In this edition of Litigation Roundup, the Texas Supreme Court held that the attorney-client privilege means a conservative nonprofit news organization cannot get access to certain documents stemming from a University of Texas admissions process investigation, and the parties on either side of a personal injury lawsuit that netted a $352 million jury verdict told an intermediate appellate court a settlement has been reached.
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Dallas County District Court
Jury Awards Hospitality Supply Co. $1.45M In Lease Row
A jury that started hearing evidence June 20 in a breach of contract case between Consolidated Hospitality Supplies and a national real estate broker issued a verdict June 26 agreeing that Jones Lang LaSalle Americas owed CHS about $1.45 million in compensatory damages in a dispute over a lease that lapsed.
CHS purchased the assets of American Hotel Register Company in 2021, and that purchase included a breach of contract claim AHR had against its former national real estate broker, JLL.
This lawsuit was filed in April 2019, accusing JLL of breaching a real estate services agreement that required JLL to give AHR notice before its leases expired. AHR and CHS alleged JLL’s failure to provide a heads up that its lease of a warehouse in Carrollton was about to expire caused that lease to lapse and cost it about $1.45 million when it had to lease a new warehouse near the Dallas-Fort Worth International Airport.
JLL filed counterclaims, alleging AHR interfered with its right to earn a commission for having identified the new warehouse as an option.
The jury found JLL failed to comply with the real estate services agreement, that the failure wasn’t excused, and that AHR hadn’t intentionally interfered with JLL’s prospective business.
The verdict was unanimous.
Judge Emily Tobolowsky presided over the case.
Consolidated Hospitality Supplies is represented by Andy Ryan and Mitch Garrett of Ryan Law Partners.
Jones Lang LaSalle Americas is represented by Jay Madrid and Monica Niewiarowski of Dorsey & Whitney.
The case number is DC-19-05105.
Travis County District Court
Judge OK’s Release of Records in Uvalde Shooting
A group of news organizations that were seeking the release of documents related to the mass shooting at Robb Elementary in Uvalde prevailed June 29 when Judge Daniella Deseta Lyttle of the 261st District Court issued an order granting summary judgment to those parties, over objections from the Texas Department of Public Safety.
The lead attorney for the media groups, Haynes Boone partner Laura Lee Prather, issued a statement calling the ruling “a huge victory” for Uvalde and transparency.
“It’s long past time for the Texas Department of Public Safety to release the records detailing what happened the day of the horrific school shooting in May 2022,” she said. “Disclosing all of the requested law enforcement information — not just bits and pieces of it — will help the people of Uvalde, the news media and the public at large hold public officials accountable in hopes of preventing a similar tragedy in the future.”
The media groups — ABC News, CBS News, NBC News, the New York Times, Pro Publica, Texas Tribune, Gannett, the Washington Post and others — had sought the documents under the Texas Public Information Act and filed suit when DPS declined to release them, citing the investigation and forthcoming prosecution in the case.
The news outlets are also represented by Reid Pillifant of Haynes Boone.
DPS is represented by Melissa Mather and Benjamin Dower of the office of the attorney general.
The case number is D-1-GN-22-003502.
First Court of Appeals
Parties Settle $352M Injury Case
In a joint motion filed June 28, Allied Aviation Fueling Company of Houston and the family of Ulysses Cruz told the intermediate appellate court they had reached a settlement in the personal injury case that netted a $352 million jury verdict.
“Therefore, for the foregoing reasons, the parties ask this court to vacate the judgment and dismiss this case with prejudice,” the motion reads. It does not include details of the settlement.
A Harris County jury returned the massive verdict in favor of Cruz and his family in February 2022. Cruz was working as a member of the United Airlines ground crew in the fall of 2019 at George Bush Intercontinental Airport when he was hit by an Allied Aviation van.
He suffered serious injuries and is now paraplegic. He sued Allied and its driver, Reginald Willis, in November 2019. Harris County District Judge Ravi K. Sandill knocked $117.5 million off the award before entering final judgment.
The parties had, in January, asked the intermediate appellate court to abate the appeal while they worked to complete a mediated settlement agreement.
Allied Aviation is represented by Mark Trachtenberg, Nina Cortell, Kent Rutter and Ryan Philip Pitts of Haynes Boone and Brett Kutnick and Stuart B. Brown Jr. of Jackson Walker.
The Cruz family is represented by Randy Sorrels, Alexandria Farias-Sorrels and H. Victor Thomas of Sorrels Law, David Gunn and Erin Huber of Beck Redden and Harvey Brown of The Lanier Law Firm.
The case number is 01-22-00083-CV.
Texas Supreme Court
Obesity, Absent an Underlying Cause, Not a Disability Under Texas Law
In a 7-2 decision involving a case being followed by employers and disability rights groups, the Supreme Court rejected claims that Texas Tech University discriminated against a morbidly obese medical school resident.
Dr. Lindsey Niehay contends she was “regarded as” disabled because of her morbid obesity. Deposition testimony shows that her weight was discussed at a meeting attended by the acting director of the residency program and a Texas Tech assistant general counsel, who cautioned against using obesity as a reason to terminate Niehay from the program.
The university hospital says it dismissed Niehay from its emergency-medicine residency program based on issues concerning her professional conduct and performance, which she failed to improve under her probation plan. Some of the discussed conduct involved Niehay sweating and having difficulty breathing while attending to patients.
Chief Justice Nathan Hecht wrote the majority opinion finding that morbid obesity not caused by an underlaying physiological disorder or condition is not an impairment under the Texas Commission on Human Rights Act. The act makes it unlawful for an employer to discriminate against an impaired employee.
“The missing piece is any evidence or inference that Niehay’s coworkers regarded her obesity as being caused by health issues — a physiological disorder not apparent to an observer — rather than causing health issues, which was obvious,” Hecht said.
“But the accumulation of fat cells is a normal bodily process, so asserting that one is overweight is insufficient by itself to show a physiological disorder or condition. A person’s morbid obesity could be her body’s normal and natural response to the person’s lifestyle choices or eating habits,” Hecht said.
The majority said its decision is consistent with federal circuit courts that have addressed the issue. The Supreme Court reversed the Eighth Court of Appeals and dismissed Niehay’s case for lack of jurisdiction.
Dissenting Justices Jeff Boyd and Debra Lehrmann said nothing in the statute imposes a requirement on Niehay to show that her physical impairment was caused by an underlying physiological disorder or condition.
“The only questions before us today are whether Niehay presented some evidence that the University regarded her as having a ‘disability’ and dismissed her ‘because of’ that disability. Applying Chapter 21’s plain language in accordance with our well-established rules of statutory construction, I conclude she did,” said Boyd.
Niehay had pointed to the fact that the medical community considers obesity to be a medical disorder and said her weight affected several of her body systems.
A joint amicus brief from the AARP, American Diabetes Association and Disability Rights Texas supported Niehay. According to the entities, current medical consensus considers severe obesity to be a disease due to the adverse effects of excess fat tissue on multiple body systems. Niehay said the obesity affected her walking, running, climbing, breathing and muscle function and causes a rapid heartbeat.
Texas Tech University Health Sciences Center-El Paso had warned that the court of appeals ruling could unleash discrimination claims under state law against countless employers. BSNF Railway Company, in an amicus filing, sided with the university, saying it evaluates applicants’ body mass index in hiring for safety-sensitive work. The brief says it is important that state law be aligned with federal circuit court rulings that held obesity can only qualify as an impairment under the Americans with Disabilities Act if it is the result of an underlying medical condition.
Justice Jimmy Blackstock wrote a concurrence, joined by Justices John Devine and Evan Young. Blackstock said the medical community’s current understanding of morbid obesity is not a basis for interpreting language enacted in 1993. He also emphasized that court interpretations of federal law are not binding on Texas courts interpreting the TCHRA.
Deputy Solicitor General Ari Cuenin argued the case for Texas Tech. Dorian Vandenberg-Rodes of Shellist Lazarz Slobin presented arguments for Niehay.
The case is No 22-0179.
Texas Supreme Court
UT Wins Attorney-Client Privilege Fight Over Investigation Documents
Friday morning, the justices issued a 6-2 ruling holding that the attorney-client privilege shields from public disclosure documents related to the University of Texas’ investigation into allegations of improper admissions practices.
The ruling was a blow for the Franklin Center for Government and Public Integrity, a self-described conservative nonprofit news organization, which had filed a Public Information Act request seeking documents that were obtained by Kroll Associates during its investigation into questions raised by Board of Regents member Wallace Hall about possible undue influence on the student admissions process at UT Austin.
Travis County District Judge Timothy M. Sulak had sided with UT, agreeing the documents were protected by attorney-client privilege because Kroll acted as a “lawyer’s representative.” The Third Court of Appeals reversed, finding UT failed to show Kroll was employed by the university system’s general counsel to assist in providing legal services.
The Texas Supreme Court majority agreed with Judge Sulak, holding that assisting in the rendition of professional legal services was “a significant purpose for which” Kroll was hired.
Justice John Devine authored a dissent, joined by Justice Jeff Boyd, writing that while he agrees with the standard articulated by the majority, he would not hold that the evidence here supports the argument that assisting UT’s lawyers “was a significant purpose of the engagement.”
Justice Jimmy Blacklock did not participate in the decision.
UT is represented by Lanora C. Pettit of the office of the attorney general.
The Franklin Center is represented by Joseph R. Larsen of Gregor Wynne Arney.
The case number is 21-0534.
U.S. Court of Appeals for the Fifth Circuit
Rehearing En Banc Ordered in Austin ISD ‘Bullying’ Case
On June 27, the court issued an order that it would be rehearing en banc a Title VI retaliation lawsuit brought by a high school student who alleges he was subject to race-based harassment after expressing conservative political opinions.
A three-judge panel had, in January, affirmed the district court’s dismissal of “B.W.’s” lawsuit against Austin Independent School District. The panel that decided the case then included judges Carolyn Dineen King, Carl E. Stewart and Catharina Haynes.
B.W., who is white, alleged the district knew he was being harassed because of his race and “race-based stereotypes” but failed to keep him safe from bullying and a hostile environment. He alleged he was “ostracized” for being a supporter of Donald Trump and was “harassed” for being racist, anti-feminist and anti-gay, despite the fact that he “does not espouse these views.”
The original Fifth Circuit panel held that while the bullying alleged in this case “is a cause for concern,” Title VI “does not support a claim for bullying generally.”
“A plaintiff like B.W. must allege that he was harassed because of his race, color, or national origin. B.W. has failed to do so,” the court wrote.
Judge Haynes concurred in the judgment only.
B.W. is represented by Martin J. Cirkiel of Round Rock.
Austin ISD is represented by Christopher Blewer Gilbert and Stephanie Anne Hamm of Thompson & Horton.
The case number is 22-50158.
Editor’s note: Janet Elliott contributed to this report.