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

Case No. 09-06-180 CV
Regular Panel Decision
Jul 12, 2007

in Re Commitment of Michael Marks

Michael Marks appealed a civil commitment order issued under the Sexually Violent Predator Act, after a jury found him to be a sexually violent predator. Marks challenged the trial court's exclusion of his expert witnesses, Dr. Jason Dunham and psychotherapist Sara Smith, citing improper disclosure and the failure to hold a gatekeeper hearing for the State's expert, Dr. Michael Arambula. He also alleged improper closing arguments by the State. The Court of Appeals affirmed the lower court's judgment, concluding that Marks failed to timely disclose expert testimony, did not properly request a gatekeeper hearing, and waived objections to the closing arguments.

Civil CommitmentSexually Violent Predator ActExpert Witness ExclusionDiscovery RulesGatekeeper HearingClosing ArgumentAbuse of DiscretionAppellate ProcedureMental IllnessSchizoaffective Disorder
References
16
Case No. MISSING
Regular Panel Decision

In Re Commitment of Marks

Michael Marks appealed a civil commitment order classifying him as a sexually violent predator under the Texas Health and Safety Code. Marks challenged the trial court's exclusion of testimony from two defense witnesses, Dr. Jason Dunham and Sara Smith, who were intended to rebut the State's expert, Dr. Michael Arambula, on the issue of Marks feigning mental illness. Marks also contested the trial court's refusal to conduct a "gatekeeper hearing" for Dr. Arambula's testimony and alleged improper influence from the State's closing argument. The appellate court affirmed the commitment order, ruling that Marks failed to adhere to discovery rules for witness disclosure, made an untimely request for a gatekeeper hearing, and did not preserve error regarding the closing argument.

Sexually Violent PredatorCivil CommitmentExpert TestimonyWitness ExclusionDiscovery ViolationsAppellate ProcedureGatekeeper DoctrineClosing Argument ErrorMental HealthMalingering
References
16
Case No. 09-07-128 CV
Regular Panel Decision
Jun 21, 2007

Michael Leigh Smith v. Gerald Hamilton, Individually and as Personal Representative of the Estate of Sue Ann Hamilton, Matthew Garrison and Mark Garrison

Appellees Gerald Hamilton, Matthew Garrison, and Mark Garrison sued appellant Michael Leigh Smith for alleged medical malpractice. Smith filed a motion to dismiss challenging the timeliness of appellees' expert report. The trial court denied Smith's motion. On appeal, Smith argued that dismissal was mandatory because appellees failed to serve him with an expert report within the 120-day statutory deadline. The Court of Appeals rejected appellees' constitutional and waiver arguments, holding that the mandatory dismissal provisions of section 74.351 were constitutional and that Smith did not waive his right to seek dismissal. The court found that appellees failed to comply with the statutory deadline, requiring dismissal with prejudice. The trial court's order denying Smith's motion to dismiss was reversed, and judgment was rendered dismissing appellees' claims against Smith with prejudice.

Medical MalpracticeExpert ReportTimelinessDismissal with PrejudiceStatutory DeadlineDue Process ChallengeWaiver ArgumentHealth Care Liability ClaimTexas Court of AppealsAppellate Review
References
30
Case No. 533323
Regular Panel Decision
Feb 17, 2022

In the Matter of the Claim of Mark Mogilevsky

Claimant Mark Mogilevsky, a former train car inspector, sought workers' compensation benefits for occupational binaural hearing loss. A Workers' Compensation Law Judge established the claim and found a 3.3% schedule loss of use, which the Workers' Compensation Board affirmed. Mogilevsky appealed, challenging the Board's decision to reject the medical opinion of his otolaryngologist, Dr. Michael Alleva, who assessed a 45.3% hearing loss. The Board had dismissed Alleva's findings, stating he failed to explain how Mogilevsky could work with nearly 50% hearing loss without deficits. The Appellate Division found no evidence in the record to support the Board's rationale for rejecting Dr. Alleva's opinion. Consequently, the court concluded that the Board's decision lacked substantial evidence and reversed the decision, remitting the matter for further proceedings.

Occupational Hearing LossWorkers' CompensationMedical EvidenceSchedule Loss of UseBinaural Hearing LossSubstantial EvidenceCredibility AssessmentMedical Expert OpinionAppellate ReviewReversal
References
3
Case No. 01-21-00008-CV
Regular Panel Decision
Aug 29, 2024

Sealy Emergency Room, L.L.C. and Kannappan Krishnaswamy, M.D. v. Dr. Atul Dhingra, Dr. Swapan Dubey and Dr. Sanjeev Dubey

Appellants Sealy Emergency Room, L.L.C., and Dr. Kannappan Krishnaswamy appealed a trial court's summary judgment in favor of appellees Free Standing Emergency Room Managers of America, L.L.C., Dr. Atul Dhingra, Dr. Swapan Dubey, and Dr. Sanjeev Dubey. The dispute arose from a management agreement for an emergency room, with appellants bringing counterclaims and third-party claims for breach of contract, fraud, fraudulent inducement, and negligence. After a previous dismissal for lack of appellate jurisdiction was reversed by the Texas Supreme Court, the First District of Texas Court of Appeals reviewed the merits. The court found that the appellants failed to raise a genuine issue of material fact on any of their claims, concluding that the alleged breaches of contract were not supported by the agreement's plain language or that the best-efforts clause was unenforceable. Furthermore, claims of fraud and negligence were not substantiated or were barred by the economic loss rule. Therefore, the appellate court affirmed the trial court's summary judgment.

Contract DisputeSummary JudgmentAppellate ReviewBreach of ContractFraudFraudulent InducementNegligenceEconomic Loss RuleTexas LawHealthcare Management
References
45
Case No. 03-02-00524-CV
Regular Panel Decision
Apr 24, 2003

Citizens Insurance Company of America Citizens, Inc. Harold E. Riley and Mark A. Oliver v. Dr. Fernando Hakim Daccach

This case addresses an interlocutory appeal concerning the certification of a class action. Appellants, including Citizens Insurance Company of America, challenged the district court's decision to certify a class action brought by Dr. Fernando Hakim Daccach. Dr. Daccach alleged that Citizens unlawfully sold unregistered securities in Texas, specifically certain life insurance policies (CICA policies) that allowed assignment of benefits to offshore trusts for stock purchases. The Court of Appeals affirmed the district court's class certification order, with a modification to the class definition. The court found that all class certification requirements were met, including proper class definition, the applicability of Texas law without a "most significant relationship" analysis, and the predominance of common issues.

Class ActionSecurities Act ViolationsTexas Securities ActClass CertificationChoice of LawPredominance of Common IssuesTypicalityAdequacy of RepresentationSuperiority of Class ActionInterlocutory Appeal
References
28
Case No. 03-10-00019-CV
Regular Panel Decision
Oct 12, 2011

Dr. Don Brantley, Belinda Castillo, Dr. Corinne Alvarez-Sanders and Patricia Logterman// Texas Youth Commission Cherrie Townsend in Her Official Capacity as Executive Director v. Texas Youth Commission Cherrie Townsend in Her Official Capacity as Executive Director// Dr. Don Brantley, Belinda Castillo, Dr. Corinne Alvarez-Sanders

This case concerns challenges by current and former employees of the Texas Youth Commission (TYC) against the constitutionality of Senate Bill 103, which converted TYC employment from 'for-cause' to 'at-will.' The plaintiffs, including Dr. Don Brantley, Belinda Castillo, Dr. Corinne Alvarez-Sanders, and Patricia Logterman, sought declaratory, injunctive, and monetary relief based on alleged wrongful termination, due process violations, defamation, and unconstitutional takings. The district court partially granted and denied TYC's plea to the jurisdiction. The appellate court affirmed the dismissal of Castillo's claims for lack of ripeness and the defamation and takings claims for all plaintiffs due to sovereign immunity. It reversed in part, allowing Alvarez-Sanders and Logterman to replead their wrongful-termination/due-process claims for equitable relief against a proper state official, and similarly reversed in part Brantley's wrongful-termination/due-process claim.

Employment LawPublic EmployeesAt-Will EmploymentFor-Cause EmploymentDue ProcessConstitutional LawRetroactive LegislationEx Post Facto LawBill of AttainderSovereign Immunity
References
37
Case No. M2012-01227-COA-R3-CV
Regular Panel Decision
Jun 25, 2013

William Michael Ray v. Southern Tennessee Medical Center, LLC

This medical malpractice action was appealed after a jury verdict favored the defendant doctor, Dr. Asher A. Turney, regarding his treatment of William Michael Ray for a myocardial infarction. The plaintiff, William Michael Ray, argued the trial court erred in allowing a medical expert witness, Dr. Andy Walker, to testify, citing issues with disclosure and the locality rule. The Court of Appeals found no abuse of discretion by the trial court in permitting Dr. Walker's testimony, determining he met the required "modicum of familiarity" with the medical community under the locality rule. Consequently, the appellate court affirmed the trial court's judgment, finding no error in the lower court's decisions.

medical malpracticeexpert witnesslocality ruleabuse of discretionstandard of careemergency medicinemyocardial infarctionappellate reviewevidence admissibilityprocedural error
References
11
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. 03-11-00594-CV
Regular Panel Decision
Dec 23, 2014

Michael Hamilton v. Mark Washington, in His Capacity as City of Austin Civil Service Director Art Acevedo, in His Capacity as City of Austin Chief of Police The City of Austin, Gary Cobb and Stephen Edmonds, in Their Capacity as Members of Austin Firefighters

Michael Hamilton, an Austin Police Department officer, was indefinitely suspended and sought an appeal with the Austin Firefighters’ and Police Officers’ Civil Service Commission. His appeal was rejected as deficient for failing to include specific statutory language. Hamilton then sued various City of Austin officials and the City, seeking declaratory relief, a writ of mandamus, and to set aside the Commission's decision, along with a breach of contract claim. The district court granted the City's plea to the jurisdiction. The Court of Appeals affirmed in part and reversed and remanded in part, ruling that the district court had jurisdiction over constitutional and ultra vires claims against the officials but lacked jurisdiction for reinstatement, back pay, lost benefits, and the breach of contract claim due to unexhausted administrative remedies.

Governmental ImmunitySubject Matter JurisdictionDeclaratory Judgment ActMandamusUltra ViresCivil Service ActExhaustion of Administrative RemediesCollective Bargaining AgreementStandingConstitutional Law
References
50
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