Appeals

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

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

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

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.).