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

Case No. 05-17-01457-CV
Regular Panel Decision
Aug 22, 2019

Charles Chang, M.D. v. Ashley Denny

Dr. Charles Chang performed brain surgery on Ashley Denny in 2006, leaving a cotton ball in her brain, which was discovered during a second surgery in 2011. Denny filed a medical liability claim against Dr. Chang in 2013, approximately seven years after the initial surgery and more than two years after discovering the foreign object. The trial court initially dismissed the claims as time-barred but later granted a new trial, where a jury found Dr. Chang negligent and Denny diligent in pursuing her claim. Dr. Chang appealed, challenging the denial of his motion for Judgment Non Obstante Veredicto (JNOV) on Denny's open courts defense. The dissenting opinion argues that Denny failed to exercise due diligence as a matter of law, given the 25-month delay in filing suit after discovery, and that her explanations (difficulty helping her lawyer and finding an expert) are insufficient to overcome the statute of limitations. The dissent concludes that the law should be applied neutrally, preventing recovery against Dr. Chang and suggesting Denny's recourse should be against her attorney.

Medical MalpracticeStatute of LimitationsOpen Courts DoctrineDue DiligenceForeign ObjectSurgical ErrorJury VerdictJudgment Non Obstante VeredictoAppellate ReviewTexas Civil Practice
References
15
Case No. E2013-01734-COA-R3-CV
Regular Panel Decision
Jul 30, 2014

Joshua Wayne Taylor v. Mary Katherine Taylor

This is a post-divorce case concerning the modification of a permanent parenting plan and other relief for the parties' daughter. Mother initially sought to modify the residential parenting schedule, and Father counterclaimed for a modified schedule and a change in custody designation. The trial court found no material change in circumstances to warrant a change in the primary residential parent but found a material change supporting a modification of the residential schedule, significantly increasing Mother's parenting time. Father appealed this decision, raising issues regarding the material change in circumstances, failure to designate him as the primary residential parent, and failure to find Mother in contempt. Mother raised issues concerning deviations from child support guidelines and attorney's fees. The Court of Appeals affirmed the trial court's decision, finding no error in the denial of a custody change, the modification of the parenting schedule, or the handling of contempt and child support issues.

DivorceChild CustodyParenting Plan ModificationResidential ScheduleMaterial Change in CircumstancesChild Support GuidelinesContempt of CourtAttorney FeesAppellate ReviewAbuse of Discretion
References
38
Case No. W2016-01817-COA-R9-CV
Regular Panel Decision
Aug 29, 2017

Jane Doe v. P.F. Chang's China Bistro, Inc.

Jane Doe, a hospitality manager at P.F. Chang's, was robbed and raped by a co-worker during closing procedures. Jane and John Doe filed a tort action against P.F. Chang's, which moved for summary judgment, arguing the Tennessee Workers’ Compensation Act provided the exclusive remedy. The trial court denied the motion, finding the injuries did not arise out of employment. The Court of Appeals of Tennessee affirmed, concluding that the sexual assault was not a risk inherent to Ms. Doe’s employment, thus the exclusive remedy provision of workers' compensation law did not apply, and the case was remanded for further proceedings.

Workplace AssaultSexual AssaultWorkers' CompensationExclusive Remedy DoctrineSummary JudgmentScope of EmploymentCausal ConnectionRobberyTort LawRestaurant Employee
References
30
Case No. M2021-00927-COA-R3-CV
Regular Panel Decision
Apr 08, 2022

James Williams v. Smyrna Residential, LLC

This appeal addresses the enforceability of an arbitration agreement in a wrongful death lawsuit. James Williams sued Smyrna Residential, LLC and Americare Systems, Inc., alleging their negligence led to his father's death in an assisted living facility. Defendants sought to compel arbitration based on an agreement signed by the decedent's daughter, Karen Sams, who held a durable power of attorney. The Trial Court denied the motion, finding Sams lacked authority as her POA did not cover healthcare decisions, and the wrongful death beneficiaries were not bound. The Court of Appeals affirmed, holding that executing the arbitration agreement was a healthcare decision, which Sams' general POA did not authorize. Furthermore, the court clarified that wrongful death beneficiaries bring their own right of action and are not bound by agreements to which they were not parties.

Arbitration AgreementWrongful DeathPower of AttorneyHealthcare DecisionsAgency AuthorityAssisted Living FacilityNegligenceAppellate ReviewContract LawTennessee Supreme Court Precedent
References
33
Case No. 2025 NY Slip Op 25022
Regular Panel Decision
Jan 29, 2025

Matter of Mountainside Residential Care Ctr. (S.O.)

Mountainside Residential Care Center petitioned for a guardian for S.O., an undocumented stroke patient needing Medicaid for care. The Supreme Court, Delaware County, appointed S.O.'s children, C.O. and S.O., Jr., as co-guardians of his property. The core issue was granting guardians authority to interact with federal immigration agencies (USCIS/ICE) to pursue Permanent Residence Under Color of Law (PRUCOL) status, essential for S.O. to qualify for Medicaid benefits. The court granted this authority, emphasizing the guardians' discretion and the sealed nature of the case, to allow the family to navigate the complex process for obtaining critical healthcare funding.

GuardianshipIncapacitated PersonsMedicaid EligibilityUndocumented ImmigrantsPRUCOL StatusImmigration LawHealth Care BenefitsElder CareFamily GuardiansCourt Orders
References
1
Case No. 2022 NY Slip Op 22387 [77 Misc 3d 20]
Regular Panel Decision
Dec 20, 2022

Singletary v. Residential Mgt. Inc.

The Supreme Court, Appellate Term, First Department, affirmed a judgment against Residential Management Inc. et al., landlords, for civil penalties. The initial decision found the landlords liable for failing to correct housing violations, as established by tenant testimony, photographic evidence, and subsequent inspections by the Department of Housing Preservation and Development (HPD). The landlords' defense of lack of access was rejected, as the record indicated multiple access dates and testimony from their own workers inconsistent with denial of access. Furthermore, the court found the landlords' argument regarding the Eighth Amendment's Excessive Fines Clause unpreserved and without merit, reasoning that the penalties served a remedial purpose to ensure compliance with housing standards. The court also determined that the penalty schedule was not grossly disproportionate to the offense, and landlords had the ability to mitigate fines by correcting violations promptly.

Housing ViolationsCivil PenaltiesLandlord LiabilityExcessive Fines ClauseEighth AmendmentAdministrative Code § 27-2115Lack of Access DefenseAppellate ReviewRemedial PurposeHousing Maintenance Standards
References
9
Case No. 2016 NY Slip Op 00302 [135 AD3d 572]
Regular Panel Decision
Jan 19, 2016

Domaszowec v. Residential Management Group LLC

Plaintiff Tracy Domaszowec's decedent died from a fall while cleaning a window on the 13th floor of an apartment building. The Appellate Division, First Department, modified a Supreme Court order, granting plaintiff's motion for partial summary judgment on her Labor Law § 240 (1) claim against Residential Management Group LLC and 40 Fifth Avenue Corporation (40 Fifth defendants), the building owner and manager. The court found the decedent was engaged in "commercial window washing," thereby making Labor Law § 240 (1) applicable. The court affirmed the dismissal of Labor Law § 202 against Veronica Bulgari and Stephen Haimo due to lack of exclusive control, and common-law negligence claims against T&L Contracting of N.Y., Inc. and Greenpoint Woodworking Inc. due to the lack of an exception to the contractual obligation rule. Issues of fact precluded summary judgment on negligence claims against Panorama Windows, Ltd., and the doctrine of res ipsa loquitur was deemed inapplicable to certain defendants.

Window cleaner fatalityScaffold LawSummary judgment appealAppellate Division First DepartmentCommercial vs. routine window washingLabor Law applicabilityContractual tort liabilityRes ipsa loquitur in negligencePunitive damages dismissalExpert witness evidence
References
8
Case No. MISSING
Regular Panel Decision

World Trading Corp. v. Kolchin

The plaintiff sought to permanently enjoin the defendant from arbitrating disputes, arguing that the defendant union's change in affiliation from the American Federation of Labor to the Committee for Industrial Organization, along with a name change, altered its legal entity and invalidated their contract. The court disagreed, holding that a union's identity, structure, operation, constitution, by-laws, officers, and membership remain the same despite changes in affiliation and name. The court affirmed that such changes do not affect the union's rights or responsibilities under existing contracts. Therefore, the court found no basis to support the plaintiff's contention.

union affiliationarbitration disputeinjunctioncontract validityorganizational identitylabor lawname changelegal entitytrade unionsAmerican Federation of Labor
References
2
Case No. 05-21-00758-CV
Regular Panel Decision
Dec 28, 2022

Yvette Branch v. Laura McCaskill, Coldwell Banker Residential Brokerage NRT Texas LLC, Full Scope Property Inspection PLLC

Yvette Branch appealed a trial court's judgment awarding attorney's fees to Laura McCaskill, Coldwell Banker Residential Brokerage Company, and NRT Texas, LLC. The case originated from a failed real estate transaction where Branch was the buyer and appellees represented the sellers. Branch subsequently sued the appellees, alleging various claims including violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), fraud, trespass, and negligence. The trial court granted summary judgment in favor of the appellees on all claims and awarded them attorney's fees. On appeal, Branch challenged the attorney's fee award, arguing it was not authorized by contract, not justified under the DTPA, and not reasonable or necessary. The Court of Appeals affirmed the trial court's judgment, concluding that the attorney's fees were authorized by the 'related to this contract' clause in the real estate agreement and that the awarded amount was reasonable and necessary.

Attorney's FeesSummary JudgmentReal Estate ContractDeceptive Trade Practices ActTrespass ClaimNegligence ClaimFraud ClaimAppellate ReviewTexas Civil PracticePrevailing Party
References
12
Case No. 04-12-00702-CV
Regular Panel Decision
Nov 13, 2013

John Homer Coonly (Appellant/Cross-Appellee) v. Gables Residential Services, Inc., D/B/A Gables West Avenue (Appellee/Cross-Appellant)

John Homer Coonly appealed the trial court's order granting summary judgment in favor of Gables Residential Services, Inc., which resulted in Coonly taking nothing on his claims for negligence, premises liability, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). Coonly's claims stemmed from the theft and vandalism of his motorcycles from the apartment parking garage owned by Gables. Gables filed a cross-appeal regarding the denial of attorney's fees. The appellate court affirmed the summary judgment on negligence and premises liability claims, finding the lease agreements validly waived such claims. However, the court reversed and remanded the summary judgment on Coonly's DTPA claim, concluding that the waiver language in the agreements did not meet the DTPA's statutory requirements and Coonly's affidavit raised a material issue of fact regarding Gables' representations about the access gate.

NegligencePremises LiabilityDeceptive Trade Practices ActDTPASummary JudgmentLease AgreementExculpatory ClauseWaiver of LiabilityAttorney's FeesContract Law
References
19
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