In the first edition of Litigation Roundup in 2023, the City of Dallas has to pay up in a real estate dispute, Exxon Mobil sets its sights on undoing a “windfall tax” the European Union has imposed on energy companies and the Fifth Circuit revives an excessive force case against a cop who punched a man at Hobby Airport.
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Dallas County Court-at-Law
City Pinged With $850K Damages in Real Estate Dispute
Two days before Christmas, Dallas County Court-at-Law No. 5 Judge Juan Renteria entered final judgment in favor of real estate developer 6101 Mockingbird LLC in a long-running dispute over a strip of land along Mockingbird Lane in Dallas.
The court awarded $327,603 in actual damages, $328,617 in attorney fees and about $25,000 to cover the fees of expert witnesses. The award also included prejudgment interest of 7 percent beginning Dec. 2, 2015.
Litigation began in 2015, after Dallas demanded a 10-foot strip of land as a condition of approving the developer’s request to redevelop two adjoining lots. The developer filed suit, alleging the city’s demand constituted a taking and required compensation under the law.
A trial court rejected the city’s bid to have the suit dismissed, and in July 2019 the Fifth Court of Appeals in Dallas issued a ruling allowing the lawsuit to proceed.
6101 Mockingbird is represented by Brad Jackson, Cheryl Mann and Patrick Fang of The Law Offices of Brad Jackson.
Dallas is represented by the city attorney’s office.
The case number is CC-15-06071.
Northern District of Texas
Planned Parenthood Moves to Toss $1.7B Medicaid Fraud Suit
Planned Parenthood and three Texas affiliates asked U.S. District Judge Matthew J. Kacsmaryk to grant summary judgment and dismiss claims brought by “Alex Doe” on behalf of the federal government accusing the nonprofit of defrauding Medicaid via reimbursements for birth control and other health care services.
“Plaintiffs’ reverse-false-claims theory is that defendants improperly failed to repay government funds they had received from Medicaid,” Planned Parenthood argued in the Jan. 6 motion. “But the undisputed facts show that PPFA is not a health care provider, does not participate in Medicaid, never received Medicaid payments, and thus never had any obligation to pay or repay the government.”
The lawsuit was filed in February 2021 and Texas intervened in the suit in January 2022, according to court records. Texas alleges that between February 2017 and March 2021, Planned Parenthood received about $10 million in payments for Medicaid services from the state.
Planned Parenthood is represented by Danny S. Ashby, Amanda Santella, Craig Bloom, Justin Chapa, Megan R. Whisler, Ross Galin and Leah Godesky of O’Melveny & Myers and Ryan Brown of Amarillo.
Doe is represented by Andrew Bowman Stephens and Heather Gebelin Hacker of Hacker Stephens.
The case number is 2:21-cv-00022.
Court of Justice of the European Union
Exxon Mobil Challenges EU’s ‘Windfall Tax’
Texas-based Exxon Mobil has filed a lawsuit against the European Union in a challenge to a so-called windfall tax on oil companies.
The tax was imposed by the EU on energy companies in a bid to reign in the profits those companies have reaped in the wake of Russia’s invasion of Ukraine. The temporary tax was approved in September, and Exxon Mobil alleges in the Dec. 28 lawsuit that the EU doesn’t have legal authority to impose it.
Casey Norton, a spokesman for Exxon Mobil, told The Lawbook thata copy of the lawsuit wouldn’t be provided to the media until the EU court makes the filing public. It was not clear Monday when that would happen.
“Our challenge is targeted only at the counter-productive windfall profits tax, and not any other elements of the package to reduce energy prices,” Norton said of the lawsuit. “This tax will undermine investor confidence, discourage investment and increase reliance on imported energy and fuel products.”
A case number and counsel information were not available Monday.
Texas Supreme Court
‘Special Mission’ Exception Misapplied in Fatal Crash Suit
In a lawsuit over a fatal crash that occurred when oilfield worker John Mueller was on his way to the drilling site after completing a personal errand, the Texas Supreme Court recently held that Cameron International will not have to face the claims brought by the victims.
A trial court granted summary judgment to Cameron International, but the Eighth Court of Appeals reversed by applying the “special mission exception.” The court held that there was at least some evidence that should preclude summary judgment that when Mueller stopped to buy food, drinks and gas during the trip, that constituted a “necessary service in furtherance of Cameron’s business.”
In a per curiam opinion issued Dec. 30, the court reinstated summary judgment for Cameron and held the lower appellate court “incorrectly relied upon the ‘special mission’ exception in declining to apply the general rule that an employer is not vicariously liable for negligence arising from employee travel to and from work.”
Cameron International is represented by Harper Estes of Lynch Chappell & Alsup and Lucas T. Elliot, Thomas F. Allen Jr. and Ben A. West of Frost Brown Todd.
The respondents are represented by the law firms Scherr Legate, Durham Pittard & Spalding, The Leon Law Firm, Weinacht Law Firm, Mandell Law Firm, Hernandez Law Firm and Stogner Law Firm.
The case number is 21-0614.
US Court of Appeals for the Fifth Circuit
Cop Who Told Man He Would ‘Whip Your Bitch Ass’ Can’t Escape Excessive Force Suit
A three-judge panel determined in a Dec. 21 unanimous ruling that the excessive force claims against traffic officer Rickey DeWayne Simpson — who told a man at Hobby Airport he needed to move his car or he would “whip [his] bitch ass” before punching him in the face — must be revived.
The panel agreed with U.S. District Judge Lee Rosenthal that William Vardeman, who was punched by Simpson and knocked to the ground while at the airport in the pickup line to meet his family, could not pursue his claims against the City of Houston.
Judge Rosenthal had granted summary judgment dismissing Vardeman’s suit in its entirety in January 2022, holding that while Simpson had used enough force to knock Vardeman to the ground, all other facts show that Simpson “wanted Vardeman to move along, not to remain.”
“The alleged facts support an inference that Simpson intentionally applied force, but they do not support a reasonable inference that Simpson intended to stop Vardeman from leaving,” Judge Rosenthal wrote. “Simpson did not ‘seize’ Vardeman, meaning that Vardeman has not stated a Fourth Amendment excessive force claim.”
The Fifth Circuit panel disagreed.
“The allegations that Simpson punched Vardeman in the face so hard that he fell to the ground, and then Simpson hovered over him for a time in a menacing manner, would, if supported by evidence, allow jurors to find that for some period of time at least, a reasonable person would not believe he was free to leave,” the panel wrote.
Judges Leslie H. Southwick, Patrick E. Higginbotham and Stephen A. Higginson sat on the panel.
Vardeman is represented by Randall Lee Kallinen and Alexander Charles Johnson of Kallinen Law.
Houston and Simpson are represented by Robert Higgason and William Hughes of the city’s legal department.
The case number is 22-20109.
Enviro Group Loses Appeal in CWA Challenge to Pipeline Project
Environmental groups that were challenging a Clean Water Act permit issued by the U.S. Army Corps of Engineers authorizing the development of a natural gas pipeline and export facility in South Texas were dealt a blow Jan. 5 when an appellate court gave it the OK.
“Because the Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts, the petition for review is denied,” the panel wrote.
Shrimpers and Fisherman of the Rio Grande Valley, Sierra Club and Save RGV from LNG filed a petition for review with the Fifth Circuit in November 2021, according to court records, arguing the Corps had run afoul of the CWA in two ways: by finding the approved project was the “least environmentally damaging practicable alternative” and also by concluding the impact to wetlands the construction would cause didn’t necessitate compensatory mitigation.
Judges Carolyn Dineen King, Stuart Kyle Duncan and Kurt D. Engelhardt sat on the panel.
The environmental groups are represented by Hannah Elizabeth Samson of Texas RioGrande Legal Aid and Thomas Gosselin and Nathan Matthews of the Sierra Club.
The Corps is represented by Rebecca Jaffe of the Department of Justice and David R. Cooper of the USACE.
The case number is 21-60889.