Brett D. Kutnick
Brett Kutnick is a board-certified attorney in civil appellate law who has worked on and prevailed in some of the most significant and high‑profile appeals in the State of Texas for over 20 years. Brett utilizes his appellate expertise, extensive business background, broad experience in Texas trial and appellate courts, and attention to detail to bring substantial value to his clients at all stages of a lawsuit.
As a former litigator, Brett is in a unique position to anticipate the ways in which pretrial and trial issues affect the client’s position in a potential appeal. He thus plays an integral role in shaping pretrial strategy and working with trial counsel to analyze complex procedural, jurisdictional, and evidentiary issues, draft dispositive motions, jury charges and trial briefs, and preserve error.
His extensive background at the appellate level includes representing clients and arguing important appeals before the various Texas appellate courts, handling Texas Supreme Court proceedings, and participating in appeals before the Fifth Circuit Court of Appeals. Brett also has significant experience dealing in interlocutory appeals and mandamus proceedings.
Before joining Jackson Walker, Brett spent a decade at a noted appellate boutique firm where he served as the managing partner. While there, he worked side-by-side with distinguished former justices from the Texas Supreme Court and Dallas Court of Appeals, giving him a unique judicial perspective on how to best frame an issue for appeal and achieve a favorable outcome.
Brett received his undergraduate B.B.A. degree in honors business and finance from the University of Texas at Austin, graduating with highest honors in 1993. He graduated first in his business school class and brings substantial value to business disputes and financial industry appeals. His experience at the trial court level and at the appellate court level, which includes commercial cases and business appeals, has featured contract disputes, business torts, legal malpractice, breach of fiduciary duty claims, shareholder oppression, and intellectual property rights.
Brett received his J.D. from the University of Texas School of Law, graduating with high honors in 1996. He was a member of the Texas Law Review, Chancellors (the law school’s most prestigious honor society, which recognizes the sixteen law students who have achieved the highest grade point averages in their class), and Order of the Coif. He also was a member of the Legal Research Board, a student-run research organization that invites the top five legal writers from each of the four first year law school sections.
B.B.A., with highest honors, University of Texas at Austin
J.D., with high honors, University of Texas School of Law
- Texas Law Review, Member
- Order of the Coif
- Legal Research Board
- United States District Court for the Northern, Southern, and Eastern Districts of Texas
- Fifth Circuit Court of Appeals
Civil Appellate Law
Bombardier Aerospace Corp. v. SPEP Aircraft, LLC, 572 S.W.3d 213 (Tex. 2019): successfully represented a jet manufacturer in obtaining the reversal of an award of over $5.38 million in punitive damages for alleged fraud in the sale of an aircraft. In a case of first impression, the Texas Supreme Court held that limitation-of-liability clauses in the parties’ agreements were enforceable and barred the award of punitive damages as a matter of law.
Representative Oil and Gas Cases
- Lightning Oil Co. v. Anadarko E&P Onshore LLC, 520 S.W.3d 39 (Tex. 2017): successfully represented Anadarko against Lightning Oil’s claim for subsurface trespass in a precedent-setting case when the Texas Supreme Court concluded that Anadarko did not commit an actionable trespass by drilling, with the permission of the surface estate owner, through Lightning’s mineral estate.
- Eagle Oil & Gas Co. v. TRO-X, L.P., 416 S.W.3d 137 (Tex. App.—Eastland 2013, pet. denied), reh’g denied, 427 S.W.3d 580 (Tex. App.—Eastland 2014): successfully represented Eagle Oil & Gas Company in obtaining the reversal of a jury award of over $8.2 million in damages and attorney’s fees and the rendition of a take-nothing judgment based on alleged breaches of a contract to acquire and dispose of oil and gas leases and interests.
- Amoco D.T. Co. v. Occidental Petroleum Corp., 343 S.W.3d 837 (Tex. App.—Houston [1st Dist.] 2011, pet. denied): successfully represented Occidental Petroleum in affirming the trial court’s vacatur of an arbitration award for evident partiality by one of the neutral arbitrators.
- Bradshaw v. Steadfast Financial, L.L.C., 39 S.W.3d 348 (Tex. App.—Fort Worth 2013, pet. granted): successfully represented the holder of a non-participating royalty interest in obtaining the reversal of a summary judgment on her claims against the executive rights holder for breach of fiduciary duty.
Representative Nuisance Cases
- Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016): successfully represented a natural gas company in the landmark Texas case on nuisance law and obtained a reversal of the trial court’s judgment against Crosstex for over $2 million in damages based on the jury’s finding that Crosstex negligently created a nuisance through the installation and operation of a compressor station.
Representative Cases Involving Contract or Statutory Construction
- In re Davenport, 522 S.W.3d 452 (Tex. 2017) (orig. proceeding): successfully obtained mandamus relief from the Texas Supreme Court directing the trial court to vacate its order granting the plaintiffs a new trial after a multi-week trial in a case concerning whether the plaintiffs were entitled to ownership interests in the client’s company under a contingency fee agreement.
- Ex parte City of El Paso, 563 S.W.3d 517 (Tex. App.—El Paso 2018, pet. filed): successfully obtained reversal of a declaratory judgment prohibiting the City of El Paso from using bond proceeds under a city ordinance to construct a “multipurpose performing arts and entertainment facility” that could accommodate sporting events.
Representative Business Litigation Cases
- Davenport v. Hall, No. 04-14-00581-CV, 2019 WL 1547617 (Tex. App.—San Antonio Apr. 10, 2019, no pet.): successfully represented client in obtaining the reversal of a jury verdict awarding his former attorneys $226,795.01 in breach-of-contract damages and over $1.3 million in attorney’s fees for the alleged breach of an attorney-client fee agreement.
- Microlaser Therapy Corp. v. White, No. 05-17-00761-CV, 2018 WL 6845242 (Tex. App.—Dallas Nov. 26, 2018, pet. denied) (mem. op.): successfully represented lender in obtaining reversal of a take-nothing summary judgment granted to the guarantor on the statute of limitations and the rendition of judgment in the lender’s favor for over $3.9 million plus interest and attorney’s fees on its claims for breach of a guaranty.
- MEMC Pasadena, Inc. v. Riddle Power, LLC and Triad Electric and Controls, Inc., 472 S.W.3d 379 (Tex. App.—Houston [14th Dist.] 2015, no pet.): successfully upheld the trial court’s take‑nothing judgment in Triad’s favor after a multi-week jury trial in which the plaintiff sought over $25 million in lost profits allegedly sustained by its polysilicon manufacturing facility from a power outage during the construction of an expansion project.
- Metroplex Mailing Services, LLC v. RR Donnelley & Sons Co., 410 S.W.3d 889 (Tex. App.—Dallas 2013, no pet.): successfully obtained reversal and rendition of a take-nothing judgment in favor of Jesse Marion from a judgment that pierced the corporate veil of Marion’s mail processing company and held him personally liable for over $578,000 in damages and attorney’s fees based on the alleged breach of a mail processing agreement.
- Strebel v. Wimberly, 371 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2012, pet. denied): successfully represented Douglas Strebel in a complex partnership dispute, obtaining reversal of an award of $3.4 million based on the jury’s findings that Strebel had breached fiduciary duties owed to his former partner.
- i2 Technologies, Inc. v. Dillard’s Inc., No. 05-10-01645, 2011 WL 6250787 (Tex. App.—Dallas Dec. 14, 2011, no pet.) (mem. op.): represented a national department store in an appeal challenging a judgment awarding Dillard’s over $76 million in actual damages and $150 million in punitive damages in a fraud action arising from the sale of computer software and related services. The case settled on appeal.)
- Ritchie v. Rupe, as Trustee for the Dallas Gordon Rupe, III 1995 Family Trust, 339 S.W.3d 275 (Tex. App.—Dallas 2011), rev’d in part, 443 S.W. 30 856 (Tex. 2014): successfully represented Ann Rupe in the Dallas Court of Appeals in upholding the jury’s finding of shareholder oppression and the trial court’s order requiring the defendants to buy back her stock as an equitable remedy for their misconduct.
- Alliance Royalties, LLC v. Boothe, 313 S.W.3d 493 (Tex. App.—Dallas 2010, no pet.): successfully obtained reversal of a temporary injunction that enjoined Alliance Royalties from terminating a management agreement that was terminable at will.
- Hampden Corp. v. Remark, Inc., 331 S.W.3d 489 (Tex. App.–Dallas 2010, pet. denied): successfully obtained vacatur of a judgment awarding the plaintiff over $750,000 in damages for the alleged breach of a commission agreement.
- Cerullo v. Gottlieb, 309 S.W.3d 160 (Tex. App.—Dallas 2010, pet. denied): successfully obtained reversal of a judgment awarding the plaintiff $233,00 in actual damages and $466,000 in punitive damages for fraud and rendition of a take-nothing judgment.
- Williams v. Nexplore Corp., No. 05-09-00621-CV, 2010 WL 4945364 (Tex. App.—Dallas 2010, pet. denied.) (mem. op.): successfully obtained reversal of a default judgment awarding the plaintiff over $300,000 in damages and attorney’s fees and the right to cancel Williams’s 10 million shares of stock in Nexplore valued at approximately $7 million.
- Sears, Roebuck and Co. v. AIG Annuity Ins. Co., 270 S.W.3d 632 (Tex. App.—–Dallas 2008, pet. denied): successfully represented Sears in obtaining the reversal of a $61 million judgment and the rendition of a take-nothing judgment after a jury found that Sears breached a bond indenture by prematurely redeeming corporate bonds held by a number of institutional investors.
- Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559 (Tex. App.—Fort Worth 2008, pet. denied) (in a case involving competing motions for summary judgment over a failed real estate transaction, successfully affirmed the trial court’s judgment awarding the purchaser specific performance and reversed that portion of the judgment barring the purchaser from recovering damages attributable to the seller’s delay in performing the sales contract).
Representative Products Liability or Personal Injury Cases
- Occidental Chemical Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016): successfully obtained reversal of a $9.6 million negligence judgment and rendition of a take-nothing judgment on behalf of the former owner of a chemical plant who was sued in negligence for personal injuries sustained by the plaintiff who was partially blinded while using an acid-addition system at the plant).
- Macy v. Whirlpool Corp., No. 14-20603, 2015 WL 3505511 (5th Cir. June 4, 2015): successfully defended a take-nothing summary judgment rendered in Whirlpool’s favor in a products liability case alleging carbon monoxide exposure from a gas range.
- In re Medtronic, Inc., No. 10-14-00077-CV, 2014 WL 2159555 (Tex. App.—Waco 2014, orig. proceeding) (mem. op.): successfully obtained mandamus relief compelling the trial court to set aside a death penalty sanctions order for alleged improper contact with an expert witness in a wrongful death action against the manufacturer of a morphine pump.
- Fluor Intercontinental, Inc. v. Dawson, No. 05-13-00209-CV, Court of Appeals for the Fifth District of Texas at Dallas: (Tex. App.—Dallas Nov. 19, 2014, no pet.): represented the plaintiff in an appeal challenging a judgment awarding him over $17.3 million in damages for third-degree burns he sustained while taking a shower at the Freedom Compound campus in Iraq in a facility operated and maintained by Fluor. The case settled while on appeal.)
- Prabhakar v. Fritzgerald, No. 05-10-00126-CV, 2012 WL 3667400 (Tex. App.—Dallas Aug. 24, 2012, no pet.): successfully secured the affirmance of a $5.3 million medical malpractice judgment against an infectious disease specialist after the plaintiff lost all four limbs following a hernia surgery).
Representative Real Property or Pipeline Easement Cases
- Atmos Energy Corporation v. Paul, No. 02-19-00042-CV, in the Court of Appeals for the Second District of Texas at Fort Worth: representing utility company in challenging a summary judgment order construing a blanket pipeline easement in the landowner’s favor and prohibiting Atmos Energy from installing an additional pipeline across the property under an easement agreement. The case is currently pending on appeal.)
- Travis County, Texas v. Flint Hills Resources, L.P., 456 Fed. Appx. 410, 2011 WL 6934492 (5th Cir. Dec. 30, 2011): successfully represented Flint Hill in obtaining the reversal of a federal district court’s declaratory judgment allowing Travis County to build a railroad spur over Flint Hill’s pipeline easement.
- Stephens v. LPP Mortgage, Ltd., 316 S.W.3d 742 (Tex. App.—Austin 2010, pet. denied): successfully represented lienholder in obtaining affirmance of a judgment, following a bench trial, ordering judicial foreclosure of its lien on real property).
Representative Professional Malpractice or Ethics Cases
- Rodriguez v. Mumbo Jumbo, 347 S.W. 3d 924 (Tex. App. – Dallas 2011, no pet.): successfully represented partner in a major international law firm who was sanctioned by a trial court for allegedly accusing opposing counsel of suborning perjury and ordered to purchase a half-page apology in the Texas Lawyer.
- Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62 (Tex. App.—Dallas 2010, no pet.): successfully upheld a take-nothing judgment in favor of a law firm following a jury trial in a legal malpractice action complaining of mistakes made in handling consumer litigation against a car repair facility).
- Weyend v. Hughes & Luce, L.L.P., No. 05-97-00927-CV (Tex. App. – Dallas 2000, no pet.): successfully represented a law firm in an appeal from a summary judgment against the plaintiff’s legal malpractice and malicious prosecution claims.
Representative Intellectual Property Cases
- Calce v. Dorado Exploration, Inc., 309 S.W.3d 719 (Tex. App.–Dallas 2010, no pet.): successfully represented defendant/counter-plaintiff Impact Equity and its two owners in their appeal of a judgment rendered in favor of the plaintiff for breach of a confidentiality agreement and misappropriation of trade secrets and in the plaintiff’s cross-appeal of a judgment rendered in Impact Equity’s favor on a claim for breach of a fee agreement.
- D/FW Plastics, Inc. v. Graham Partners, Inc., No. 4:06-CV-658-A, 2006 WL 3591741 (N.D. Tex. Dec. 11, 2006): successfully obtained dismissal of claims against 20 defendants for lack of personal jurisdiction in lawsuit involving alleged trademark infringement).
- National Diversified Sales, Inc. v. DFW Plastics, Inc., No. 02-06-00231-CV (filed in the Fort Worth Court of Appeals): represented NDS, a manufacturer of irrigation productions, in the appeal of a $56 million judgment against it based on alleged trademark infringement. The case settled in mediation after oral argument.
- Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, 2012
- Texas’ Top Rated Lawyers in appellate law as chosen by ALM and LexisNexis Martindale-Hubbell, 2012
- Rising Star, Thomson Reuters, 2005-2010
- Appellate Council, Dallas Bar Association – Appellate Section
- Dallas Bar Association, Member
June 10, 2021Mentions
Jackson Walker Client Asks Texas Supreme Court to Grant Request for In-Person Jury Trial in Personal Injury Suit
In a petition for writ of mandamus filed on June 8, 2021, Allied Aviation Fueling Company of Houston Inc. requested the Texas Supreme Court order an in-person jury trial after Harris County District Judge Dedra Davis set the case for a remote jury trial over Zoom for June 9. The Texas Supreme Court granted Allied Aviation’s motion for stay of the remote trial while the petition for writ of mandamus is under consideration.
October 5, 2018Attorney News
Jackson Walker is pleased to welcome appellate attorney Brett D. Kutnick as a partner in the Dallas office.