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

Case No. MISSING
Regular Panel Decision

Klussman v. A.T. Reynolds & Sons, Inc.

Plaintiff Michael Klussman, a tractor-trailer driver, was injured while off-loading water bottles, leading to a lawsuit against the water distributor, Leisure Time, and the building occupant, Cure Connections. The Supreme Court initially denied Leisure Time's motion for summary judgment but granted Cure Connections'. On appeal, the decision was modified, with Leisure Time's motion for summary judgment being granted and the complaint against them dismissed. The appellate court determined that Klussman's chosen method of unloading, moving a heavy load at a faster speed down an incline, was the proximate cause of his injury, rather than any defective equipment provided by Leisure Time.

summary judgmentnegligencespecial employeeproximate causeworkers' compensation lawpallet jackloading dock accidentpersonal injuryappellate reviewduty of care
References
0
Case No. ADJ1148042 (RIV 0079139)
Regular
Apr 24, 2012

SARA OCHOA vs. BEL AIRE WINDOW COVERINGS, ZENITH INSURANCE COMPANY

The Appeals Board affirmed the WCJ's decision disallowing a medical lien from Aspen Medical Resources (AMR). AMR failed to prove that the durable medical equipment it provided was reasonably necessary to cure or relieve the applicant's industrial injury, lacking a report from the primary treating physician requesting such equipment. Furthermore, the applicant's treatment occurred outside the defendant's Medical Provider Network (MPN) after proper notification was given, and AMR's argument regarding defective MPN notice was rejected as defects can be cured. The Board also found no error in the admission of defendant's exhibits, as any objection to the proof of service was waived by AMR's failure to timely object.

Medical Provider NetworkMPNLien ClaimantDurable Medical EquipmentReasonable and NecessaryBurden of ProofUtilization ReviewProof of ServiceTimely ObjectionWaiver
References
14
Case No. 05-11-01425-CV
Regular Panel Decision
Mar 21, 2014

Wells Fargo Bank, N.A. v. Leath, Lonzie

Justice FitzGerald dissents from the denial of appellant's motion for rehearing en banc, arguing that the appellee failed to provide adequate notice regarding a constitutional defect in the mortgage. The dissent contends that the general pleading submitted by the appellee lacked sufficient detail for Wells Fargo to effectively utilize the 60-day cure period. Drawing an analogy to the requirements for attorneys’ fees under the Texas Civil Practice and Remedies Code, Justice FitzGerald asserts that such a broad notice should not trigger the cure period, as it would make the lender's ability to cure contingent on the debtor’s cooperation. Therefore, the dissenting justice believes the motion for rehearing en banc should have been granted.

Mortgage LawConstitutional LawNotice RequirementsCure PeriodAppellate ProcedureEn Banc RehearingTexas Civil Practice and Remedies CodeAttorneys' FeesReal Estate LawBanking Law
References
4
Case No. 13-07-00277-CV
Regular Panel Decision
Jul 17, 2008

Corpus Christi Housing Authority v. Maria Lara

The Corpus Christi Housing Authority appealed the dismissal of its forcible detainer action against tenant Maria Lara. The housing authority terminated Lara's lease due to alleged criminal activity. The trial court dismissed the action, ruling that the housing authority's notice of lease termination was defective as it failed to specify the judicial eviction procedure and the type of criminal activity, as mandated by federal regulations, and that this defect deprived the court of subject-matter jurisdiction. The appellate court reversed the dismissal, finding that while the notice was indeed deficient, such defects are not jurisdictional and should lead to abatement of the action to allow the housing authority to cure the notice, rather than outright dismissal. The case was remanded for further proceedings consistent with this ruling.

Forcible DetainerLease TerminationHousing AuthorityFederal RegulationsDue ProcessNotice RequirementsJurisdictionAbatementReversalRemand
References
17
Case No. 12-15-00169-CV
Regular Panel Decision
Oct 20, 2015

Earl Anderson, Carrie Bell Scott, Sharon Anderson, Evance Anderson, Bill Burton, Willie Mae Anderson, and Jerry J. Anderson (Smith) v. Robert Louis Durham

The appellants, Earl Anderson et al., are filing a reply brief in the Twelfth Court of Appeals, Tyler, Texas, against appellees Robert Louis Durham and Frank L. Zellers, III. They are appealing a trial court's summary judgment that dismissed their claims. Appellants argue that the trial court erred by allowing an improper challenge to their petition via a no-evidence motion for summary judgment instead of special exceptions, thereby denying them due process and the opportunity to cure defects and conduct discovery. They assert that fact questions exist regarding an altered warranty deed, and that Durham failed to verify his challenge to alleged defects in parties, thus waiving these defects. Appellants pray for the court to reverse and vacate the trial court's summary judgment.

Summary JudgmentAppellate ReviewPleading RequirementsDue Process ViolationEvidentiary IssuesReal Property DisputesDeed AlterationsTrial Court ErrorCivil ProcedureDiscovery Limitations
References
5
Case No. M2019-00951-COA-R3-CV
Regular Panel Decision
Oct 21, 2020

Liberty Construction Company, LLC v. Peter H. Curry

Liberty Construction Company, LLC sued Peter H. Curry and Patricia P. Curry for breach of a written stipulated sum contract and an oral cost-plus contract for the construction of a commercial building. Liberty sought payment for additional work, while the Currys counterclaimed for payments made directly to suppliers and costs to correct a defect in a bioretention pond. The trial court ruled in favor of Liberty on the cost-plus agreement but denied recovery for both parties under the stipulated sum contract and dismissed the Currys' counterclaim regarding the pond defect. On appeal, the Court of Appeals of Tennessee reversed the trial court's denial of credit to the Currys for certain direct payments to suppliers, its ruling on the commencement date of prejudgment interest, and its finding that the Currys did not provide Liberty with notice and an opportunity to cure the pond defect. In all other respects, the trial court's judgment was affirmed.

Construction ContractCost-Plus ContractStipulated Sum ContractBreach of ContractMechanic's LienMaterialman's LienDamages CalculationPrejudgment InterestOpportunity to CureConstruction Defects
References
27
Case No. ADJ10245654
Regular
Feb 20, 2018

ERNESTO NAJERA vs. GENERAL WAX COMPANY, INC., TRAVELERS PROPERTY OF CASUALTY COMPANY OF AMERICA

The Workers' Compensation Appeals Board dismissed Ernesto Najera's Petition for Reconsideration because it was not verified, as required by Labor Code section 5902. The WCJ's report notified the applicant of this defect, but it was not cured within a reasonable time. The Board noted that if not dismissed for procedural defect, the petition would have been denied on the merits.

Petition for ReconsiderationUnverified PetitionVerification DefectLabor Code Section 5902Cal. Code Regs. tit. 8 § 10450(e)Lucena v. Diablo Auto BodyNotice of DefectCure DefectCompelling ReasonAdministrative Law Judge Report
References
1
Case No. ADJ8752928
Regular
Feb 23, 2016

BRAD MITCHELL vs. MARILYN GREENBERG LOAN ACCOUNTS, AAA NORTHERN CALIFORNIA INSURANCE EXCHANGE, administered by TRISTAR RISK MANAGEMENT

This case is dismissed because the Applicant's Petition for Reconsideration was unverified, violating Labor Code section 5902 and related regulations. The Applicant was given notice of this defect and a reasonable time to cure it, but failed to do so. Additionally, the petition lacked the required proof of service. If not for the procedural defect, the petition would have been denied on its merits.

Petition for ReconsiderationUnverified PetitionVerification RequirementLabor Code Section 5902Lucena v. Diablo Auto BodySignificant Panel DecisionWCJ ReportProof of ServiceLabor Code Section 5905Workers' Compensation Appeals Board
References
1
Case No. BAK 0136834
Regular
Dec 28, 2007

JOSE M. DELVILLAR vs. IRISH CONSTRUCTION, NATIONAL UNION FIRE INSURANCE COMPANY, AMERICAN INTERNATIONAL CLAIMS SERVICES (Adjusting Agent)

The Workers' Compensation Appeals Board dismissed the defendant's petition for reconsideration because it was not verified as required by Labor Code section 5902. The defect was pointed out by the administrative law judge, and the defendant failed to cure it or provide a valid explanation within a reasonable time. Therefore, the petition was dismissed for procedural defect.

Petition for ReconsiderationVerifiedLabor Code section 5902Lucena v. Diablo Auto BodyWCJ's ReportDismissedFindings of Fact and AwardAdministrative Law JudgeDefectCure defect
References
1
Case No. ADJ1901636 (OXN 0142554)
Regular
Aug 09, 2018

STEWART BERNSTEIN vs. CAST & CREW ENTERTAINMENT

This Workers' Compensation Appeals Board decision dismisses a Petition for Reconsideration because it was unverified, which violates Labor Code section 5902. The petitioner was notified of this defect but failed to cure it by filing a verification or providing a compelling explanation within a reasonable time. Therefore, the Board is dismissing the petition. Had it not been for the procedural defect, the petition would have been denied on its merits.

Workers' Compensation Appeals BoardPetition for ReconsiderationUnverified PetitionLabor Code Section 5902Verification RequirementLucena v. Diablo Auto BodyAdministrative Law JudgeDismissalCuring DefectCompelling Reason
References
1
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