Appeals

Law Firm Succeeds in Reversing $2 Million Judgment Awarded to General Counsel Based on Alleged Fee-Sharing Agreement

Jeff Levinger successfully represented Houston-based law firm Cokinos, Bosien & Young in its effort to overturn a $2 million judgment awarded to the estate of a general counsel employed by a Cokinos client. In an unusual set of facts, the former general counsel of Ruhrpumpen, Inc. alleged that the Cokinos firm had promised to pay him 20 percent of a contingent fee that the firm and Ruhrpumpen had negotiated in connection with a lawsuit against a competitor.  After the general counsel died, the litigation settled and Ruhrpumpen paid the firm a seven-figure contingent fee. The estate then sued to recover a 20 percent share of the fee, and the trial court rendered summary judgment in its favor. The Dallas Court of Appeals reversed and rendered a take-nothing judgment, holding that the alleged fee-sharing agreement was void because Ruhrpumpen had not consented to it in writing, as Texas Disciplinary Rule 1.04(f) requires. In rejecting the estate’s argument that the general counsel had authority as Ruhrpumpen’s agent to consent to the fee-sharing agreement, the court held that the general counsel owed Ruhrpumpen a fiduciary duty not to accept compensation outside of his salary and thus could not consent to the fee-sharing agreement without first disclosing it to Ruhrpumpen. The court further rejected the estate’s efforts to avoid altogether the requirements of Rule 1.04(f). Cokinos, Bosien & Young v. Sheila Moore, as Independent Executor of the Estate of Eugene H. Moore, No. 05-18-01340-CV, 2020 WL 549066 (Tex. App.—Dallas Feb. 4, 2020, no pet.).
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Court of Appeals Affirms Arbitration Award in Favor of Law Firm Despite Absence of Appellee’s Brief

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.).

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Arbitration Award Reinstated in Favor of Chinese Telecom in Dispute Over Liberian Telephone System

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. filed).

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

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Fort Worth Court of Appeals Affirms $18 Million Products-Liability Judgment in Favor of Injured HVAC Repairman

October 18, 2018 in Case Summaries

Levinger PC teamed with trial lawyers Andy Payne and Todd Ramsey in persuading the Fort Worth Court of Appeals to affirm an $18 million judgment in favor of their client Clarence Johnson in his products-liability suit against HVAC manufacturers Emerson Climate Technologies and Fusite. Johnson, an HVAC repairman, was seriously injured when an air conditioning unit designed by Emerson and equipped with a Fusite terminal exploded and vented scalding oil and refrigerant onto Johnson’s face and body. After a lengthy trial, a jury found in Johnson’s favor on his design defect and marketing defect claims, and awarded substantial damages for his pecuniary loss and mental anguish. In a comprehensive 63-page memorandum opinion, the Fort Worth Court of Appeals rejected the challenges of Emerson and Fusite to the sufficiency of the evidence, to the testimony of Johnson’s design-defect expert, to the instructions in the jury charge, and to the mental anguish awards. Jeff Levinger orally argued the case in June 2017 and the Court issued its opinion in October 2018. Emerson Electric Co., d/b/a Fusite and Emerson Climate Technologies v. Johnson, No. 02-16-00173-CV, 2018 WL 5074702 (Tex. App.—Fort Worth Oct. 18, 2018, pet. granted).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Products Liability & Personal Injury, Procedural & Evidentiary Issues

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$7.4 Million Judgment Against Contractor Reversed and Remanded for New Trial

August 29, 2018 in Case Summaries

Jeff Levinger led a successful effort to overturn a judgment of $6.2 million in actual damages and $1.2 million in attorney’s fees against The Brandt Companies in a long-running dispute with its subcontractor, Beard Industrial, over the construction of a semiconductor facility in New York.  In reversing the judgment and remanding the case for a new trial, the Dallas Court of Appeals held that the evidence conclusively established the existence of a written subcontract between Brandt and Beard, even though a dispute existed between them over one aspect of the scope of Beard’s work.  The Court also agreed with Brandt that Beard’s evidence failed to support the full amount of quantum merit damages awarded by the jury.  Because the jury failed to answer several factual questions necessary to resolve the parties’ disputes, the Court remanded the entire case for a new trial.  Subsequently, the case was resolved in a confidential settlement.  The Brandt Companies, LLC v. Beard Process Solutions, Inc., No. 05-17-00780-CV, 2018 WL 4103210 (Tex. App.—Dallas Aug. 29, 2018, pet. granted, judgm’t vacated w.r.m.) (mem. op.).

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

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