This week’s Litigation Roundup features a fight between the Houston Astros and Texas Comptroller Glenn Hegar over about $462,000 in taxes assessed against the ball club, a $3.3 million jury win for the buyers of a North Dallas office complex and a second bite at the apple for a Louisiana federal judge who enjoined a Biden administration order pausing oil and gas lease sales.
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Jury Hands Real Estate Firm $3.3M in North Dallas Office Complex Dispute
In a dispute over the sale of an office complex in Dallas, partners at Bell Nunnally recently secured a $3.3 million verdict in favor of privately owned real estate investment firm Meyers Group.
After purchasing the trio of buildings for $12 million in 2017, Meyers Group filed suit in December 2017 against Shawnee Inc., Kareem Noorani, Sally Nuran and Ermias Tesfaye, alleging the sellers had withheld documents during due diligence and artificially inflated the income generated at the property by its tenants, according to court documents.
The jury sat through seven days of trial earlier this month before siding 11-1 with Meyers Group,
The defendants are represented by Robert K. Radcliff and Chris Valentine of Weinstein Radcliff Pipkin and Aamer Ravji of Ravji Law.
The cause number is DC-17-17708.
Astros Cry Foul on Canine Security Taxes
The Houston Astros Tuesday filed a lawsuit against Texas Comptroller Glenn Hegar seeking a refund of about $462,000 in sales and use taxes it alleges the comptroller’s office wrongly assessed against it.
The assessment stems from security, including canine detection services, purchased by the Astros for gameday operations. The club has argued that the security it provides is “essential to providing the patrons with the benefits and experiences they pay for when they purchase tickets to the Astros’ games.”
The Astros are represented by Doug Sigel of The Ryan Law Firm.
The cause number is D-1-GN-22-003925.
Southern District of Texas
Baker Botts Gets Early Win for ITC on Pollution Claims
Intercontinental Terminals Company secured a summary judgment win Wednesday from U.S. District Judge Kenneth M. Hoyt when he agreed the Oil Pollution Act claims brought against it by numerous plaintiffs should be tossed.
The claims stem from a March 2019 incident where a fire broke out at the storage tank facility in Deer Park, sending a plume of black smoke into the sky that could be seen for miles. The fire burned for three days, caused a closure of the Houston Ship Channel and sent millions of gallons of hazardous waste onto the ground and into waterways.
On Friday a group of plaintiffs — Texas Aromatics, Rio Energy International, Gunvor USA, Castleton Commodities Merchant Trading and Castleton Commodities Merchant Asia Co. — who were seeking damages stemming from the closure of the channel appealed that final judgment to the Fifth Circuit.
The plaintiffs had argued that because the discharge that leaked into the channel contained oil, they could sue ITC under the OPA. ITC argued those claims were preempted by the Comprehensive Environmental Response Compensation and Liability Act because the discharge was oil commingled with hazardous substances regulated under CERCLA.
The cause number is 4:19-cv-01460.
Northern District of Texas
Antero Secures $11.9M Final Judgment in Kickback Case
On Thursday U.S. District Judge Terry Means entered final judgment in favor of natural gas operator Antero Resources in a kickback case involving its former operations manager in West Virginia, John Kawcak.
The jury determined in April that Antero was entitled to recover about $11.9 million in damages from Kawcak, who jurors were told accepted kickbacks for gas projects in West Virginia in exchange for steering contracts to preferred vendors.
Judge Means’ final judgment also awards Antero pre- and post-judgment interest and allows it to recover all 130,170 shares of Antero Midstream stock Kawcak used to hold.
Antero is represented by William Bennett Thompson, David Graham, Elinor C. Sutton and Hope Skibitsky of Quinn Emanuel Urquhart & Sullivan.
Kawcak is represented by Decker A. Cammack, Brian J. Smith, Thomas F. Harkins Jr. and Mack Ed Swindle of Whitaker Chalk Swindle & Schwartz.
The cause number is 4:16-cv-00668.
Western District of Louisiana
More Detailed Injunction Issued in Oil, Gas Lease Fight
U.S. District Judge Terry A. Doughty, who was told by the Fifth Circuit about a week ago that his nationwide injunction barring the Biden administration from pausing oil and gas lease sales was too vague to be enforceable, has issued a more specific order on the issue.
Texas is one of 13 states that challenged the moratorium, and Attorney General Ken Paxton touted the order in a news release issued Monday as a win in the fight for energy independence.
“The executive order was a clear example of unconstitutional federal overreach, and I’m pleased to see the court make the right decision in issuing a permanent injunction to prevent it from taking effect,” Paxton said in the news release.
Biden issued an executive order in January 2021 hitting pause on new leases on public lands or offshore waters. Judge Doughty entered a nationwide injunction in favor of the challenging states in June 2021, according to court records.
The cause number is 2:21-cv-00778.
Second Court of Appeals
Timberwalk Interpretation Leads to Split in Fatal Premises Liability Case
A three-justice panel issued a split decision Thursday in a negligence and premises liability case stemming from a fatal shooting between the former and current romantic partners of a defendant homeowner.
Justice Brian Walker issued a 10-page opinion concurring with the majority that affirmed summary judgment on the negligence and gross negligence claims but said he would have revived Keith D. Aikens’ premises liability claim.
Aikens sued his former girlfriend, Charlene K. Dueling — whom he continued to live with after their relationship ended — after her current boyfriend assaulted him with a taser and police baton in the garage of the home. Aikens shot Johnny Pettway in the stomach after he was attacked, according to the opinion.
Pettway died days later and Aikens spent three days in the hospital for his injuries.
Rather than sue Pettway’s estate, Aikens sued Dueling, alleging she knew Pettway was hostile toward him “and did not take reasonable precautions to mitigate the danger to Keith but instead invited Mr. Pettway to the residence,” according to the opinion.
The majority, citing the Texas Supreme Court’s 1998 ruling in Timberwalk Apartments v. Cain, held Aiken failed to show the assault was “foreseeable,” meaning Dueling owed him no legal duty. In Timberwalk the court held that a premises owner generally doesn’t have a duty to protect invitees from a third-party’s criminal conduct unless the crime was foreseeable.
But Justice Walker wrote that Timberwalk doesn’t apply here and the panel should have instead relied on the Texas Supreme Court’s 2010 holding in Del Lago Partners v. Smith, which determined that when a party had direct knowledge that criminal conduct was imminent, it can be held liable for a third-party’s criminal conduct.
Dueling knew about Pettway’s “violent propensities and hatred of Keith,” Justice Walker wrote.
“Thus, when viewed in Keith’s favor and making all of the attendant inferences on summary judgment, I would conclude that there existed an issue of fact as to whether Mr. Pettway’s conduct was foreseeable to Charlene,” he wrote.
Justice Dabney Bassel was joined by Justice Elizabeth Kerr.
Aikens is represented by M. Kevin Queenan and Carlos Lopez of Queenan Law Firm.
Dueling is represented by Timothy Davis of Cantey Hanger.
The cause number is 02-21-00320-CV.
U.S. Supreme Court
Cert Filed in Williamson County Wrongful Conviction Case
Attorneys representing Troy Mansfield, who pled guilty to indecency with a child after allegedly being coerced by Williamson County prosecutors, on Friday urged the high court to resolve a circuit split underlying the case.
The appeal comes after the Fifth Circuit issued a ruling March 31 that the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland doesn’t require prosecutors to hand over exculpatory evidence during plea bargaining, only at trial.
“In an age in which the criminal trial has all but vanished, the split of authority between the courts that recognize a pretrial right to Brady evidence and those that do not is more pressing than ever,” Mansfield told the court in his petition.
Mansfield accepted the plea deal — spending 120 days in jail, a decade on probation and registering as a sex offender — and 23 years later had the judgment against him vacated by a judge who found his “due process rights were violated in a manner that rendered his plea involuntary.”
Judge Gregg Costa specially concurred in the Fifth Circuit’s ruling, calling the court’s decision “another injustice resulting from our mistaken view that Brady does not require turning over exculpatory evidence before a guilty plea.”
“Requiring disclosure of exculpatory evidence before a plea is consistent with Brady’s rationale, reflects that the Due Process Clause is not limited to trials (unlike many Sixth Amendment rights), and retains Brady’s vitality in a criminal justice system in which almost everyone pleads guilty,” he wrote.
Williamson County is represented by Karson Thompson of Butler Snow and Randy Tom Leavitt.
The cause number is 21A827.