July 2008 Decisions First Court of Appeals Houston

CIVIL APPEALS FIRST COURT OF APPEALS HOUSTON OPINIONS ISSUED JULY 2008 (Tex.App.- Houston [1st Dist.] Jul. 2008)

Dace v. Dace (Tex.App.- Houston [1st Dist.] July 31, 2008)(Higley)(dispute over estate, no breach of contract, deed, undue influence, testamentary capacity)(evidence insufficient to support jury’s finding that Harry entered into a written agreement with his parents to purchase the business)

Texas Mutual Ins. Co. v. Ruttiger (Tex.App.- Houston [1st Dist.] July 31, 2008) (opinion on rehearing by Jennings)(worker's compensation insurance bad faith, code violation, DTPA, loss to credit reputation)

Barton v. Whataburger, Inc. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Bland)(workplace safety, murder not forseeable, no employer liability)

In the Matter of BW (Tex. App.- Houston [1st Dist.] July 31, 2008)(Jennings)(juvenile case, prostitution)

Pouncy Pittman v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] July 31, 2008)(Hanks)(shooting in front of restaurant, crime not forseeable, no liability, motion for continuance MFC, due diligence in seeking discovery, admission of evidence)

Tran v. Trinh (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings)(claim of breach of partnership agreement, jury found no partnership agreement, effect of failure to file request for partial record, UDJA attorney's fees)

Kahng v. Verity (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings)(auto PI, death, negligence, wrongful death, man running into freeway, no time to swerve, NE-SJ properly granted, failure to preserve error)

CenterPoint Energy Houston Electric LLC V Bluebonnet Drive, Ltd. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Radack) (interpretation of easement, new cell phone technology vs. telephone and telegraph wires in 1929)

Jackson v. City of Texas City (Tex.App.- Houston [1st Dist.] July 24, 2008)
(Keyes)(public employment, collective bargaining agreement, discharge from fire department, dismissal, civil service commission) Dissenting Opinion by Justice Alcala

Messina v. Messina (Tex.App- Houston [1st Dist.] July 24, 2008)(Bland)(divorce post-judgment proceeding, undisclosed assets, MSA, sanctions, dismissal with prejudice following nonsuit)

Mares v. Blaine (Tex.App.- Houston [1st Dist.] July 24, 2008)(Hanks) (appeal from DWOP)

Healix Infusion Therapy, Inc. v. South Florida Infectious Diseases & Tropical Medicine Center, LLC(Tex.App.- Houston [1st Dist.] July 24, 2008)(Nuchia) (special appearance, foreign defendant, purposeful availment)

Wood v. Texas Chiropractic College (Tex.App.- Houston [1st Dist.] July 24, 2008) (Jennings)(suit by student against private educational institution, DTPA, misrepresentation, no reliance shown, NE-SJ)

Pessarra v. Seidler (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes)(guardianship proceeding, attorney had no authority to file appeal)

American International Industries, Inc. v. Surgicare (Tex.App.- Houston [14th Dist.] July 17, 2008)(Keyes)(indemnification for attorney's fees, establishing reasonable and necessary amount of fees)

City of Houston v. Buttitta (Tex.App.- Houston [1st Dist.] July 17, 2008)(Hanks)(City of Houston litigation, public employment, firefighters and policemen, disciplinary action,plea to the jurisdiction against city proper, DJA not available here)

Yilmaz, MD v. McGregor (Tex.App.- Houston [1st Dist.] July 17, 2008)(Higley) (medical malpractice, motion to dismiss, interlocutory appeal, timeliness of service of citation and expert report, defendant not a party prior to being served)

Travelers Indemnity Co. v. Texas Municipal League (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes)(arbitration disputes) (no express agreement to arbitrate, motion to compel arbitration denied)

The Kroger Co. v. Persley (Tex.App.- Houston [1st Dist.] July 10, 2008)(Hanks)(premises liability, slip and fall suit, negligent activity)

Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. (Tex.App.- Houston [1st Dist.] Juy 10, 2008)(Keyes) (health care coverage law, breach of contract, ERISA preemption, sj based on limitations)

The University of Houston v. Barth (Tex.App. - Houston [1st Dist.] July 3, 2008) (Higley)(jury award in Whistleblower suit reversed, case remanded for retrial)Dissenting Opinion by Justice Alcala

Dadi v. Atlas Rehab Group, Inc. (Tex.App.- Houston [1st Dist.] July 3, 2008)(Alcala)

TransAmerica Occidental Life Insurance Company v. Rapid Settlements (Tex.App.- Houston [1st Dist.] July 3, 2008)(Bland) (confirmation of arbitration award against nonparty was error)

TransAmerica Occidental Life Insurance Company v. Rapid Settlements (Tex.App.- Houston [1st Dist.] July 3, 2008)(Bland) (restricted appeal, order confirming arbitration award)

Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)(credit card suit by assignee against consumer, deemed admissions, sufficiency of summary judgment proof, breach of contract and quantum meruit exclusive of each other)

Rinn v. Wennenweser (Tex.App.- Houston [1st Dist.] July 3, 2008)(Jennings)(real estate law, easement dispute, validity)

Goldberg v. Commission for Lawyer Discipline (Tex.App.- Houston [1st Dist.] July 3, 2008)(Taft)(attorney disciplinary matter, jurisdiction re: disbarment where criminal conviction was set aside) Concurring Opinion by Justice Jennings

Lakota Resources, Inc. v. Pathex Petroleum, Inc (Tex.App.- Houston [1st Dist.] July 3, 2008)(per curiam)(reversed without regard to merits based on settlement agreement)

In re Lamar (Tex.App.- Houston [1st Dist.] July 3, 2008)(per curiam denial, interlocutory appeal available, special appearance)

Dissenting Opinion by Keyes in In re Walker (Tex.App.- Houston 2008)(termination of parental rights, jurisdiction, dismissal)