In this edition of Litigation Roundup, the Texas Supreme Court undoes a jury’s $26 million damages award in a fight involving a contract to deliver fracking water in North Dakota and Texas’ attorney general claims victory in a short-lived Oklahoma border dispute.
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know at tlblitigation@texaslawbook.net.
Travis County District Court
Dow, Braskem Hire Defense Counsel in Texas’ Environmental Suit
Dow Hydrocarbons and Resources, its subsidiary Union Carbide Corporation and Braskem America, have hired lawyers and filed answers in response to a lawsuit the state of Texas filed a month ago accusing the defendants of habitual water pollution violations.
Texas filed suit Feb. 13, accusing the defendants of discharging plastic pellets into the water adjacent from a manufacturing plant in Seadrift, Texas. Braskem filed its answer denying the allegations Monday, Dow filed its answer March 6.
The case has been assigned to Travis County District Judge Amy Clark Meachum.
Texas is represented by Haley Marlow, Brittany Wright and Jennifer A. Jamison of the attorney general’s office.
Union Carbide and Dow are represented by J. Amber Ahmed, Michael F. Vitris, Harold L. Segall and Andrew C. Silton of Beveridge & Diamond.
Braskem is represented by Frederick T. Johnson, Andrew Brought and Kelsey Parker of Spencer Fane.
The case number is D-1-GN-26-000989.
Bryan County District Court, Oklahoma
AG Paxton Claims Victory in Oklahoma Border Dispute
Monday morning Attorney General Ken Paxton issued a news release touting what he said is a victory keeping the border between Texas and Oklahoma intact.
Oklahoma resident Craig Hilliard had filed a lawsuit in state district court in August, arguing he was entitled to part of Texas’ Red River property because the border had shifted. The defendants, several Texas landowners and the state of Texas, filed a motion to dismiss Oct. 10, arguing Oklahoma courts had no jurisdiction to hear the dispute.
Texas also argued that Hilliard was improperly relying on a 1923 U.S. Supreme Court opinion that defined the border between the two states as the lower bank of the Red River, when the border is properly defined in accordance with the 1999 Red River Boundary Company that was approved by Congress 26 years ago.
District Judge Mark R. Campbell, who conducted a hearing on Texas’ motion to dismiss the lawsuit Feb. 17, signed the dismissal order March 8.
“The court has no jurisdiction over the state of Texas, or any of its entities,” Judge Campbell wrote. “Accordingly, the motion to dismiss filed by the state of Texas should be, and is hereby, granted.”
Paxton vowed to continue zealously defending Texas’ land rights in a statement.
“The Red River Rivalry may be famous on the football field, but I won’t allow that term to extend to Oklahoma property owners unlawfully seizing Texas land in the courtroom,” the statement reads.
The plaintiff is represented by Elizabeth Nichols.
The defendants are represented by Meagon Eagon, Sejin Brooks, Christopher Lynn and Ryan Sheets.
The case number is CV-25-81.
Southern District of Texas
ERCOT Gets Final, Take-Nothing Judgment in Uri Case
U.S. Bankruptcy Judge Marvin Isgur sided with the Electric Reliability Council of Texas recently in an adversary proceeding brought by the trustee of the Entrust Energy Liquidating Trust in litigation over 2021’s Winter Storm Uri.
Entrust filed for Chapter 11 bankruptcy protection in the days after Uri hit. The trustee, Anna Phillips, filed this adversary proceeding in February 2022, seeking $296 million in damages and alleging ERCOT’s actions transferring 90,000 of its Texas customers to a so-called provider of last resort, or POLR as it is referred to in court documents, constituted a taking for which it is entitled to be compensated.
Judge Isgur rejected the takings claim in a December ruling, leaving only Entrust’s claim that ERCOT was grossly negligent in preparing for the storm and via actions it took during and after the storm affecting the price of power.
ERCOT argued it is immune from liability and that it is therefore entitled to summary judgment.
In an order issued March 11, Judge Isgur found Entrust should take nothing in the case and that ERCOT is entitled to “all costs incurred in connection with this adversary proceeding.”
“The Trustee’s position confuses the concepts of constitutional sovereign immunity from suit in federal court with state-law immunity from liability under Texas law. … The decision in this case turns upon ERCOT’s immunity from liability under Texas law — not whether ERCOT has sovereign immunity from suit under the Constitution,” Judge Isgur wrote.
Judge Isgur explained that while Texas lawmakers have created a limited waiver of sovereign immunity, these claims against ERCOT do not fall within the confines of that.
“Thus, because ERCOT is immune from liability on the trustee’s gross negligence claim under Texas law, the trustee’s claim fails as a matter of law,” Judge Isgur wrote. “The Court notes that this case presented complex issues of state-law immunities and it commends counsel from both the Trustee and ERCOT for their efforts.”
ERCOT is represented by Jamil N. Alibhai and Kevin M. Lippman of Munsch Hardt Kopf & Harr.
Entrust is represented by Charles R. Gibbs, Debbie E. Green and Darren Azman of McDermott Will & Schulte.
The case number is 22-03018.
Texas Supreme Court
Justices Settle $26M Fight Over Fracking Water Contract
The state’s high court on Friday issued an opinion unanimously siding with Equinor Energy LP, finding it had not breached a $26 million contract with water supplier Lindale Pipeline by purchasing fracking water from other sources.
Justice James P. Sullivan authored the 10-page opinion finding that a jury should have never been enlisted to answer the question of law based on the interpretation of an unambiguous contract. A trial judge had found the contract was ambiguous, allowed a jury to interpret it and entered final judgment on the jury’s $26 million in lost profits damages verdict in favor of Lindale.
“That dispositive error makes it unnecessary to consider damages,” he wrote. “We reverse the judgment of the court of appeals and render judgment for Equinor.”
A Harris County trial judge had entered judgment in favor of Lindale in November 2021, and the First Court of Appeals in Houston affirmed that judgment in November 2023. Equinor turned to the Texas Supreme Court in June 2024.
According to court documents, the parties entered the fracking water delivery contract in 2011 under which Lindale was to be “the sole and exclusive water provider and pumper on the pipeline” that brought the water to the fracking site.
As Justice Sullivan explains in the opinion, technology marched on after the inking of that deal, and lay-flat hoses became a preferred, and cheaper, way to deliver fracking water to well sites. So Equinor began purchasing water from other suppliers that utilized the lay-flat hoses.
Justice Sullivan said the court has “no business rescuing parties from contracts that turned out to be bad deals in the name of utilitarianism or equity.”
“Our job is to read the words chosen by the contracting parties,” the opinion reads. “Perhaps Lindale understood the contract to make it the exclusive provider of water to the wells, not just of water on the pipeline. But the contract didn’t say that.”
Equinor Energy is represented by Joshua S. Smith, John S. Adcock, Fields Alexander, Jacqueline M. Furlow and Joel T. Towner of Beck Redden.
Lindale Pipeline is represented by Natasha Breaux and Lynne Liberato of Haynes Boone and David E. Keltner of Kelly Hart & Hallman.
The case number is 24-0425.
In Justice Hawkins’ First Signed Opinion, ‘Recreation’ Defined
Justice Kyle D. Hawkins, who was appointed to the court in October, issued his first signed opinion Friday in a personal injury case involving the city of San Antonio’s Thanksgiving turkey trot fun run.
“Is a holiday-themed community footrace ‘recreation’? We hold that it is, and we reverse the contrary decision below,” Justice Hawkins wrote.
According to court documents, Nadine Realme participated in the 5K race in 2017, and as she was attempting to pass some slower runners, tripped over a metal pole fragment and fell into a utility pole, breaking her arm.
She filed this lawsuit alleging negligence and gross negligence. The city argued it was immune from the suit under the Recreational Use Statute, which protects municipalities from negligence claims brought by individuals who use city property for recreation.
In a 23-page opinion that took readers through the history of both Thanksgiving Day fun runs and the adoption of state Recreational Use Statutes, Justice Hawkins explained that “lower courts have struggled not only to decide what activities count” as recreational use “but also how to analyze that question.”
The statute contains a nonexhaustive list of examples of recreational activities covered under the law.
“A community fun run is plainly a recreational activity. Its devotees participate for enjoyment, frivolity, and amusement,” Justice Hawkins wrote. “They seek diversion in an activity performed for its own sake to bring communities together in celebration.”
The court, finding the city is immunized against Realme’s negligence claim under the Recreational Use Statute, sent the case back to the Fourth Court of Appeals to determine the fate of her gross negligence claim.
The state of Texas, the Texas Association of Counties and the Texas Conference of Urban Counties filed amicus briefs in support of the city of San Antonio.
San Antonio is represented by Andrew Segovia and Judith D. Sanchez of the city attorney’s office and by Jacqueline M. Stroh.
Realme is represented by Abel Trevino of the Law Office of Thomas J. Henry.
The case number is 24-0864.
U.S. Court of Appeals for the Fifth Circuit
SMU Can Keep $184K Attorney Fee Award in Title IX Rowing Case
A three-judge panel unanimously sided with Southern Methodist University Monday and affirmed a trial court’s decision to award it about $184,000 in fees as the prevailing party in a Title IX lawsuit brought by former members of its women’s rowing team.
According to the opinion, a group of female former student athletes who suffered serious hip injuries between 2012 and 2015 filed a lawsuit against the university, alleging they were victims of substandard coaching, training and medical treatment, in violation of Title IX, and that caused their injuries.
A district court found, and the Fifth Circuit previously affirmed, that the claims of eight of the nine athletes were brought too late, outside the two-year statute of limitations.
Senior U.S. District Judge David C. Godbey entered judgment in favor of SMU, awarding the school’s attorneys legal costs as the prevailing party, triggering the plaintiffs’ notice of appeal in September 2024.
On appeal, the group of eight alleged that because the claims of one of the former student athletes are proceeding to trial, SMU “would have incurred significant discovery costs regardless of whether there was one plaintiff or nine, given the factual and legal overlap between all plaintiffs’ claims,” according to the opinion.
On Monday, the Fifth Circuit again sided with the university, determining it is entitled to keep the award of fees and costs, noting the plaintiffs “do not cite caselaw or other authority in support of this argument.”
“Under binding precedent, SMU is a prevailing party entitled to costs at this stage,” the opinion reads. “… The fact that SMU prevailed on summary judgment with prejudice as to eight of the nine Plaintiffs plainly carries ‘judicial imprimatur’ and certainly altered the legal relationship between the parties.”
Judges Stephen A. Higginson, Carolyn Dineen King and Cory T. Wilson sat on the panel.
SMU is represented by Aaron S. Nava, Robin Shaughnessy, Jennifer McCoy and W. Scott Hastings of Troutman Pepper Locke and Kimberly F. Williams of O’Melveny & Myers.
The plaintiffs are represented by Sheila P. Haddock and Hunter Haddock of Zalkin Law.
The case number is 24-10860.
Craving more Texas Lawbook litigation coverage? Don’t worry, we’ve got you covered. Take a look at these stories you may have missed in the past few days.
The Lawbook took a close look at the universe of litigation involving Gateway Church, its founder and former pastor, its congregants and its insurance company. Robert Morris is set to be released from jail in a matter of days after serving a sentence in Osage County, Oklahoma, for the sexual abuse of a 12-year-old girl more than 40 years ago, when he was a 22-year-old traveling pastor.
A San Patricio County jury awarded a woman $198 million in damages stemming from the sexual assault and attempted murder she experienced over a decade ago. The jury deliberated for two hours after the three-day trial before reaching its verdict that included $100 million in exemplary damages.
The youngest child of Al Hill III has questions, and she’s filed a lawsuit in Dallas County probate court seeking answers. Caroline M. Hill, a 21-year-old student at Vanderbilt University, is seeking access to the books and records for the Lyda Hunt-Margaret Trust. Her lawsuit alleges she is a contingent beneficiary of the trust, which should contain at least $15 million but has instead been “looted” and “dissolved.”
Walmart Inc., the largest corporate employer in the U.S., has named former Dallas prosecutor Erin Nealy Cox as its new chief legal officer. Cox, who has been a partner at Kirkland & Ellis in Dallas since 2021, will assume the job as the retail giant’s top lawyer April 13.
A fatal crash lawsuit that was seeking more than $46 million in damages ended with a defense win in Houston last week. In the lawsuit brought by the family of Angelica Guevara, who ran into the roadway to pick up tools that had fallen off a tow truck before being struck by Baldomero Monesdeoca, the jury deliberated for three hours following an eight-day trial that was spread over two weeks.
In the latest edition of Asked & Answered, Quinn Emanuel Urquhart & Sullivan partner Chris Porter discusses what he loves about being a trial lawyer, his early dreams of being a restaurateur and how the door closing on his football career opened other opportunities.
A federal jury in Houston that heard eight days of testimony deliberated for about two hours before determining Impulse Downhole Tools USA was entitled to $47.6 million in damages from a competitor that infringed three patents.
Last Monday in Spokane, Washington, Dallas-based Dean Omar Branham Shirley opened its latest mesothelioma trial against Johnson & Johnson. Reporter Alexa Shrake was in the courtroom to capture the details.
After a decade of litigation and appeals, a Susman Godfrey team secured a $175 million jury verdict recently on behalf of technology company HouseCanary against Amrock after a San Antonio jury found that Amrock misappropriated HouseCanary’s valuable trade secrets and defrauded the company through false promises.
A jury in the Third Division of the new Texas Business Court in Austin late Tuesday returned a verdict of at least $50 million in favor of ES3 Minerals, and in support of its claim that several former employees conspired to steal proprietary information and software to start their own competing businesses.
Lyft was found by a jury in the Western District of Texas to have infringed a patent, but its lawyers at Baker Botts are hailing that result and the $1 million damages award as a victory in the case where the plaintiffs were seeking as much as $200 million.