NEW JUDGE NAMED TO $211 MILLION FLEMING CASE

JANIN FRIEND

CLEBURNE, Texas (FNS) -- A retired Texas judge has been named to take over the $211 million fraud and breach-of-contract case against Fleming Cos., Oklahoma City. He is scheduled to hear the wholesaler's motion for a new trial here June 24.

Last week, an administrative judge appointed C.W. Duncan Jr., a retired senior district judge from Temple, Texas, to replace Texas state judge C.C. "Kit" Cooke, who recused himself because he failed to disclose financial ties with the plaintiff, David's Supermarkets, Grandview, Texas. The $211 million jury verdict was upheld by Cooke but now could be tossed out if Fleming gets a new trial.

So far, Duncan has scheduled two hearings in the 18th Judicial District Court here. He will hear Fleming's motion to conduct limited discovery May 30. Fleming has asked to take depositions to discover more about the past financial relationships. The wholesaler has claimed that Cooke's bankruptcy filings in 1989 show that the judge owed about $3,000 to David's owner, David Waldrip, also a controlling shareholder of First National Bank of Cleburne; $6,000 to J.D. Quesenbury, an officer at the bank, and $36,500 to the bank. However, David's attorneys have said the debts have been extinguished.

Duncan will hear Fleming's motion for a new trial June 24. Fleming contends that Cooke's financial ties with the plaintiffs call the trial's impartiality into question and that other court errors were made. "We are optimistic we will receive a new trial," Shane Boyd, a Fleming spokesman, said.

The plaintiff plans to argue that Fleming does not deserve a new trial and calls Fleming's denial of knowing about the financial ties "hogwash." Dallas attorney Bill Sims, who is representing David's, said he also will ask the court to hear June 24 the plaintiff's motion asking that Fleming representatives cease juror harassment.

In a May 7 filing, David's alleged that five of the 12 jurors in the fraud suit said they felt harassed and threatened by two Fleming representatives who questioned them. The plaintiffs have asked to take a deposition from Ronald Beam, Fleming's corporate director of security, who questioned jurors, but Fleming is asking the court to quash the motion.

Also, David's and Fleming plan to continue mediation talks May 29 and 30.