the first action was Appeal 10-5096. The facts sought to be litigated in the "second

action," the case at bar, were not fully and fairly litigated in the first action because the

case was secretly settled and then, after Dickson was compelled to withdraw (CR 188,

189, 835-836), Willis allowed the appeal to be dismissed for failure to prosecute. (1st

Supp. CR 612, Paragraph 25, 764). As aresult, at the time ofthe dismissal Dickson was

no longer in privity with Willis and Willis' counsel was Fellers Snider. (CR 323-340,

13
343-375, 531-562, 562- 597, 756-787, 789-822)

The action BNSF is trying pass off as the "first action" is, in fact, irrelevant, as

the claims Willis was litigating in Appeal 10-5096 did not exist as justicible claims

("ripe") until after the case BNSF is relying on had concluded. As a result, those claims

could not have been adjudicated in what BNSF misconstrues asthe "first action".

BNSF cites irrelevant cases from irrelevant jurisdictions to claim the ruling of

the U.S. District Court under appeal when PSO/BNSF secretly settled Willis' claims

against them is preclusive. The controlling law on this matter is B. Willis C.P.A., Inc. v.

BNSF Railway Corrpany, 531 F.3d 1282 (10th Cir. 2008) atN. 24. "A final judgment is

one in which no appeal has been perfected within the time allotted by law or one in

which an appeal has been properly perfected and acted upon by the highest court whose

review has been sought." Because Willis timely appealed the District Court's ruling, it

was not a final judgment for purposes ofpreclusion. Moreover, it was not preclusive

with respect to Dickson after Willis allowed Appeal 10-5096 to be dismissed for failure

to prosecute as Dickson was no longer in privity with Willis.

BNSF makes the argument that the 2006 decision by the U.S. District Court was

final. However, that decision was a dismissal of Willis' claims without prejudice as

unripe. As noted above, in B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d

1282 (10th Cir. 2008) the Tenth Circuit held that some of those claims became ripe

during while the appeal was pending and adjudicated those claims on the merits. But

the claims at issue in Appeal 10-5096 did not become ripe and justicible until after the

decisions BNSF is relying on. As a result, the claim at issue could not have been

rendered "defunct" by the decisions BNSF isrelying on.

14
B. Dickson's Claims Are Not Barred by Waiver.

BNSF asserts that Dickson cannot recover because he waived his right to a fee

by voluntarily withdrawing as Willis' attorney. As previously stated, Dickson is not

seeking to collect a fee but tort damages for BNSF's tortious conduct. However, as

previous explained, Dickson did not voluntarily withdraw. (CR 188, 189, 835-836). He

was compelled to withdraw after Willis withdrew his authority to prosecute the case. To

the extent that whether Dickson voluntarily withdrew is material, there is a clear factual

dispute the made summaryjudgment improper.

However, the tortious conduct that Dickson complains of isthe secret settlement

around Dickson by PSO/BNSF with Willis' other counsel, Fellers Snider. This occurred

on or about August 31, 2015 (CR 323-340, 343-375, 531-562, 562- 597, 756-787, 789-

822), several months before Dickson filed his motions to withdraw. As aresult, BNSF's

waiver argument has no merit.

C. Dickson's Claims Are Not Barred By Quasi-Estoppel.

BNSF asserts that the Court should affirm the summary judgment because

Dickson's claims are barred by quasi-estoppel. To support this claim BNSF asserts

Dickson voluntarily withdrew as Willis' attorney and intentionally relinquished his right

to acontingency fee but now claims he is somehow still entitled to acontingency fee.

As previously stated, Dickson is not seeking to collect afee but tort damages for

BNSF's tortious conduct. However, as previous explained, Dickson did not voluntarily

withdraw. (CR 188,189, 835-836). He was compelled to withdraw after Willis withdrew

his authority to prosecute the case. Moreover, Willis did not lose that case. He secretly

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settled it with PSO/BNSF while the case was being actively litigated in Appeal 10-5096

by Dickson as Willis' attorney.

D. The Court Should Reverse the Summary Judgment on Settlement in

Breach of 5 O.S. §8.

1. The No Evidence Summary Judgment.

BNSF begins by asserting that all of Willis' claims against BNSF were

adjudicated in BNSF's favor by the federal courts in 2006 and 2008. Once again, the

claims Dickson was litigating on behalf ofWillis in Appeal 10-5096 in 2010 when that

appeal was secretly settled by PSO/BNSF were not even ripe and justicible until after

the decisions BNSF is relying on. Dickson suffered damages in not being able to

prosecute the appeal to asuccessful conclusion and earn acontingency fee.

BNSF completely misrepresent 5O.S. §9on pages 48-50 of its response brief.

It asserts that the settlement by Fellers Snider with PSO/BNSF fell under the third

scenario covered by 5 O.S. § 9, "when there is a contingent fee with the amount

specified for which the action is to be filed. " Dickson's contingent fee contract (CR Supp.

#1 361) did not specify the amount for which the action was to be filed and the

third scenario does not apply. It is the second scenario that applies. Because Dickson

had acontingent fee contract for apercentage ofthe recovery, the dollar amount ofthe

fee is unknown and therefore, not fixed by contract. That is why the fee is called

"contingent." As aresult, under Oklahoma law contingent fee attorneys suing on a lien

claim are entitled to try the case to establish or "fix" the dollar amount that they

would have recovered had not the case been settled around them. In Re Western Real

Estate Fund, Inc., 922F.2d 592 (10th Circuit 1990).

Contrary to the assertion of BNSF, Dickson was not able to complete his

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contract with respect to Tenth Circuit Appeal 10-5096 and Willis did not lose that

appeal. It was secretly settled on or about August 31, 2010. (CR 323-340, 343-375,

531-562, 562-597, 756-787, 789-822). At a minimum, there was sufficient evidence to

preclude a summaryjudgment.

BNSF asserts on pages 51-52 of its brief that there is no authority that anything

about PSO and BNSF's business relationship ever made PSO or its attorneys the agent

of BNSF. In Mayor v. Wilkerson, 111 P.2d 1069 the Oklahoma Supreme Court held

that even when a case was dismissed prior to any recovery by a contingent fee attorney,

a defendant was liable to the attorney if others acting on behalf of the defendant

procured the dismissal of the action. Under the terms of the Industrial Track and

Operating Agreement between PSO and BNSF, PSO was responsible for obtaining the

right of way for the track. (CR 246-252). The Tenth Circuit held that PSO and BNSF

were in privity because of that agreement. B. Willis C.P.A., Inc. v. BNSF Railway

Corrpany, 531 F.3d 1282, 1302 (10th Cir. 2008). In refusing to comply with a

discovery request in the underlying federal litigation, BNSF pleaded that it had joint

defense agreements with PSO (CR 266). At a minimum, there was sufficient evidence

to preclude a summaryjudgment.

BNSF on pages 52 and 53 quotes from a report and recommendation in the U.S.

District after the case was remanded in July 2008. What BNSF is ignoring is that this is

what was on appeal in Tenth Circuit Appeal 10-5096 when PSO/BNSF secretly settled the

case.

2. The Traditional Summary Judgment,

a. Willis CPA Did Not Lose Its Lawsuit.

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BNSF first argues that Willis lost its lawsuit and then made a settlement after

judgment. This assertion is absurd. The settlement at issue was made on or about

August 31, 2010 while Tenth Circuit Appeal 10-5096 was pending. (CR 323-340, 343-

375, 531-562, 562- 597, 756-787, 789-822). Willis had not lost Appeal 10-5096 and

Dickson's contractual fee was not zero. It was at yet undetermined as the case was

being actively litigated at the Tenth Circuit when PSO/BNSF and Fellers Snider on

behalf of Willis secretly settled the case. That settlement triggered liability under 5

O.S. § 8.

b. This Claim Is Not Barred By Limitations.

BNSF asserts that this claim is barred by limitations, citing 5 O.S. § 8 that

provides inpart that '[a]n attorney may enforce any lien provided for by this act inany

court of competent jurisdiction by action filed within one (1) year after the attorney

becomes aware ofsuch compromise or payment ofsuch judgment, orjudgment may be

rendered on motion in the case in the court in which the suit was brought." BNSF

response brief at page 56. BNSF then asserts that Willis, PSO, and BNSF settled at the

hearing on February 17, 2011. However, the claims that Dickson was litigating on

behalf of Willis in Tenth Circuit Appeal 10-5096 and to which Dickson's lien attached

were secretly settled on or about August 2010. (CR 323-340, 343-375, 531-562, 562-

597, 756-787, 789-822). Dickson was completely unaware ofthis settlement until the

e-mails were produced in May 2014 and therefore the limitations period did not start

running until that date.

Subsequent to the secret settlement, Willis allowed Appeal 10-5096 to be

dismissed for failure to prosecute. (CR Supp. #1 612, paragraph 25, 764). Had the case

18
not have been previously secretly settled, this would have extinguished Dickson's

attorney lien. The settlement entered into at the hearing on February 17, 2011 did not

did not trigger the limitations period under 5 O.S. § 8 because that settlement did not

cover the claims litigated in Appeal 10-5096 as Willis had allowed those claims to be

dismissed for failure to prosecute pursuant to the secret settlement agreement.

E. The Court Should Reverse the Summary Judgment For Tortious

Interference With a Contract.

1. The No-Evidence Summary Judgment Was Error.

On page 57 and 58 of its brief BNSF asserts authority that blanket citation to

voluminous records is not a proper response to a no evidence motion for summary

judgment and that merely citing generally to voluminous summary judgment evidence

in response to either a no-evidence summary judgment or traditional motion for

summaryjudgment is not sufficient to raise an issue of actto defeat summaryjudgment.

What BNSF is ignoring is on pages 18, 19, 20, 23 of Dickson's Response to BNSF

Motions for Summary Judgment (CR 163-165, 168), Dickson quoted and discussed the

evidence in detail and cited to this discussion by reference else where in his brief.

Dickson did not makeblanket citation to voluminous records. He discussed and quoted

the evidence in detail and then rather than repeat the same discussion of the evidence

over and over, incorporated the same discussion ofthe evidence by reference to else

where in his pleading.

On page 58 BNSF continues to attempt to obscure the real issues. Dickson has

never claimed that Oklahoma statutes forbid BNSF from prevailing against Willis CPA.

Oklahoma does have a statute that makes BNSF liable for secretly settling around an

attorney with a perfected attorney lien a case being actively litigated. That same statue

19
makes BNSF liable for the contingency fee that attorney would have earned had BNSF

not settled the case around the attorney and prevented him from recovering for his

client. Furthermore, the case, Tenth Circuit Appeal 10-5096 did not settle after BNSF

prevailed. Willis (and therefore Dickson) received no money because BSNF and Willis

settled before the case, Tenth Circuit Appeal 10-5096, was decided by the Tenth

Circuit.

Finally, BNSF asserts once again, that "long before any settlement ...thefederal

courts already had adjudicated Willis CPA's claims against it." This assertion

completely ignores the fact that, under the holding of the Tenth Circuit in B. Willis

C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282,1306 (10th Cir. 2008), the

claims Willis CPA was litigating against BNSF in Tenth Circuit Appeal 10-5096 were

not even ripe or justiciable when the federal court rulings BNSF isattempting to rely on

were issued.

2. The traditional summary judgment was error.

On page 59 ofits brief BNSF again claims that the federal district court granted

judgment to BNSF in 2006. With respect to the claims being litigated in Tenth Circuit

Appeal 10-5096, the federal district court dismissed them without prejudice as unripe. In

2008 the Tenth Circuit held that these claims were not ripe or justicable. B. Willis

C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 12 82, 1306 (10th Cir. 2008).

Dickson could collect a fee under the contingency fee contract for the claims being

litigated in Tenth Circuit Appeal 10-5096 because PSO/BNSF secretly settled the case on

or about August 31,2010. BNSF then complete misrepresents Dickson's argument in

his briefinchief. BNSF quotes Dickson's brief as saying:

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"[t]he fact that the trial court dismissed Willis's claims [before the first

appeal to the Tenth Circuit] is completely irrelevant, as Willis immediately

appealed that ruling which transferred all jurisdiction to the appellate court

This also meant that the ruling of the trial court was not a final order that

would be preclusive between the parties." (Emphasis added.)

The insertion "before the first appeal to the Tenth Circuit" is a complete

fabrication by BNSF. What Dickson asserted was that the fact the trial court dismissed

Willis' claims in July 2010 was completely irrelevant because Willis immediately filed

Appeal 10-5096. Under the holding of the Tenth Circuit in B. Willis C.P.A., Inc. v.

BNSF Railway Company, 531 F.3d 1282 (10th Cir. 2008) at N. 24,6 once this appeal was

filed, there was no adjudication on the merits that was preclusive against the parties until

the appeal was decided. And that holding bythe Tenth Circuit is preclusive onBNSF as it

was a party in that case and Dickson was Willis' attorney.

BNSF then once again repeats its claim that, "BNSF could not have tortiously

interfered in 2010 with a contingency fee under which it was determined in 2006 and

2008, Dickson was not due any fee." BNSF response brief at page 60. What BNSF is

once again ignoring is that the 2006 dismissal was without prejudice as unripe and the

2008 decision only granted a judgment to BNSF on the claims that were justiciable and

ripe as ofthat date. The claims being litigated in Appeal 10-5096 were not justiciable and

ripe at the time ofthe 2008 decision. Because they were being actively litigated when

PSO/BNSF secretly settled Appeal 10-5096, PSO/BNSF became liable for both tortious

interference with a contract and under 5 O.S. § 8.

6"A final judgment is one in which no appeal has been perfected within the time

allotted by law or one in which an appeal has been properly perfected and acted upon by

thehighest courtwhose review hasbeensought."

21
CONCLUSION AND PRAYER

The granting of a summary judgment was reversible error and this Court should

reverse the ruling ofthe trial court and remand for further proceedings. .

Respectfully submitted,

By: ^////,r^^W

William T. Dickson,

Pro Se Plaintiff

2626 MapleAvenue, Suife 200

Dallas, Texas 75201

(214)696-1100

Wtdickson7@aol.com

CERTIFICATE OF SERVICE

I certify that on September 16, 2015 that I served a true and correct copy

of the foregoing pleading to the attorneys listed below in accordance with the

Texas Rules of Civil Procedure.

s/Wilham T. Dickson

William T. Dickson

Jonathan LaMendola

Cobb Martinez Woodward

PLLC 1700 Pacific Avenue

Suite 3100

Dallas, Texas 75201

Fax 214-220-5299

214-220-5204

jlamendola@cobbmartinez.com

Levon Hovnatanian

Martin, Disiere, Jefferson & Wisdom, LLP

808 Travis Street

Suite 1800

Houston, Texas 75248

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hovnatanian@mdjwlaw.com

713-632-1700

Fax 713-222-0101

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft Word and

contains 5884 words as determined by the computer software word count function,

excluding the sections ofthe document listed in Texas Rule of Appellate Procedure

9.4(1)0).

s/Wimam T. Dickson

William T. Dickson

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