Texas Intermediate Appellate Courts

Dallas Court of Appeals Sets Aside New Trial Order Based on Claimed Violation of Disciplinary Rule

Dallas Court of Appeals Sets Aside New Trial Order Based on Claimed Violation of Disciplinary Rule

May 6, 2016 in Case Summaries

Assisted by trial counsel Ken Chaiken and appellate co-counsel Carl Cecere, Jeff Levinger convinced the Dallas Court of Appeals to grant mandamus relief compelling the trial court to set aside its order granting a new trial in a hotly-contested real estate dispute. Following a week-long trial, a Dallas County jury found that Levinger PC clients Douglas Hickok and VSDH Vaquero Venture did not defraud or breach their contract with the plaintiffs. The trial court, however, granted the plaintiffs a new trial, finding that Vaquero’s trial counsel had violated Texas Disciplinary Rule 3.08 by acting as both an advocate and a witness at trial. Invoking the recent Texas Supreme Court trilogy of cases allowing mandamus review of orders granting new trials, Hickok and Vaquero claimed that a purported violation of Rule 3.08 was not a legally appropriate basis for granting a new trial. The Court of Appeals agreed, and ordered the trial court to render a take-nothing judgment on the jury’s verdict. In re VSDH Vaquero Venture, Ltd., No. 05-15-0513-CV, 2016 WL 2621073 (Tex. App.-Dallas May 6, 2016, pet. denied).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Ethics & Professional Malpractice, Procedural & Evidentiary Issues

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Court of Appeals Tosses Developer’s $9 Million Inverse Condemnation Award Against City of McKinney

Court of Appeals Tosses Developer’s $9 Million Inverse Condemnation Award Against City of McKinney

May 3, 2016 in Case Summaries

Jeff Levinger successfully represented the City of McKinney in its appeal of a judgment of over $9,000,000 stemming from a developer’s claim that the City had committed an “inverse condemnation” by violating a restriction in a deed. In its 2009 lawsuit, Eldorado Land Company contended that the City’s construction of a library on a portion of a 32 acre tract that Eldorado had conveyed to the City for use as a community park violated the deed restriction, which provided that the property could be used only as a “park and recreational facility.” The trial court granted summary judgment in favor of El Dorado on the liability issue, and a jury assessed damages of over $7,500,000 (exclusive of interest), representing the difference in the property’s value with and without its deed and zoning restrictions. In reversing the summary judgment on liability and rendering a take-nothing in favor of the City, the Court of Appeals held that the City’s community library fit squarely within the “plain, ordinary, and generally accepted meaning” of a park and recreational facility, and thus did not violate the restriction in the deed. City of McKinney v. Eldorado Land Co., LP, No. 05-15-00067-CV, 2016 WL 2349371 (Tex. App.-Dallas May 3, 2016, pet. denied).

Courts:Supreme Court of Texas, Texas Intermediate Appellate Courts
Subject Matter: Business Litigation, Oil & Gas/Real Estate

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Dallas Court of Appeals Affirms that Child-Placing Agency Is Not a “Health Care Provider”

Dallas Court of Appeals Affirms that Child-Placing Agency Is Not a “Health Care Provider”

March 14, 2016 in Case Summaries

Working closely with trial counsel from the Houston firm of Abraham Watkins, Jeff Levinger first persuaded the trial court to reconsider its dismissal of a lawsuit filed by the parents of a brain-damaged infant, and then convinced the Dallas Court of Appeals to uphold the trial court’s determination on rehearing that one of the two defendants is not a “health care provider” entitled to the protections of Chapter 74 of the Texas Medical Liability Act. In a thorough analysis of the Texas statutes and regulations governing Lutheran Social Services of the South  a child-placing agency that had placed the child with foster parents before the injury-causing incident  the Court held that LSSS had not met its burden of proving that it was “licensed, certified, registered, or chartered by the State of Texas to provide health care.” Meanwhile, the case against the second defendant, a home nursing company, is proceeding in the trial court, after Levinger also persuaded it to reconsider its previous ruling that the plaintiffs’ expert reports were inadequate under Chapter 74. Lutheran Social Services of the South, Inc. v. Blount, No. 05-15-00380-CV, 2016 WL 1019191 (Tex. App.-Dallas Mar. 14, 2016, pet. denied).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Products Liability & Personal Injury

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Dallas Court of Appeals Dissolves Garnishment and Reinstates Security Interest of Levinger PC Client

Dallas Court of Appeals Dissolves Garnishment and Reinstates Security Interest of Levinger PC Client

April 29, 2015 in Case Summaries

Joined by appellate lawyer Carl Cecere and trial lawyer Steve Goldston, Jeff Levinger represented Inwood National Bank in its appeal of an adverse judgment in a complex, high-dollar garnishment proceeding. Although Inwood held a perfected security interest in a large investment account owned by one of its borrowers, the trial court concluded that Inwood’s security interest was subordinate to Wells Fargo’s later judgment lien against the same borrower. Addressing an issue of first impression in Texas concerning the meaning of UCC § 9.323(b), the Dallas Court of Appeals agreed with Inwood’s argument that it had taken no actions to compromise its prior, perfected security interest. Accordingly, the court dissolved Wells Fargo’s writ of garnishment and restored Inwood’s security interest in the investment account. Inwood National Bank v. Wells Fargo Bank, 463 S.W.3d 228 (Tex. App. ‑‑ Dallas 2015, no pet.).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Business Litigation

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Appointment of Liquidating Receiver Reversed Following Interlocutory Appeal

Appointment of Liquidating Receiver Reversed Following Interlocutory Appeal

February 27, 2015 in Case Summaries

Just three weeks after hearing oral argument, the Dallas Court of Appeals reversed a trial court order appointing a receiver to liquidate valuable assets of a partnership jointly owned by Levinger PC client Steven Spiritas. The other owner, Susan Davidoff, had asked the trial court to order the receivership, claiming that a deadlock between herself and Spiritas required the partnership assets to be immediately sold. Spiritas secured a stay of the order, and then successfully argued to the court of appeals that the appointment of the receiver was not authorized under the Texas Business Organizations Code because there was no evidence that any irreparable injury was occurring or threatened. Spiritas v. Davidoff, 459 S.W.3d 224 (Tex. App. ‑‑ Dallas 2015, no pet.).

Courts: Texas Intermediate Appellate Courts
Subject Matter: Business Litigation, Oil & Gas/Real Estate

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