Texas Intermediate Appellate Courts

Oral Contract to Reimburse Asbestos Mistake Affirmed on Appeal

Oral Contract to Reimburse Asbestos Mistake Affirmed on Appeal

January 13, 2014 in Case Summaries

Jeff Levinger represented long-time clients Jakalam Properties and Michael Cohen in persuading the Dallas Court of Appeals to affirm a favorable jury verdict based on the breach of an oral agreement.  The agreement arose out of a commitment on the part of an asbestos testing lab to reimburse Jakalam for the expenses it had to incur after the lab mistakenly reported that a building being renovated by Jakalam contained asbestos.  The Court rejected the lab’s contention that the oral contract was too indefinite to be enforced, holding that the contract was sufficiently definite to enable it to fix the parties’ obligations and liabilities.  The court also upheld the jury’s finding that the contract had been breached, and agreed that Jakalam was a prevailing party entitled to recover its attorney’s fees at trial and on appeal.  Crisp Analytical Lab, L.L.C. v. Jakalam Properties, Ltd., 422 S.W.3d 85 (Tex. App. ‑‑ Dallas 2013, pet. denied).

Courts:  Texas Intermediate Appellate Courts
Subject Matter:  Business Litigation

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Dallas Court of Appeals Revives Medical Malpractice Suit Brought by Client Blinded After Heart Surgery

Dallas Court of Appeals Revives Medical Malpractice Suit Brought by Client Blinded After Heart Surgery

April 5, 2013 in Case Summaries

Working with trial attorneys Kenneth Chaiken and Robert Chaiken, Jeff Levinger persuaded the Dallas Court of Appeals to reverse the trial court’s dismissal of a medical malpractice lawsuit brought by their clients, Ronald and Pam Fortner.  Mr. Fortner became totally and permanently blind in the days following a cardiac bypass procedure, when his physicians and nurses failed to timely obtain appropriate treatment and consultations after he began complaining about visual problems.  The trial court dismissed the case on the ground that the expert reports did not adequately explain the element of causation, but after reading the Fortners’ brief and hearing oral argument, the court of appeals held that the trial court had abused its discretion and remanded the case for further proceedings.  Fortner v. Hospital of the Southwest, et al., 399 S.W.3d 373 (Tex. App. ‑‑ Dallas 2013, no pet.).

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

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Judgment in Favor of Quadruple Amputee Victim of Medical Malpractice Affirmed on Appeal.

Judgment in Favor of Quadruple Amputee Victim of Medical Malpractice Affirmed on Appeal.

August 24, 2012 in Case Summaries

Working with well-known personal injury attorneys Windle Turley and Linda Turley, Jeff Levinger secured the affirmance of a $5.3 million medical malpractice judgment in favor of David Fritzgerald against an infectious disease specialist.  Mr. Fritzgerald had lost all four of his limbs following hernia surgery when a MRSA infection invaded his body and was not timely treated with the appropriate antibiotic therapy.  On appeal, the Dallas court of appeals held that the evidence was sufficient to support the jury’s finding of causation as well as its refusal to assign responsibility to various settling parties.  Although the court remanded the case for recalculation of the future medical expenses, the parties subsequently settled before the remanded proceeding occurred.  Prabhakar v. Fritzgerald, ___ S.W.3d ___, 2012 WL 3667400 (Tex. App. ‑‑ Dallas Aug. 24, 2012, no pet.).

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

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Multi-Million Dollar Judgment for Breach of Fiduciary Duty Reversed Based on Contractual Disclaimer.

Multi-Million Dollar Judgment for Breach of Fiduciary Duty Reversed Based on Contractual Disclaimer.

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

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Dallas Court of Appeals Rules Again for DART Contractor, Supreme Court Applies Economic Loss Rule

Dallas Court of Appeals Rules Again for DART Contractor in Dispute Against Architect

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

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