Appeals
Anti-SLAPP Statute Held to be Inapplicable to Derivative Claim Filed by Shareholder Against Directors of Closely-Held Company
August 24, 2021 in Case Summaries
In one of the first appeals to be decided under the 2019 amendments to the Texas Citizens Participation Act, the Dallas Court of Appeals faced the question whether a derivative action brought by Levinger PC client Accela Capital Services against the directors of a company owned by Accela should have been dismissed on the ground that the transactions at issue were protected as an exercise of the right of association. The Court held that the TCPA did not apply because the self-dealing and breach of fiduciary duties alleged by Accela concerned private business matters and were not “based on or in response to [the directors’] exercise of the right of association.” And because the TCPA did not apply, the Court did not address the remaining issues concerning the other steps in the TCPA analysis—whether Accela proved a prima facie case or a TCPA exemption. Good v. Accela Capital Services, Inc., No. 05-20-01097-CV, 2021 WL 3732614 (Tex. App.—Dallas Aug. 24, 2021, pet. denied) (mem. op.).
Courts: Texas Intermediate Courts; Texas Supreme Court
Subject Matter: Business Litigation; Securities Matters and Fraud
Texarkana Court of Appeals Rebuffs Employer’s Effort to Vacate Injured Worker’s $1 Million Arbitration Award
January 7,2021 in Case Summaries
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.).
Courts: Texas Intermediate Courts
Subject Matter: Products Liability and Personal Injury
Oil and Gas Producer Obtains Mandamus Relief in Venue Dispute With Royalty Owner
October 7, 2020 in Case Summaries
Levinger PC persuaded the Dallas Court of Appeals to grant the petition for writ of mandamus filed by its client, Equinor Texas Onshore Properties, in a venue dispute with a royalty interest owner that the Court described as “unique” and “complex.” The royalty owner originally filed separate suits in LaSalle County against Equinor and a previous lessor, Repsol Oil & Gas. After Repsol agreed to transfer venue of its case to Dallas County, the royalty owner joined Equinor and persuaded the trial court to deny Equinor’s plea in abatement in favor of the still-pending LaSalle County suits. The Dallas Court of Appeals granted mandamus relief, holding that the LaSalle County court had dominant jurisdiction and that the Dallas County suit against Repsol did not “relate back” to the transferred suit so as to make it the “first-filed” suit. In re Equinor Texas Onshore Properties, No. 05-20-00578-CV, 2020 WL 5939034 (Tex. App.—Dallas Oct. 7, 2020, pet. denied) (mem. op.).
Courts: Texas Intermediate Courts; Texas Supreme Court
Subject Matter: Oil & Gas/Real Estate; Procedural & Evidentiary Issues
City of Corpus Christi Cannot Claim Immunity from $14 Million Breach-of-Contract Suit Brought by General Contractor
June 25, 2020 in Case Summaries
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