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

Case No. 03-03-00458-CV
Regular Panel Decision
Aug 12, 2004

Anderson-Clayton Bros. Funeral Home, Inc. Restland of Dallas, Inc. Restland Funeral Home Singing Hills Funeral Home, Inc. Laurel Land Funeral Home of Forth Worth, Inc. Blue Bonnet Hills Funeral Home, Inc. And Blue Bonnet Hills Memorial Park, Inc. v. Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas And Greg Abbott, Attorney General of the State of Texas

This case addresses the Texas franchise tax treatment of earnings from out-of-state investments made by Texas prepaid funeral benefits trusts. The Appellants, a group of affiliated funeral homes (Anderson-Clayton), argued these earnings should be considered out-of-state receipts for franchise tax apportionment. The Comptroller of Public Accounts contended they were Texas receipts, leading to a higher tax bill for Anderson-Clayton. The district court granted summary judgment in favor of the Comptroller. The Court of Appeals affirmed the summary judgment, ruling that the 'accounting methods' provision of the tax code did not dictate the sourcing of receipts, and under the 'location of the payor' rule, the Texas-domiciled trusts were deemed the payors, making the investment income Texas receipts.

Franchise TaxInvestment EarningsPrepaid Funeral TrustsTax ApportionmentTexas Tax CodeLocation of Payor RuleSummary JudgmentStatutory ConstructionAccounting MethodsEarned Surplus
References
82
Case No. MISSING
Regular Panel Decision

In re Harmon Funeral Home, Inc.

Judge Mikoll dissents from a Workers' Compensation Board decision that found an employer-employee relationship between Harmon Funeral Home, Inc. and its pallbearers. The dissent argues that there is not substantial evidence to support this conclusion, citing a lack of control and direction by the funeral home over the pallbearers. Pallbearers are sourced from a livery service, not instructed by the funeral home, and receive no employee benefits. Although a union agreement designated pallbearers as employees, the dissent states this factor alone should not be determinative given the overall circumstances indicating an independent contractor relationship. The dissent concludes that the Board's decision should be reversed.

Employer-employee relationshipPallbearersIndependent contractorWorkers' compensationUnion agreementControl and directionLivery serviceDissentFuneral homeLabor law
References
1
Case No. 2-09-057-CV
Regular Panel Decision
Sep 30, 2010

Hampton-Vaughan Funeral Home, Hampton-Vaughan Funeral Directors, Hampton-Vaughan Funeral Directors, Inc., SCI Funeral Services of Texas, Inc., Hampton-Vaughan Crestview Memoria, SCI Texas Funeral Services, Inc., and Crestview Memorial Park v. Beverly N. Briscoe, Don I. Briscoe, Jr., Rebecca L. Llenas, Lori K. Morrow, Cherl L. Teague, Thomas E. Briscoe, and Anna M. Evans

This case is an appeal from a no-answer default judgment issued by the 89th District Court of Wichita County. Appellants, a group of funeral home entities, challenged the trial court's decision to strike a supplement to their motion to set aside the default judgment and the denial of that motion, which had been rendered against them for alleged mishandling of cremated remains. The Second District Court of Appeals of Texas, Fort Worth, determined that the trial court abused its discretion by striking the supplement as untimely, as the default judgment was not final until claims against other defendants were nonsuited. Furthermore, the Court of Appeals found that appellants satisfied the three elements of the Craddock test for setting aside a default judgment: their failure to answer was not intentional, they presented a meritorious defense, and appellees showed no injury from a new trial. Consequently, the appellate court reversed the default judgment and remanded the case for a new trial.

Default JudgmentAppealMotion to Set AsideCraddock TestConscious IndifferenceMeritorious DefenseCivil ProcedureFuneral ServicesDamagesTexas Law
References
15
Case No. E2013-00261-COA-R10-CV-FILED-JULY 29, 2013
Regular Panel Decision
Jul 29, 2013

Jason Cooper v. Robert Ledford Funeral Home, Inc.

This case involves an extraordinary appeal concerning whether Robert Ledford Funeral Home, Inc. (Funeral Home) was entitled to summary judgment regarding a vehicle accident caused by its "on call" employee, Johnny Tipton. Plaintiffs Jason Cooper, Brooke Cooper, and Sylvia Renfroe sued Tipton, Angela Frey, and the Funeral Home after Tipton, while traveling to clock in for an on-call assignment, collided with Sylvia Renfroe's vehicle. The core issue was if Tipton was acting within the course and scope of his employment at the time of the accident. The appellate court, reversing the trial court's denial of summary judgment, determined that Tipton was not acting within the scope of his employment, as his commute in a private vehicle, even for an on-call assignment, did not primarily benefit the employer and was not under the employer's control.

Respondeat SuperiorVicarious LiabilityOn-Call EmployeeSummary JudgmentAutomobile AccidentScope of EmploymentComing and Going RuleTort LawEmployer LiabilityEmployee Commute
References
14
Case No. MISSING
Regular Panel Decision

Metropolitan Funeral Directors Ass'n v. City of New York

Plaintiffs, including the Metropolitan Funeral Directors Association, John C. Sommese, Anthony J. Martino, Hess-Miller Funeral Home, Inc., and Simonson Funeral Home, Inc., initiated an action seeking a declaratory judgment against the City of New York, the New York City Department of Consumer Affairs (DCA), and Commissioner Jules Polonetsky. The plaintiffs challenged four recently amended DCA rules (5-162, 5-164, 5-165, 5-166) pertaining to the regulation of the funeral home industry. They contended that these rules were preempted by State law, exceeded the Commissioner's authority, lacked a legitimate government purpose, were unconstitutionally vague, and were arbitrary and capricious. Additionally, plaintiffs sought a preliminary injunction to prevent the enforcement of these rules, arguing that their implementation would cause irreparable harm to their businesses. Defendants countered that the rules were consumer-protective, a rational exercise of authority, and consistent with State law, citing a February 1999 DCA investigation report titled "The High Cost of Dying." The court, presided over by Justice Richard F. Braun, denied the plaintiffs' motion for a preliminary injunction, concluding that they failed to demonstrate a likelihood of success on the merits, irreparable injury, or a favorable balance of equities. The court also noted the plaintiffs' incomplete statement as required by CPLR 6001.

Funeral Home RegulationConsumer ProtectionDeclaratory JudgmentPreliminary InjunctionState PreemptionLocal OrdinancesAdministrative LawStatutory AuthorityUnconstitutionally VagueArbitrary and Capricious
References
21
Case No. MISSING
Regular Panel Decision
Jul 30, 2001

Latino v. Nolan & Taylor-Howe Funeral Home, Inc.

Robert Latino was injured while performing renovation work on a property owned by Peter J. and Laure C. Nolan, falling from a workbench approximately 18 inches high. Latino and his wife commenced an action against the Nolans and Nolan and Taylor-Howe Funeral Home, Inc., seeking damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Supreme Court denied the Nolans' cross-motion for summary judgment, finding triable issues of fact regarding their supervision and control over the worksite. The court also granted the plaintiffs leave to amend their bill of particulars. On appeal, the order was modified to deny the Funeral Home's cross-motion for summary judgment, as there were triable issues of fact concerning its authority to supervise and control the activity at the work site, and the order was affirmed as modified.

Personal InjuryConstruction AccidentSummary JudgmentPremises LiabilityLabor Law ClaimsAppellate CourtWorkplace SafetyNegligenceProperty OwnersSuffolk County
References
12
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. 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. 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
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