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 SNIDER BLANKENSHIP BAILEY & TIPPENS P.C. Appellees

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

### Appeal from Grant ofSummary Judgmentby the 193rdDistrictCourt 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.com5th Court of AppealsFILED: 9-21-15Lisa Matz, ClerkTABLE OF CONTENTS I. Fact in Dispute That Precludes Summary Judgment 1
A. Did the Claims BeingLitigatedinAppeal 10-5096 Settle On Or About August 31, 2010? 1

II. BNSF's Statement ofFacts 2 A. The Underlying Federal Litigation 2 B. The Dismissal ofWillis 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 StatementofFacts Is RiddledWithFalse 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(^urtEniedbyNotCondnuingtheSummaryJudgmentHearing 11 A. Dickson Was Diligent inPursuing Discovery 11 B. DicksonShowed 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 theSummary Judgment Granted toBNSF 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 15D. The Court Should Reverse the Summary Judgment on Settlement in Breach of5 O.S. §8 16 1. TheNo Evidence Summary Judgment 16 2. TheTraditional Summary Judgment 17

a. Willis CPA Did Not Lose Its Lawsuit 17 b. This ClaimIs NotBarred ByLimitations 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 summaryjudgment waserror 20 CONCLUSION AND PRAYER 22Cases TABLE OF AUTHORITIES

B Willis C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282 (10thCir. 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

inCAUSE 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 oflaw. In fact, there is one fact very much in dispute thatmakethe summaryjudgment BNSF obtainedreversible error. 

### A. Didthe ClaimsBeingLiftedinAppeal10-5096Settle On OrAboutAugust31, 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 February2011. Specifically, BNSFasserts 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 reallyliketohave happen today, if possible, would be ifwe couldhave the motionto approve settlement heard, becauseif wecould reach an agreement onthat with B. Wilis. C.P.A.. that would dispose of one matter .andthenwe couldthemgoahead and withdrawthe motionfcr the settlement conference. Ifcan'tproceed with motion to approve the settlement agreement that we would hope togetdone today... (Emphasis added.) In fact, Dickson's damages arose from the tortious acts of BNSF and Public Service Company ofOklahoma ("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 ofWillis with PSO/BNSF on or about August 31,2010. Thus, there isvery much adispute as towhen Willis and PSO/BNSF entered into 

### asettlement agreementwithrespectto the claims being litigated in Tenth CircuitAppeal 10-

5096. II. BNSF's Statement ofFacts. A. The Underlying Federal Litigation

In its first alleged fact, BNSF states:BNSF was a defendant in several ofthose actions, all ofwhich grew out of thetaking of partWillis CPA's property viaeminent 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 ofAppeals 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 ofPSO'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 42U.S.C. § 1983 that PSO had located a portion of its track off 

### ofthe easement orright ofway on a portion ofWillis 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 CR272. 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(10thCir. 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 of PSO's eminent domainproceeding. B. TheDismissal ofWillis Claims by the Federal District Court.



### BNSF asserts onpage 2ofits briefthat Willis alleged "the wrongful possessionand use ofa 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 ofthe appeal, some ofthe claims had become ripe and some were still 

### unripe. B. WillisC.P.A., Inc. v. BNSFRailway 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 ofall ofWillis claims 

### against BNSF. What BNSF has overlooked since the Tenth Circuit rendered its decision in 2008 is that it held thatWillis' claims under 42 U.S.C. § 1983 were still 

### viable so long as they were based on aclaim 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 aviable claim that PSO given Willis a cause ofaction by seizing property against which it had never filed condemnation 

## proceedings and located its track offofthe easement orright ofway. 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 onofSeptember 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 forlocating its track other than where it had condemned a surface easement. However, what BNSF 

### is ignoring, and wants this Court toignore, isthat when Willis' primary claim became 

### ripe on September 9, 2008, aderivative tort claim against BNSF also became ripe atthe

same time. IfWillis did nothave a claim against PSO for locating aportion 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 Circuitheld 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. BNSFRailway Company, 531 F.3d 1282 (10thCir. 2008) onJuly 16,2008,theclaimcouldnothavebeenrenderednon-existent

ordefunctbythatdecisioa.E. BNSF's Statementof Facts Is RiddledWith False Statements. Beginning onpage 5 under Section V, BNSF begins anarrative that isriddled with false statements. Onpage 6BNSF asserts that whatPSO really wanted was for itand Willis CPA to simplywalkaway. WhatPSOreallywantedforWillistodropthe appealagainstbothBNSFand PSO since PSO was responsible for obtaining the right ofway under the Industrial Track and OperatingAgreement(CR246)andtheTenthCircuithadheldBNSF andPSOwere inprivity 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 toldhim about it. (CR 1st Supp. 303) Next, BNSF falsely states that Willis "promptly told Dickson that he wanted him to 

### acceptthe proposal onbehalfof Willis CPA." Willis did no suchthing. Willis and Dickson had several discussions about how toproceed, but Willis initially made no decision onhow 

### to respond. (CR 834, 836- 837). Then, Willis calledDicksonand informedhimthathe was not to respond to PSO's letter because Fellers Snider was going to contact PSO's attorney 

### and acceptits offer. WhenDickson attemptedto discuss the matterfurther, Willis abruptly hung up. (CR 187,628, 834, 837) 

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

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

## 300). Atthetime Dickson senthis letterto PSO's attorneyreminding him ofDickson's attorney lien, Willis had givenDicksonno instructionto acceptPSO's offer. Dickson'sinstructions 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 thatDickson 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 tohire Adams, but Adams would 

### not agree to represent Willis CPA because ofDickson's threattosue Fellers Snider." In fact, Steve Adams, as a shareholder ofFellers Snider represented Willis inthe 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 inits narrative, is that PSO, BNSF and Willis, 

### representedby Fellers Sniderhad settledthe case on or aboutAugust 31, 2010 (CR 323- 340, 343-375, 531-562, 562- 597, 756-787, 789-822) buthid 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 ofthem to get paid for years ofwork under a contingent fee contract.F. Dickson DidNot 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 ofthe Tenth Circuit mediation office. Willis agreed to the concept and such mediation was arranged. When Dickson notified Willis ofthe 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 briefunder Section VII, BNSF, has anarrative, 

### replete oflegal argument, aboutthe "settlementhearing" held inthe 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 "settlementhearing" is 2Inhis sworn affidavit filed in case under appeal, Willis statedthathe allowed Dickson to file thebrief. (CR 1st Supp. 371)

8completelyirrelevant 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 aresult, the claims Dickson had been litigating on behalf ofWillis 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 thefederal district court dismissed all ofWillis 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 ofWillis' claims ripe during the pendency ofthe appeal while other claims were still unripe.4 But since the claims Willis was litigating in Appeal 

## 3Itwas also presumablehiddenfrom theDistrictCourtas well. Dicksonwas sanctioned andorderedto payPSO for its attorney fees incurredafterPSO had secretly settledthe case with Fellers Snider onbehalfof Willis. The fees Dickson was orderedto pay 

### includedfees for PSO's attorneys dealing with Fellers Sniderto secretly settle the case. 

## (CRSupp. #3 16-18)Notuntilthe e-mailswereproduced (CR323-340, 343-375, 531- 562, 562- 597, 756-787, 789-822) was Dicksonaware ofthe fraudthatPSOhad perpetrated onboth Dickson and the U.S. District Court. ? 

### *BNSF incorrectly states thatthe TenthCircuit "affirmedthe dismissal ofWillis10-5096 were notripe when B. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d 1282 (10th Cir. 2008) was filed with theTenth Circuit, the claims could nothave 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 ofthe track that PSO constructed across Willis' property was located offofthe right ofway PSO had condemned by eminent domain were 

### not ripe at the time ofits 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, aderivative tort claim against BNSF also became ripe atthe same time. IfWillis did not have aclaim against PSO for locating aportion of itstrack offof 

### the right of way, 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 aclaim 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 ofthe Tenth Circuit in B. Willis C.P.A., Inc. v. BNSFRailway Company, 531
claims. The dismissal by the district courthad been withoutprejudice as unripe. The 

### Tenth Circuit, finding that decisions inthe state proceedings hadrendered some claims 

## ripe whilethe appeal was pending, thenproceededto adjudicatethose claims onthe merits. Itremandedthe claims Willis would laterlitigate inAppeal 10-5096 to be dismissed without prejudice as unripe.

10,'t>lfe!<;3^Jt^M<**4g$!!K£*r

F.3d 1282 (10thCir. 2008) onJury 16,2008,Hie claimcouldnothavebeenrenderednon-existent ordefunctby thatdecision.. BX The TrialCourtErredby NotContinuingthe 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, 2014. (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 amotion to compel the production ofdocuments thatFellers Sniderhad already denied existed. 

### BNSF falsely asserts on page 19 ofits 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 athird party subpoena after PSO obtained asummaryjudgment and was severed out ofthe case. Confronted with the existence ofe-mails between Fellers Sniderand 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 ofprivilege. 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. IfFellers Snider had an un-redacted copy ofthe 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).

11after the hearing on the motions for summary judgment filed by BNSF and Fellers Snider. (CR Supp. #3 60)Due to the materiality ofan un-redacted copy of that e-mail, it was error for the trial court not to have granted acontinuance. 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 fortortious
interference with a contract. An un-redacted copy ofthe e-mail (CR 339) PSO's attorney sent to five in

### house 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 inplace 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 acontingency 

### 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 againstBNSF Dickson was litigating atthe Tenth Circuit onbehalfof

12Willis 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 itwas 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 acontingent fee. First, Dickson is not suing for acontingent 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. CR612, Paragraph 25, 764). As aresult, atthe time ofthe dismissalDicksonwas no longer in privity with Willis and Willis' counsel was Fellers Snider. (CR 323-340,

13343-375, 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 asjusticible claims 

### ("ripe") until after the case BNSF is relying on had concluded. As aresult, those claims could not have been adjudicated inwhat BNSF misconstrues asthe "first action". BNSF cites irrelevant cases from irrelevantjurisdictions 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 finaljudgment 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 bythe 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, itwas 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 ofWillis' claims without prejudice as 

### unripe. As noted above, inB. Willis C.P.A., Inc. v. BNSF Railway Corrpany, 531 F.3d 1282 (10th Cir. 2008) the Tenth Circuit held that some ofthose 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 andjusticible until after the decisions BNSF is relying on. As aresult, the claim at issue could not have been rendered "defunct" by the decisions BNSF isrelying on.

14B. 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 afterWillis withdrew his authority to prosecute the case. To the extent that whether Dickson voluntarily withdrew is material, there is a clear factual dispute the madesummaryjudgment improper. However, the tortious conduct that Dickson complains of is the secret settlement 

### around Dickson by PSO/BNSF with Willis' othercounsel, 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 Dicksonfiled his motions to withdraw. As aresult, BNSF's waiverargument 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 

### Dicksonvoluntarily withdrew as Willis' attorney and intentionally relinquished his right 

### to acontingency fee butnow claims he is somehow still entitledto 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 compelledto withdraw afterWillis withdrew 

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

15settled 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 of5 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 behalfofWillis in Appeal 10-5096 in 2010 when that 

### appeal was secretly settled by PSO/BNSF were not even ripe andjusticible until after the decisions BNSF is relying on. Dickson suffered damages in not being able to 

### prosecutethe appeal to asuccessful conclusion and earn acontingency fee. BNSF completely misrepresent 5O.S. §9on pages 48-50 ofits 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 whichtheaction istobefiled. " Dickson's contingentfeecontract (CRSupp. #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 Oklahomalaw contingent fee attorneys suing on alien 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 aroundthem. In Re WesternReal Estate Fund, Inc., 922F.2d 592 (10th Circuit 1990). 

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

16contract 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 ofits briefthat 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 onpages 52 and 53 quotes from a report and recommendation inthe U.S. District after the case was remanded inJuly 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.

17BNSF 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 August31, 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 ofcompetent jurisdiction by action filed within one (1) year after the attorney becomes aware ofsuch compromise orpayment ofsuchjudgment, orjudgment may be rendered on motion in the case in the court in which the suit was brought." BNSF 

### response briefat 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 behalfofWillis inTenth 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

18not 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 briefBNSF 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 summaryjudgment evidence in response to either a no-evidence summary judgment or traditional motion for summaryjudgment is not sufficient toraise anissue 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 andquoted 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 aperfected attorney lien acase being actively litigated. That same statue

19makes 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 ofthe 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 orjusticiable when the federal court rulings BNSF isattempting to rely on

were issued. 2. The traditional summary judgment was error.



### On page 59 ofits briefBNSF 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 orjusticable. B. Willis 

### C.P.A., Inc. v. BNSF Railway Company, 531 F.3d 1282, 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 settledthe case on oraboutAugust31,2010. BNSF then complete misrepresents Dickson's argument in his briefinchief. BNSF quotes Dickson's briefas saying:

20"[t]he fact that the trial court dismissed Willis's claims [before thefirst 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 ofthe 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 ispreclusive 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 ajudgment to BNSF onthe claims that were justiciable and 

### ripe as ofthat date. The claims being litigated in Appeal 10-5096 were notjusticiable and ripe atthe 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 finaljudgmentis one in which no appeal has been perfectedwithinthetime 

### allottedby laworoneinwhichanappealhasbeenproperlyperfected and acteduponby thehighest courtwhose review hasbeensought."

21CONCLUSION 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

22hovnatanian@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 ofAppellate Procedure 9.4(1)0).
mam T. Dickson s/Wi William T. Dickson

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