Board Certified Civil Appellate Law Texas Board of Legal Specialization

Fifth Circuit Remands for Determination of Settlement Credit in Breach of Fiduciary Duty Appeal

October 31, 2023 in Case Summaries

Levinger PC represented John Kawcak, a former executive of Antero Resources, in an effort to overturn a judgment of over $11.5 million arising from a claim that he had steered drillout service contracts to companies owned by a friend in breach of his fiduciary duty to his employer.  Although the Fifth Circuit upheld the jury’s finding of damages based on alleged overcharges by the drillout companies, it held in a published opinion that the district court erred by not allowing post-verdict discovery of the employer’s settlement with the drillout companies.  The Court remanded the case for consideration of whether Kawcak should be allowed discovery of, and a credit for, the amount of the third-party settlement.  Antero Resources Corp. v. Kawcak, 85 F.4th 741 (5th Cir. 2023).

Courts:  Federal Courts of Appeals

Subject Matter:  Business Litigation, Procedural & Evidentiary Issues

By | October 31st, 2023|Comments Off on Fifth Circuit Remands for Determination of Settlement Credit in Breach of Fiduciary Duty Appeal
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Dallas Court of Appeals Reverses $18 Million Judgment Against Levinger PC Client in Partnership Dispute

May 3, 2022 in Case Summaries

Jeff Levinger teamed with Locke Lord partners David Swanson  and Tom Loose to obtain the reversal of a judgment of over $18 million in a long-running partnership dispute between their client, Craig Power, and his brother and business partner, Braden Power.  In an opinion authored by Justice Erin Nowell and joined by Justices Ken Molberg and Bonnie Goldstein, the Dallas Court of Appeals held that the trial court had abused its discretion in admitting evidence of document spoliation and instructing the jury on spoliation without the requisite findings of duty and intent.  And because the harm from the erroneous admission of the evidence and the spoliation instruction was “substantial,” the Court remanded the case for a new trial on all issues.  After Levinger filed a petition for review in the Texas Supreme Court challenging the court of appeals’ failure to address several rendition issues, the case settled on terms favorable to Craig Power.  Power v. Power, No. 05-19-01557-CV, 2022 WL 1314944 (Tex. App.—Dallas May 3, 2022, pet. dism’d by agr.) (mem. op).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Business Litigation; Procedural and Evidentiary Issues

By | May 3rd, 2022|Comments Off on Dallas Court of Appeals Reverses $18 Million Judgment Against Levinger PC Client in Partnership Dispute
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Anti-SLAPP Statute Held to be Inapplicable to Derivative Claim Filed by Shareholder Against Directors of Closely-Held Company

August 24, 2021 in Case Summaries

In one of the first appeals to be decided under the 2019 amendments to the Texas Citizens Participation Act, the Dallas Court of Appeals faced the question whether a derivative action brought by Levinger PC client Accela Capital Services against the directors of a company owned by Accela should have been dismissed on the ground that the transactions at issue were protected as an exercise of the right of association.  The Court held that the TCPA did not apply because the self-dealing and breach of fiduciary duties alleged by Accela concerned private business matters and were not “based on or in response to [the directors’] exercise of the right of association.”  And because the TCPA did not apply, the Court did not address the remaining issues concerning the other steps in the TCPA analysis—whether Accela proved a prima facie case or a TCPA exemption.  Good v. Accela Capital Services, Inc., No. 05-20-01097-CV, 2021 WL 3732614 (Tex. App.—Dallas Aug. 24, 2021, pet. denied) (mem. op.).

Courts:  Texas Intermediate Courts; Texas Supreme Court

Subject Matter:  Business Litigation; Securities Matters and Fraud

By | August 24th, 2021|Comments Off on Anti-SLAPP Statute Held to be Inapplicable to Derivative Claim Filed by Shareholder Against Directors of Closely-Held Company
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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

By | June 25th, 2020|Comments Off on City of Corpus Christi Cannot Claim Immunity from $14 Million Breach-of-Contract Suit Brought by General Contractor
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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

By | November 19th, 2018|Comments Off on Arbitration Award Reinstated in Favor of Chinese Telecom in Dispute Over Liberian Telephone System
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