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

Case No. 15-0674
Regular Panel Decision
Nov 16, 2015

in Re Forum Studio, Inc. and Clayco, Inc.

Intellicenter Dallas Investments LLP initiated an arbitration against Forum Studio, Inc. and Clayco, Inc. regarding alleged design and construction defects in an office building project. Intellicenter sought damages for breach of contract, negligent misrepresentation, and fraud due to insufficient structural design in tilt-wall panels. Forum Studio and Clayco, in turn, filed an application in District Court to stay the arbitration, arguing Intellicenter failed to comply with Texas' "Certificate of Merit" requirements and that its claims were time-barred by contract. The District Court denied the application to stay arbitration and a temporary restraining order. Subsequently, an arbitration panel ruled that Clayco's motion to dismiss based on statutes of limitations was granted, but Forum Studio's similar motion was denied. This appendix supports the Real Party in Interest's response to a petition for a writ of mandamus in the Supreme Court of Texas concerning these underlying proceedings.

Construction DefectsArbitrationStatutes of LimitationsCertificate of MeritMandamusContract DisputeDesign-Build ContractStructural EngineeringTilt-Wall PanelsTexas Law
References
69
Case No. MISSING
Regular Panel Decision

Double Green Produce, Inc. v. Forum Supermarket Inc.

Plaintiff Double Green Produce, Inc. sued Defendants Forum Supermarket Inc. and Hong Wen Cai for failure to pay for wholesale produce under the Perishable Agricultural Commodities Act (PACA) and other claims. After Defendants defaulted, Plaintiff moved for default judgment. Although initially recommended for denial due to jurisdictional concerns, the Court allowed Plaintiff to submit additional information. Upon review, the Court found Forum to be a PACA 'dealer' and that Plaintiff had preserved its trust rights. The Court determined Defendants' default was willful and that Defendant Cai was personally liable for dissipating trust assets. Consequently, the Court granted Plaintiff's motion for default judgment, awarding $23,080.75 in damages, $5579.82 in prejudgment interest, and $4074.25 in attorneys' fees, totaling $32,734.82.

PACAPerishable Agricultural CommoditiesDefault JudgmentBreach of ContractStatutory TrustFiduciary DutyInterstate CommerceWholesale ProduceDamages AwardPrejudgment Interest
References
49
Case No. 11-04-00191-CV
Regular Panel Decision
Dec 01, 2005

Fernando Morales v. Martin Resources, Inc., Martin Operating Partnership, L.P., and Select Professional Staffing

Fernando Morales, a temporary employee, sued Martin Resources, Inc., Martin Operating Partnership, L.P., and Select Professional Staffing for negligence after sustaining a hand injury at Martin Resources' Odessa facility. The trial court initially granted summary judgment to the defendants, citing the exclusive remedy provision of the Texas Workers' Compensation Act (TWCA). On appeal, the Eleventh Court of Appeals reviewed whether the defendants had sufficiently proven their workers' compensation insurance coverage, a necessary condition for the exclusive remedy provision to apply. The court found that neither Select Professional Staffing nor Martin Resources, Inc. provided adequate evidence of explicit workers' compensation coverage for themselves. Consequently, the appellate court reversed the trial court's summary judgment and remanded the case for further proceedings, emphasizing the burden of proof for establishing affirmative defenses like the exclusive remedy provision.

Workers' Compensation ActExclusive RemedySummary Judgment ReversalTemporary EmployeesStaff LeasingNegligence ClaimsAppellate Court DecisionInsurance Coverage DisputeEmployer LiabilityTexas Labor Law
References
8
Case No. MISSING
Regular Panel Decision

In Re TCW Global Project Fund II, Ltd.

Relators, TCW Global Project Fund II, Ltd., TCW Asset Management Company, and Trust Company of the West, filed a petition for writ of mandamus seeking to compel Judge William R. Burke, Jr., to vacate an order denying their motion to dismiss based on a forum-selection clause. The real party in interest, British American Offshore Limited (BAOL), had sued the relators for promissory estoppel, tortious interference, negligent misrepresentation, and fraud. Relators argued they were entitled to enforce the forum-selection clause found in rig contracts, even as nonsignatories. The appellate court denied the petition, concluding that the relators had waived their argument regarding the scope of the forum-selection clause by failing to present it adequately in their initial petition, raising it only in a reply brief. Consequently, the relators failed to demonstrate that the trial court abused its discretion.

MandamusForum-selection clauseWaiverAppellate procedureMotion to dismissNonsignatoriesTort claimsContract disputeInvestment fundOil drilling
References
13
Case No. MISSING
Regular Panel Decision

Evolution Online Systems, Inc. v. Koninklijke Nederland N.V.

This case, on remand from the Second Circuit, involves claims of breach of contract, copyright infringement, and quantum meruit. The Court had previously dismissed the complaint, citing a forum-selection clause mandating litigation in the Netherlands. The Second Circuit remanded to clarify whether a contract with such a clause existed and if it should be enforced, or if dismissal was appropriate on forum non conveniens grounds. The District Court affirmed that a binding contract with a mandatory Netherlands forum-selection clause existed and should be enforced due to significant partial performance and mutual intent to be bound, despite the lack of a signed document. The court also determined that even without the clause, the case would be dismissed on grounds of forum non conveniens, as the Netherlands offers an adequate alternative forum and is more convenient based on public and private interest factors, including the location of proof and the applicability of Dutch law.

Contract disputeCopyright infringementQuantum meruitForum-selection clauseForum non conveniensInternational litigationDutch lawNew York lawSecond Circuit remandBreach of contract
References
21
Case No. MISSING
Regular Panel Decision

Select Insurance Co. v. Boucher

Select Insurance Co. appealed a jury verdict awarding Thomas Earl Boucher workmen's compensation for six and three-fourths years of total incapacity. The defendant contended that the plaintiff suffered only partial disability and requested related issues and instructions, which the trial court refused. The appellate court affirmed this refusal, noting that partial incapacity issues in this context were inferential rebuttal issues, and the requested definition was inadequate. Furthermore, the court found Dr. Belz's psychiatric testimony, based on both personal examination and hearsay, admissible as he was a treating physician. The appellate court concluded that the jury's finding of total incapacity was supported by sufficient evidence, particularly the medical testimony regarding the plaintiff's mental condition following his injury.

Workmen's Compensation AppealTotal IncapacityPartial Incapacity DefenseRule 277 T.R.C.P.Inferential Rebuttal IssuesExpert Witness TestimonyHearsay EvidencePsychiatric EvaluationMental DisabilityEarning Capacity Reduction
References
12
Case No. ADJ7045808
Regular
Jan 22, 2014

Ernest Conwell vs. New Orleans Saints, Louisiana Workers' Compensation Corp.

This case involves a professional athlete claiming industrial injury sustained between 1996 and 2007. The defendant contested California Workers' Compensation Appeals Board (WCAB) jurisdiction due to a forum selection clause in the employment contract designating Louisiana as the exclusive forum. The WCAB rescinded the initial award and remanded the case for further development of the record. This is to allow reconsideration of the *McKinley* decision regarding mandatory forum selection clauses and the connection to California, particularly concerning contract formation.

WCABjurisdictionforum selection clauseemployment contractprofessional athleteindustrial injurypermanent disabilityapportionmentcontract of hireagent
References
16
Case No. MISSING
Regular Panel Decision

Speed v. Omega Protein, Inc.

Plaintiff Charles Speed sued Omega Protein, Inc. for personal injuries sustained while working on a vessel. Defendant filed a motion to dismiss for improper venue or to transfer venue, citing a forum-selection clause in Speed's employment contract. The Court denied the motion to dismiss but granted the motion to transfer the case from the Southern District of Texas to the Western District of Louisiana. The decision weighed factors such as the enforceability of the forum-selection clause, convenience of witnesses, location of the alleged wrong, and the plaintiff's choice of forum, concluding that the balance favored transfer.

Forum selection clauseTransfer of venueSeamen's rightsAdmiralty lawPersonal injuryEmployment contractFederal rules of civil procedureU.S. Code Title 28Judicial discretionWitness convenience
References
21
Case No. 07-08-0305-CV
Regular Panel Decision
Jun 02, 2009

Carrie Welch v. Nightingale Nurses, LLC

Carrie Welch, an EEG technician, sued Nightingale Nurses, LLC, her employer, for retaliatory discharge after she filed a worker's compensation claim for an on-the-job injury. Welch's employment contract with Nightingale Nurses, a Florida company, included a forum selection clause requiring litigation in Palm Beach County, Florida. The trial court granted Nightingale's motion to dismiss based on this clause, prompting Welch's appeal. Welch argued the clause was unenforceable due to public interest favoring a Texas forum and because it would be unreasonable and unjust. The Court of Appeals affirmed the trial court's dismissal, finding Welch failed to demonstrate any exceptions to the enforceability of the forum selection clause.

Forum Selection ClauseRetaliatory DischargeWorker's Compensation ClaimEmployment ContractTexas Labor CodeMotion to DismissAppellate ReviewAbuse of DiscretionContract EnforcementFlorida Venue
References
12
Case No. MISSING
Regular Panel Decision

Lischinskaya v. Carnival Corp.

A plaintiff, injured on a Carnival Cruise Lines ship in January 2005, commenced an action for damages. Carnival moved to dismiss based on a forum selection clause in the passenger contract, which stipulated litigation in federal court in Miami or a Miami-Dade County court. The Supreme Court granted the dismissal, citing lack of subject matter jurisdiction. On appeal, the court affirmed the enforceability of the forum selection clause, rejecting arguments of waiver and non-reasonable communication. It clarified that such clauses do not divest a court of subject matter jurisdiction, correcting the Supreme Court's reasoning. However, the appellate court affirmed the dismissal, denying the plaintiff's request for equitable relief under CPLR 327 (forum non conveniens), reasoning that such discretionary relief is inapplicable when dismissal is a contractual mandate rather than a discretionary decision.

Forum Selection ClauseCruise Ship ContractMaritime LawSubject Matter JurisdictionSaving to Suitors ClauseCPLR 327Forum Non ConveniensContractual EnforcementWaiver of DefenseAppellate Review
References
59
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