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

Case No. 03-14-00552-CV
Regular Panel Decision
Mar 06, 2015

Raghunath Dass, P.E. v. Texas Board of Professional Engineers

Appellant Raghunath Dass, PE, appeals sanctions imposed by the Texas Board of Professional Engineers (TBPE) for alleged violations of the Texas Engineering Practices Act. Dass asserts the TBPE lacked jurisdiction over the case facts and authority to amend its final order while under judicial review. He argues that the TBPE's amended final order is void because the agency modified a decision during judicial review. Additionally, Dass contends the TBPE lacks subject-matter jurisdiction to regulate construction material testing (CMT), which he argues is not "professional engineering." He also challenges the TBPE's authority to restrict competitive bidding for CMT and asserts that the 2005/2009 CME Policy Advisory Opinion, relied upon by the Board, is an invalid and unenforceable standard not promulgated under the Administrative Procedure Act. Finally, Dass argues that even if the testing was Construction Materials Engineering (CME), Naismith Engineering, not Dass, was the supervising engineer for the project.

Engineering RegulationProfessional ConductLicensing SanctionsAdministrative OverreachStatutory InterpretationPublic Works ProjectsRegulatory ComplianceJudicial OversightAgency Rules ValidityProfessional Responsibility
References
16
Case No. MISSING
Regular Panel Decision

Smith v. Otis Engineering Corp.

Gary L. Smith brought a personal injury action against Stewart Well Service Company, Otis Engineering Corporation, and Houston Fishing Tools Company. The trial court granted a take-nothing summary judgment for Otis Engineering, asserting Smith was its 'borrowed servant' due to his acceptance of workers' compensation benefits and a release. The appellate court disagreed, holding that the summary judgment proof did not establish, as a matter of law, that Otis Engineering had sufficient control over Smith's work to make him its borrowed servant. Furthermore, the court stated that the payment of workers' compensation benefits alone does not automatically grant employer status under the Workers' Compensation Act. Consequently, the trial court's summary judgment was reversed, and the cause was remanded for further proceedings.

Personal InjurySummary JudgmentReversed and RemandedWorkers' CompensationBorrowed Servant DoctrineEmployer-Employee RelationshipNegligence ActionAppellate ReviewControl TestRelease Agreement
References
3
Case No. 03-10-00323-CV
Regular Panel Decision
Aug 05, 2011

Austin Engineering Co., Inc. v. Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas

Austin Engineering Co., Inc. (Austin Engineering) appealed a trial court's order that denied its motion for summary judgment and granted summary judgment to the Comptroller of Public Accounts of the State of Texas and the Attorney General of the State of Texas (Comptroller) in a suit to recover sales taxes paid under protest. Austin Engineering provides construction services, including the installation of erosion prevention devices. A sales and use tax audit resulted in an assessment of $53,654, which Austin Engineering paid under protest, arguing the erosion control measures were nontaxable or exempt. The case centered on the taxability of these transactions and several claimed exemptions. The appellate court affirmed the denial of Austin Engineering's motion, but reversed the grant of summary judgment for the Comptroller, remanding the cause for further proceedings due to a fact issue regarding the exemption for consumable supplies.

Sales TaxUse TaxSummary JudgmentStatutory ConstructionTax ExemptionsErosion ControlTangible Personal PropertyConsumable SuppliesDeclaratory Judgment ActConstitutional Law
References
21
Case No. 03-08-00288-CV
Regular Panel Decision
Oct 24, 2008

Texas Society of Professional Engineers v. Texas Board of Architectural Examiners and Cathy Hendricks, Executive Director

The Texas Society of Professional Engineers appealed the trial court's partial grant of a plea to the jurisdiction filed by the Texas Board of Architectural Examiners (TBAE) and its Executive Director. The Society sought declaratory and injunctive relief to prevent the TBAE from initiating enforcement proceedings against licensed engineers for alleged violations of the Architecture Practice Act, asserting engineers are exempt and TBAE lacks jurisdiction. The trial court granted the plea in part, ruling it lacked jurisdiction over most claims except those challenging TBAE rules. The Court of Appeals affirmed this order, concluding the Society lacked associational standing to pursue the broad relief requested under the Uniform Declaratory Judgments Act. This was because such claims required a fact-intensive, case-by-case analysis of individual engineers' conduct, not pure issues of law.

JurisdictionAssociational StandingDeclaratory JudgmentInjunctive ReliefPlea to the JurisdictionProfessional LicensingArchitectureEngineeringAdministrative LawRegulatory Authority
References
14
Case No. MISSING
Regular Panel Decision

Otis Engineering Corp. v. Clark

The dissenting opinion by Justice McGee in Clarks v. Otis Engineering Corporation argues against the majority's decision to impose liability on an employer for the off-duty, off-premises torts of an intoxicated employee. McGee contends that Otis Engineering Corporation did not owe a legal duty to control its employee Matheson, as it neither "created" the dangerous situation nor voluntarily "took charge" of him in a custodial sense. The dissent critiques the majority's interpretation of "affirmative act" and its reliance on various legal precedents, arguing that such an expansion of employer liability is impractical, unsupported by existing Texas law, and should be a matter for legislative action, not judicial intervention.

Employer LiabilityOff-Duty EmployeeIntoxicated EmployeeDuty to ControlNegligenceSummary JudgmentDram Shop LiabilityAffirmative ActRestatement of TortsTexas Law
References
55
Case No. 13-0605
Regular Panel Decision
Apr 24, 2015

Brown & Gay Engineering, Inc. v. Zuleima Olivares, Individually and as the Representative of the Estate of Pedro Olivares, Jr., & Pedro Olivares

This case addresses whether a private engineering firm, Brown & Gay Engineering, Inc., is entitled to sovereign immunity when sued for negligence in carrying out a contract with a governmental unit, the Fort Bend County Toll Road Authority. The firm designed roadway signs and traffic layouts for the Westpark Tollway, where a fatal collision occurred due to an intoxicated driver. The Olivares family sued Brown & Gay, alleging negligence in the design of traffic control devices. The Supreme Court of Texas held that extending sovereign immunity to the engineering firm does not align with the doctrine's purposes, which primarily protect the public treasury from unforeseen expenditures rather than insulate private entities from liability for their independent actions. The Court distinguished this situation from cases where contractors merely follow government specifications, noting that Brown & Gay exercised independent discretion in its design work and could manage its risks through insurance. Therefore, the Supreme Court affirmed the court of appeals' judgment, denying Brown & Gay's plea to the jurisdiction.

Sovereign ImmunityGovernment ContractorsNegligence ClaimsIndependent DiscretionPublic Funds ProtectionDerivative ImmunityTexas Tort Claims ActPlea to JurisdictionCivil LiabilityGovernmental Functions
References
33
Case No. MISSING
Regular Panel Decision
Oct 22, 1986

Leonard Engineering, Inc. v. Zephyr Petroleum Corp.

In an action to foreclose a mechanic's lien, plaintiff Leonard Engineering, Inc. appealed an order that granted defendant New York Paving, Inc.'s motion to discharge the lien and dismiss the complaint, and denied Leonard's cross-motion to amend the lien. Leonard had provided engineering services to defendant Zephyr Petroleum Corporation, which then conveyed the property to New York Paving, Inc. with a trust fund provision in the deed, before Leonard filed its lien. The lien was subsequently filed with an incorrect lot number. The appellate court affirmed the lower court's decision, holding that the lien was ineffective against New York Paving due to the Lien Law § 13 (5) trust fund provision in the deed, which protected the purchaser. Consequently, Leonard's appeal to amend the notice of lien was dismissed as academic.

Mechanic's LienLien LawForeclosureTrust Fund ProvisionReal PropertyDeed CovenantNotice of LienLien AmendmentMisdescriptionAppellate Review
References
1
Case No. MISSING
Regular Panel Decision

Olivares v. Brown & Gay Engineering, Inc.

Appellants Zuleima Olivares, Pedro Olivares, and the estate of Pedro Olivares, Jr. appealed the trial court's granting of pleas to the jurisdiction filed by appellees Brown & Gay Engineering, Inc. and Mike Stone Enterprises, Inc. The appellees asserted governmental immunity under the Texas Tort Claims Act (TTCA). The case revolves around a fatal accident on the Westpark Tollway in Harris County, where the appellants alleged negligence and premises defect claims against the engineering and project management companies involved in the Tollway's design and operation. The appellate court examined whether Brown & Gay and MSE qualified as 'governmental employees' under the TTCA, thereby sharing the governmental immunity of Fort Bend County Toll Road Authority (FBCTRA). The court concluded that neither MSE nor Brown & Gay met the statutory definition of a governmental employee, finding them to be independent contractors. Consequently, the appellate court reversed the trial court's orders granting the pleas to the jurisdiction and remanded the case for further proceedings.

Governmental ImmunityTexas Tort Claims Act (TTCA)Independent ContractorGovernmental EmployeePlea to the JurisdictionNegligencePremises DefectEngineering ServicesTraffic Control DevicesTollway Project
References
39
Case No. MISSING
Regular Panel Decision

Brotherhood of Locomotive Engineers, Division 269 v. Long Island Rail Road

Plaintiffs, members of the Brotherhood of Locomotive Engineers (BLE), sought a preliminary injunction against the Long Island Railroad (LIRR) to prevent the imposition of disciplinary fines following a concerted job action on May 26, 1995. The LIRR assessed fines against engineers who participated in the walk-out, deducting pay. The BLE argued that these fines violate their Collective Bargaining Agreement, the Railway Labor Act (§ 2 Seventh and § 6), and New York Labor Law § 193, classifying the dispute as "major" under the RLA, requiring lengthy mediation. The LIRR contended the fines are disciplinary actions falling under the implied terms of the collective bargaining agreement, making it a "minor" dispute governed by arbitration (§ 2 Sixth and § 3 First® of the RLA). The court, applying the "arguably justified" test from Conrail, found that the LIRR's claim of implied authority to impose fines, based on past flexible disciplinary practices, was neither frivolous nor insubstantial. Therefore, the court concluded the dispute was "minor," falling outside its jurisdictional authority for an injunction, and denied the preliminary injunction, dismissing the case.

Railway Labor ActMinor DisputeMajor DisputePreliminary InjunctionDisciplinary FinesCollective Bargaining AgreementLabor DisputeWork StoppageArbitrationStatus Quo Injunction
References
6
Case No. MISSING
Regular Panel Decision

International Union of Operating Engineers, Local No. 450 v. Mid-Valley, Inc.

The International Union of Operating Engineers (Union) sought judicial enforcement of an arbitrator's decision against Mid-Valley, Inc. (Company). The arbitrator had found the Company violated a collective bargaining agreement by not employing operating engineers for dewatering devices and awarded wage payments to the Union. The Company objected, contending the arbitrator exceeded his authority, particularly regarding the monetary award. The District Court affirmed the arbitrator's authority to fashion a remedy but distinguished between compensatory and punitive damages. The court found the first segment of the arbitrator's award, covering the period before the arbitrator's decision, to be punitive and denied its enforcement, allowing only nominal damages. The second segment, intended to incentivize compliance, was upheld and enforced. The Union's request for attorney's fees was denied.

Arbitration EnforcementCollective Bargaining AgreementLabor DisputeArbitrator AuthorityContract BreachPunitive DamagesNominal DamagesJudicial ReviewGrievance ResolutionWage Payments
References
19
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