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

Case No. 07-19-00405-CV
Regular Panel Decision
Apr 30, 2020

Robert L. Malcom v. Cobra Acquisitions, LLC

Robert L. Malcom, appellant, challenged a temporary injunction issued against him in a breach of contract suit filed by Cobra Acquisitions, LLC, appellee. The dispute arose after Malcom sold his business to Cobra and allegedly violated restrictive covenants by working for a competitor, BHI Energy, and soliciting Higher Power's employees and clients. The trial court found a probable right of recovery for Cobra and issued the injunction, which Malcom contested on grounds of evidentiary sufficiency and the injunction's specificity. The appellate court affirmed the temporary injunction, concluding that the trial court did not abuse its discretion, as evidence showed Malcom's direct involvement in breaching the restrictive covenants.

Restrictive CovenantsNon-Compete AgreementNon-SolicitationBreach of ContractTemporary InjunctionAppellate ReviewAbuse of DiscretionCovenant Not to Compete ActBusiness SaleEmployment Agreement
References
31
Case No. 6784-17
Regular Panel Decision
Aug 10, 2018

Vincent Crisafulli Testamentary Trust v. AAI Acquisition, LLC

Plaintiff Vincent Crisafulli Testamentary Trust brought an action against AAI Acquisition, LLC and United Electric Power, Inc. to enforce the terms of an alleged commercial lease and guarantee. Plaintiff sought to recover money damages for breach of a Letter Agreement and a Guaranty, and also under an assumed Lease. The Supreme Court, Albany County, granted the plaintiff's motion for summary judgment on the first cause of action, finding the Letter Agreement a valid and binding contract and awarding $193,350.23 in damages. However, the motion for summary judgment on the second cause of action (breach of Guaranty) was denied, as the court found the record insufficiently developed to establish United Inc.'s liability. The third cause of action, concerning the assumed Lease, was dismissed because the Letter Agreement superseded the original Lease.

Contract LawCommercial LeaseSummary Judgment MotionBreach of ContractGuaranty AgreementStatute of FraudsCondition PrecedentDamages AwardCounsel FeesCorporate Liability
References
45
Case No. MISSING
Regular Panel Decision
Sep 25, 2003

Peycke v. Newport Media Acquisition II, Inc.

The plaintiff, an employee of DSA Community Publishing, was allegedly injured after a slip and fall on ice in an office parking lot. She initiated an action for personal injuries against Newport Media Acquisition II, Inc., the building owner, and A. Ciesinski Snow Plowing, Inc., the company responsible for snow removal. The Supreme Court denied Newport's motion for summary judgment but granted A. Ciesinski's cross-motion. On appeal, the cross-appeal by the plaintiff was dismissed. The appellate court modified the order, affirming the denial of summary judgment for Newport but denying A. Ciesinski's motion to dismiss Newport's cross-claim for indemnification, citing triable issues of fact.

Personal InjurySlip and FallSummary JudgmentCross ClaimsIndemnificationWorkers' Compensation DefenseTriable Issues of FactAppellate ReviewNegligenceBuilding Owner Liability
References
6
Case No. MISSING
Regular Panel Decision

Lamberson v. Six West Retail Acquisition, Inc.

Plaintiff Gregory Lamberson, a Caucasian male, sued his employer, Six West Retail Acquisition Inc., and individuals Sheldon Solow and Jeffery Jacobs, alleging racial discrimination and retaliation under Title VII and New York law. Lamberson claimed he was unlawfully discharged after complaining about the reassignment of an African-American employee, Derrick Caver, from a public-facing role due to his appearance. The defendants moved for summary judgment, arguing Lamberson was fired for poor managerial judgment. The court granted summary judgment on the race discrimination claims, finding Lamberson, as a Caucasian, was not a member of a protected class and failed to show a hostile work environment or infringement on his right to interracial association. However, the court denied summary judgment on the retaliation claims, ruling that Lamberson raised a triable issue as to whether his complaints about Caver's reassignment were protected activity and if there was a causal connection to his discharge. Consequently, retaliation claims against Six West, Solow, and Jacobs survive.

DiscriminationRetaliationTitle VIIRace DiscriminationEmployment LawUnlawful DischargeSummary JudgmentManagerial DutiesEmployee ReassignmentHostile Work Environment
References
43
Case No. 2022 NY Slip Op 02363
Regular Panel Decision
Apr 12, 2022

Lewis v. 96 Wythe Acquisition LLC

The Appellate Division, First Department, addressed an appeal in a personal injury case where plaintiff William Lewis was struck by an unsecured metal beam at a construction site. The lower court had granted Lewis summary judgment on his common-law negligence and Labor Law §§ 200 and 240 (1) claims. However, the appellate court modified this decision, denying Lewis's motion for summary judgment. This denial was based on inconsistent deposition testimonies from Lewis regarding how the accident occurred, creating a triable issue of fact. Additionally, the court conditionally granted defendants 96 Wythe Acquisition LLC and Dimyon Development Corp.'s motion for summary judgment on their contractual indemnification claim against All Island Masonry & Concrete, Inc.

Labor LawSummary JudgmentCommon-law NegligenceContractual IndemnificationAppellate ReviewPersonal InjuryConstruction AccidentFactual DisputeWitness CredibilitySafety Device Failure
References
5
Case No. 2021 NY Slip Op 00019 [190 AD3d 422]
Regular Panel Decision
Jan 05, 2021

Lemache v. MIP One Wall St. Acquisition, LLC

Plaintiff Luis Lemache was injured when a pipe rolled onto his foot while relocating a concrete planter at a construction site. He sued MIP One Wall Street Acquisition, LLC and Gilbane Residential Construction, alleging common-law negligence and violations of Labor Law §§ 200 and 240 (1). The Supreme Court granted defendants' motion for summary judgment on all claims and denied plaintiff's cross-motion. On appeal, the Appellate Division affirmed the dismissal of the Labor Law § 240 (1) claim but modified the order, denying defendants' motion with respect to the common-law negligence and Labor Law § 200 claims. The court found a triable issue of fact as to whether Gilbane Residential Construction exercised supervisory control over the work, particularly regarding safety standards and the use of licensed Bobcat operators.

Summary JudgmentCommon-Law NegligenceLabor Law § 200Labor Law § 240 (1)Construction AccidentSupervisory ControlTriable Issue of FactAppellate ReviewSafe Place to WorkForeman
References
8
Case No. 01-07-00321-CV
Regular Panel Decision
Feb 28, 2008

Koll Bren Fund VI LP and Hartman 3100 Weslayan Acquisitions, LP v. Harris County Appraisal District and the Appraisal Review Board of Harris County Appraisal District

The Court of Appeals for the First District of Texas affirmed the trial court's dismissal of a suit for judicial review brought by Koll Bren Fund VI, LP and Hartman 3100 Weslayan Acquisitions against the Harris County Appraisal District. Appellants challenged the dismissal of their ad valorem tax-valuation protest for the 2005 tax year. The trial court had granted HCAD's plea to the jurisdiction, asserting Koll Bren lacked standing as it had sold the property prior to January 1, 2005. The appellate court agreed, ruling that Koll Bren, not being the owner, had no standing, and Hartman, the true owner, also lacked standing for failing to exhaust administrative remedies by not filing its own protest with the Appraisal Review Board. Consequently, the appellate court concluded that the trial court correctly lacked subject-matter jurisdiction.

property taxad valorem taxjudicial reviewstandingjurisdictionappellate procedureTexas Tax CodeHarris CountyAppraisal Review Boardexhaustion of remedies
References
21
Case No. 06-15-00044-CV
Regular Panel Decision
Dec 10, 2014

Burlington Resources Oil & Gas Company, LP v. Petromax Operating Co., Inc., Woodbine Acquisition, LLC, N/K/A MD America Energy, LLC, Petro Texas, LLC, CH4 Energy II, LLC, and Texcal Energy South Texas, LP

This case involves an oil and gas dispute concerning the proper interpretation of a 1994 Assignment, which determines the continuing effect of a 1975 Area of Mutual Interest (AMI) agreement. Appellant, Burlington Resources Oil & Gas Company LP, argues its ownership interest in certain leases within the AMI was not fully conveyed by the 1994 Assignment, meaning the AMI remains in effect. Appellees, including PetroMax Operating Co., Inc. and Woodbine Acquisition, LLC, contend the AMI terminated years ago due to the 1994 Assignment conveying all of Southland's interest in the relevant leases. The trial court granted summary judgment for the Appellees, ruling that Burlington owns no interest in the AMI and that the AMI provision has terminated, while denying Burlington's motion for partial summary judgment.

Oil and Gas DisputeArea of Mutual InterestAMI AgreementContract Interpretation1994 AssignmentMineral RightsLeasehold InterestSummary JudgmentTexas Court of AppealsAppellate Brief
References
28
Case No. 2022 NY Slip Op 03799 [206 AD3d 451]
Regular Panel Decision
Jun 09, 2022

Moises-Ortiz v. FDB Acquisition LLC

Arch Insurance Group, Inc., the insurer for plaintiff's employer, RNC Industries, LLC, appealed an order from the Supreme Court, New York County, which denied Arch's motion for summary judgment. Arch sought to dismiss common-law indemnification and contribution claims asserted against its insured, RNC. Arch presented evidence, including a neuropsychologist's report, indicating that the plaintiff did not sustain a 'grave injury' under Workers' Compensation Law § 11, as the plaintiff's symptoms were exaggerated, and he could return to work. The Appellate Division, First Department, found that Arch made a prima facie showing and that the defendants failed to raise an issue of fact. Consequently, the Appellate Division unanimously reversed the lower court's order, granting Arch's motion for summary judgment and dismissing the claims.

Summary JudgmentGrave InjuryWorkers' Compensation Law § 11IndemnificationContribution ClaimsAppellate DivisionNeuropsychological EvaluationPrima Facie ShowingExaggerated SymptomsTemporary Total Disability
References
5
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
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