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

Case No. 2-07-133-CV
Regular Panel Decision
Mar 06, 2008

Mark Rotella Custom Homes, Inc. D/B/A Benchmark Custom Homes and Mark David Rotella v. Joan Cutting

This case involves an appeal by Mark Rotella Custom Homes, Inc. d/b/a Benchmark Custom Homes and Mark David Rotella (Appellants) against Joan Cutting (Appellee). Appellants challenged the trial court's decision to grant summary judgment and deny their motion for a new trial, primarily arguing a lack of proper notice. The Court of Appeals, Second District of Texas, affirmed the trial court's judgment, concluding that evidence of selective refusal of service established constructive notice. The court also upheld Mark Rotella's joint and several liability, citing his personal guarantee in the construction contract and his liability for tortious acts as an agent. Appellants' claim regarding a lack of fraudulent intent was overruled due to insufficient briefing.

Summary JudgmentMotion for New TrialNotice RequirementsDue ProcessConstructive NoticeService of ProcessJoint and Several LiabilityCorporate Agent LiabilityFraudulent IntentAppellate Review
References
26
Case No. 2-07-226-CV
Regular Panel Decision
Jan 31, 2008

Mark Rotella, Individually, and Mark Rotella Custom Homes, Inc., D/B/A Benchmark Custom Homes v. Dozier Cabinet Works, Inc.

Appellants Mark Rotella, individually, and Mark Rotella Custom Homes, Inc., d/b/a Benchmark Custom Homes, appealed a trial court's default judgment in favor of Dozier Cabinet Works, Inc. Appellants contended that the trial court abused its discretion by denying their motion for new trial, arguing they failed to set up a meritorious defense. The court found that mere allegations of beliefs or legal conclusions were insufficient for a meritorious defense. Appellants also argued that the trial court erred in holding Rotella vicariously liable under the Texas Property Code, claiming no contract existed in the record. However, the default judgment stated that the trial court heard evidence and found Rotella personally liable under Chapter 162 of the Texas Property Code. The appellants failed to provide a reporter's record to show error in the trial court's judgment. Therefore, the appellate court affirmed the trial court's judgment.

Default JudgmentMotion for New TrialAbuse of DiscretionMeritorious DefenseVicarious LiabilityTexas Property CodeConstruction Trust FundsAppellate ReviewReporter's Record BurdenCivil Procedure
References
7
Case No. MISSING
Regular Panel Decision

J.B. Custom Design & Building v. Clawson

The appeal stems from a Deceptive Trade Practices Act (DTPA) lawsuit filed by L.W. Clawson and Linda Clawson against J.B. Custom Design and Building for damages related to faulty foundation repair services. The jury found that J.B. Custom Design engaged in unworkmanlike conduct, misrepresentations, and knowingly committed DTPA violations, awarding actual and mental anguish damages. The trial court initially awarded discretionary treble damages and set aside the mental anguish award. On appeal, the court ruled that the trial court erred in determining discretionary damages without a jury issue and in setting aside the jury's findings on mental anguish. The judgment was reformed, reducing discretionary damages by $14,000 and reinstating $8,000 for mental anguish, resulting in a total judgment of $18,000 in damages plus $9,000 in attorneys’ fees.

Deceptive Trade Practices ActDTPAfoundation repairunworkmanlike mannermisrepresentationknowing conductmental anguish damagestreble damagesjury findingsjudgment notwithstanding verdict
References
17
Case No. MISSING
Regular Panel Decision

Tillman v. Triou's Custom Homes, Inc.

Charles Tillman, a truck driver for Phelps Cement Products, Inc., sustained a fractured leg after falling from his flatbed truck while unloading cement blocks at a construction site. He sued Triou’s Custom Homes, Inc. (general contractor) and Zurich Masonry, Inc. (subcontractor) alleging violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court initially granted Tillman partial summary judgment on Labor Law § 240 (1) liability, but this court reversed that decision, concluding that a flatbed truck is not an elevated work surface for the purposes of Labor Law § 240 (1). The court also reinstated the Labor Law § 241 (6) claim against Triou, finding specific Industrial Code violations applicable, but upheld the dismissal of the § 241 (6) claim against Zurich as they were not Triou's agent.

Construction accidentFall from heightFlatbed truckLabor Law 240(1)Labor Law 241(6)Industrial CodeGeneral contractor liabilitySubcontractor liabilityVicarious liabilityCommon-law indemnification
References
15
Case No. MISSING
Regular Panel Decision
Jun 20, 2005

Hageman v. B & G Building Services, LLC

The plaintiff, injured during demolition work at a Home Depot store, initially sued Home Depot, and later commenced an action against B & G Building Services, LLC (Building) for personal injuries. Building cross-moved for summary judgment, asserting that it was the plaintiff's employer and that the action was barred by Workers' Compensation Law due to an alter ego or joint venturer relationship with the plaintiff's direct employers, the Electrical corporations. The Supreme Court granted Building's cross-motion, dismissing the complaint. On appeal, the order was reversed; the appellate court determined that Building failed to provide sufficient proof to establish an alter ego or joint venturer relationship, which would legally prevent the plaintiff from proceeding with the personal injury action under the Workers' Compensation Law exclusivity provisions.

Personal InjuryWorkers' Compensation ExclusivitySummary JudgmentAlter Ego DoctrineJoint VentureEmployer LiabilityDemolition AccidentAppellate ReviewNassau CountyConstruction Injury
References
9
Case No. MISSING
Regular Panel Decision

Custom Transit, L.P., Richway Cartage, Inc., and Custom Operations, LLC v. Flatrolled Steel, Inc.

Flatrolled Steel Inc. sued Custom Transit, L.P., Custom Operations, LLC, and Richway Cartage, Inc., for breach of contract, negligence, and conversion related to damaged and lost steel coils. A jury found Custom Transit liable for breach of contract and conversion, and Custom Transit and Richway liable for negligence and gross negligence. The trial court entered a final judgment on July 9, 2010, allowing Flatrolled to recover contract damages from Custom Transit and actual and exemplary damages from Richway. On appeal, the court affirmed the trial court's judgment regarding contract damages and attorney's fees against Custom Transit and Custom Operations. However, the appellate court reversed the judgment for actual and exemplary damages against Richway, rendering a take-nothing judgment for Flatrolled against Richway, finding insufficient evidence to establish a duty of care for a negligent activity claim.

Contract LawNegligenceGross NegligenceConversionBreach of ContractEconomic Loss RuleAccord and SatisfactionProperty Owner RuleExpert TestimonySufficiency of Evidence
References
47
Case No. MISSING
Regular Panel Decision

Ward v. Mid-South Home Service

Appellant Lewis Eugene Ward, an hourly-paid employee of Mid-South Home Service, sustained a knee injury while playing basketball at a customer's home during a work break. The injury occurred when the work crew was waiting for more concrete. The employer did not sponsor the recreational activity, and it was not customary or required as part of the employment. The trial judge ruled that the injury did not arise out of employment, a decision which the Supreme Court affirmed. The Court held that purely personal recreational activities, even if occurring during a paid break on a job site, do not fall within the scope of worker's compensation unless there is clear employer sponsorship, custom, or direct benefit to the employer.

Worker's CompensationScope of EmploymentRecreational ActivityInjury during BreakArising out of EmploymentCourse of EmploymentPersonal ActivityEmployer SponsorshipBasketball InjuryConstruction Worker
References
5
Case No. No. 95 Civ. 5338 (JGK)
Regular Panel Decision
Dec 11, 1995

Petition of Home Ins. Co.

The Home Insurance Company (Home) filed a petition to compel arbitration against Svedala Industries Inc. (Svedala) under the Federal Arbitration Act concerning disputed retrospective premiums. Svedala cross-moved to dismiss, arguing the dispute arose under an insurance policy without an arbitration clause and that Home had previously invoked federal jurisdiction in a Wisconsin action. The court clarified that only the Southern District of New York could compel arbitration, as specified in the agreement. The court granted Home's petition, concluding that the broad arbitration clause in the Retrospective Premium Agreement covered the dispute, and denied Svedala's cross-motion, thereby ordering the parties to proceed with arbitration.

ArbitrationFederal Arbitration ActRetrospective Premium AgreementWorkers Compensation PolicyMotion to Compel ArbitrationStay of ProceedingsFirst-Filed RuleContract InterpretationScope of Arbitration ClauseBad Faith Claim
References
15
Case No. MISSING
Regular Panel Decision

American Home Shield Corp. v. Lahorgue

This case addresses the enforceability of a contractual indemnity clause under Texas fair notice requirements. American Home Shield (American Home) sought indemnity from Turn-Key Pool & Spa (Turn-Key) following a personal injury suit stemming from a spa heater explosion serviced by Turn-Key. The trial court denied American Home's motion for summary judgment and granted Turn-Key's, ruling the indemnity provision failed both the conspicuousness requirement and the express negligence doctrine. On appeal, American Home contended the provision satisfied fair notice or, alternatively, Turn-Key had actual notice. The appellate court affirmed the trial court's judgment, concluding the indemnity provision was not conspicuous and American Home failed to establish actual knowledge, thus rendering the clause unenforceable.

Contractual IndemnityFair Notice RequirementsConspicuousnessExpress Negligence DoctrineActual Knowledge ExceptionSummary JudgmentTexas LawIndemnity ClauseService Agreement DisputeAppellate Review
References
14
Case No. No. 10-12-00197-CV
Regular Panel Decision
Sep 05, 2013

Brian Dunn, Janel Dunn and Leisel Moseley v. Happy Hill Farm Academy/Home and Happy Hill Farm Children's Home Endowment Fund, Happy Hill Farm Children Home, Inc., A/K/A Dallas Cowboys Courage House

Appellants Leisel Moseley, Brian Dunn, and Janel Dunn appealed a summary judgment favoring Happy Hill Farm Academy/Home and related entities. They claimed wrongful termination, alleging Happy Hill Farm operates as a treatment or mental-health facility under the Texas Health and Safety Code, and contested the applicability of statutory exemptions. The court affirmed the summary judgment, ruling that Happy Hill Farm is neither a treatment nor a mental-health facility, but a basic child care facility with a school. Furthermore, the court found Happy Hill Farm exempt from former Chapter 242 of the Texas Health and Safety Code, as it operates under the jurisdiction of the Texas Department of Family and Protective Services, a recognized state agency.

Summary judgmentWrongful terminationTexas Health and Safety CodeMental health facilityTreatment facilityBoarding schoolState agency exemptionEmployment at willRetaliatory dischargeMedical misconduct
References
17
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