January 22, 2009
A divided Texas Supreme Court held Jan. 9 that federal bankruptcy law does not pre-empt a Houston attorney's state civil malicious prosecution suit stemming from the filing of an adversarial action in a bankruptcy proceeding.
The Supreme Court's 5-4 decision in Graber, et al. v. Fuqua, a case of first impression in Texas, allows Richard L. Fuqua to pursue his almost 9-year-old claim alleging that Thomas Graber and Hopkins & Sutter, a former firm in which Graber had been a partner, wrongfully sued him 20 years ago.
Dean G. Pawlowic, a Texas Tech University School of Law professor who teaches a course in advanced bankruptcy law, says whether pre-emption is required in Graber is a close question.
"I tend to agree with the majority that Congress could pre-empt this," Pawlowic says.