Bad Judgement

State District Judge John Marshall is snared in allegations of misconduct

In late 1993, a Corpus Christi-based company named TRT was interested in buying more hotels. TRT Holdings and TRT Development--two arms of the same corporate body--already owned some hotels in Texas and wanted to buy a national chain.

Robert Rowling, president of the companies, contacted Berins to help scout out the possibilities. In a contract drawn up on November 12, 1993, TRT agreed to pay Berins a "finders fee" if TRT wound up buying hotels Berins had identified. The amount of the fee varied, depending on whether brokers got involved in the deal.

Those fees would ultimately become the basis of Berins vs. TRT Holdings.
In court documents, Berins claims that he tipped off TRT that the Omni Hotel chain might be up for sale in December 1994. For much of the next year, Berins says, he worked to arrange a deal between TRT and Wharf Holdings Limited, owners of the Omni chain.

The two companies did finally cut a deal in early 1996, but Berins says he was shut out of the final negotiations. Berins believes TRT stiffed him on the fees it owed him.

In early 1996, Berins hired Bickel & Brewer to sue TRT on seven counts, including two breaches of contract, fraud, and negligent misrepresentation. Berins wanted TRT to pay him $875,000 for his services. The case was filed in Dallas County and assigned to the 14th Judicial District, Judge John McClellan Marshall's court.

In his 16 years on the bench, Marshall, 53, has earned a middling reputation as a judge. Every year, the Dallas Bar Association polls its members to see what they think of the judges in Dallas County. Approval ratings of 80 or 90 percent are not uncommon. In the most recent poll, Marshall received one of the lowest approval rankings, just 57 percent.

In the Berins case, TRT was represented by two lawyers from its hometown of Corpus Christi--Clay Hoblit and Christopher Bandas--and two Dallas attorneys, John Barr and Christopher Weil.

The case turned into an arduous and highly technical dispute, with vigorous argument over definitions and applications of real estate and securities law. Both sides availed themselves of every possible legal maneuver, and the Berins file down at the courthouse now bulges out of six file jackets that reach two feet in height.

Right off the bat, TRT's lawyers tried to have the case moved to Corpus Christi--the company's home turf. But Marshall denied the request, and the case stayed in Dallas. Both sides conducted exhaustive depositions. Motions and counter-motions stacked up. Neither side was willing to settle, and a mediator appointed by the court couldn't help forge an agreement.

Though hard-fought, the case was unremarkable until February 1997, when the first rumblings of ex parte communications with the judge surfaced.

Ex parte communications are one of the great forbidden acts of the court system. A judge is not supposed to listen to arguments, make rulings, or even discuss a case with lawyers from one side of a case if the other side isn't there to respond. The prohibition is supposed to keep the playing field level.

The first whisper of ex parte communications in Berins came when Hoblit filed a motion asking that Bickel & Brewer be sanctioned because John Bickel had sent Marshall a letter about the case. Although Bickel's letter indicates that a telecopy was sent to defendants' lawyer Bandas, Hoblit called the letter "clearly an attempt by Mr. Bickel to engage in improper communications with this court."

Bickel countered that his letter was only a response to a whiny letter he had received from Hoblit complaining about scheduling problems. Hoblit claimed Bickel was communicating improperly with the judge and asked for sanctions. Bickel claimed Hoblit was harassing Bickel, and asked for sanctions. Marshall denied both motions.

After months of bruising battle, both sides filed motions with Marshall seeking summary judgment in the case, each arguing that its client clearly should be declared the winner. Although summary judgments are rare, lawyers almost always ask for them.

On May 15, Marshall delivered the knockout blow to TRT's case. Based on complex interpretations of real estate and securities law, Marshall decided that Berins was right and should be paid the $875,000.

TRT's attorneys promptly began preparing to appeal Marshall's ruling. The first step in the process was to file a motion asking that Marshall's ruling be overturned and a new trial granted in the case.

While they were preparing that motion, TRT's attorneys began finding out just how tight Marshall was with Bickel & Brewer.

The private meetings
Charles Upshaw has been a clerk in Judge John McClellan Marshall's court since 1991. On August 4, when TRT got its chance to argue for a new trial before Visiting Judge Ted Akin, Upshaw was one of the witnesses TRT's attorneys put on the stand.

Upshaw testified that Suzanna Proctor--a paralegal working for Bickel & Brewer--made "numerous" trips to Marshall's chambers while the Berins case was in progress. It is the court's standard practice to notify both parties in a lawsuit of any hearings in the case, Upshaw testified. But, Upshaw said, there were times when Proctor visited the judge and TRT's attorneys were not told about the meetings.

Though he could not recall specific dates, Upshaw testified that Proctor made more than one stop at Marshall's chambers. In some cases, Upshaw testified, Proctor emerged from her private meetings with Marshall bearing signed orders from the judge that involved the Berins case.

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