In this edition of Litigation Roundup, an intermediate appellate court split widens regarding gross negligence claims, sanctions requested by Gibson, Dunn & Crutcher in a fight over unpaid attorney fees are upheld on appeal, and a federal judge undoes one Texas county’s book bans.
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Western District of Texas
Llano Co. Loses Battle Over Book Bans
U.S. District Judge Robert Pitman on Thursday sided with a group of plaintiffs challenging Llano County officials who were removing books from the library system, and ordered that any books removed based on “viewpoint or content” be returned and made available.
Counsel for the library patron plaintiffs, Ellen Leonida of BraunHagey & Borden, issued a statement calling the ruling “a ringing victory for democracy.”
“The government cannot tell citizens what they can or can’t read,” she said. “Our nation was founded on the free exchange of ideas, and banning books you disagree with is a direct attack on our most basic liberties.”
In granting the plaintiffs’ motion for a preliminary injunction, Judge Pitman also denied a bid from the county to dismiss the suit, rejecting arguments that because the patrons hadn’t alleged “concrete plans” to access the books, they didn’t allege a cognizable injury and had no standing.
“As to the First Amendment claims, the court finds plaintiffs have sufficiently alleged that defendants’ actions do not constitute government speech and that defendants unlawfully removed books based on their viewpoint,” he wrote. “As to the due process claims, the court identifies a liberty interest in access to information protected by the due process clause of the Fourteenth Amendment.
The plaintiffs are also represented by Ellis E. Herington, Max Bernstein, Pratik Ghosh, Matthew Borden and J. Noah Hagey of BraunHagey & Borden, Kayna Levy, Ryan A. Botkin, Katherina Chiarello and Maria Calaf of Wittliff Cutter.
Llano County is represented by Dwain K. Rogers Jr. and Matthew L. Rienstra of the county attorney’s office and Jonathan F. Mitchell of Mitchell Law.
The case number is 1:22-cv-00424.
Second Court of Appeals
COA Split on Gross Negligence Claim Viability Widens
A fight over whether a claim for gross negligence can proceed when a claim for negligence has been waived via a signed release could be headed to the Texas Supreme Court after a recent ruling widened an intermediate appellate court split on the issue.
The panel’s March 23 unanimous opinion determined that Sheri Hill should have her claim for gross negligence against L.A. Fitness revived. When Hill joined the gym, according to the opinion, she signed a release waiving her right to sue for premises liability, which subsumed claims for negligence.
She sued the gym in 2019 after slipping on water pooled on the floor of the locker room, bringing claims for premises liability, negligence and gross negligence. The trial court granted L.A. Fitness summary judgment, citing the release.
The appellate panel determined it would “join the majority of our sister courts that have addressed the issue of whether a gross-negligence claim can survive a negligence claim’s release to hold that on this record, Hill’s claim has done so.”
The First Court of Appeals in Houston and the Fourth Court of Appeals in San Antonio have both determined that the absence of a viable negligence claim “removes any justification for imposing actual damages, defeating the gross-negligence claim.”
But the Fourteenth Court of Appeals in Houston, the Tenth Court of Appeals in Waco, the Ninth Court of Appeals in Beaumont and the Fifth Court of Appeals in Dallas have held the opposite.
Chief Justice Bonnie Sudderth and Justices Elizabeth Kerr and Dabney Bassel sat on the panel.
Hill is represented by Sofia E. Bruera of the Bruera Law Firm.
LA Fitness is represented by Jeffrey D. Smith and Richard A. Harwell of Fletcher Farley Shipman & Salinas.
The case number is 02-22-00142-CV.
Third Court of Appeals
Sanctions Imposed at Gibson Dunn’s Request Survive Appeal
Travis County District Judge Jan Soifer did not abuse her discretion by slapping World Class Capital Group and its attorney, Manfred Sternberg, with discovery sanctions that were incrementally increased before reaching $5,000 a day, an appellate court panel recently held.
The March 30 opinion was issued in a case that Gibson, Dunn & Crutcher brought against World Class after it failed to pay the law firm $1 million in legal fees. The sanctions were ordered after World Class repeatedly flouted discovery orders aimed at determining whether the Austin-based real estate firm could pay its bill.
World Class’ owner, Nate Paul, is the campaign donor Attorney General Ken Paxton is accused of abusing the power of his office to benefit in a whistleblower lawsuit brought by former top aides. Paul and World class have also been the subject of many lawsuits and legal actions in recent years, including a flurry of civil lawsuits, an FBI raid and auctions of World Class property at foreclosure sales in Travis County.
“The trial court here reasonably began by ordering the requested discovery and imposing a sanction of attorneys’ fees related to the motion to compel before progressing to the more severe sanctions of the $10,000 penalties for the egregious violations of the court’s order and the per-day sanctions to compel compliance with the order,” the panel held. “We hold that this progression from lesser sanctions to more severe sanctions” is supported by caselaw.
Justices Gisela D. Triana, Thomas J. Baker and Rosa Lopez Theofanis sat on the panel.
World Class and Sternberg are represented by Brent C. Perry and Erica E.M. Fauser of Burford Perry.
Gibson Dunn is represented by its own Mitchell A. Karlan and Collin D. Ray.
The case number is 03-21-00360-CV.
Texas Supreme Court
Injured Ex-Dallas Cowboy Wins Appeal in Venue Spat
An offensive lineman who was residing in a Dallas hotel room who was terminated by the Dallas Cowboys after suffering an out-of-state injury established that Dallas County was the proper venue for his lawsuit, the state’s high court recently held, rejecting arguments from Great Divide Insurance Company that Travis County is where the dispute belonged.
In a unanimous opinion issued Friday, the court held “there is no categorical prohibition against a hotel serving as one’s residence.”
Alcus Reshod Fortenberry signed a three-year contract with the Cowboys in May 2015 and stayed in a Dallas County hotel room provided by the team.
In August 2015, while with the team in California, Fortenberry injured his knee and was subsequently terminated from his contract.
He filed for workers’ compensation benefits and when the claim and subsequent appeals were denied, he filed this underlying lawsuit in Dallas County.
Great Divide, the Cowboys’ insurer, argued Fortenberry wasn’t a resident of any city in Texas when his injury occurred and tried to move the suit to Travis County. The trial court let the suit proceed in Dallas County and a jury sided with Fortenberry.
On appeal, the Fifth Court of Appeals sided with Great Divide in July 2021. The Texas Supreme Court wrote that conclusion was based on a too-rigid reading of caselaw.
“The evidence adduced at trial shows he trained in Dallas County in the three months beforehand, and that he intended to perform his NFL player contract there for another two-and-a-half years,” the court held. “And Great Divide stipulated that Fortenberry resided within 75 miles of the Division of Workers’ Compensation’s Dallas Field Office at the time of his injury. The court of appeals should have credited this evidence supporting venue in Dallas County.”
Fortenberry is represented by John E. Collins of Dallas.
Great Divide is represented by David Brenner and James E. Brenner of Burns Anderson Jury & Brenner.
The case number is 21-1047.
U.S. Supreme Court
Dallas-based Gibson Dunn Team Files Amicus in First Amendment Stalking Case
On Friday, attorneys representing a musician who was the target of a stalking campaign urged the U.S. Supreme Court not to overturn the conviction of Billy Raymond Counterman on First Amendment grounds.
The high court is scheduled to hear oral arguments in the case, Counterman v. Colorado, April 19. On appeal, Counterman is arguing the thousands of threatening messages he sent Coles Whalen are protected speech under the First Amendment.
Counterman — who began sending threatening messages to Whalen in 2014 while he was on supervised release after pleading guilty to two other counts of threatening other women — was arrested in May 2016, convicted by a jury and sentenced to four-and-a-half years in prison.
“Nothing can turn back time to 2014, with the buzz and momentum of an artist on the cusp of making it big. And nothing can restore Coles to the person she used to be. But this Court can affirm that nothing in the First Amendment requires Counterman’s threatening messages to take precedence over Coles’ physical safety — and that nothing about the rigorous, objective standard applied in this case to convict Counterman poses any danger to free speech,” the amicus argued. “If anything, Counterman’s campaign of terror silenced Coles’ own voice as an artist, a musician, and a songwriter for far too long.”
According to court briefs, Whalen stopped performing live shows and touring after Counterman’s threatening messages intensified.
Whalen is represented by Allyson N. Ho, Bradley G. Hubbard, Paulette Miniter, Matthew Scorcio and Jameil D. Brown of Gibson Dunn and Paul Cassell of the S.J. Quinney College of Law at the University of Utah.
Counterman is represented by John Patrick Elwood of Arnold & Porter Kaye Scholer.
The case number is 22-138.