This week’s edition of Litigation Roundup features another chapter in a legal malpractice lawsuit against Haynes and Boone that’s already made it to the Texas Supreme Court, a Fifth Circuit panel striking down a “vague” nationwide injunction that would have allowed oil and gas lease sales to resume and a retired dentist suing a Houston restaurant after being allegedly assaulted by its bouncer.
Have a new development in a case that you think is worthy of a mention in the Litigation Roundup? Email us at tlblitigation@texaslawbook.net.
First Court of Appeals
New Team Takes On Allied’s Appeal Of $352M Verdict
The law firm Alexander Dubose and Jefferson informed the Houston appellate court on Aug. 15 it would be withdrawing from representing Allied Aviation Fueling Company of Houston, which is trying to undo a $352 million jury verdict against it in a personal injury suit.
Ulysses Cruz was paralyzed when an Allied Aviation van struck him from behind on the tarmac at George Bush Intercontinental Airport in Houston.
Instead of Wallace B. Jefferson, Rachel A. Ekery, Robert B. Dubose and William J. Boyce representing the company, the appellate team will include Mark Trachtenberg, Kent Rutter, Ryan Philip Pitts and Nina Cortell of Haynes and Boone, LLP; Stuart B. Brown, Jr. and Brett Kutnick of Jackson Walker, and Rusty Hardin, Ryan Higgins, Daniel R. Dutko, and Victoria Reilly of Rusty Hardin & Associates.
The cause number is 01-22-00083-CV.
Fourteenth Court of Appeals
Haynes and Boone Can’t End Malpractice Suit In Shoe Design Patent Case
On remand from the Texas Supreme Court, a Houston appellate court on Tuesday determined that Haynes and Boone had not conclusively established “that their allegedly wrongful conduct is the ‘kind of conduct’ protected by attorney immunity,” and sent it back to the trial court.
The Texas Supreme Court’s 2021 ruling in the case expanded the scope of attorney immunity, holding it can apply outside the litigation context, in the malpractice case that stemmed from Haynes and Boone’s handling of a transaction in which seven women’s shoe design patents were sold.
But the appellate panel held that despite expansion of the immunity doctrine, Haynes and Boone still has work to do to bring an end to the suit brought by NFTD, formerly known as Bernardo Group, writing that “none” of the evidence presented supports a finding that all of the lawyers’ conduct was the “was the kind of legal services to which the attorney immunity defense applies.”
Beck Redden has represented Haynes and Boone in the appeal and Frost Brown Todd has represented NFTD.
The cause number is 14-00999-CV.
Texas Supreme Court
School District Wants Football Field Contract Case Revived
Pleasant Grove Independent School District on Monday filed an appeal in its breach of contract fight with FieldTurf USA over its alleged refusal to repair or replace a football field that was under warranty.
The school district argued in its petition for review that the Sixth Court of Appeals’ ruling against it “that the buyer is limited to either specific performance or the default measure of difference in value is contrary to the plain language of the [Uniform Commercial Code], and fundamentally negates the bargain between the parties.”
“The court should grant this petition for review to answer this important and open question under Texas law — under the Uniform Commercial Code, what remedies are available to a buyer when the seller has refused to honor an express repair or replacement warranty?” PGISD told the court.
The Sixth Court of Appeals rendered a take-nothing judgment after holding that no money damages were available as a remedy for breach of an express repair or replacement warranty.
FieldTurf USA is represented by E. Leon Carter, Joshua J. Bennett and O. Rey Rodriguez of Carter Arnett.
Pleasant Grove ISD is represented by Brendan K. McBride of The McBride Law Firm and Matthew R. Pearson and Valerie L. Cantu of Pearson Legal.
The cause number is 22-0683.
Fifth Circuit
Vague Nationwide Injunction On Oil, Gas Lease Sales Fails
On Wednesday, citing a lack of “specificity,” a three-judge panel — Patrick E. Higginbotham, James L. Dennis and James E. Graves Jr. — vacated a ruling by U.S. District Judge Terry A. Doughty that barred the Biden administration from pausing oil and gas lease sales.
The dispute is rooted in an executive order issued by President Joe Biden on Jan. 27, 2021 that hit pause on new leases on public lands or offshore waters. Thirteen states — Alabama, Alaska, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Texas, Utah and West Virginia — filed suit a few months later and the injunction they sought from Juge Doughty was entered on June 15, 2021.
The panel wrote that the order enjoined the “pause” without defining that term.
“We cannot reach the merits of the government’s challenge when we cannot ascertain from the record what conduct — an unwritten agency policy, a written policy outside of the Executive Order, or the Executive Order itself — is enjoined,” the panel held. “Our review of [Administrative Procedure Act] claims must begin by determining if there was final agency action. Where, as here, it is unclear what final agency action the district court predicated its order upon, we are unable to reach the merits of the appeal.”
Andrew Marshall Bernie of the U.S. Department of Justice argued for the government and Joseph Scott St. John of the Louisiana Solicitor General’s Office argued on behalf of the states.
The cause number is 21-30505.
SDTX
Ray-Ban’s Parent Co. Sues Over Counterfeit Shades
Luxottica Group filed a trademark infringement suit Wednesday against a retail store on notorious Harwin Drive in Houston accusing the company of selling counterfeit Ray-Ban sunglasses, seeking up to $2 million in damages for each instance of counterfeiting.
According to the lawsuit, Luxottica sent an investigator to the store, Trendsetters, in May who was told the sunglasses sold for $135 a pair. The investigator asked for a deal if he bought two pairs and ended up purchasing two pairs for $120 each.
“The female sales associate packaged the sunglasses in Ray-Ban branded hard cases that she placed into Ray-Ban branded boxes,” the lawsuit states. “Defendants have no license, authority, or other permission to use any of the Ray-Ban trademarks.”
Judge Keith P. Ellison has set a pretrial scheduling conference in the case for Nov. 18.
Luxottica is represented by Darin Michael Klemchuk, the defendants have yet to retain counsel.
The cause number is 4:22-cv-02790.
AZA Gets $1.6M Attorney Fee Award In Port of Houston Win
Following a jury’s March verdict awarding the Port of Houston Authority $22.3 million in damages in its breach of contract lawsuit against French agricultural merchant Louis Dreyfus Co., U.S. District Judge Lynn Hughes on Wednesday awarded about $1.6 million in attorney fees.
Dreyfus has already filed notice of appeal with the Fifth Circuit, entitling the AZA team to an additional $212,750 in appellate fees, per Judge Hughes’ order. The jury determined Louis Dreyfus owed millions for damaging both railroad tracks and a grain elevator it had leased to handle its Houston-based exports.
Todd Mensing, Kelsi Stayart White, Sammy Ford IV, Michael Killingsworth and Thomas Frashier represent the Port Authority.
Louis Dreyfus is represented by Bill Hargens, Christoper McKinney and Thuha Nguyen of Orgain Bell.
The cause number is 4:19-cv-00749.
WDTX
Distiller says Lotto’s ‘Texas Two-Step’ TM Dispute Needs The Boot
Ali Ansari, who is being sued by the Texas Lottery Commission over the name of his craft vodka, argued in a recent motion that the case against him should either be tossed because it was filed in an improper venue, or transferred to the correct venue.
The Commission filed its complaint on June 14, trying to reverse a decision by the Trademark Trial and Appeal Board of the U.S. Patent and Trademark office dismissing its challenge to Ansari’s trademark application. It argues that the name it uses to sell certain lottery tickets will be confused with Ansari’s craft vodka.
Ansari disagrees.
“Specifically, and not surprisingly, the Board dismissed the Lottery Commission’s opposition because the Commission failed to establish that Ansari’s mark was likely to cause confusion with the Lottery Commission’s federally registered ‘Texas Two Step’ trademarks… for lottery services, or dilution of the Lottery Commission’s marks by tarnishment,” Ansari told the court in the motion.
Ansari filed the application in March 2020, according to court records, and the Commission opposed it in August 2020. The case belongs in the Southern District of Texas, Ansari argued, because that’s where he lives, works and applied for the Texas Two Step trademark.
The Commission has hired Austin attorney Dwayne K. Goetzel of Kowert Hood Munyon Rankin & Goetzel to represent it in the dispute and Ansari is represented by Steven M. Abbott of Houston.
The cause number is 1:22-cv-00578.
Harris County District Court
Law Office Manager Says His Boss Got Drunk, Flipped Golf Cart, Broke His Leg
Lester Nichols and The Nichols Law Group was hit with a lawsuit Wednesday by its office manager, Aaron Ford, who alleges his boss had too much to drink at a charity golf tournament before getting behind the wheel.
Ford told the court Nichols was drinking “vodka cocktails, tequila cocktails and multiple shots of cinnamon whisky” before failing to navigate a steep hill on the seventh hole. The golf cart flipped, Ford was ejected, the cart landed on top of him, causing his “leg to snap two inches above the ankle,” fracturing his tibia.
The suit is seeking $5 million in actual damages and another $5 million in exemplary damages. Ford said he had played baseball with the New York Mets organization for several years prior to joining the law firm and was planning a comeback when the injury occurred.
Nichols didn’t respond to a message seeking comment.
Ford is represented by George Oginni and John A. Leo of Leo & Oginni Trial Lawyers.
The cause number is 2022-50849.
Retired Dentist Sues Galleria-Area Restaurant After Alleged Bouncer Attack
Randy Sorrels is representing Dr. Ricki Finstad, who alleges he was assaulted by a bouncer at Moxie’s Houston after inquiring why a woman joining him and another woman for dinner was denied entry into the restaurant.
The incident happened in October 2021, according to the lawsuit, when Finstad was 70 years old. The bouncer was allegedly “immediately confrontational” when Finstad started asking questions, shoved the dentist then hit him multiple times in the face, arms, hands and legs.
Once on the ground, Finstad alleges he was placed in a chokehold and handcuffed with his wrists behind his back while he remained facedown on the ground. According to the suit, a paramedic said the dentist should go to the hospital, but police arrived and the bouncer allegedly falsely claimed Finstad started the fight.
Finstad was taken to the county jail “severely battered and in shock” and the charged against him were “quickly dropped by the District Attorney’s Office.”
The cause number is 2022-49941.
Houston Jury Awards Worker $15.4M In CenterPoint Injury Suit
Jurors on Aug. 15 determined a man who was seriously injured on the job and who will unlikely be able to walk again is entitled to about $15.4 million in damages from CenterPoint Energy.
Garrett Wilder was injured in March 2019 while working on a CenterPoint electrical pole after the step bolt he was attached to separated from the pole. Wilder, who was working for electrical contractor L.E. Myers at the time, suffered a traumatic brain injury, fractured his spine and broke multiple bones in his feet and ankles, requiring eight surgeries.
Wilder is represented by Matthew C. Matheny and Bryan O. Blevins Jr. of Provost Umphrey and Daniel D. Horowitz III.
CenterPoint is represented by R.L. Pete McKinney and H. Dwayne Newton of Newton Jones & McNeely. The cause number is 2019-31428.