In this edition of Litigation Roundup, a group of state attorneys general rally behind Texas’ first assistant AG in a disciplinary suit brought by the state bar, AT&T goes with Gibson Dunn in its U.S. Supreme Court appeal over an employee class action alleging violations of the Employee Retirement Income Security Act, and the city of Dallas faces trial in a civil property rights dispute.
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Dallas County District Court
Dallas Can’t Duck Trial in Property Rights Dispute
A lawsuit filed by Steven H. Block and Patrice Block against the city of Dallas in July 2020 is nearing trial, after Dallas County District Judge Gena Slaughter recently rejected the city’s bid to end the suit on immunity grounds.
The Blocks filed suit alleging they received permits in 2015 to construct improvements, namely fencing, on the 1.43-acre North Dallas plot where they live. The Blocks were sued by neighbors who wanted to tear down the improvements, but the couple beat back the attempts after an eight-day jury trial in 2017.
The city, however, allegedly entered the Blocks’ property and tore down the fencing and began work on a storm drainage improvement project.
The Blocks have contended the city is building the public project on private property. The city maintains it owns a floodway easement that allows for the project. The Blocks obtained a temporary injunction halting the project and are seeking damages in excess of a million dollars.
Judge Slaughter’s March 28 ruling clears the path for the case to go to trial in May.
Block is represented by Kartik R. Singapura and Joshua D. Fuller of Bell Nunnally & Martin.
Dallas is represented by Andrew G. Spaniol and Stacy Rodriguez of the city attorney’s office.
The case number is DC-20-10239.
Third Court of Appeals, Austin
PUCT Wants Rules Challenge Abated
The Public Utility Commission of Texas on Friday asked an appellate court to hit pause on a challenge brought by Aspire Power Ventures until after the Texas Supreme Court issues its ruling in a related, pending case.
Energy trading company Aspire filed suit in February, accusing the PUCT of promulgating orders that created and modified a program intended to provide reserve power in emergency situations without first allowing for public comment, in violation of the Texas Administrative Procedure Act.
“The Commission requests that the court abate this case until sixty days after the Supreme Court decides RWE Renewables,” PUCT requested in the motion. “If the Supreme Court determines in RWE Renewables that the Commission’s protocol-approval orders are not ‘competition rules’ under Tex. Util. Code § 39.001(e), and thus not subject to direct appeal in this Court, this case should be dismissed.”
RWE alleges in that suit that PUCT ran afoul of the APA in July 2021 when it approved an Electric Reliability Council of Texas protocol called the Nodal Protocol Revision Request 1081. NPRR 1081 requires setting electricity prices at the $9,000/MWh maximum anytime an inadequate electricity supply cuts off consumers from power in an emergency. It was enacted after PUC directed ERCOT during 2021’s Winter Storm Uri to temporarily set electricity prices at the statutory maximum of $9,000/MWh.
The Texas Supreme Court heard oral arguments in that case in March, and it’s expected the court will issue a ruling before the end of its term in late June.
Aspire is represented by Chrysta Castañeda and Nicole Michael of The Castañeda Firm and Monica Latin of Carrington, Coleman, Sloman & Blumenthal.
PUCT is represented by John R. Hulme and Kellie E. Billings-Ray of the office of the attorney general.
The case number is 3-24-00102-CV.
Fifth Court of Appeals, Dallas
Greystar Must Post More Bond in Appeal of Crane Collapse Verdict
Three defendants who wish to appeal a nine-figure judgment stemming from a fatal crane collapse must each post a $25 million bond first, a three-justice panel in Dallas recently decided.
In a ruling issued April 10, the panel rejected arguments from Greystar Development & Construction; Greystar Development & Construction, LP–Gabriella Tower Contractor Series; and Gabriella Tower that their joint posting of a $25 million supersedeas bond was sufficient.
The ruling affirmed Dallas County Court at Law No. 2 Judge Melissa Jean Bellan’s Feb. 13 ruling in favor of the parents of Kiersten Smith — Michele Williams and James Kirkwood. Smith was killed in 2019 when a 200-foot steel crane toppled onto her Dallas apartment building from an adjacent construction site.
The jury returned an $860 million verdict in favor of the family in April 2023 and the Greystar entities appealed seeking a new trial in November. That motion for a new trial remains pending.
“At the heart of judgment debtors’ motion is their contention that the $25 million cap in § 52.006 of the Texas Civil Practice and Remedies Code applies per judgment,” the panel wrote. “Because we conclude that the statutory cap applies per judgment debtor, not per judgment, and for the other reasons set forth below, we deny the motion and affirm the trial court’s bond ruling.”
The Greystar entities are jointly and severally liable for actual damages of $360 million and prejudgment interest of nearly $45 million.
Justice Ken Molberg, Cory Carlyle and Maricela Moore Breedlove sat on the panel.
Greystar is represented by Jeff Tillotson, Anne Johnson, Jonathan Patton, Nathaniel Buchheit and Stephani Michel of Tillotson Johnson and Patton, Nina Cortell, Ben L. Mesches and Ryan Paulsen of Haynes Boone and Scott Brister of Hunton Andrews Kurth.
The parents are represented by Andrew R. Gould, Jason A. Itkin and Cory D. Itkin of Arnold & Itkin, Jeffrey S. Levinger of Levinger PC and Michael P. Lyons, Christopher J. Simmons and P. Wes Black of Lyons & Simmons.
The case number is 05-23-01168-CV.
Texas Supreme Court
18 State AGs Back Paxton in Attorney Disciplinary Case
More than a dozen state attorneys general filed an amicus brief with the Texas Supreme Court on Friday in defense of Brent Webster, Texas’ first assistant attorney general, urging the court to end a disciplinary case against him arguing the separation of powers doctrine demands it.
“To the extent there is any doubt about that conclusion, the court should err on the side of caution rather than risk intruding on the executive’s authority and violating the separation of powers,” the AGs argued. “As the inclusion of the separation-of-powers provision in the Texas Constitution makes clear, the intrusion of one branch on the authority of another is ‘one of the greatest threats to liberty,’ and maintaining separation between the three branches is essential to protect individual freedom.”
The Commission for Lawyer Discipline had filed suit against Webster alleging actions he took in litigation challenging the outcome of the 2020 presidential election constituted attorney misconduct that merits sanctions.
Williamson County District Judge John W. Youngblood tossed the suit after finding that the separation of powers doctrine deprived him of authority to hear the case.
In July 2023 the El Paso Court of Appeals revived the suit, holding the separation of powers doctrine didn’t apply because the crux of the lawsuit is based on alleged misrepresentations made in the lawsuit challenging the election and is not based solely on the filing of that lawsuit.
Webster appealed to the Texas Supreme Court in August. The case has been fully briefed and Webster’s request for review remains pending.
The brief was filed by Montana and joined by Alabama, Alaska, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.
Webster is represented by the Texas attorney general’s office.
The Commission for Lawyer Discipline is represented by its own Michael G. Graham, Royce LeMoine and Seana Willing.
The case number is 23-0694.
Ex-Husband Appeals in Civil Case Over Former Wife’s Abortion
On Friday, Marcus Silva, who is suing his ex-wife’s friends for wrongful death for allegedly assisting her in getting an abortion, asked the state’s high court to reinstate a trial court’s order that compels Brittni Silva, his ex-wife, to comply with a subpoena request.
The Fourteenth Court of Appeals in Houston had issued a per curiam opinion April 9 siding with Brittni Silva, who is a third-party in the underlying lawsuit. Marcus Silva is suing Aracely Garcia, Jackie Noyola and Amy Carpenter.
Brittni Silva, who has not conceded that she ever was pregnant, declined to comply with the subpoena request — seeking all communications she had with the defendants concerning abortion or abortion-inducing drugs — arguing it violated her right to avoid self-incrimination under the Fifth Amendment.
Marcus Silva had argued in the lower court that his ex-wife had to “make a document-by-document or item-by-item showing that the Fifth Amendment’s self-incrimination privilege applies” and also that she was required to give the trial judge “an opportunity to examine disputed documents and items in camera, in order to successfully claim the privilege.”
“We disagree,” the panel wrote. “Relator has shown that simply producing responsive documents or other items, or even acknowledging their existence, would itself create a risk of prosecution. Under these circumstances, we do not see Rule 193.3 as requiring that relator paradoxically incriminate herself in order to be protected from self-incrimination. Consequently, we conclude the trial court clearly abused its discretion by granting Marcus Silva’s motion to compel relator’s compliance with her subpoena.”
Marcus Silva is represented by solo practitioner Briscoe Cain, Jonathan F. Mitchell of Mitchell Law and John C. Sullivan and Jace Yarbrough of S|L Law.
Brittni Silva is represented by Alexander M. Wolf, Samantha Jarvis and Drew M. Padley of Steptoe.
Jackie Noyola and Amy Carpenter are represented by Rusty Hardin, Lara Hollingsworth, Daniel Dutko, John MacVane, Leah Graham, Aisha Dennis, Kendall Speer and Armie Lewis of Rusty Hardin & Associates and by Elizabeth Myers and Jennifer Ecklund of Thompson & Coburn.
Aracely Garcia is represented by Katherine Treistman, Amanda S. Thomson and Leah Schultz of Arnold & Porter Kaye Scholer and Marc Hearron of the Center for Reproductive Rights.
The case number in the Texas Supreme Court is 24-0284. The Fourteenth Court of Appeals case number is 14-23-00834-CV.
Supreme Court of the United States
AT&T Hires Gibson Dunn in ERISA Appeal
On April 5, Dallas-based AT&T filed its petition for writ of certiorari in a lawsuit where it is trying to undo a ruling that it violated the Employee Retirement Income Security Act and asked the high court to resolve a circuit split on what’s covered by the act’s “prohibited transaction” rules.
The former AT&T employees bringing the class action allege that AT&T failed to “investigate and evaluate” the compensation received by the benefits plan’s recordkeeper, Fidelity Workplace Services, received from mutual funds through BrokerageLink, rendering the contract a “prohibited transaction” under ERISA.
The Ninth Circuit issued a mixed bag ruling in August, undoing summary judgement in AT&T’s favor but sending the case back to the trial court to determine whether AT&T was entitled to an exemption from the rule on grounds that the contract with Fidelity was “reasonable” and its services “necessary.”
In its petition, AT&T noted that the Third and Seventh circuits have determined such routine contracts aren’t prohibited transactions, but the Eighth and Ninth circuits have gone the other way.
“The Ninth Circuit’s decision openly acknowledges and deepens this entrenched split — adopting an interpretation that can’t be reconciled with text, context, structure, or precedent,” AT&T argued. “As this Court made clear in Lockheed Corp. v. Spink, Section 406(a) reaches only those transactions that are ‘likely to injure the pension plan’— and can’t be construed to reach everyday service agreements of the kind at issue here.”
AT&T is represented by Allyson Ho, Ashley E. Johnson, Bradley G. Hubbard and Stephen J. Hammer of Gibson, Dunn & Crutcher.
Counsel information for the plan participants wasn’t available. In the Ninth Circuit they were represented by Todd S. Collins and Ellen T. Noteware of Berger Montague and Todd M. Schneider, John J. Nestico and James A. Bloom of Schneider Wallace Cottrell Konecky.
The case number is 23-1094.