Appeals

October 31, 2023 in Case Summaries

Levinger PC represented John Kawcak, a former executive of Antero Resources, in an effort to overturn a judgment of over $11.5 million arising from a claim that he had steered drillout service contracts to companies owned by a friend in breach of his fiduciary duty to his employer.  Although the Fifth Circuit upheld the jury’s finding of damages based on alleged overcharges by the drillout companies, it held in a published opinion that the district court erred by not allowing post-verdict discovery of the employer’s settlement with the drillout companies.  The Court remanded the case for consideration of whether Kawcak should be allowed discovery of, and a credit for, the amount of the third-party settlement.  Antero Resources Corp. v. Kawcak, 85 F.4th 741 (5th Cir. 2023).

Courts:  Federal Courts of Appeals

Subject Matter:  Business Litigation, Procedural & Evidentiary Issues

March 2, 2022 in Case Summaries

In a long-running and procedurally-complex child custody dispute between two physicians, Levinger PC successfully represented the father in persuading the Dallas Court of Appeals to uphold the trial court’s order refusing to modify the parent-child relationship.  The Court first rejected the mother’s contention that the parties had not agreed to arbitrate their dispute, holding that a 2010 order included a consensual arbitration clause and a 2012 order did not revoke that agreement.  The Court also rejected the mother’s procedural challenges to the award, including her attack on the arbitrator’s decision concerning her effort to present testimony from out-of-state witnesses.  In the Interest of K.B., No. 05-20-00123-CV, 2022 WL 611208 (Tex. App.—Dallas Mar. 2, 2022, no pet.) (mem. op.).

Courts:  Texas Intermediate Courts

Subject Matter:  Procedural & Evidentiary Issues

May 3, 2022 in Case Summaries

Jeff Levinger teamed with Locke Lord partners David Swanson  and Tom Loose to obtain the reversal of a judgment of over $18 million in a long-running partnership dispute between their client, Craig Power, and his brother and business partner, Braden Power.  In an opinion authored by Justice Erin Nowell and joined by Justices Ken Molberg and Bonnie Goldstein, the Dallas Court of Appeals held that the trial court had abused its discretion in admitting evidence of document spoliation and instructing the jury on spoliation without the requisite findings of duty and intent.  And because the harm from the erroneous admission of the evidence and the spoliation instruction was “substantial,” the Court remanded the case for a new trial on all issues.  After Levinger filed a petition for review in the Texas Supreme Court challenging the court of appeals’ failure to address several rendition issues, the case settled on terms favorable to Craig Power.  Power v. Power, No. 05-19-01557-CV, 2022 WL 1314944 (Tex. App.—Dallas May 3, 2022, pet. dism’d by agr.) (mem. op).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Business Litigation; Procedural and Evidentiary Issues

November 21, 2021 in Case Summaries

Sarah Milburn obtained a $25 million judgment following a Dallas County jury’s verdict that a defective seat belt system in a Honda Odyssey in which she was riding as an Uber passenger rendered her a quadriplegic in a side-impact collision.  Working with trial lawyers Charla Aldous, Jim Mitchell, and Brent Walker, Jeff Levinger authored the appellate briefing and persuaded the Dallas Court of Appeals to affirm the judgment in.  Reviewing an extensive record from the three-week trial, the court of appeals held that: (1) sufficient evidence supported the jury’s finding that Sarah had rebutted the statutory presumption of non-liability in Tex. Civ. Prac. & Rem. Code § 82.008; (2) Sarah’s human factors expert was qualified and provided sufficient evidence to support the jury’s finding of a design defect; (3) the evidence was sufficient to support the jury’s findings that a safer alternative design for the seat belt system existed; (4) Honda’s negligence in designing the seat belt system was the proximate cause of Sarah’s injuries; and (5) the trial court correctly refused to submit a proportionate responsibility question that included Uber.  The Texas Supreme Court has granted review and heard oral argument in September 2023.  American Honda Motor Co., Inc. v. Milburn, 668 S.W.3d 6 (Tex. App.—Dallas 2021, pet. granted).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Products Liability & Personal Injury

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