March 20, 2012 in Case Summaries

Jeff Levinger was retained to appeal a federal district court’s dismissal of a € 136 million fraudulent transfer action brought by MC Asset Recovery, a bankruptcy litigation trustee of Mirant Corporation, against a group of European lenders.  The district court had dismissed the case after deciding that the applicable fraudulent transfer law was supplied by Georgia, which did not allow for the avoidance of the guaranty transaction at issue.  On appeal, Levinger persuaded the Fifth Circuit that controlling choice-of-law principles required the application of New York law rather than Georgia law.  The Court also rejected the lenders’ argument that MC Asset Recovery lacked standing to sue because the creditors of Mirant purportedly had been paid in full.  Based on these rulings, the Fifth Circuit remanded the case to be decided on the merits under the New York fraudulent transfer statute.  MC Asset Recovery LLC v. Commerzbank A.G., 675 F.3d 530 (5th Cir. 2012).

Courts:  Federal Courts of Appeals
Subject Matter:  Procedural and Evidentiary Issues; Bankruptcy

January 12, 2012 in Case Summaries

In a complex partnership dispute that culminated in a multi-million dollar jury verdict, Jeff Levinger persuaded the Houston First Court of Appeals to reverse the judgment against his client, Douglas Strebel.  Strebel’s former partner, John Wimberly, had obtained a $3.4 million judgment  based on the jury’s findings that Strebel had breached alleged fiduciary duties as both the controlling member of a Delaware LLC and the limited partner of a Texas LP.  The court of appeals reversed, holding that Wimberly’s alleged loss of distributions occurred only at the LP level where the parties had contractually disclaimed any fiduciary duties on the part of the general partner and the controlling member of the general partner.  Strebel v. Wimberly, 371 S.W.3d 267 (Tex. App. ‑‑ Houston [1st Dist.] 2012, pet. denied).

Courts: Supreme Court of Texas, Texas Intermediate Appellate Courts
Subject Matter:  Business Litigation

December 30, 2011 in Case Summaries

Jeff Levinger represented Flint Hills Resources in its appeal seeking to overturn a federal district court’s declaratory judgment allowing Travis County to build a railroad spur over Flint Hills’ pipeline easement.  Relying on an infrequently invoked Texas statute and the language of the easement, the Fifth Circuit reversed and held that the County could not build the spur over the easement unless it first pays Flint Hills for the substantial costs of fortifying the pipeline and relocating it to a greater depth.  Travis County, Texas v. Flint Hills Resources, L.P., 456 Fed. Appx. 410, 2011 WL 6934492 (5th Cir. Dec. 30, 2011).

Courts:  Federal Courts of Appeals
Subject Matter:  Oil & Gas/Real Estate

August 29, 2011 in Case Summaries

In a second appeal involving the same lawsuit, Jeff Levinger again successfully represented Martin K. Eby Construction Company in its negligent misrepresentation suit against LAN/STV, an architect and engineer that prepared faulty construction plans and drawings for an extension of the DART rail project.  Following the remand in the first appeal, Eby settled its administrative claim against DART for $4.7  million and proceeded to trial against LAN/STV.  The jury found that LAN/STV had committed negligent misrepresentations that caused Eby $5 million in damages, but the trial court reduced the award to $2,250,000 plus interest based on the jury’s additional finding that LAN/STV was 45% responsible.  On appeal, the Dallas Court of Appeals rejected LAN/STV’s arguments regarding the derivative governmental immunity statute, the economic loss doctrine, the evidence of negligent misrepresentations, and the effect of the DART settlement.  The Texas Supreme Court subsequently reversed, holding that the economic loss rule restricted Eby to a breach of contact claim against DART.  Martin K. Eby Construction Co. v. LAN/STV, 350 S.W. 3d 675 (Tex. App. — Dallas Aug. 29, 2011), rev’d, 435 S.W. 30 234(Tex.2014).

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

August 25, 2011 in Case Summaries

Jeff Levinger successfully represented a partner in a major Texas law firm who was sanctioned by a trial court for allegedly accusing opposing counsel of suborning perjury and ordered to purchase a half-page apology in the Texas Lawyer.  The Dallas Court of Appeals reversed the sanction in its entirety, holding that the lawyer had not accused opposing counsel of suborning perjury and that the trial court’s order reflected “both an erroneous assessment of the evidence and a misapplication of the law on subornation of perjury.”  Both the sanction order and the successful appeal received extensive coverage in theTexas Lawyer and other legal publications. Rodriquez v. Mumbo Jumbo, 347 S.W. 3d 924 (Tex. App. – Dallas 2011, no pet.).