Dallas Bar Association
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Focus | Appellate Law/Business Litigation
August 2022 Volume 47 Number 8
Jurist of the Year – Justice Ken Molberg BY ADAM M. SWARTZ
The Honorable Ken Molberg, currently a Justice of the Fifth District Court of Appeals, is the second-ever recipient of the Dallas Bar Association’s Judge Barbara M.G. Lynn Jurist of the Year Award. Established to honor judges who make significant contributions to the legal community in North Texas, demonstrate high ideals, exemplary personal character, and judicial competence, the award emphasizes the consistency of contributions to our profession and the careers of other attorneys whom they have mentored and influenced along the way. So, what does it mean to be jurist of the year? It is more than just recognition for one revolution around the sun. More accurately, it includes recognition of the kind of jurist we are lucky to find more than once in a lifetime, those who have set themselves aside in favor of us all, time and time again; those who have sacrificed and given us their time, knowledge, creativity, determination, and inspiration. That is who Ken Molberg is. It is etched in his soul from at least 1968 when Robert F. Kennedy
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was assassinated a mile-and-a-half from where he then resided. At the time, Ken Molberg and his band from Fredericksburg, The Crossfires (later, the Fountain of Youth), had done studio work with rock and roll hall of fame nominee Steppenwolf, and hall of famers the Monkees. Justice Molberg was an original guitarist on Hoyt Axton’s demo of The Pusher, later made famous by Steppenwolf. He played in impromptu pick-up sessions with Willie Nelson, Jerry Jeff Walker, and many others. As a musician, his rock-star was on the rise. How many of us would’ve given THAT up to come back home to work on social events and then go to law school? But that’s what happened and it’s almost unfathomable how much Justice Molberg has contributed in so many ways to so many lives and so many careers. He cares about the judiciary, he cares about the Bar, he cares about our communities, and has spent over 50 years proving it. Justice Molberg has been a stalwart staple of local Bar Associations, an indefatigable presence who has given his time and gifted his knowledge to his communities as a lawyer, judge, justice,
Hon. Ken Molberg
teacher, mentor, contributor, fellow, father, husband, and friend. There are few better examples of a keen mind coupled with a service heart. As DBA President Krisi Kastl puts it, “Justice Molberg believes strongly in Justice for All, exemplifying that in his practice, on the trial bench, and now the appellate bench.”
Born in Houston and raised in Fredericksburg, Justice Molberg received his Bachelor of Arts degree, with high honors, from the University of North Texas (1973), where he served as an editor-inchief of the North Texas Daily, then his J.D. from SMU (1976). While there, he was a Barrister and served as a Managing Editor the SMU Law. He began building his extensive trial law experience in 1975, obtained his law license in 1976, spent five years with the Law Offices of James C. Barber, then became a founder and shareholder in Wilson, Williams & Molberg, P.C., which dissolved some 28 years later following his election to the District Bench in 2008. Justice Molberg was named “Jurist of the Year” for 2017 by TEX-ABOTA, the statewide parent organization for the Texas chapters of the American Board of Trial Advocates, “Trial Judge of the Year” in 2011 by the American Board of Trial Advocates’ Dallas Chapter, and was named to the Dallas Bar Association Board of Directors for 2012 as the judicial representative. He is also the CONTINUED ON PAGE 22
Appellate Law/Business Litigation
Enforcing (or Escaping) “Commercially Reasonable Efforts” BY JENNIFER LAMB
By themselves, the terms “good faith,” “best efforts,” or “commercially reasonable efforts” in a contract provision will not guarantee your contract imposes an enforceable duty. There is more than meets the eye for a party to impose such a “best efforts” provision under Texas law—an effective “best efforts” provision will offer further insight into the essential terms of the contract. Many parties expressly provide for contractual performance standards given that Texas law does not impose the common law duty of good faith in ordinary, arms-length commercial transactions. A duty of good faith only arises if there is a special relationship between the parties, or if the parties expressly provide for such a duty within the contract. The absence of such concept under Texas law is no secret, and a best-efforts provision often forms the basis of a party’s claim for breach of contract. Regardless of how a party wishes to provide for a duty of good faith—by requiring “good faith,” “best efforts,” “commercially reasonable efforts,” or even “maximum effort”— Texas courts will apply a “best efforts” analy-
sis to evaluate the enforceability of the duty. Yet, despite the fact that such provisions are nearly boilerplate provisions, in the event of a dispute many best-efforts provisions fail to survive a court’s scrutiny. The enforceability of a best-efforts provision is subject to a two-step analysis promulgated by the Dallas Court of Appeals in CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577 (Tex. App.—Dallas 1991, writ denied). While the Texas Supreme Court has not addressed best efforts, the Fifth Circuit has recognized CKB & Assocs., Inc. as the instructive standard for analyzing best efforts under Texas law. See Kevin v. M. Ehringer Enters., Inc. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011). In evaluating enforceability, Texas courts first ask whether the best-efforts provision includes an “objective goal or guideline” against which a party’s conduct may be measured—a question of contract interpretation for the court. The second inquiry is whether the party met the goal. If the answer is “yes,” this would end the analysis as the complained of party’s actual level of efforts would then be irrelevant. In contrast, if a party fails to meet such goal, a Texas court asks whether the
complained of party acted as a “average, prudent, comparable operator” in the specific circumstances of the case—a question of fact for the factfinder. Although courts do not construe the terms “objective goal or guideline” narrowly, many best-efforts provisions are deficient by failing to address which task a party must use its best efforts to perform. Texas courts then commonly resort to traditional principles of contract interpretation, and will evaluate the contract as a whole to determine whether objective guidelines are specified in other provisions. So how do courts determine whether there is a sufficient goal or guideline? Texas precedent is unfortunately ambiguous. Texas courts have recognized that the concept of best efforts is a nebulous standard, which turns upon the totality of the circumstances particular to each case. While including details such as specified quantities or time limits for performance are factors that weigh in favor of the enforceability of a provision, the sufficiency of a goal or guideline does not turn on such categorical limitations. Yet in the face of the uncertain precedent, contracting parties can undoubtedly increase
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their odds of their best-efforts provision being found enforceable by being mindful of a few factors. First, a best-efforts provision should state the specific tasks that best efforts must be applied to, and to which party’s performance. Second, the provision should include a benchmark reference for what the parties intend to define “best efforts” to mean under the circumstances of the contract—will best efforts be judged by timeliness of performance, number of manufactured units, or an industry specific standard of conduct? Lastly, the higher the specified performance standard that parties wish to expressly provide for in a contract, the greater details the best-efforts provision should include to not only offer measurable objectives for evaluating a party’s performance, but also to reveal their intention and expectation for a more rigorous standard. In the event of a dispute, being mindful of the foregoing concepts while drafting a bestefforts provision will give equal advantage to the parties, whether attempting to enforce or defend against a claim grounded in a bestefforts provision. HN Jennifer Lamb is an Attorney at Platt Cheema Richmond PLLC. She can be reached at jlamb@pcrfirm.com.
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