Appeals

Jeff Levinger authored the appellee’s brief that preserved an arbitration award of nearly $1 million in favor of Arnold & Itkin client Joseph Julian.  After sustaining a serious workplace injury, Julian sued his employer, Load Trail LLC, a nonsubscriber to the Workers’ Compensation Act.  Load Trail demanded arbitration, and following a three-day evidentiary hearing, the arbitrator found that a Load Trail employee was negligent in operating a forklift that struck Julian, and that Julian was entitled to economic and noneconomic damages.  On appeal, Load Trail argued that the award should be vacated based on the arbitrator’s “evident partiality,” which Load Trail claimed was shown by various comments and rulings the arbitrator made during the hearing.  The Texarkana Court of Appeals rejected this challenge, first holding that Load Trail waived it by not voicing any objection during the hearing to what it perceived to be the arbitrator’s actual basis.  And even if Load Trail had timely objected, the Court held that the arbitrator’s comments and rulings did not rise to the level of “evident partiality” under the governing legal standards.  Instead, Load Trail’s claims of evident partiality amounted to complaints about the merits, which the Court refused to second guess.  Load Trail LLC v. Julian, No. 06-19-00099-CV, 2021 WL 55642 (Tex. App.—Texarkana Jan. 7, 2021, no pet. h.).

Levinger PC teamed with construction litigators Paulo Flores and Walker Duke to persuade the Corpus Christi Court of Appeals to reject the City of Corpus Christi’s effort to avoid liability to their client, Graham Construction Services, based on an assertion of governmental immunity.  Graham sued the City for over $14 million in delay-related damages that Graham incurred in building a massive wastewater treatment facility.  After three years of litigation, the City filed a plea to the jurisdiction claiming that Graham had failed to demonstrate a waiver of the City’s governmental immunity from suit.  The Court of Appeals disagreed, first holding that the City was not immune from the delay-causing breaches of contract committed by the City’s representative in administering the parties’ contract.  Second, the Court rejected the City’s claim for immunity based on the allegation that Graham had not complied with the notice and adjudication provisions in the contract.  Third, the Court determined that nothing in the governmental immunity statute barred Graham’s claim for attorney’s fees.  The Supreme Court of Texas subsequently denied the City’s petition for review.  City of Corpus Christi v. Graham Construction Services, Inc., No. 13-19-00367-CV, 2020 WL 3478661 (Tex. App.—Corpus Christi June 25, 2020, pet. denied).

Courts:  Texas Intermediate Appellate Courts; Supreme Court of Texas

Subject Matter:  Business Litigation

Hired just three weeks before oral argument, Jeff Levinger convinced the Dallas Court of Appeals to affirm an arbitration award in favor of the law firm of Fitzpatrick Hagood Smith and Uhl—even though the firm had not previously filed an appellees’ brief. Based on Levinger’s oral argument, the appellate court held that the firm’s former client, who was trying to avoid a $770,000 arbitration award, did not timely challenge the award and was not entitled to invoke the doctrines of equitable tolling or estoppel to excuse the untimely challenge. The court also accepted Levinger’s stipulation that the former client was entitled to a credit for the amount of a settlement the firm had previously received from a guarantor of the fee charged to the client, thus avoiding a remand and further litigation. As a side note, Levinger had assisted the law firm in the early stages of the arbitration by briefing and successfully arguing a response to the former client’s summary-judgment motion. Fisher v. Daniel K. Hagood P.C. and Fitzpatrick Hagood Smith and Uhl, Inc., No. 05-19-00106-CV, 2019 WL 6711675 (Tex. App.—Dallas Dec. 10, 2019, no pet.).

November 19, 2018 in Case Summaries

Levinger PC assisted the trial team at Ferguson Braswell Fraser Kubasta PC in convincing the Dallas Court of Appeals to reinstate an arbitration award favoring their client, China-based ZTE Corporation, in its long-running dispute with Universal Telephone Exchange over the installation of a modern telecommunications system in the country of Liberia. The dispute began more than a decade ago, when UTE initiated an arbitration against ZTE seeking a ten-figure damage award based on allegations that ZTE had interfered in UTE’s business relationship with Liberia. The arbitrator ruled in favor of ZTE, but a Dallas district court vacated the award based on UTE’s allegations that the arbitration was affected by procedural and substantive irregularities. In a unanimous opinion, the Dallas Court of Appeals reversed and confirmed the arbitration award. The court rejected UTE’s assertions that it was entitled to a three-person arbitration panel under the International Arbitration Rules, that the award was obtained by fraud or undue means, and that the arbitrator had refused to consider relevant evidence and otherwise exceeded his powers. ZTE Corp. v. Universal Telephone Exchange, Inc., No. 05-17-00781-CV, 2018 WL 6039694 (Tex. App.—Dallas Nov. 19, 2018, pet. denied).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Business Litigation, Procedural & Evidentiary Issues