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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. NO. 01-14-00350-CV
Regular Panel Decision
Jul 14, 2015

Thurman H. West v. Gwendolyn Meshalle West

Thurman H. West (Appellant) appealed the trial court's final decree in his divorce from Gwendolyn Meshalle West (Appellee). Thurman challenged the trial court's findings of intentional underemployment and child support obligations, characterization and distribution of marital property (specifically a house and certain bank accounts), and the award of Gwendolyn's attorney's fees. The appellate court affirmed the trial court's child support calculation, finding sufficient evidence of Thurman's net resources from salary, gifts, and allowances. It also affirmed the characterization of bank account funds as community property, as the church 'gifts' were considered income. However, the court reversed the trial court's characterization of the house as community property, ruling that Thurman's 2007 deed conveying his interest to the church became operative once Gwendolyn's homestead interest was divested by the divorce decree, thus removing it from the community estate. Additionally, the appellate court reversed the award of attorney's fees due to legally insufficient evidence of reasonableness. The case was remanded for a new division of the community estate and a redetermination of attorney's fees.

DivorceChild SupportProperty DivisionMarital EstateCommunity PropertySeparate PropertyHomesteadAttorney's FeesIntentional UnderemploymentTexas Family Law
References
28
Case No. 02-14-00304-CV
Regular Panel Decision
Jul 02, 2015

Barry Nussbaum v. Builders Bank, an Illinois Banking Corporation

This appeal arises from competing summary-judgment motions in a bill-of-review proceeding, focusing on whether a defendant's failure to update a contractually-agreed-to address for service of process constitutes fault or negligence precluding bill-of-review relief. Appellant Barry Nussbaum had guaranteed a loan from Appellee Builders Bank. When the borrower defaulted, Builders Bank sued Nussbaum for breach of the guaranty, obtaining a default judgment when Nussbaum failed to answer. Nussbaum filed a bill-of-review challenging the default judgment, claiming improper service. Builders Bank filed a cross-motion, arguing Nussbaum's own fault contributed to the default. The trial court denied Nussbaum's motion, granted Builders Bank's, and dismissed the bill-of-review. The appellate court affirmed the trial court's judgment, concluding that Nussbaum's failure to update his address, as required by the guaranty, constituted fault or negligence, thereby precluding him from obtaining bill-of-review relief.

Bill of ReviewDefault JudgmentService of ProcessContractual WaiverDue ProcessSummary Judgment ReviewGuaranty AgreementFault and NegligenceAppellate CourtTexas Law
References
40
Case No. E2004-00422-COA-R3-CV
Regular Panel Decision
Nov 30, 2004

Jeffrey Scott West v. Sharon Ann West

Jeffrey Scott West (Father) filed a petition to modify the parties' Permanent Parenting Plan, seeking to require Sharon Ann West (Mother) to pay child support. The trial court found a substantial and material change in circumstances due to Mother having a two-year gross income exceeding $25,000, ordering her to pay $290 per month in child support. Mother appealed, arguing errors in the child support order and its calculation. The Court of Appeals affirmed the trial court's decision, holding that the circumstances justifying the original downward deviation in child support had changed and that child support is based on all income sources. The court also declined to address issues not raised at the trial court level.

Child support modificationPermanent Parenting PlanMaterial change in circumstancesIncome calculationMarital property distributionDisability and child supportAppellate review of family lawFinancial circumstancesMedical evidenceSpousal support as income
References
1
Case No. 13-14-00644-CV
Regular Panel Decision

Laredo National Bank D/B/A as BBVA Compass Bank v. Myrna Elizabeth De Luna Morales

This case involves an interlocutory appeal of a district court's order denying a motion to dissolve a temporary injunction. The temporary injunction was issued to prevent Appellant Laredo National Bank d/b/a BBVA Compass Bank from proceeding with a forcible detainer action against Appellee Myrna Elizabeth de Luna Morales. Morales initiated the original lawsuit, alleging an illegal foreclosure sale of her property due to the bank's lack of authority, failure to provide proper notice, and denial of her right to cure the default. The district court consistently sided with Morales, denying the bank's motions to dismiss, for summary judgment, and to dissolve the temporary injunction. Morales argues that the justice court lacks jurisdiction over the forcible detainer action due to complex title disputes and that the potential loss of her home constitutes irreparable harm.

Interlocutory AppealTemporary InjunctionForeclosureForcible DetainerJustice Court JurisdictionTitle DisputeIrreparable InjuryAbuse of DiscretionMootness DoctrineAdvisory Opinion
References
45
Case No. 13-99-271-CV
Regular Panel Decision
Aug 30, 2002

West, Randy and Antonia West v. Maintenance Tool and Supply Co., Inc. and Rene Rodriguez, Individually and as Representative of Maintenance Tool and Supply Co., Inc.

The appellants, Randy and Antonia West, appealed a default summary judgment granted in favor of appellees, Maintenance Tool & Supply Co., Inc. and Rene Rodriguez. The claims at issue were workers' compensation retaliation and defamation, along with sanctions imposed against West's counsel. The appellate court affirmed the trial court's grant of summary judgment on the retaliation claim, finding that Maintenance Tool & Supply Co. established a legitimate, non-discriminatory reason for West's termination and that West had adequate notice of the hearing. The defamation claim was also affirmed for summary judgment due to judicial proceeding privilege. However, the court reversed the order imposing sanctions, ruling that the trial court abused its discretion by not providing notice and an evidentiary hearing as required by procedural rules before imposing sanctions.

Summary judgmentWorkers' compensation retaliationDefamationRule 13 sanctionsAbuse of discretionNotice of hearingMotion for new trialCausation employment lawJudicial proceeding privilegeAttorney conduct
References
35
Case No. No. 08-13-00252-CV
Regular Panel Decision
Jan 16, 2015

Bank of New York F/K/A the Bank of New York as Trustee for the Certificateholders of the CWABS Inc. Asset Back Certificates, Series 2005-9 v. Chesapeake 34771 Land Trust

The Trust (Appellee) sued the Bank (Appellant), a financial institution, to quiet title to a house after a foreclosure sale. The Trust alleged title irregularities and sought to set aside the Bank's deed, leading to a no-answer default judgment against the Bank. On appeal, the Bank argued improper service of process. The Court of Appeals agreed, finding that service did not strictly comply with Section 17.028 of the Texas Civil Practice and Remedies Code, which mandates specific procedures for serving financial institutions. The court clarified that the term 'may' in the statute indicates a mandatory procedure to protect financial institutions from default judgments. Therefore, the appellate court reversed the trial court's judgment and remanded the cause for further proceedings.

Default JudgmentService of ProcessFinancial InstitutionsTexas Civil Practice and Remedies CodeRestricted AppealQuiet TitleForeclosureStatutory InterpretationSecretary of StateRegistered Agent
References
13
Case No. MISSING
Regular Panel Decision

Nancy Alanis v. US Bank National Association as Successor Trustee to Bank of America National Association, as Successor by Merger to One LaSalle Bank, N.A. as Trustee for the MLMI Trust Series 2006-HE6

Nancy Alanis sued U.S. Bank National Association, BAC Home Loans Servicing, L.P., and The Law Offices of Mann & Stevens for fraud and violations of debt collection statutes related to the foreclosure of her San Antonio property. Following a jury trial, Alanis was awarded damages against U.S. Bank for Texas Fair Debt Collection Practices Act (FDCPA) violations and against BAC for common-law fraud, including attorney's fees, while Mann & Stevens received a take-nothing judgment. On appeal, Alanis challenged the denial of declaratory judgments, the granting of JNOV for Mann & Stevens, and the reduction of her damages due to settlement credits and comparative liability. U.S. Bank and BAC cross-appealed the damages for out-of-pocket expenses and attorney's fees. The appellate court affirmed the trial court's JNOV for Mann & Stevens and the application of comparative responsibility and settlement credit, but reversed the award of out-of-pocket damages and attorney's fees to Alanis, resulting in a net recovery of $0 for Alanis from U.S. Bank and BAC.

ForeclosureHome Equity LoanFraudDebt CollectionFDCPA ViolationTexas Finance CodeTexas Property CodeAppellate DecisionJury Verdict ReviewComparative Liability
References
48
Case No. 13-09-00350-CV
Regular Panel Decision
Jan 21, 2010

Gulf Coast Medical Center, LLC, Tony Todd, Crna, Dan Madsen, M.D. and South Texas Medical Clinics, P.A. v. Jacqueline Temple and Marcus Banks, Individually and as Representatives of the Estate of Markasia Banks, a Minor Child

Appellants, Gulf Coast Medical Center, LLC, Tony Todd, CRNA, Dan Madsen, M.D., and South Texas Medical Clinics, P.A., appealed the trial court's denial of their motions to dismiss. The underlying suit was filed by appellees Jacqueline Temple and Marcus Banks, alleging negligence in the care and treatment of their deceased minor child, Markasia Banks. The core issue on appeal was the appellees' failure to timely serve an expert medical report as required by the Texas Civil Practice and Remedies Code. The Court of Appeals determined that the appellees' claims were 'health care liability claims' and that the expert report was indeed untimely, and that an abatement due to a failure to provide medical authorization did not extend the deadline. The court also affirmed the constitutionality of the expert report requirement. Consequently, the appellate court reversed the trial court's judgment, granted the appellants' motions to dismiss, and remanded the case for the award of attorney's fees and costs to the appellants.

Health Care Liability ClaimExpert Medical ReportMotion to DismissTimeliness of ReportAbatementMedical MalpracticeNegligenceDue ProcessTexas ConstitutionAppellate Review
References
32
Case No. 2015 NY Slip Op 09604
Regular Panel Decision
Dec 29, 2015

Maggio v. 24 West 57 PFF, LLC

Plaintiff Joseph Maggio, a drywall installer, was injured after falling from a scaffold staircase at a premises owned by 24 West 57 APF, LLC and leased by Ana Tzarev New York, LLC (ATNY). The scaffold, constructed by Atlantic Hoist & Scaffolding, LLC, had a modified staircase with plywood covering some steps, lacking anti-slip protection and having an irregular rise. Plaintiff attributed his fall to these conditions and the presence of construction debris. The Supreme Court initially denied summary judgment motions from defendants 24 West and ATNY, citing outstanding discovery, and later denied renewed motions. On appeal, the Appellate Division found 24 West and ATNY justified in bringing the second motion but denied their request for summary judgment on negligence and Labor Law § 200 claims due to factual questions regarding notice of the dangerous condition. The court also denied plaintiff's untimely cross-motion for partial summary judgment on his Labor Law § 240 (1) claim. The Appellate Division modified the lower court's order, granting ATNY conditional contractual indemnification against R&R, and otherwise affirmed the decision.

Summary JudgmentLabor Law § 200Labor Law § 240 (1)Common-Law NegligenceContractual IndemnificationCommon-Law IndemnificationScaffold AccidentConstruction Site InjuryPremises LiabilityAppellate Procedure
References
12
Case No. MISSING
Regular Panel Decision

Alamo Bank of Texas v. Palacios

Alamo Bank of Texas sued Oscar Palacios to collect on a promissory note after Ponciano Garcia, represented by Palacios, forged checks and cashed them at the bank. Palacios had co-signed a renewal note, anticipating Garcia's worker's compensation claim would cover the bank's losses from the forged checks. The bank confronted Garcia and, according to Palacios, agreed not to prosecute if he signed the note. However, the bank had already filed a report with the FBI. The trial court found that the bank concealed this material fact from Palacios and was therefore equitably estopped from collecting on the note. The appellate court affirmed the trial court's judgment, upholding the equitable estoppel defense, thus making it unnecessary to rule on other points of error.

Promissory NoteEquitable EstoppelConditional DeliveryFraudParol Evidence RulePleading AmendmentAbuse of DiscretionSufficiency of EvidenceContract LawBanking Law
References
10
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