December 30, 2011 in Case Summaries

Fifth Circuit Reverses Declaratory Judgment That Had Allowed Landowner to Build a Railroad Spur Over a Pipeline Easement.

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

March 20, 2012 in Case Summaries

Fifth Circuit Breathes New Life Into € 136 Million Fraudulent Transfer Action Brought by Bankruptcy Litigation Trustee.

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 of 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

August 31, 2012 in Case Summaries

Texas Supreme Court Finds Sufficient Evidence of Negligence But Remands for New Trial in Brake-Failure Case.

Jeff Levinger was retained to prepare the response brief on the merits on behalf of Talmadge Waldrip, who was catastrophically injured when a 26-foot U-Haul rental truck rolled over him after its parking brake failed.  The Supreme Court found that the evidence was sufficient to support the jury’s findings of negligence on the part of both U-Haul International and U-Haul of Texas.  Nevertheless, it remanded the case for a new trial based on the admission of evidence that other U-Haul trucks in Canada had experienced mechanical failures.  Over the dissent of Justice Lehrmann, the Court held that the evidence of the Canadian defects was not sufficiently similar to the defect in the truck at issue, and that the admission of the evidence was harmful.  U-Haul Intern. Inc. v. Waldrip, ___ S.W.3d ___, 2012 WL 3800220 (Tex. Aug. 31, 2012).

Courts:  Texas Supreme Court

Subject Matter:  Products Liability & Personal Injury

August 24, 2012 in Case Summaries

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

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.).

January 12, 2012 in Case Summaries

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

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 against him 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. filed).