In this edition of Litigation Roundup, a lawsuit seeking more than $1 million is filed by a woman who was paralyzed after a tree fell on her SUV in East Dallas, amicus counsel defending Texas firearm restrictions dig back to 14th Century English law in support of their case, and a fight between competing Thai restaurants in Houston heats up.
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.
Dallas County District Court
Woman Paralyzed by Falling Tree Files Suit
The woman who was paralyzed last month when a tree fell on her SUV in East Dallas has filed a lawsuit against the property owner she alleges is responsible for the incident.
Maisie Marsau and her husband, Jack Marsau, filed suit against Dan Patterson, who owns the Wendover Road property where the tree was located and also serves as chairman of the Texas Trees Foundation.
“Despite his position and purported expertise in tree management and safety, defendant failed to properly inspect, maintain, and/or remove the dangerous tree from the property, which leaned heavily over a trafficked public roadway that serves as the carpool lane for Lakewood Elementary School — where parents pick up and drop off their kids daily,” the lawsuit alleges.
Marsau’s suit hits back at statements Patterson made to reporters who covered the Aug. 25 incident, arguing the tree falling was not a “random thing” but was instead a foreseeable, dangerous condition and something that “multiple people” approached him about over the years.
“After this tragedy, the subject tree was found to have a hollow base and significant internal rotting among other issues, indicating that it had been in a state of decay for some time,” the suit alleges. “Tell-tale signs of this dangerous and defective condition existed prior to this incident.”
Marsau was trapped inside the car for more than an hour before she was extricated by first responders. She suffered a spinal cord injury and is now paralyzed from the neck down, according to the lawsuit, which also says the 32-year-old mother to a 6-month-old daughter will never “hold her child without assistance.”
The lawsuit, which brings claims for negligence, gross negligence and premises liability, is seeking more than $1 million in damages. The case was filed Sept. 8 and has been assigned to Dallas County District Judge Bridgett Whitmore.
A Gofundme for the family had raised more than $230,000 as of Monday.
Marsau is represented by Michael P. Lyons, Jackson C. Smith and Mackenzie M. Howard of Lyons & Simmons.
Counsel for Patterson had not filed an appearance as of Monday.
The case number is DC-25-16155.
Harris County District Court
Judge Grants TRO in Thai Restaurant Fight
On Thursday, Harris County District Judge Sonya L. Aston sided with a restaurateur who alleged a former business partner had violated a noncompete and nonsolicitation agreement she signed when she sold her ownership interest in Thai restaurant Kin Dee to him for $940,000.
Judge Aston found Kin Dee LLC and Warattayar Srasrisuwan had shown a likelihood of success on the merits of their claims against Miranda Loetkhamfu. According to the lawsuit, Loetkhamfu and Srasrisuwan opened Kin Dee in 2019. Srasrisuwan purchased Loetkhamfu’s 50 percent interest in the restaurant in October 2023. In exchange for the $940,000 buyout, Loetkhamfu agreed that for the next five years she would not open a Thai restaurant within 15 miles of Kin Dee and would not poach its customers or employees.
But less than two years later, Loetkhamfu allegedly opened two Thai restaurants, Krua Thai & Sushi and MA Asian Kitchen, just seven and six miles, respectively, away from Kin Dee, which is located in the Houston Heights. The lawsuit also accuses her of poaching several employees, including Kin Dee’s bartender, line cook and general manager, who was offered a 10 percent ownership interest in the new restaurants to leave Kin Dee.
The lawsuit alleges Loetkhamfu has also copied Kin Dee’s restaurant and used its customer list to solicit patrons for her two new restaurants.
“Plaintiff paid Mirando $940,000 not to compete with Kin Dee,” the suit states. “But that is exactly what Miranda is doing — two times over.”
The plaintiffs had asked the court to issue a temporary restraining order that would have shut down operations at the two new restaurants, but the judge entered more narrow relief, only barring the defendants from “hiring or soliciting” any Kin Dee employees who left within the last 12 months and from “disclosing or using” any Kin Dee trade secrets.
A hearing on a motion for a temporary injunction is set for Sept. 22.
The plaintiffs are represented by Ashish Mahendru and Darren A. Braun of Mahendru PC.
Counsel for the defendants, which includes Loetkhamfu, her two new restaurants and her business partner in the new ventures, had not filed an appearance as of Monday.
The case number is 2025-67603.
Northern District of Texas
Former Fifth Circuit Judge Costa, SMU Prof File Brief in Gun Case
Texas is a leader in protecting the Second Amendment, but has balanced that leadership by maintaining restrictions on carrying firearms into “bars where alcohol is consumed, sporting events where passions run high, and racetracks where crowds, cash and chance collide.”
That is part of the argument submitted to U.S. District Judge Mark Pittman in a brief filed last week by Gibson Dunn & Crutcher partner Gregg Costa and Eric Ruben, a professor at the Southern Methodist University Dedman School of Law, whom the judge appointed on May 8 to serve as amicus counsel to defend a section of the Texas Penal Code that restricts the open carrying of firearms at bars.
Judge Pittman appointed the two lawyers after the state of Texas conceded “that the Texas Penal Code sections at issue are unlawful under the Second Amendment.” He wrote that “because our legal ‘system assumes that adversarial testing will ultimately advance the public interest in truth and fairness,’ the Court finds it necessary to appoint an amicus curiae to defend the merits of the Texas Penal Code sections at issue.”
Lead plaintiff Charles Ziegenfuss filed his lawsuit against the director of the Texas Department of Public Safety in October, alleging Texas Penal Code Section 46.03 — which criminalizes possession of firearms at racetracks, sporting events and businesses where alcohol sales account for 51 percent of sales — runs afoul of the Second Amendment.
The 47-page brief delves into Texas Reconstruction history, explaining how the gun violence that plagued the new state led to the passage of an 1870 law banning firearms and knives in certain public places.
The following year, a challenge to the law made its way to the Texas Supreme Court, which upheld the restrictions and wrote it was “little short of ridiculous that any one should claim the right to carry upon his person any of the mischievous devices inhibited by the statute into a peaceable public assembly, as, for instance into a church, a lecture room, a ball room, or any other place where ladies and gentlemen are congregated together.”
And the brief notes that even after passing permitless carry in 2021, Texas has maintained its “longstanding location restrictions on where Texans can carry guns.”
Going father back into history, the brief argues prohibitions on carrying arms in sensitive places can be traced back to at least 1328, when an English law on the books barred people from being armed at fairs, markets and in the presence of judges or ministers.
“American colonies carried forward this tradition,” the brief reads, noting at least two colonies passed similar laws.
“Given this lineage of sensitive-places regulations dating back to the Middle Ages, it is unsurprising that courts routinely have upheld such restrictions even as the Supreme Court has struck down other anomalous gun-restrictive practices,” the brief reads.
Because all of the restrictions challenged by Ziegenfuss are “rooted in the nation’s history and tradition,” the brief argues they “survive Second Amendment scrutiny” and therefore the court should grant summary judgment dismissing the case.
Ziegenfuss’ response to the brief is due Oct. 10.
Ziegenfuss and the other plaintiffs are represented by R. Brent Cooper and Samuel Walton of Cooper & Scully and Bradley Benbrook and Stephen Duvernay of Benbrook Law Group.
DPS is represented by Zachary Rhines and Kyle Tebo of the attorney general’s office.
The case number is 4:24-cv-01049.
U.S. Court of Appeals for the Fifth Circuit
Fight Between Firm and Former Associate Returns to Texas
U.S. District Judge George C. Hanks Jr. will soon determine if federal court is the appropriate venue for a dispute between Houston law firm Abraham Watkins Nichols Agosto Aziz & Stogner and its former associate Edward Festeryga, who is accused of taking firm clients with him when he left.
A three-judge panel on Thursday decided Judge Hanks got it wrong when he determined Festeryga waived his right to remove the case to federal court by first participating in a state court proceeding.
“Under our circuit’s exacting standard, waiver occurs only when a defendant ‘clearly and unequivocally’ manifests an intent for the state court to resolve the case on its merits,” the panel wrote. “Festeryga did no such thing. His lone state-court motion sought chiefly to secure a stay of discovery — a procedural step, not a request for final adjudication.”
The road that led to Thursday’s ruling was a long one that included a prior three-judge panel ruling and rehearing en banc by the entire Fifth Circuit resulting in the overturning of a 45-year-old binding precedent that had barred appellate review of waiver-based remand orders.
According to court records, after litigation began in the state court, Festeryga attempted 17 days later to remove the case to federal court on the basis that he’s a Canadian citizen. Congress allows 30 days for a litigant to remove a case to federal court. Prior to removal, he also challenged the litigation by filing a motion to dismiss under the Texas Citizens Participation Act.
Judge Hanks ruled that Festeryga had waived his right to remove the case by agreeing to a protective order and by filing a motion to dismiss in the state court.
“In sum, Festeryga’s lone state-court act — filing a TCPA motion that was never set for hearing, never ruled on, and that yielded only a temporary discovery pause — did not waive removal under our demanding standard,” the panel wrote.
On remand, Judge Hanks will have to decide whether Festeryga is a Canadian citizen as he claims, which would mean diversity jurisdiction exists, or if the law firm’s argument that Festeryga swore on a U.S. trademark application that he’s a U.S. citizen will win the day.
Judge Don R. Willett authored the opinion, joined by Judges Stuart Kyle Duncan and James L. Dennis.
Festeryga is represented by Derek Reinbold, Alejandra Ávila and Matthew Reade of Kellogg, Hansen, Todd, Figel & Frederick and Guillermo Alarcón of Armbrust & Brown.
Abraham Watkins is also represented by its own Muhammad Aziz and Dale Jefferson of Martin, Disiere, Jefferson & Wisdom.
The case number is 23-20337.
ConocoPhillips Can Kick Contractor’s FLSA Claim to Arbitration
ConocoPhillips is entitled to arbitrate the claims from an oil and gas contractor who alleged he routinely worked more than 40 hours a week but never received overtime, in violation of the Fair Labor Standards Act, an appellate panel has determined.
Shawn Michael Ford filed his putative class action lawsuit against ConocoPhillips in September 2021, according to court records, and Bedrock Petroleum Consultants, the consulting firm that hired him and contracted him out to ConocoPhillips, intervened in April 2022.
Both defendants moved to compel arbitration, and the district court denied the move. But the Fifth Circuit determined that because Ford’s agreement with the consulting firm “incorporated by reference an agreement with ConocoPhillips that mandated arbitration,” Ford can be compelled to arbitrate his claims.
Judges Catharina Haynes, Priscilla Richman and James E. Graves Jr. sat on the panel.
Ford is represented by Richard J. Burch of Bruckner & Burch, David Mathews of Dave Mathews Law and Richard Schreiber of Josephson Dunlap.
ConocoPhillips is represented by Shauna Clark and Kimberly Cheeseman of Norton Rose Fulbright.
Bedrock is represented by Ashlee Grant of BakerHostetler.
The case number is 22-20334.
U.S. Court of Appeals for the Federal Circuit
Magēmā Technology Gets Redo in Patent Trial Against Phillips 66
Phillips 66 “sandbagged” Magēmā Technology just before trial with a “bait-and-switch,” a federal appellate court determined on Sept. 8 in an opinion that granted the marine fuel company a do-over in its patent infringement trial against the energy giant.
In the 23-page opinion, the court explains Phillips 66, which was accused of infringing Magēmā’s patented technology that removes sulfur from residual heavy marine fuel oil, introduced a new theory of noninfringement on the eve of trial.
“Phillips’ new theory was that Magēmā could not prove infringement without access to certain of Phillips’ test results. But Magēmā did not have access to those test results because Phillips had successfully argued during discovery that it would be too dangerous to obtain those test results,” the panel wrote.
Over Magēmā’s objections, the court allowed the new theory to be introduced. The jury returned a verdict of noninfringement on two claims of the patent-at-issue. When Magēmā moved for a new trial, the district court found that introduction of the new theory was “improper and prejudicial” but that it was also harmless, and so it denied the motion for a new trial.
On appeal, Phillips argued that its arguments that actual testing was required to prove infringement was a “small part of the trial.”
“Far from it,” the panel wrote. “Instead, Phillips repeatedly and continuously urged its improper and prejudicial actual testing theory throughout trial. It raised that theory during opening statements over Magēmā’s objection. It raised it on three cross-examinations of Magēmā’s witnesses. And most potently — after the District Court explicitly told Phillips not to raise it again — Phillips urged the jury at closing arguments to simply answer ‘no’ to Question 1 of the verdict sheet because Magēmā had ‘no actual test data that shows compliance’ with the [international standard for physical properties in residual heavy marine fuel oil].”
The panel remanded the case for a new trial.
Chief Judge Kimberly A. Moore and Judge Kara F. Stoll sat on the panel, alongside U.S. District Judge Renée Marie Bumb, who is the chief judge in New Jersey and sat by designation.
Magēmā is represented by Jamie McDole, Miranda Y. Jones and Michael Karson of Winstead and Robert L. Green and John R. Keville of Sheppard, Mullin, Richter & Hampton.
Phillips is represented by Denise Drake and Charles Rosson of Gibbs & Bruns and Reagan M. Brown and Charles Walker Jr. of Norton Rose Fulbright.
The case number is 24-1342.
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.
Former U.S. District Judge Barbara M.G. Lynn, who recently retired from the bench and joined a litigation boutique founded by her husband, sat down with The Lawbook for an interview where she discussed her trailblazing career and what’s next. Lynn presided over some of the biggest and most important trials in North Texas during her more than 25 years on the bench and at Lynn Pinker Hurst & Schwegmann will be tapped to mediate complex disputes and be involved in the firm’s bet-the-company litigation. “I’m still energetic,” said Judge Lynn, who turns 73 later this month. “I’m looking forward to new challenges and the next stage.”
Last week, David J. Beck authored an obituary for his friend and longtime law partner Alistair Dawson, who died Aug. 30. Dawson joined Beck at the firm in 1993, one year after its launch. “He possessed that rare combination of brilliance and approachability,” Beck wrote. “He was unshakably prepared in court yet always had time for a laugh in the hallway or a word of encouragement for a young associate. His presence lifted everyone around him.”
The city of Dallas failed to convince the Texas Supreme Court that its intervention was warranted in a dispute that started after the city granted, then revoked, then reinstated, a certificate of occupancy to a local poker room. The Lawbook spoke with a handful of attorneys who have represented other poker house clients in criminal and civil proceedings involving municipalities who said more clarity for the murky legal space where poker clubs and card houses currently operate would be welcomed.
The law firm Vartabedian Hester & Haynes has expanded again, this time with the addition of bankruptcy and restructuring lawyers Martin Sosland and Candice Carson. Sosland, a former partner at Weil, Gotshal & Manges, is a prominent corporate bankruptcy partner with more than four decades experience representing debtors, creditors and third parties in major Chapter 11 cases. Carson has practiced bankruptcy law at Weil Gotshal and Butler Snow and is joining Vartabedian Hester as counsel. Sosland is a partner.
Texas Christian University is sued by a former student seeing $100 million in damages for the university’s alleged mishandling of an investigation into her rape. The student, identified as Emily Doe, claims the university violated Title IX policies in how it handled her complaint.
Jackson Walker, which represented JCPenney during its 2020 bankruptcy proceedings, has agreed to pay the estate of the department store $1.4 million as a result of an undisclosed romantic relationship between a former partner and a former Houston bankruptcy judge. This latest settlement proposal requires the court’s approval, but the U.S. Trustee’s Office remains opposed to individual settlements.
In the latest edition of Asked & Answered, Jackson Walker partner Juan Alcala talked about how his career in the law provided a way out of poverty and ignited a passion for helping others. Alcala, who hails from Hidalgo, recently joined Jackson Walker in Austin after nearly a decade at Holland & Knight. If you or someone you know would like to be profiled in a future edition of Asked & Answered, please let us know at tlblitigation@texaslawbook.net. Check out our other interviews with Gibson Dunn’s Trey Cox and Vinson & Elkins’ Quentin Smith.
Litigation finance company Siltstone Capital has sued its former general counsel, Manmeet Walia, after he left to form a new company, Signal Peak Partners. Last week, Judge Grant Dorfman of the Texas Business Court’s Eleventh Division in Houston, denied Siltstone’s motion for a temporary restraining order.