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

Case No. 08-21-00206-CV
Regular Panel Decision
Oct 27, 2023

El Paso County Water Improvement District 1 v. Rogelio Trevizo

El Paso County Water Improvement District No. 1 appealed the denial of its plea to the jurisdiction in a suit brought by Rogelio Trevizo, who alleged age and disability discrimination, retaliation, failure-to-accommodate, and hostile work environment under Chapter 21 of the Texas Labor Code. Trevizo was terminated for insubordination after refusing to drive a truck without air conditioning, citing health concerns. The appellate court found Trevizo failed to establish a prima facie case for age discrimination due to a lack of similarly situated comparators and direct evidence. It also determined the District lacked sufficient notice of Trevizo's specific medical conditions for the disability discrimination and accommodation claims. Consequently, the court reversed the trial court's order, granted the District's plea to the jurisdiction, and dismissed all of Trevizo's claims for want of jurisdiction.

Age DiscriminationDisability DiscriminationRetaliationHostile Work EnvironmentSovereign ImmunityPlea to the JurisdictionPrima Facie CaseMcDonnell Douglas FrameworkTexas Labor Code Chapter 21Employment Termination
References
49
Case No. MISSING
Regular Panel Decision

Speedway Home Improvement Co. v. Gourdine

Speedway Home Improvement Co. (Speedway), a licensed contractor, challenged a decision by the Department of Consumer Affairs (DCA) via a CPLR article 78 proceeding. Speedway had contracted with Mr. and Mrs. Hannon for home renovation, but after commencing work and receiving partial payments, abandoned the project due to alleged underestimation, demanding further price increases which the Hannons refused. The Hannons filed a complaint with DCA, which, after a hearing, found Speedway guilty of abandoning the contract without justification and awarded the Hannons $21,110. Speedway argued that the DCA hearing denied due process and that the award was arbitrary and excessive. The court, however, found that Speedway received due process, the DCA's decision was supported by substantial evidence, and the monetary award was not a disproportionate penalty but merely compensated the Hannons for expenses incurred in hiring a second contractor. Consequently, the court denied Speedway's petition and dismissed the proceeding.

CPLR Article 78Administrative ReviewConsumer ProtectionHome Improvement ContractBreach of ContractDue ProcessSubstantial EvidenceMonetary DamagesAgency DiscretionContract Abandonment
References
7
Case No. MISSING
Regular Panel Decision

Estupinan v. Cleanerama Drive-In Cleaners, Inc.

The plaintiff, administratrix of Francisco Estupinan's estate, sued Cleanerama Drive-In Cleaners, Inc. and John Bellasario for damages after Bellasario, a fellow employee, assaulted and killed Estupinan. Cleanerama moved to dismiss, arguing the action was barred by the Workmen's Compensation Law, as an award had already been made. The court clarified that the exclusive remedy rule applies unless the employer actively instigated the assault, not merely through respondeat superior. Finding no evidence of Cleanerama's willfulness, the appellate court reversed the order denying dismissal and granted Cleanerama's motion to dismiss the complaint against it.

Employer LiabilityWorkers' Compensation ExclusivityAssault in EmploymentRespondeat SuperiorIntentional Tort ExceptionMotion to DismissAppellate Court DecisionScope of EmploymentEmployer NegligenceWillful Act
References
6
Case No. MISSING
Regular Panel Decision

Hall v. Sonic Drive-In of Angleton, Inc.

Majorie Marie Hall, an employee of Sonic Drive-In, sued Sonic and its manager, Michael Cantrell, for premises liability, assault, and intentional infliction of emotional distress. Hall was injured when she cut her hand on a freezer cover left on the floor. Later, Cantrell allegedly assaulted her by grabbing her wrist to make her hold a french-fry scooper. The trial court granted summary judgment in favor of Sonic and Cantrell on all claims. Hall appealed, arguing that material fact issues existed for her premises liability claim, the assault claim was improperly dismissed based on a faulty interpretation of intent, and the intentional infliction of emotional distress claim was not even addressed in the summary judgment motion. The appellate court reversed and remanded the trial court's judgment, finding that Hall raised genuine issues of material fact for premises liability, that an 'intent to injure' is not the only element for assault, and that the intentional infliction of emotional distress claim was not properly addressed by the summary judgment motion.

Premises LiabilityAssaultIntentional Infliction of Emotional DistressSummary Judgment AppealEmployer LiabilityEmployee InjuryWorkplace SafetyForeseeabilityCause-in-FactActual Knowledge
References
36
Case No. 2018 NY Slip Op 07391
Regular Panel Decision
Nov 01, 2018

Matter of Community Hous. Improvement Program v. Commissioner of Labor

The Appellate Division, Third Department, dismissed an appeal filed by the Community Housing Improvement Program against the Commissioner of Labor. The appeal sought to challenge a decision by the Industrial Board of Appeals regarding a minimum wage order for the building service industry. The court determined it lacked subject matter jurisdiction because the petitioner failed to properly file a notice of appeal with the court of original instance, which was the Industrial Board of Appeals, not the Appellate Division. Additionally, the petitioner failed to timely and correctly serve the notice of appeal on the respondent's counsel at the designated address. Consequently, due to the complete failure to comply with CPLR 5515, the appeal was dismissed.

JurisdictionAppeal ProcedureService of ProcessAppellate DivisionIndustrial Board of AppealsMinimum WageLabor LawCPLRNew York CourtsStatutory Interpretation
References
12
Case No. MISSING
Regular Panel Decision

Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture

Yarbrough Drive Center Joint Venture (Yarbrough) sued Z.A.O., Inc. (ZAO) for breach of contract, nuisance, and trespass after ZAO, a former tenant operating a gas station, failed to remove hazardous substances from the leased property in El Paso, Texas upon lease termination. Despite ZAO's efforts and a state commission letter indicating no further corrective action was necessary for ZAO, the trial court found ZAO liable for trespass and nuisance. On appeal, the court affirmed the breach of contract claim, finding sufficient evidence that the lease required ZAO to remove all toxic substances. However, the appellate court reversed the findings of malice, nuisance, and trespass due to insufficient evidence, particularly noting that the state commission's determination of no further action superseded common law trespass claims. Consequently, the awards for past and future rental losses were reversed, but those for repair costs and soil testing were affirmed. Attorney's fees were reversed and remanded for segregation, as recovery is limited to the breach of contract claim.

Breach of ContractNuisanceTrespassEnvironmental ContaminationHazardous WasteLease AgreementDamagesAttorney's FeesLegal SufficiencyFactual Sufficiency
References
51
Case No. 2023 NY Slip Op 06288
Regular Panel Decision
Dec 07, 2023

Matter of Puccio v. Absolute Chimney & Home Improvement, LLC

Claimant Anthony Puccio, a masonry worker, was rendered paraplegic after falling from a roof in September 2019. He filed a workers' compensation claim against Absolute Chimney & Home Improvement, LLC, which the State Insurance Fund (SIF) initially accepted but later controverted, asserting claimant was a partner and not an employee, thus excluded from coverage. A Workers' Compensation Law Judge and the Board disallowed the claim, finding claimant was a profit-sharing partner/owner. Claimant appealed, arguing SIF failed to comply with Workers' Compensation Law § 21-a (3) and that the Board erred in its finding of no employer-employee relationship. The Appellate Division affirmed the Board's decisions, ruling that the statutory compliance issue was unpreserved and substantial evidence supported the Board's finding that claimant was a partner, not an employee.

Employer-Employee RelationshipPartnership StatusWorkers' Compensation BenefitsCoverage DenialProfit-Sharing AgreementTax Returns as EvidenceAdministrative ReviewReconsideration DenialJudicial Review of Board DecisionsSubstantial Evidence
References
8
Case No. MISSING
Regular Panel Decision

White Budd Van Ness Partnership v. Major-Gladys Drive Joint Venture

A joint venture, Plaintiff/Appellee Major-Gladys Drive Joint Venture, sued Defendant/Appellant The White Budd Van Ness Partnership, an architectural firm, for damages stemming from their alleged failure to properly investigate and advise on the use of 'C-Tile' in a shopping center construction. The 'C-Tile' proved unsuitable and had to be replaced. The jury found the architects liable for deceptive trade practices, including misrepresentations and unconscionable actions, as well as negligence and breach of contract. The trial court entered a judgment of $498,157.40 plus attorney's fees against the architects. On appeal, the court affirmed the applicability of the Texas Deceptive Trade Practices Act (DTPA) to professional architectural services and extended the implied warranty of good and workmanlike performance to such services. The appellate court overruled various points of error raised by the architects, including issues related to a 'Mary Carter' settlement agreement with a co-defendant contractor. The judgment was reformed to disallow a $41,000.00 credit granted to the architects and, as reformed, was affirmed.

Architect MalpracticeDeceptive Trade Practices Act (DTPA)Professional Services LiabilityImplied WarrantyUnconscionable ActionNegligenceBreach of ContractConstruction DefectsC-Tile FailureExpert Testimony
References
26
Case No. 2023 NY Slip Op 02305 [216 AD3d 630]
Regular Panel Decision
May 03, 2023

Lochan v. H & H Sons Home Improvement, Inc.

Ashram Lochan sued H & H Sons Home Improvement, Inc., 82 S 4 Associate Limited Liability Company, and Hassan Haghanegi for personal injuries sustained from falling off an unsecured ladder while painting, alleging Labor Law violations. The Supreme Court granted the plaintiff's motion for summary judgment on liability against 82 S 4 Associate Limited Liability Company and, in effect, searched the record to award summary judgment against Hassan Haghanegi, denying the defendants' cross-motion to dismiss. The Appellate Division modified the order by deleting the award of summary judgment against Hassan Haghanegi, finding it improperly searched the record. However, it affirmed the grant of summary judgment against 82 S 4 Associate Limited Liability Company, concluding the plaintiff established a prima facie case and defendants failed to raise a triable issue. The court also affirmed the denial of the defendants' cross-motion, ruling they failed to establish the plaintiff was the sole proximate cause, a recalcitrant worker, or a volunteer.

Ladder AccidentPersonal InjurySummary JudgmentAppellate ReviewLabor Law § 240(1)Sole Proximate CauseRecalcitrant Worker DefenseUnsecured LadderConstruction Site SafetyWorker Fall
References
18
Case No. 08-04-00179-CV
Regular Panel Decision
Aug 25, 2005

Francisco Garcia, Individually and as Next Friend of Francisco Garcia, Jr., and Kevin Garcia, Minor Children v. J. J. S. Enterprises, Inc., D/B/A/ PDQ Drive-In Grocery

Francisco Garcia, individually and as next friend for his minor children, Francisco Garcia, Jr. and Kevin Garcia (the Garcias), appealed the trial court's summary judgment in favor of J.J.S. Enterprises, Inc. (J.J.S. Enterprises). The case originated from the death of Rosario Michelle Garcia, who died during a robbery at her employer, PDQ Drive-In Grocery. Mrs. Garcia, a cashier, pursued a shoplifter against company policy, fell from a moving vehicle, and was fatally injured. The Garcias filed a wrongful death suit alleging negligence, but J.J.S. Enterprises moved for summary judgment citing a pre-injury waiver. The Court of Appeals affirmed the summary judgment, ruling the pre-injury waiver valid and enforceable, thereby barring the Garcias' lawsuit.

Wrongful DeathNegligenceSummary JudgmentPre-Injury WaiverOccupational Accident PlanNon-Subscriber EmployerTexas LawPublic PolicyFair NoticeActual Knowledge
References
21
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