Sunday, December 13, 2009

December 2009 Fourteenth Court of Appeals Decisions


CASES DECIDED BY HOUSTON'S
FOURTEENTH COURT OF APPEALS IN DECEMBER 2009


December 31, 2009

Civil Causes Decided:

DISMISSED: Per Curiam (dismissal after voluntary bankruptcy case closed)
Before Justices Frost, Boyce and Sullivan)
14-05-00477-CV Jose Santiago and Amelia Santiago v. Walmart Stores Inc., Walmart Supercenter,
Store #849, The Chemins Company, Inc. and Metabolife International, Inc.
Appeal from 280th District Court of Harris County
Trial Court Judge:
Tony Lindsay

American Golf Corporation v. Sugar Creek Country Club (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)
(per curiam) (joint motion to reverse the judgment and remand the cause to the trial court in accordance
with a settlement agreement granted)
REVERSED AND REMANDED: Per Curiam
Before Justices Anderson, Frost and Boyce)
14-08-00180-CV American Golf Corporation v. Sugar Creek Country Club
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge: The Honorable James H Shoemake

Jedkins v. Varghese (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam)
(
dismissal with prejudice of pro se inmate suit affirmed)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-08-00895-CV Larry Wayne Jedkins v. Mariamma Varghese, Et Al
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman

Hughes v. Bay Area Montessori Houston, Inc. (Tex.App. - Houston [14th Dist.] Dec. 31, 2009)(Frost)
(
interlocutory appeal, professional malpractice suit)
DISMISSED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc.
Appeal from 295th District Court of Harris County
Trial Court Judge:
Tracy Kee Christopher

In re Strebel (pdf) (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(Yates)
(mandamus re order for deposit of $250,000 into registry denied)
MOTION OR WRIT DENIED: Opinion by
Justice Brock Yates
Before Justices Brock Yates, Frost and Brown)
14-09-00819-CV In Re Douglas W. Strebel
Appeal from 10th District Court of Galveston County
Trial Court Judge: Honorable David Garner

Ex parte Strebel (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam)
MOTION OR WRIT DENIED: Opinion by Justice
Leslie Brock Yates
Before Justices Brock Yates, Frost and Brown)
14-09-00820-CV Ex Parte Douglas W. Strebel
Appeal from 10th District Court of Galveston County
Trial Court Judge: Hon. David Garner

December 30, 2009

Civil Causes Decided:

In re John Doe (Tex.App. - Houston [14th Dist.] Dec. 30, 2009)(Minimalist opinion Sullivan)
(mandamus regarding motion for stay denied)
MOTION OR WRIT DENIED: Opinion by
Justice Sullivan
Before Justices Frost, Boyce and Sullivan
14-09-01050-CV In Re John Doe and Jane Doe, Individually and a/n/f James Doe, a minor
Appeal from 80th District Court of Harris County
Trial Court Judge:
Larry Weiman

December 29, 2009

Civil Causes Decided:

In re Vossdale Townhouse Ass'n (Tex.App.- Houston [14th Dist.] Dec. 29, 2009)(Seymore)
(
sanctions for discovery abuse, attorney disqualification not authorized as sanction, fundamental right to
their counsel of choice)(mandamus granted)

GRANTED IN PART AND DENIED IN PART: Opinion by
Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00723-CV In Re Vossdale Townhouse Association, Inc.; John B. Baird, as President of the
Vossdale Townhouse Association, Inc., and Individually; and Pauletta Gwen Holley Gilbert, as Secretary
of the Vossdale Townhouse Association, Inc., and Individually
Appeal from 151st District Court of Harris County
Trial Court Judge:
Mike Engelhart


December 22, 2009

Civil Causes Decided:

Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc.
, (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Sullivan)(oil and gas law, commercial contract dispute, direct vs. consequential damages) .
REVERSED AND REMANDED: Opinion by Justice Sullivan
Before Chief Justice Hedges, Justices Hudson and Sullivan
14-08-00086-CV Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., DMT Holdings, LP, DMT G.P., LLC and Chevron U.S.A. Inc.
Appeal from 55th District Court of Harris County
Trial Court Judge:
Jeff Brown

Skylane West Ltd. v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009) (Seymore)
(
plea to the jurisdiction, lack of standing, not property owner, thus no standing to litigate) (trial court properly concluded it lacked subject-matter jurisdiction over the claims of all appellants)
AFFIRMED: Opinion by
Justice Charles Seymore
Before Justices Seymore, Brown and Sullivan
14-08-00507-CV Skylane West Ltd., Houston Skylane One LLC a/k/a Skylane West Ltd., an Skylane West Apartments, as the Property Owners and the Property Owners v. Harris County Appraisal District
Appeal from 113th District Court of Harris County
Trial Court Judge:
Patricia Ann Hancock

DL Louetta Village Square LP v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Seymore) (dismissal for lack of standing affirmed)(before use of a common name is adequate to justify substitution under Rule 28, a party must show it was in fact doing business under that common name, dba)
AFFIRMED: Opinion by
Justice Seymore
Before Justices Seymore, Brown and Sullivan

14-08-00549-CV DL Louetta Village Square LP and JL Louetta Village Square LP a/k/a Nomura Credit Capital Inc as the Property Owners and the Property Owners v. Harris County Appraisal District
Appeal from 280th District Court of Harris County
Trial Court
Judge: Tony Lindsay

Nguyen v. Chapa (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Hedges) (real estate transaction, deeds, actual notice, constructive notice, bona fide purchaser, bona fide
mortgagee)

AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan

14-08-00634-CV Hue Nguyen & Southwestern National Bank v. Alonso Chapa
Appeal from 269th District Court of Harris County
Trial Court Judge:
John T. Wooldridge

In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam denial of mandamus) (multiple procedural deficiencies in seeking mandamus relief in the court of appeals)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce

14-09-00942-CV In Re Ted Lawrence Robertson
Appeal from 312th District Court of Harris County
Trial Court Judge:
Hon. Robert Hinojosa

In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam) (defective petition for mandamus, inadequate record)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce

14-09-01053-CV In Re Ted Lawrence Robertson
Appeal from 247th District Court of Harris County
Trial Court Judge:
Judge Bonnie Crane Hellums

December 17, 2009

Civil Causes Decided:

Azad v. Aaron Rents Inc
. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 17, 2009)(Seymore) (commercial lease case, attorney's fees)
AFFIRMED: Opinion by
Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-01087-CV Hardam S. Azad and Manohar S. Mann v. Aaron Rents Inc. d/b/a Aaron Rents, Inc. d/b/a Texas Aaron Rents, Inc
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Joseph J. Halbach

December 15, 2009

Civil Causes Decided:

LJ Charter, LLC v. Air America Jet Charter, Inc.
(pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Anderson)(one satisfaction rule double recovery for a single injury, application of settlement credits) (unjust enrichment)
AFFIRMED AS MODIFIED: Opinion by
Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00534-CV LJ Charter, LLC C.N. Schwarz, III, R & S Aircraft Investments, LLC, CNS Ventures, LLC, and Starflite Management Group, Inc. v. Air America Jet Charter, Inc.
Appeal from 165th District Court of Harris County
Trial Court Judge:
Elizabeth Ray

Santex Builders, LLC v. Guefen Construction, LLC (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Boyce)(default judgment set aside, defective service of citation)
Santex Builders, LLC (“Santex”) and Curtis R. Medlin appeal the trial court’s final default judgment in favor of Guefen Construction, LLC (“Guefen”) and the trial court’s order denying their motion to set aside default judgment and alternative motion for new trial. Because we conclude service of process was defective, we reverse and remand.
REVERSED AND REMANDED: Opinion by
Justice Boyce
Before Justices Anderson, Seymore and Boyce
14-08-00840-CV Santex Builders, LLC and Curtis R. Medlin v. Guefen Construction, LLC Appeal from 165th District Court of Harris County
Trial Court Judge:
Hon. Elizabeth Ray

UTMB at Galveston v. Simmons (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Boyce) (HCLC, denial of motion to dismiss affirmed in interlocutory appeal)
AFFIRMED: Opinion by
Justice Bill Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00246-CV University of Texas Medical Branch at Galveston, Texas v. Marvin Simmons Appeal from 122nd District Court of Galveston County
Trial Court Judge: John A. Ellisor JR.

Frank v. Brittany Square Apartments (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Hedges) (eviction suit appeal, error in bringing appeal, incomplete appellate record, DWOJ on appeal) In this forcible detainer suit, the tenant appealed the judgment of the justice court to the county court at law. She asserts that the county court upheld the justice court’s judgment and granted possession of the premises to the landlord, but she identifies no appealable order in the record. We therefore dismiss this appeal for want of jurisdiction.
DISMISSED: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00288-CV Linda Frank v. Brittany Square Apartments
Appeal from County Court at Law #4 of Fort Bend County
Trial Court Judge: Sandy Bielstein

December 10, 2009

Civil Causes Decided:

EZ Postal Plus v. Capital One, N.A
. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 10, 2009)(per curiam dismissal)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00889-CV EZ Postal Plus and Bilal Farahshah v. Capital One, N.A.
Appeal from County Civil Court at Law No 3 of Harris County

McCarroll v. My Sentinel, LLC (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Hedges) (personal liability imposed on officers and directors based on forfeiture of corporate charter, res judicata not applicable)AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01171-CV Steven and Robbie McCarroll v. My Sentinel, LLC.,
Appeal from 405th District Court of Galveston County
Trial Court Judge: Wayne J. Mallia

In Interest of CW (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Boyce) (appeal from a final order terminating parental rights)
AFFIRMED: Opinion by
Justice Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00306-CV In the Intererst of C.W., Jr., I.S., E.R., & D.G
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough

December 8, 2009

Civil Causes Decided:

Shanley v. First Horizon Home Loan Corp
. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan) (misrepresentation, reliance element)
Because the Shanleys failed to present evidence raising a genuine issue of material fact as to the element of reliance, we conclude that the trial court properly granted summary judgment to Digital Draw on their negligent misrepresentation claim. Issue one as to Digital Draw is overruled.
AFFIRMED: Opinion by
Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-07-01023-CV Michael E. Shanley and Veronica R. Shanley v. First Horizon Home Loan Corp
Appeal from 334th District Court of Harris County
Trial Court Judge:
Sharon McCally

Shanley v. Digital Draw Network
(pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan)
(Motion for Leave to Amend, Expert Witness Affidavit, Motion for Continuance)
AFFIRMED: Opinion by
Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-08-00060-CV Michael E. Shanley and Veronica R. Shanley v. Digital Draw Network
Appeal from 334th District Court of Harris County

Trial Court Judge:
Sharon McCally

Ex Parte S.C. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Seymore)(expunction appeal)
Appellant, Texas State Securities Board appeals from an expunction order concerning files and records relating to appellee, S.C. In its sole issue, the Board contends the order is broader than authorized by the statute governing expunction. Because we agree, we modify the order and affirm as modified.
AFFIRMED AS MODIFIED: Opinion by Justice
Charles Seymore
Before Justices Seymore, Brown and Boyce
14-08-00381-CV Ex Parte S.C
Appeal from 189th District Court of Harris County
Trial Court Judge:
Bill Burke

City of Alvin v. Zindle
(pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (oil and gas law, mineral estate, tax lien foreclosure)
AFFIRMED AS MODIFIED: Opinion by
Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00458-CV City of Alvin v. Sallie Zindle
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta

McKinney & Moore, Inc. v. City of Longview, Tx (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (Hedges)(plea to the jurisdiction governmental immunity)
AFFIRMED AS MODIFIED: Opinion by Chief
Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00628-CV McKinney & Moore, Inc. v. City of Longview, Texas
Appeal from 188th District Court of Gregg County
Trial Court Judge: Judge David Scott Brabham

In Interest of JJJ (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Hedges)(SAPCR dispute)
Kelli Lane Lowery appeals from the trial court’s dismissal for want of jurisdiction of Lowery’s action seeking joint managing conservatorship of J.J.J., a child. J.J.J. had been adopted in a prior action in a different court by appellee, Roderick L. Jones. In her first issue on appeal, Lowery challenges the trial court’s dismissal of her claims on jurisdictional grounds. In her second issue, she argues that the trial court should have permitted her to (1) present evidence in support of her standing to bring the lawsuit, and (2) amend her pleadings. Finding that the trial court erred in dismissing for want of jurisdiction, we reverse and remand for further proceedings below.
REVERSED AND REMANDED: Opinion by
Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01015-CV In the Interest of J.J.J., a Child
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne

Citrin Holdings, LLC v. Minnis (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Boyce) (denial of special appearance affirmed in interlocutory appeal)
Appellants Jacob Citrin, Citrin Holdings LLC, Cargo Investors LLC, and Cargo Investors II LLC challenge the trial court’s order denying their special appearances. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon 2008). We affirm.
AFFIRMED: Opinion by
Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-09-00186-CV Citrin Holdings, LLC, Jacob Citrin, Cargo Investors LLC, and Cargo Investors II LLC v. Matthew Minnis and Cullen 130, LLC
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel McFarland

December 3, 2009

Civil Causes Decided:

Sharma v. Routh
(pdf) (Tex.App.- Houston [14th Dist.] Dec. 3,2009)(Concurrence by Hedges)(divorce, characterization of property)
Because the trial court mischaracterized a portion of the marital property, namely the trust income from Alice's testamentary trusts, the majority correctly reverses and remands this case. Although I agree with the majority's disposition, I would reverse and remand for different reasons. I therefore concur in the judgment only and write separately to explain my reasons.
CONCURRING:
Concurring Opinion by Chief Justice Adele Hedges
14-06-00717-CV Timothy L. Sharma v. Lisa C. Routh
Appeal from 246th District Court of Harris County
Trial Court Judge:
Jim York

Walker v. Rangel
(pdf) (Tex.App.- Houston [14th Dist.] Dec. 3, 2009)(Seymore) (A jury found Rangel’s negligence did not proximately cause the accident. Walker now appeals, contending the trial court erred in admitting opinion testimony of Senior Police Officer Daryl Woods of the Houston Police Department and Rangel’s accident reconstruction expert, Dale King. After a thorough review of the appellate record, we conclude the trial court erroneously admitted testimony) (harm analysis re admission/exclusion of evidence)
REVERSED AND REMANDED: Opinion by
Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00643-CV Juanita Walker v. April Rangel
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Roberta Anne Lloyd

December 1, 2009

Civil Causes Decided:

Saturday, December 12, 2009

Dec. 2009 Civil Appellate Decisions of the First Court of Appeals in Houston, TX


TEX.APP.- HOUSTON [1st Dist] Dec. 2009

MOST RECENT CIVIL APPELLATE DECISIONS OF THE FIRST COURT OF APPEALS IN HOUSTON, TEXAS


December 31, 2009

Civil Causes Decided:

Wilstein v. Dernick Resources, Inc. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes) (limitations and fraudulent concealment, breach of fiduciary duty and fraud, public record, constructive notice)
REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by
Justice Evelyn Keyes
Before Justices Keyes, Alcala and Hanks
01-07-00491-CV David Wilstein, and Leonard Wilstein, Individually and as Trustee
v. Dernick Resources, Inc.,
Appeal from 164th District Court of Harris County
Trial Court Judge:
Hon. Martha Hill Jamison

Klentzman v. Brady (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Taft)(defamation, media libel) (fault, falsity, and substantial truth in libel cases involving media defendants, non-actionable opinion, actual malice plaintiff's status as a limited purpose public figure)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-07-00520-CV LeaAnne Klentzman and Carter Publications, Inc. d/b/a The West Fort Bend Star, Inc. v. Wade Brady
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Hon. Thomas R. Culver III

Gordon v. Allen (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes)(errors on appeal)
“[A]n appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.”
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00435-CV Ronald X. Gordon v. Donald Allen, Marvin & Doris Bennett
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

Brejon v. Johnson-Brejon (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(motion to modify child support, material and substantial change in circumstances, attorney's fees
order void)
AFFIRM TC JUDGMENT: Opinion by
Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00642-CV Phillipe J. Brejon v. Lia M. Johnson-Brejon
Appeal from 310th District Court of Harris County
Trial Court Judge:
The Honorable Lisa Millard

City of Houston v. Guthrie dba Freedom 2009 Fireworks (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(accelerated interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, filed by Appellants complaining the trial court wrongly denied their pleas to the jurisdiction)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks
Before Judge Wilson, Justices Alcala and Hanks
01-08-00712-CV The City of Houston, Houston, Texas; Municipal Utility District 132; Municipal Utility District 157 and Municipal Utility District 152 v. Joel Guthrie d/b/a Sarges Fireworks, Fireworks Center 50, LLC, Paul Dewey Jones d/b/a Freedom 2000 Fireworks, Metro Church and Gulf Coast Avenue C, LLC Appeal from 269th District Court of Harris County
Trial Court Judge:
Hon. John T. Wooldridge

Medina v. Benkiser (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(
trial court had no jurisdiction on modify judgment and add attorney's fee award after appeal completed)
VACATE TRIAL COUR JUDGMENT AND DISMISS CASE: Opinion by
Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00777-CV Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay
Fisher v. Tina Benkiser and The Republican Party of Texas
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

Brejon v. Brejon (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(modification of child support, attorney fee order void)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED:

Opinion by Justice Michael Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00897-CV Phillipe J. Brejon v. Lia M. Johnson Brejon
Appeal from 310th District Court of Harris County
Trial Court Judge: The
Honorable Lisa Millard

Mitchell v. The Methodist Hospital (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks) (medical malpractice suit, adequacy of expert report, attorney's fees in HCLC suit) (presumption of proper service, receipt of mail)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00898-CV Chiquita Mitchell, Verazonda Mitchell, Dominque Mitchell, Aaron Mitchell, Samuel Mitchell, Frank Mitchell III, Carl Mitchell, Marie Ophelia, Theodore Mitchell & Johnation Mitchell v. The Methodist
Hospital, Rose Young, Melissa Abbot, Denise M. Stuckey and Bernice Onyenuzi
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble

Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity)
(
turnover relief, void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment hearing)
AFFIRM TC JUDGMENT: Opinion by
Justice George C. Hanks
Before Justices Keyes, Alcala and Hanks
01-08-01006-CV Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May

Perez v. Fannie Mae (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(per curiam dismissal)
(failure to file brief)
DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-08-01031-CV Erika Perez v. Fannie Mae
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle

Humphreys v. Delcourt (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Higley)
(
legal malpractice suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Higley
Before Justices Jennings, Higley and Massengale
01-09-00025-CV Jahn Eric Humphreys v. Richard Delcourt
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

In re Gordon (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(per curiam denial)
By petition for writ of mandamus, prohibition, and injunction, relator seeks relief compelling the Texas Supreme Court to void and vacate its judgment rendered in Gordon v. Madison, 39 S.W.3d 604 (Tex. 2001).
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00577-CV In re Ronald X. Gordon
Appeal from
212th District Court of Galveston County

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00592-CV Hung Tan Phan v. An Dinh Le; Tan Ming Cao; Thuy Dinh Truong
Appeal from 125th District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00694-CV Aleithia Artemis v. Houston Fire Dept.
Appeal from 133rd District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00735-CV William David Golden v. Janet Sue Golden
Appeal from 245th District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00780-CV Mark Trimble v. Ranjeek Kaur
Appeal from County Court of Chambers County


Released Opinions

December 30, 2009

Civil Causes Decided:

In re International Trading Co., Inc. (Tex.App.- Houston [1st Dist.] Dec. 30, 2009)(per curiam denial)
(mandamus denied re: order denying
motion to compel arbitration)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-01032-CV In re International Trading Co., Inc., d/b/a Met Company, Inc.
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

December 23, 2009

Civil Causes Decided:

In re Feinhandler (Tex.App.- Houston [1st Dist.] Dec. 23, 2009)(per curiam)
(
discovery mandamus re order to produce income tax returns denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-01100-CV In re Mark Feinhandler
Appeal from 111th District Court of Webb County
Trial Court Judge: Hon. Michael D. White

December 22, 2009

Civil Causes Decided:

Brookshire Katy Drainage District v. The Lily Gardens, LLC (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009) (Wilson, Davie)(interpretation of easements)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Judge Davie Wilson
Before Chief Justice Radack, Judge Wilson, Justice Hanks
01-07-00431-CV Brookshire Katy Drainage District v. The Lily Gardens, LLC, Richard E. Fluecker and Kenneth B. Luedecke
Appeal from 9th District Court of Waller County
Trial Court Judge: Hon. Frederick Edwards

Cantu v. McKinney (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Higley)(denial of motion to recuse affirmed, pro se appeals)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-07-01091-CV Tony Cantu and Elsa Cantu v. Wade McKinney, Jr., Rebecca R. McKinney, et al
Appeal from 129th District Court of Harris County
Trial Court Judge:
Hon. Grant Dorfman

Valencia v. DFPS (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Jennings)(termination reversed)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00345-CV Joe Lewis Valencia v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County
Trial Court Judge: Hon. Pat Shelton

Malatesta v. Dove Meadows HOA (pdf) (Tex.App.- Houston [1st Dist.] Dec. 22, 2009)(Bland)
(
HOA litigation, deed restrictions, conclusory affidavit)
AFFIRM TC JUDGMENT: Opinion by
Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00772-CV Bryan D. Malatesta, Willie Voncille Malatesta v. Dove Meadows Homeowners Association,
Inc. Appeal from 234th District Court of Harris County

Trial Court Judge: The
Honorable Reece Rondon

December 17, 2009

Civil Causes Decided:

Brown & Brown of Texas, Inc. v. Omni Metals, Inc. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009) (Substituted opinion by Keyes) (insurance coverage, certificates of insurance, DTPA)
MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-05-01190-CV Brown & Brown of Texas, Inc. f/k/a Poe & Brown of Texas, Inc. and Transcontinental
Insurance Company v. Omni Metals, Inc.
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan
Dissenting Opinion by Justice Nuchia

Gundogan v. Woodgrove Condo (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes) (appeals from small claims and JP court, failure to Timely Respond to Discovery Requests,
rebuttal of presumption of receipt of documents served pursuant to Rule 21a)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00876-CV Peter Kemal Gundogan v. Woodgrove Condominum
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge:
Hon. R. Jack Cagle

Forward v. Texas Board of Pardons and Parole (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala) (reversal of trial court's order that dismissed for want of prosecution petition for expunction)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by
Justice Elsa Alcala
Before Justices Keyes, Alcala and Hanks
01-07-00914-CV John Patrick Forward v. Texas Board of Pardons and Parole
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Lynn Bradshaw-Hull

Rodrigues v. Press (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Massengale)(legal malpractice suit)
AFFIRM TC JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00326-CV Enrique Rodriguez v. Dionne S. Press
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Jennifer Walker Elrod

Walker v. Livingston (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes) (Jennings) (pro se inmate suit)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00959-CV Freddie Lee Walker v. Brad Livingston, Nathaniel Quarterman, Gary Gomez, Larry Leflore, Pamela Williams, Beverly Stewart, Doug Waldron, J.P. Guyton, and Richard Trinci
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

Marcus v. Smith (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00321-CV David E. Marcus v. Margaret A. Smith
Appeal from 310th District Court of Harris County
Trial Court Judge: Hon.
Lisa Millard

In re Marcus (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00461-CV In re David E. Marcus
Appeal from 310th District Court of Harris County
Trial Court Judge:
Hon. Lisa Millard

Ineos Group Ltd v. Chevron Phillips Chemical Co, LP (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009) (Higley) (interlocutory appeal, temporary injunction affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-09-00504-CV Ineos Group Ltd., Ineos Technologies, Ineos Americas LLC, Ineos Manufacturing Belgium NV, Ineos LLC, Ineos Europe Limited, Ineos Polyethlene North America, Ineos USA LLC and Ineos Olefins LP v. Chevron Phillips Chemical Company, LP
Appeal from County Court at Law No 2 of Galveston County
Trial Court Judge: Hon. C. G. Dibrell, III


In re Marcus (pdf)(Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Alcala)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00702-CV In re David E. Marcus
Appeal from 310th District Court of Harris County
Trial Court Judge: Hon. Lisa Millard

December 14, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00604-CV In re Donald C. Jackson
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel M. McFarland

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-01055-CV In re Amanda Desterberg
Appeal from 313th District Court of Harris County

December 11, 2009

Civil Causes Decided:


SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT
IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00401-CV Jason R. Freeman v. Bartlett Cocke, L.P.
Appeal from 113th District Court of Harris County
Trial Court Judge:
Hon. Patricia Hancock

December 10, 2009

Civil Causes Decided:

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-07-00901-CV Essex Crane Rental Corp. and Vincent A. Morano v. James W. McPherson, Sr, Coastal Terminal Operators, Inc., Coastal Stevedoring Corporation, McPherson Interests, Ltd., James W. McPherson Family Trust, James W. McPherson, Jr., Eric G. Carter d/b/a Eric G. Carter and Associates, and Houston Industrial
Appeal from 151st District Court of Harris County
Trial Court Judge:
Hon. Caroline Baker

Simien v. Unifund CCR Partners
(pdf) (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala) (credit card debt suit)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00593-CV Michelle D. Simien v. Unifund CCR Partners
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

Imkie v. The Methodist Hospital (pdf)(Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(effect of failure to respond to no-evidence motion for summary judgment, denial of motion for new trial affirmed) Appellant, Marwa Imkie, appeals from a summary judgment rendered by the trial court in favor of appellee, The Methodist Hospital (hereinafter "Methodist"). In two issues, Imkie contends the trial court erred by granting the no evidence motion for summary judgment filed by Methodist, and erred by denying her motion for a new trial. We conclude that the trial court properly granted the motion for summary judgment, and did not abuse its discretion by denying the motion for new trial. We affirm the ruling of the trial court.
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00831-CV Marwa Imkie v. The Methodist Hospital
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle

Said v. Maria Investment
(pdf) (Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(personal jurisdiction, special appearance) The Saids contend that the trial court abused its discretion in granting the special appearances. Holding that had no evidence properly before the trial court supports the special appearances, we reverse the trial court’s orders.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00962-CV Asif Said and Asma Said v. Maria Investment
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon.
Caroline E. Baker

Anyanwu v. FIA Card Services, N.A. FKA, MBNA American Bank, N.A
. (pdf)(Tex.App. - Houston [1st Dist.] Dec. 10, 2009)(per curiam) (dismissed for failure to file appellate brief)
DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00100-CV Good G. Anyanwu v. FIA Card Services, N.A. FKA, MBNA American Bank, N.A. c/o Mann Bracken LLC
Appeal from
County Civil Court at Law No 3 of Harris County

Wright v. Atlantic Credit and Finance, Inc.
(pdf)(Tex.App.- Houston [1st Dist.] Dec. 10, 2009)(Alcala) We conclude Wright did not plead the statute of limitations and Wright's deemed admissions and Atlantic's uncontroverted summary judgment evidence conclusively establish Atlantic's entitlement to recover on breach of contract and its entitlement to attorney's fees. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00135-CV Darryl G. Wright v. Atlantic Credit and Finance, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00318-CV Willie James Ashton, Jr. v. Texas Department of Criminal Justice
Appeal from 412th Judicial District Court of Brazoria County

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00537-CV Texas Department of Public Safety v. Wendell L. James
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey

December 7, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00967-CV In Re Timothy Aguilar
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. Al Bennett

December 4, 2009

Civil Causes Decided:

BHP Billiton Petroleum (Americas), Inc. v. Atlantia Offshore Ltd
. (pdf) (Tex. App.- Houston [1st Dist.] Dec. 4, 2009)(Jennings) (arbitration dispute, interlocutory appeal)
DISMISS APPEAL: Opinion by
Justice Terry Jennings
Before Justices Jennings, Higley and Sharp
01-09-00509-CV BHP Billiton Petroleum, (Americas) Inc. v. Atlantia Offshore Limited
Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Steven E. Kirkland

In Re BHP Billiton Petroleum (Americas) Inc.
(pdf) (Tex.App. - Houston [1st Dist.] Dec. 4, 2009)(Jennings)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Jennings (arbitration mandamus denied)
Before Justices Jennings, Higley and Sharp
01-09-00647-CV In re BHP Billiton Petroleum (Americas) Inc.
Appeal from
215th District Court of Harris County

December 3, 2009

Civil Causes Decided:

Hines v. DFPS
(Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)
(
termination of parental rights affirmed)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00045-CV Larry Wayne Hines v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County

Craig v. Varon (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Jennings)
(
real estate contract, indemnity agreement, trial of issues by consent)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00794-CV Bob Craig, 6030 South Rice, Ltd. v. Jacobo Varon, Charter Title Company
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Shearn Smith

Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Subst op. by Bland)
(
wrongful death, collision with dump truck, independent contractor, no right to control, no vicarious liability)
AFFIRM TC JUDGMENT: Opinion by
Justice Jane Bland
Before Justices Taft, Bland and Sharp
01-08-00850-CV Luci Martinez, Individually and the Personal Representative of the Estate of Luis Martinez; and Jose Martinez and Maria Martinez v. Moises Melendez
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

Demby v. Rivers
(pdf)(Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)
(jury's verdict awarding appellee damages for
personal injuries he sustained as a result of the collision. evidence is legally and factually sufficient to support the damage award as to loss of physical capacity)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00965-CV Yanetta Demby v. Lamachus Rivers
Appeal from
125th District Court of Harris County

Smith v. DFPS (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Hanks)(termination of parent's rights)
AFFIRM TC JUDGMENT: Opinion by
Justice George C. Hanks, Jr.
Before Justices Keyes, Hanks and Bland
01-09-00173-CV Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective
01-09-00390-CV Deshann Smith a/k/a Cajuanna Peterson v. Department of Family and Protective
Services
Appeal from 314th District Court of Harris County

Speck v. First Evangelical Lutheran Church of Houston
(Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Bland) (construction law, nonpayment claim for services, quantum meruit, unjust enrichment, sworn account, JNOV) (insufficient record for appeal)
AFFIRM TC JUDGMENT: Opinion by
Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00605-CV Pat K. Speck v. First Evangelical Luthern Church of Houston and Dry Bones Coffee House Inc. and Dry Bones Coffee House
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Jacqueline Lucci-Smith

In re Houston Auto M. Importers North, Ltd. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack) (Mandamus granted re: order denying motion to compel arbitration)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00625-CV In re Houston Auto M. Importers North, LTD. D/B/A Mercedes-Benz of Houston North
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel M. McFarland