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

Case No. 03-17-00357-CV
Regular Panel Decision
Nov 21, 2017

George Allibone, M.D. v. Scott Freshour, in His Official Capacity as the Interim Executive Director of the Texas Medical Board Juanita Garner, Investigator of the Texas Medical Board And the Texas Medical Board

George Allibone, M.D., appealed the denial of his petition for a protective order against an administrative subpoena issued by the Texas Medical Board. The subpoena sought patient medical and billing records for an investigation into complaints against Allibone. He contended the trial court erred by failing to issue findings of fact and conclusions of law and by abusing its discretion in finding the subpoena reasonable and relevant. The appellate court found Allibone waived his complaint regarding missing findings. It also concluded the trial court did not abuse its discretion, citing the Board's need for complete records for investigation and Allibone's failure to prove the unconstitutionality of the statute requiring compliance. The trial court's order was affirmed.

Medical Board InvestigationAdministrative SubpoenaPhysician RecordsConstitutional RightsDue ProcessJudicial Review of Agency ActionAbuse of DiscretionFourth AmendmentTexas LawProfessional Licensing
References
50
Case No. 03-01-00400-CV
Regular Panel Decision
Apr 11, 2002

Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock Round Rock Development Review Board Frank Del Castillo, in His Capacity as Member of the Round Rock Development Review Board Terry Hagood, in His Capacity as Member of the Round Rock Development Review Board

Appellants Richard Wallace Pearce and Jesse Ray Blann appealed the district court's judgment affirming the Round Rock Development Review Board's denial of their permit applications for seven outdoor advertising structures. The core issue was whether the structures qualified as 'signs' and were entitled to non-conforming use status under the City's ordinance, which became effective February 27, 1997. The Court of Appeals held that four of the structures were 'signs' due to having a surface capable of displaying text, despite not yet having advertising affixed, and were therefore entitled to non-conforming use. The court reversed and remanded the Board's decisions regarding these four structures. However, it affirmed the district court's judgment for the remaining three structures, which lacked such a surface, and also upheld the constitutionality of the City's sign ordinance against a takings claim.

ZoningOutdoor AdvertisingNon-conforming UsePermit DenialExtraterritorial JurisdictionAbuse of DiscretionStatutory InterpretationMunicipal OrdinanceTexas Court of AppealsProperty Rights
References
30
Case No. 03-06-00002-CV
Regular Panel Decision
Jul 20, 2007

Texas Court Reporters Certification Board and Michele Henricks, as Director of the Court Reporters Certification Board v. Esquire Deposition Services, L.L.C.

The Texas Court Reporters Certification Board (Board) initiated disciplinary proceedings against Esquire Deposition Services, L.L.C. (Esquire) for alleged violations concerning long-term volume discount arrangements for court reporting services. Esquire subsequently filed suit against the Board and its director, Michele Henricks, challenging the Board's statutory authority to regulate or prohibit such discounts and seeking declaratory and injunctive relief. The district court denied the Board's plea to the jurisdiction, prompting an appeal. The Court of Appeals held that the Board possesses exclusive jurisdiction over disciplinary claims and determined that Esquire's claims, which broadly questioned the Board's general authority over long-term discounts, were not ripe for judicial review as they depended on contingent facts and agency expertise. Consequently, the appellate court reversed the district court's order, dismissing Esquire's suit due to lack of jurisdiction.

Administrative LawJurisdictionPlea to the JurisdictionRipeness DoctrineExclusive JurisdictionStatutory InterpretationDeclaratory Judgment ActCourt Reporters Certification BoardCourt Reporting FirmsLong-term Volume Discounts
References
15
Case No. 2020 NY Slip Op 05204 [186 AD3d 1679]
Regular Panel Decision
Sep 30, 2020

Matter of Board of Mgrs. of Half Moon Bay Mar. Condominium v. Board of Directors of Half Moon Bay Homeowners Assn., Inc.

This case concerns a CPLR article 78 proceeding initiated by the Board of Managers of Half Moon Bay Marina Condominium and Maria Elena DiBella against the Board of Directors of Half Moon Bay Homeowners Association, Inc. The dispute arose over the voting rights of Marina directors on the HOA Board, which the HOA Board sought to restrict. The Supreme Court, Westchester County, ruled in favor of the petitioners, compelling the HOA Board to allow unrestricted voting. The Appellate Division affirmed this judgment, determining that the HOA's bylaws regarding voting rights were ambiguous. The court found that extrinsic evidence, including the HOA Board's historical practice, supported the interpretation that all directors had an unrestricted right to vote on all HOA matters.

Bylaws InterpretationVoting RightsCondominium LawHomeowners AssociationCPLR Article 78Contract InterpretationExtrinsic EvidenceBoard of DirectorsAppellate ReviewAmbiguity
References
11
Case No. C-4199
Regular Panel Decision

Board of Education of the Union-Endicott Central School District v. New York State Public Employment Relations Board

The Board of Education of Union-Endicott Central School District initiated a CPLR article 78 proceeding to annul a Public Employment Relations Board (PERB) determination that certified the Endicott Teachers' Association as the exclusive negotiating agent for former members of OTASN. The School Board argued that permitting a non-attorney to represent the Teachers' Association violated Judiciary Law §§ 478 and 484, and that PERB's director improperly made the decision instead of the Administrative Law Judge who presided over the hearing. The court agreed with the School Board on both points, finding PERB's rule allowing lay representation to contravene state law and the director's decision arbitrary and capricious. Consequently, the court annulled PERB's determination and remanded the matter for a new hearing. Additionally, a motion to dismiss by Kathleen Osiecki, president of OTASN, was granted as OTASN was not formally a party to the proceeding.

labour relationspublic employmentcollective bargainingjudicial reviewPERBnon-attorney representationdue processadministrative law judgeunion certificationarbitrary and capricious
References
6
Case No. MISSING
Regular Panel Decision

Claim of Chukwunenye Onuoha v. BJs Club 165

Claimant sustained a work-related head injury in April 2010, subsequently amended to include depressive disorder. The employer and its carrier controverted the claim, leading a WCLJ to find no further causally related disability after December 15, 2012, a decision affirmed by the Workers’ Compensation Board on November 7, 2014. The Board later denied the claimant's request for reconsideration and/or full Board review on February 6, 2015. This appeal concerns that denial, with the court affirming the Board's decision. The appellate court limited its review to whether the Board's denial was arbitrary, capricious, or an abuse of discretion, and concluded that it was not, upholding the Board's discretion in assessing medical testimony.

Workers' CompensationAppealReconsiderationFull Board ReviewCausal RelationshipDepressive DisorderMedical EvidenceCredibilityAbuse of DiscretionAppellate Review
References
6
Case No. M2010-00831-COA-R3-CV
Regular Panel Decision
Jun 27, 2011

Richard W. Feldman, M.D. v. Tennessee Board of Medical Examiners

This appeal arises from disciplinary proceedings against Dr. Richard W. Feldman by the Tennessee Board of Medical Examiners for numerous statutory and regulatory infractions related to his advertising of mesotherapy for weight loss. The Board found him guilty, revoked his license for at least one year, and assessed a monetary penalty. Dr. Feldman petitioned for judicial review, and the Chancery Court affirmed the Board's decision. On appeal, Dr. Feldman challenged the Board's decision, alleging insufficient evidence and improper exclusion of expert testimony. The Court of Appeals affirmed the Chancery Court's judgment, upholding the Board's findings and sanctions, concluding that substantial and material evidence supported the Board's decision and there was no abuse of discretion by the ALJ.

Disciplinary actionMedical advertisingMesotherapyWeight loss claimsProfessional conductLicense revocationExpert testimonyAdministrative lawJudicial reviewStandard of care
References
17
Case No. M2004-00647-COA-R3-CV
Regular Panel Decision
Nov 15, 2005

Yvonne N. Robertson v. Tennessee Board of Social Worker Certification and Licensure

The Tennessee Board of Social Worker Certification and Licensure appealed a Chancery Court decision that had set aside the Board's two-year license revocation of Yvonne N. Robertson. Robertson, a licensed clinical social worker, had her license revoked for engaging in a prohibited 'dual relationship' with a client. The Chancery Court ruled that the Board's sanctions were an abuse of discretion and arbitrary, partly due to the Board's consideration of Robertson's 1982 felony forgery conviction. The Court of Appeals of Tennessee reversed the Chancery Court's decision, determining that the Board was authorized to review its prior records and that the imposed sanction was both warranted in law and justified in fact. Consequently, the Board's original order of revocation was reinstated.

Social Worker CertificationLicense RevocationDual RelationshipUnethical ConductAdministrative LawJudicial ReviewStandard of ReviewProfessional EthicsAppellate Court DecisionTennessee Law
References
26
Case No. MISSING
Regular Panel Decision

State Board of Insurance v. Williams

The State Board of Insurance, as Relator, sought a writ of mandamus to compel Judge Mary Pearl Williams to reverse her order denying pleas in abatement, a motion to show authority, and a motion to dismiss in an underlying case where Jim Mattox, the Attorney General, had sued the Board over workers' compensation rates. The Board contended that the Attorney General lacked standing to sue them, as he is constitutionally and statutorily mandated to represent state agencies. However, the court denied the motion for leave to file the petition for writ of mandamus, concluding that the Board possessed an adequate remedy through appeal, despite arguments about inconvenience and needless expenditure. The court reiterated that mandamus is reserved for instances of clear abuse of discretion where no other adequate legal remedy exists.

MandamusWrit of MandamusInterlocutory OrderAdequate Remedy by AppealAbuse of DiscretionStandingAttorney GeneralWorkers' Compensation RatesTravis CountyTexas Civil Procedure
References
11
Case No. 03-12-00560-CV
Regular Panel Decision
Oct 31, 2014

the Texas State Board of Pharmacy, and in Their Official Capacities Only, Gay Dodson, Executive Director And Jeanne D. Waggener, President of the Board v. Tiana Jean Witcher

The Texas State Board of Pharmacy indefinitely suspended Tiana Jean Witcher's pharmacist license, citing a reciprocal suspension in North Carolina due to non-compliance with a recovery program. Witcher challenged this, arguing the suspension was arbitrary and based on an invalid unwritten "reciprocal-sanctions policy." The trial court reversed the Board's decision, and the appellate court affirmed, ruling that the Board's policy was an improperly promulgated "rule" under the Administrative Procedure Act. The appellate court emphasized that such ad hoc rulemaking is a narrow exception not applicable here, thus rendering the Board's indefinite suspension invalid and remanding the case for reconsideration of an appropriate sanction.

Pharmacist License SuspensionAdministrative LawJudicial ReviewReciprocal Sanctions PolicyAd Hoc RulemakingTexas State Board of PharmacyAdministrative Procedure ActDue ProcessAbuse of DiscretionProfessional Regulation
References
34
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