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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
Jan 26, 2017

Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP

This case involves an appeal and cross-appeal concerning a breach of contract suit related to defects in the design and construction of a hotel. Appellant Elness Swenson Graham Architects, Inc. (Elness), the architectural firm, appealed a judgment in favor of appellees RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; and RLJ Lodging Fund II Acquisitions, LLC (collectively, RLJ), the hotel owner. RLJ had acquired the contract rights through an assignment from a previous owner and had settled with other defendants, EBCO (general contractor) and Terracon (geotechnical engineering firm). The jury found Elness liable and awarded RLJ $785,000 in damages. The trial court applied settlement credits and attorney's fees, resulting in a net award to RLJ. On appeal, Elness's issues regarding RLJ's capacity to sue, evidence admissibility, jury charge, and damages sufficiency were overruled. However, the appellate court reversed the trial court's judgment regarding attorney's fees. It ruled that after applying the one-satisfaction rule and the $1,170,000 in settlement credits from other defendants, RLJ did not actually recover any damages from Elness. Consequently, RLJ was not a "prevailing party" entitled to attorney's fees under Texas law. The court reversed the trial court’s final judgment and rendered a judgment that RLJ take nothing.

Breach of ContractArchitectural NegligenceConstruction DefectsHotel DevelopmentContract AssignmentCapacity to SueSummary JudgmentEvidence AdmissibilityJury ChargeDamages
References
151
Case No. MISSING
Regular Panel Decision

E.V.R. II Associates, Ltd. v. Brundige

Riley T. Brundige, a security service employee, sued E.V.R. II Associates, Ltd., E.V.R. II Partnership, and Enclave Development Corporation (Enclave) for personal injuries sustained from a fall on their premises on April 18, 1987. Liberty Mutual Fire Insurance Company intervened as the workers' compensation carrier for Brundige's employer, seeking subrogation for $47,293.73 in indemnity and medical payments. A jury found in favor of Brundige, awarding him $270,468.43, and Liberty Mutual was awarded $46,500.00 from Brundige's recovery, plus $22,000.00 in attorney's fees. Enclave appealed, raising points regarding the admission of workers' compensation benefits evidence, the denial of a separate trial for Liberty Mutual's subrogation claim, jury challenges, and the admission of post-accident repair photographs. The court affirmed the judgment, finding no reversible error.

Premises LiabilityPersonal InjuryWorkers' Compensation SubrogationEvidentiary RulesSubsequent Remedial MeasuresJury SelectionPeremptory ChallengesAntagonism Between PartiesInterventionAppellate Review
References
15
Case No. MISSING
Regular Panel Decision

Hang On II, Inc. v. Tuckey

Shelby Jean Tuckey, a cocktail waitress, sued her employer, Hang-On-II, Inc., for damages after she fell and broke her arm at work, alleging negligence due to inadequate lighting and lack of a guardrail on steps. A jury initially found in Tuckey's favor, awarding $84,500. Hang-On-II, Inc. appealed, challenging the legal and factual sufficiency of the evidence, specifically regarding proximate cause. The appellate court reversed the trial court's judgment, concluding that Tuckey failed to present sufficient evidence that Hang-On's alleged negligence was the proximate cause of her injury, and rendered a take-nothing judgment for Hang-On-II, Inc.

NegligenceProximate CauseEmployment LawPremises LiabilityWorkers' Compensation ExemptionSufficiency of EvidenceJudgment Non Obstante VeredictoAppellate ReversalPersonal InjuryDuty to Insure
References
21
Case No. 2024 NY Slip Op 01944 [226 AD3d 836]
Regular Panel Decision
Apr 10, 2024

Ragusa v. Drazie's Farm II, LLC

The plaintiff, Matthew Ragusa, appealed an order denying his cross-motion to amend the complaint to add Drazie's Farm, LLC as a defendant and granting summary judgment to Drazie's Farm II, LLC on a Labor Law § 240 (1) claim. The Appellate Division, Second Department, affirmed the lower court's decision. The court found that the relation-back doctrine did not apply because Drazie's Farm II, LLC and Drazie's Farm, LLC were separate entities with potentially different defenses, thus not united in interest. Furthermore, Drazie's Farm II, LLC established that it did not own the property where the accident occurred and therefore could not be held liable under Labor Law § 240 (1).

Personal injuryLabor Law § 240 (1)A-frame ladderfall from heightpremises liabilityrelation-back doctrinesummary judgmentlimited liability companyproperty ownershipadjoining properties
References
10
Case No. 03-14-00738-CV
Regular Panel Decision
Jun 12, 2015

Elness Swenson Graham Architects, Inc.// RLJ II-C Austin Air, LP RLJ II-C Austin Air Lessee, LP And RLJ Lodging Fund II Acquisitions, LLC v. RLJ II-C Austin Air, LP RLJ II-C Austin Air Lessee, LP And RLJ Lodging Fund II Acquisitions, LLC// Elness Swenson Graham Architects, Inc.

The Appellees and Cross-Appellants, RLJII-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; and RJL Lodging Fund II Acquisitions, LLC, filed an unopposed motion to amend their Appellees' Brief. The amendment seeks to correct a sentence fragment on page 5 of their brief by adding ten omitted words. The omission occurred due to an error during the final preparation of the brief, where a phrase was accidentally deleted during a copy-and-paste operation and was not detected until after the brief was filed. Counsel for the Appellant and Cross-Appellee is not opposed to the requested amendment. The motion requests that the court grant leave to amend and accept the Amended Appellees' Brief for filing.

Motion to Amend BriefSentence Fragment CorrectionAppellate ProcedureUnopposed MotionBrief AmendmentCivil ProcedureContract LawAttorney's FeesStanding to SueAssignment of Contract
References
168
Case No. 03-01-00214-CV
Regular Panel Decision
Jun 06, 2002

Hobert T. Douglas, II, Attorney at Law, P.C. And Hobert T. Douglas, II, Individually v. Edward J. Petrus

Appellee Edward J. Petrus sued appellants Hobert T. Douglas, II, Attorney at Law, P.C., and Hobert T. Douglas individually, seeking $47,200 for consulting and expert services provided in a medical malpractice lawsuit. Following a bench trial, the trial court found in favor of Petrus. Douglas appealed, arguing that the trial court erred in overruling his motion for new trial due to inadequate notice of the trial setting and his unpreparedness resulting from mistake. The appellate court found Douglas's amended motion for new trial was untimely and that the record did not support his claim of inadequate notice. Furthermore, the court determined that even if the Craddock test for default judgments applied, Douglas's timely-filed motion failed to establish a meritorious defense with supporting evidence. Consequently, the appellate court affirmed the trial court's judgment.

AppealMotion for New TrialNotice of TrialDue ProcessDefault JudgmentCraddock TestAbuse of DiscretionMeritorious DefenseAttorney UnpreparednessSworn Account
References
14
Case No. 2022 NY Slip Op 03868 [206 AD3d 468]
Regular Panel Decision
Jun 14, 2022

Gonzalez v. DOLP 205 Props. II, LLC

This case concerns an appeal from an order of the Supreme Court, New York County, regarding a personal injury claim under Labor Law § 240 (1). Plaintiff Christian Gonzalez had sought summary judgment on liability after sustaining injuries from a fall while working on stilts. Defendant DOLP 205 Properties II LLC also moved for summary judgment, seeking dismissal of negligence claims and contractual indemnification against third-party defendant Amick Construction Corp., as well as for breach of contract for failure to procure insurance. The Appellate Division, First Department, modified the Supreme Court's order, denying plaintiff's motion for summary judgment due to triable issues of fact concerning the scope of his duties and whether his actions were the sole proximate cause of the accident. Additionally, the Appellate Division denied DOLP's motion for summary judgment on the breach of contract for failure to procure insurance claim against Amick, deeming it premature. The remainder of the Supreme Court's order, including the dismissal of common-law negligence and Labor Law § 200 claims against DOLP and the grant of contractual indemnification against Amick, was affirmed.

Labor LawSummary JudgmentElevation-Related HazardSafety DevicesContractual IndemnificationBreach of ContractFailure to Procure InsuranceProximate CauseTriable Issues of FactAppellate Review
References
19
Case No. 01-14-00246-CV
Regular Panel Decision
Jun 02, 2015

Allen L. Berry, Joseph D. McCord, and Robert G. Taylor, II v. Encore Bank

This case concerns a $6 million loan from Encore Bank to BLyn II Holding, LLC, guaranteed by Allen L. Berry, Joseph D. McCord, and Robert G. Taylor, II, for a luxury yacht refurbishment. Despite the yacht being collateral, a pre-existing maritime lien by the refurbisher, Crimson Yachts, took priority, leading to the yacht's sale and loss of collateral for Encore. Encore sued the guarantors for the outstanding loan balance. The appellate court affirmed the trial court's summary judgment in favor of Encore, rejecting the guarantors' defenses of statute of limitations, mutual mistake regarding the lien priority, and material alteration of the contract. It also dismissed claims of negligent misrepresentation and negligence due to a contractual disclaimer of reliance and the economic loss rule.

Appellate LawContract LawGuaranty AgreementLoan DefaultMaritime LiensMutual MistakeEconomic Loss RuleNegligent MisrepresentationStatute of LimitationsSummary Judgment
References
82
Case No. C-396-010409-1199412-A
Regular Panel Decision
Sep 09, 2015

Davis, Finnis Ii

Finnis Davis II, committed to North Texas State Hospital after being found incompetent to stand trial for Attempted Capital Murder, sought relief via a writ. The court adopted the State's memorandum, findings of fact, and conclusions of law, ultimately recommending that the applicant's requested relief be denied. His treatment plan aimed at competency restoration due to psychological impairment, social skill deficits, a history of violence, substance abuse, and medical issues.

Incompetency to Stand TrialAttempted Capital MurderWrit of Habeas CorpusCompetency RestorationMental Health TreatmentSubstance Abuse DisorderForensic PsychiatryTexas Criminal ProcedurePsychiatric EvaluationAggression Management
References
0
Case No. 2015 NY Slip Op 06413
Regular Panel Decision
Aug 05, 2015

Cunha v. Crossroads II

Evandro Cunha, a laborer, sustained personal injuries at a construction site when an excavator rolled over his legs. He sued Crossroads II, alleging a violation of Labor Law § 241 (6) based on several Industrial Code provisions, specifically 12 NYCRR 23-4.2 (k), 23-9.4 (h) (4), 23-9.4 (h) (5), and 23-9.5 (c). The defendants moved for summary judgment to dismiss these claims. The Supreme Court denied this motion. On appeal, the Appellate Division, Second Department, modified the order by granting summary judgment dismissing the cause of action based on 12 NYCRR 23-9.4 (h) (5), and otherwise affirmed the Supreme Court's decision, finding the defendants failed to establish prima facie entitlement to judgment regarding the other cited Industrial Code provisions.

Labor LawPersonal InjuryConstruction Site AccidentExcavator AccidentIndustrial Code ViolationSummary Judgment MotionAppellate ReviewWorkplace Safety RegulationsPrima Facie CaseLiability
References
12
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