C.D.'s Appellate Decisions
Leland Pennington, Inc. v. Bulls, 02-20-00282-CV (Tex. App.--Fort Worth 2021, no writ) - Ability to require arbitration even with lack of a signed contract.
Lewis v. Bell Helicopter Textron, Inc., 02-14-00065-CV (Tex. App.--Fort Worth 2015, writ denied) - Pre-emption of federal aviation law on state law nuisance claim.
Bond Restoration, Inc. v. Ready Cable, Inc., 462 S.W. 3d 597 (Tex. App.--Amarillo 2015, writ denied) - Ability of 2nd-tier materials supplier to recover from prime contractor who fails to give bond information as required by Chapter 2253 of the Tex. Gov't. Code.
Young v. Nortex Foundation Designs, Inc., 02-11-00470-CV (Tex. App.--Fort Worth 2013) - Employee was asked to perform an illegal act implicating Sabine Pilot when act involved possible copyright infringement.
Nortex Foundation Designs, Inc. v. Ream, 02-12-00212-CV (Tex. App.--Fort Worth 2013) - Sufficiency of qualifications of expert to sign a Certificate of Merit.
Brewer v. Skutca, 02-10-00305-CV (Tex. App.--Fort Worth 2011, no writ) - Party not permanently prohibited from adversely possessing property even when there is a prior partition judgment between the same parties.
Ustanik v. Nortex Foundation Designs, Inc., 320 S.W.3d 409 (Tex. App.--Waco 2010, pet. denied) - No waiver of right of to dismissal under Chapter 150 of Tex. Civ. Prac. & Rem. Code when motion filed more than two years after issue raised in original answer. Additional claims of DTPA, negligent misrepresentation and breach of contract were actually reconstituted claims of negligence.
Ready Cable, Inc. v. RJP Southern Comfort Homes, Inc., 295 S.W.3d 763 (Tex. App.--Austin 2009, no writ) - Requirement that county clerk file an affidavit claiming a materialman's lien is ministerial and filing is not considered untimely when county clerk improperly refuses to perform this ministerial act.
Irwin v. Nortex Foundation Designs, Inc., 02-08-00436-CV (Tex. App.--Fort Worth 2009, no writ) - Homeowner may not assert claim for breach of implied warrant of performance in a good and workmanlike manner against subcontractor with whom the owner had no direct contractual relationship.
Glenn v. Nortex Foundation Designs, Inc., 02-07-00172-CV (Tex. App.--Fort Worth 2008, no writ) - Mental anguish based solely on negligence for causing property damage is not recoverable.
Haidar v. Nortex Foundation Designs, Inc., 239 S.W.3d 924 (Tex. App.--Dallas 2007, no writ) - Plaintiff has burden to prove application of "discovery rule" after defendant has established limitations defense.
Lyon v. Allsup's Convenience Stores, Inc., 997 S.W.2d 345 (Tex. App.--Fort Worth 1999, no writ) - If an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation (defamation claim that plaintiff/employee asserted based on wrongful termination for theft not recoverable against employer when supervisor terminated employee to cover his own theft).
Upton v. Gensco, Inc., 962 S.W.2d 620 (Tex. App.--Fort Worth 1997, pet. denied) - Traveling salesman who was returning home after a day of sales visits when he was involved in an auto accident was not in course and scope of his employment.
Allied Erectors Corp. v. Barbara's Bakery, 954 S.W.2d 197 (Tex. App.--Waco 1997, no writ) - Denial of special exception may be appealed although the denial order was signed three years before statute creating right of appeal became law.
Lewis v. Bell Helicopter Textron, Inc., 02-14-00065-CV (Tex. App.--Fort Worth 2015, writ denied) - Pre-emption of federal aviation law on state law nuisance claim.
Bond Restoration, Inc. v. Ready Cable, Inc., 462 S.W. 3d 597 (Tex. App.--Amarillo 2015, writ denied) - Ability of 2nd-tier materials supplier to recover from prime contractor who fails to give bond information as required by Chapter 2253 of the Tex. Gov't. Code.
Young v. Nortex Foundation Designs, Inc., 02-11-00470-CV (Tex. App.--Fort Worth 2013) - Employee was asked to perform an illegal act implicating Sabine Pilot when act involved possible copyright infringement.
Nortex Foundation Designs, Inc. v. Ream, 02-12-00212-CV (Tex. App.--Fort Worth 2013) - Sufficiency of qualifications of expert to sign a Certificate of Merit.
Brewer v. Skutca, 02-10-00305-CV (Tex. App.--Fort Worth 2011, no writ) - Party not permanently prohibited from adversely possessing property even when there is a prior partition judgment between the same parties.
Ustanik v. Nortex Foundation Designs, Inc., 320 S.W.3d 409 (Tex. App.--Waco 2010, pet. denied) - No waiver of right of to dismissal under Chapter 150 of Tex. Civ. Prac. & Rem. Code when motion filed more than two years after issue raised in original answer. Additional claims of DTPA, negligent misrepresentation and breach of contract were actually reconstituted claims of negligence.
Ready Cable, Inc. v. RJP Southern Comfort Homes, Inc., 295 S.W.3d 763 (Tex. App.--Austin 2009, no writ) - Requirement that county clerk file an affidavit claiming a materialman's lien is ministerial and filing is not considered untimely when county clerk improperly refuses to perform this ministerial act.
Irwin v. Nortex Foundation Designs, Inc., 02-08-00436-CV (Tex. App.--Fort Worth 2009, no writ) - Homeowner may not assert claim for breach of implied warrant of performance in a good and workmanlike manner against subcontractor with whom the owner had no direct contractual relationship.
Glenn v. Nortex Foundation Designs, Inc., 02-07-00172-CV (Tex. App.--Fort Worth 2008, no writ) - Mental anguish based solely on negligence for causing property damage is not recoverable.
Haidar v. Nortex Foundation Designs, Inc., 239 S.W.3d 924 (Tex. App.--Dallas 2007, no writ) - Plaintiff has burden to prove application of "discovery rule" after defendant has established limitations defense.
Lyon v. Allsup's Convenience Stores, Inc., 997 S.W.2d 345 (Tex. App.--Fort Worth 1999, no writ) - If an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation (defamation claim that plaintiff/employee asserted based on wrongful termination for theft not recoverable against employer when supervisor terminated employee to cover his own theft).
Upton v. Gensco, Inc., 962 S.W.2d 620 (Tex. App.--Fort Worth 1997, pet. denied) - Traveling salesman who was returning home after a day of sales visits when he was involved in an auto accident was not in course and scope of his employment.
Allied Erectors Corp. v. Barbara's Bakery, 954 S.W.2d 197 (Tex. App.--Waco 1997, no writ) - Denial of special exception may be appealed although the denial order was signed three years before statute creating right of appeal became law.
Paul's Appellate Decisions
Hammett v. Zimmerman, 804 S.W.2d 663 (Tex. App.--Fort Worth 1991, no writ) - Jury improperly disregarded testimony concerning injury when no damages were awarded for pain or mental anguish.
Carpenter v. Barner, 797 S.W.2d 99 (Tex. App.--Waco 1990, writ denied) - Constable entitled to official immunity as a matter of law even though he acts negligently in the performance of discretionary duties and those duties are not normally performed by the constable.
Ramsey v. Sentry Ins., 564 S.W.2d 463 (Tex. Civ. App.--Waco, 1978, no writ) - jury improperly ignored evidence of back injury in finding no producing cause in worker's compensation case.
Frost v. Crain, 480 S.W.2d 754 (Tex. Civ. App.--Fort Worth, 1972, no writ) - defense argument concerning percentage of negligence was permissible even though state did not recognize comparative fault at the time.
Edwards v. Ranger Ins. Co. , 456 S.W.2d 419 (Tex. Civ. App.--Fort Worth, 1970, writ ref'd n.r.e.) - When the facts are undisputed on the issues of substantial compliance with insurance notice provision, then a question of law is presented for the court to decide.
Royal Indemnity Company v. Smith, 456 S.W.2d 218 (Tex. Civ. App., 1970, no writ) - Any doubt as to whether evidence actually supports a jury finding of permanent incapacity must be resolved in favor of the right of an injured workman to receive compensation.
Bass v. General Motors Corporation, 447 S.W.2d 443 (Tex. Civ. App.--Fort Worth 1968, writ ref'd n.r.e.) - doctrine of res ipsa loquitur not available for claim against dealership when alternate explanation for fire loss to vehicle was present.
Commercial Standard Ins. Co. v. Cisco Ind. Sch. Dist., 435 S.W.2d 565 (Tex. Civ.App.--Eastland, 1968, writ ref'd n.r.e.) - Strict compliance with a provision limiting the time for furnishing proofs of loss will not be enforced when insurer has knowledge of facts concerning loss.
Carpenter v. Barner, 797 S.W.2d 99 (Tex. App.--Waco 1990, writ denied) - Constable entitled to official immunity as a matter of law even though he acts negligently in the performance of discretionary duties and those duties are not normally performed by the constable.
Ramsey v. Sentry Ins., 564 S.W.2d 463 (Tex. Civ. App.--Waco, 1978, no writ) - jury improperly ignored evidence of back injury in finding no producing cause in worker's compensation case.
Frost v. Crain, 480 S.W.2d 754 (Tex. Civ. App.--Fort Worth, 1972, no writ) - defense argument concerning percentage of negligence was permissible even though state did not recognize comparative fault at the time.
Edwards v. Ranger Ins. Co. , 456 S.W.2d 419 (Tex. Civ. App.--Fort Worth, 1970, writ ref'd n.r.e.) - When the facts are undisputed on the issues of substantial compliance with insurance notice provision, then a question of law is presented for the court to decide.
Royal Indemnity Company v. Smith, 456 S.W.2d 218 (Tex. Civ. App., 1970, no writ) - Any doubt as to whether evidence actually supports a jury finding of permanent incapacity must be resolved in favor of the right of an injured workman to receive compensation.
Bass v. General Motors Corporation, 447 S.W.2d 443 (Tex. Civ. App.--Fort Worth 1968, writ ref'd n.r.e.) - doctrine of res ipsa loquitur not available for claim against dealership when alternate explanation for fire loss to vehicle was present.
Commercial Standard Ins. Co. v. Cisco Ind. Sch. Dist., 435 S.W.2d 565 (Tex. Civ.App.--Eastland, 1968, writ ref'd n.r.e.) - Strict compliance with a provision limiting the time for furnishing proofs of loss will not be enforced when insurer has knowledge of facts concerning loss.
Clay's Appellate Decision
I-Gotcha, Inc. v. McInnis, 903 S.W.2d 829 (Tex. App.--Fort Worth 1995, writ denied) - Evidence sufficient to support jury finding that employer in dram shop claim encouraged employees to serve intoxicated patrons.
