Texas Intermediate Appellate Courts
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
Law Firm Succeeds in Reversing $2 Million Judgment Awarded to General Counsel Based on Alleged Fee-Sharing Agreement
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.).
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. denied).
Courts: Texas Intermediate Appellate Courts
Subject Matter: Business Litigation, Procedural & Evidentiary Issues
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