February 2009 14th Court of Appeals Opinions Tex. App. - Houston [14th Dist.]

February 2009 Civil Causes Decided by the 14th Court of Appeals

Saade MD v. Villarreal (Tex.App.- Houston [14th Dist.] Feb. 26, 2009)(Hedges)(med mal, interlocutory appeal) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Guzman and Brown 14-07-00736-CV George Saade, M.D., Michael Belfort, M.D., Rakesh Mangal, M.D., and Charles Moniak, M.D. v. Mercedes Villarreal, as Next of Friend of Juan Pablo Elizondo, a MinorAppeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman
Concurring Opinion by Justice Guzman

Waterways on the Intercoastal, Ltd v. State of Texas (Tex.App. - Houston [14th Dist.] Feb. 26, 2009) (Guzman) (condemnation case) AFFIRMED: Opinion by Justice Guzman Before Chief Justice Hedges, Justices Guzman and Brown14-07-00853-CV Waterways on the Intercoastal, Ltd., a/k/a/ Waterways on the Intracoastal, LTD v. The State of TexasAppeal from County Court No. 3 of Galveston County Trial Court Judge: Roy M. Quintanilla

Saade MD v. Villarreal (Tex.App. - Houston [14th Dist.] Feb. 26, 2009)(Hedges)AFFIRMED: Opinion by Chief Justice Adele Hedges Before Chief Justice Hedges, Justices Guzman and Brown) 14-07-00926-CV George Saade, M.D., Michael Belfort, M.D. and Rakesh Mangal, M.D. v. Mercedes Villarreal as Next Friend of Juan Pablo Elizondo, a MinorAppeal from 129th District Court of Harris CountyTrial Court Judge: Samuel Grant Dorfman
Concurring Opinion by Justice Guzman (statutory construction)

Davis Investments, VI, LP v. Holtgraves (Tex.App. - Houston [14th Dist.] Feb. 26, 2009)(Frost)(interlocutory appeal and cross-appeal, orders sustaining special appearances) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost)14-08-00222-CV Davis Investments, VI, LP v. Charles A. Holtgraves, Larry J. Horbach, and Phillip J. Holtgraves--Appeal from 152nd District Court of Harris County Trial Court Judge: Kenneth Price Wise

Charter Auto Leasing and Rental, Inc. v. Reger (Tex.App. - Houston [14th Dist.] Feb. 26, 2009)(per curiam dismissal) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00892-CV Charter Auto Leasing and Rental, Inc. D/B/A Charter Auto Leasing and Shyh-Kuen Roger Wu v. John RegerAppeal from 270th District Court of Harris County

Opuiyo v. Mercedes-Benz USA, LLC (Tex.App. - Houston [14th Dist.] Feb. 26, 2009) DISMISSED: Per Curiam Before Justices Frost, Brown and Boyce 14-08-00975-CV Boma A. Opuiyo v. Mercedes-Benz USA, L.L.C., and Mercedes-Benz of Houston Greenway--Appeal from 281st District Court of Harris County Trial Court Judge: Sharon McCally

In Re John W. Small (Tex.App. - Houston [14th Dist.] Feb. 26, 2009)(spousal support mandamus)MOTION OR WRIT DENIED: Opinion by Justice Anderson Before Justices Brock Yates, Anderson and Boyce 14-08-01075-CV In Re John W. Small Appeal from County Court at Law No 1 of Galveston County Trial Court Judge: MARY NELL CRAPITTO

XTO Energy Inc. v. Smith Production, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Frost)(contract interpretation, expert witness affidavit struck)AFFIRMED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman14-07-00069-CV XTO Energy Inc. v. Smith Production Inc.Appeal from 281st District Court of Harris CountyTrial Court Judge: David J. Bernal Trial Court Judge: David J. Bernal
Dissenting Opinion by Justice Guzman (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(contract construction)

Hytken v. Schaefer Family Trust (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Guzman)(nonsuit does not affect UDJA counterclaims) AFFIRMED: Opinion by Justice Eva Guzman Before Justices Anderson, Frost and Guzman14-07-00246-CV Robert M. Hytken v. Schaefer Family Trust, Frank G. Schaefer and Noeleen J. Schaefer, Co-TrusteesAppeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox

Seymore v. Seymore (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Guzman)(restricted appeal requisites, non-participation at trial, waiver of citation, appearance)DISMISSED: Opinion by Justice Guzman Before Chief Justice Hedges, Justices Guzman and Brown14-07-00280-CV Bedrije Hajdari Seymour v. Floyd David Seymour-Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne

Moore v. Bel-Lindo Apartments (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Hedges) (pro se appeal, failure to adequately brief issues) AFFIRMED: Opinion by Chief Justice HedgesBefore Chief Justice Hedges, Justices Anderson and Seymore14-07-00400-CV Walter Moore v. Bel - Lindo Apartments Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge Linda Storey
In Interest of SJ (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Seymore)(termination of parental rights, young mother, medical neglect, failure to visit, challenge to sufficiency of the evidence) AFFIRMED: Opinion by Justice Seymore Before Justices Brock Yates, Seymore and Boyce14-07-00785-CV In the Interest of S.J.Appeal from 314th District Court of Harris County Trial Court Judge: THOMAS R. PHILLIPS

Calloway v. James N. Hull & Associates, PC (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Brown)(suit against debt collector's attorney fails, sj)AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce14-07-00834-CV Trish R. Calloway v. James N. Hull & Associates, P.C. a/k/a Hull & Associates, P.C. and LVNV Funding LLCAppeal from 113th District Court of Harris County Trial Court Judge: Patricia Ann Hancock

Basey v. DaVita, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Seymore)(employment dispute, disability discrimination, retaliation, sj for defendant affirmed)AFFIRMED: Opinion by Justice C. Seymore Before Chief Justice Hedges, Justices Hudson and Seymore 14-07-00925-CV Latoya Basey v. Davita Inc., d/b/a Total Renal Care, Nelda Boatwright and Fresenius Medical Care Holding Inc., d/b/a Fresenius Medical Care North America d/b/a Northwest Houston Dialysis, and Biomedical Applications of Texas, Inc.Appeal from 55th District Court of Harris County Trial Court Judge: Justice Jeffrey V. Brown

In re Liberty Mutual Insurance Co. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Seymore)(discovery mandamus granted, order of protection) MOTION OR WRIT GRANTED: Opinion by Justice Charles Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-09-00086-CV In Re Liberty Mutual Insurance Company, Arch Insurance Company and Speciality Adjusters, Inc. Appeal from 113th District Court of Harris County Trial Court Judge: Patricia Hancock

Mayer v. Willowbrook Plaza LP (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)(premises liability, criminal conduct, wrongful death, survival action)AFFIRMED: Opinion by Justice Boyce Before Price, Chief Justice Hedges, Justice Boyce14-07-00358-CV Tracy Mayer, as next friend of Tyler Lee Mayer, a Minor, Diane Messimer, Individually and as a Personal Representative of the Estate of Shaun Messimer, Deceased, and Kathleen and Salvatore M. Ciaramitaro, Individually and as Personal Representatives of th v. Willowbrook Plaza Limited Partnership d/b/a Willowbrook Plaza. PPG Venture I Limited Partnership, ERMC, ERMC LP, ERMC LP d/b/a ERMC Security, ERMC II, LP d/b/a ERMC Security, CBL/GP, Inc., CBL & Associates, Inc., CBL & Associates Properties, Inc., CBL & A Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman

TWC v. City of Houston (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Brown)(employment law, unemployment claim, judicial review suit, appeal, untimely protest) REVERSED AND RENDERED: Opinion by Justice Brown Before Justices Brock Yates, Anderson and Brown14-07-00407-CV Texas Workforce Commission v. City of Houston Appeal from 152nd District Court of Harris County Trial Court Judge: Kenneth Price Wise

Almeron v. T-Mobile West Corp. (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Yates)(appeal from JP court) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Boyce 14-07-00524-CV Carlos Salmeron v. T-Mobile West Corporation Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle

Butler v. Hudson & Keyse (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Hudson)(credit card debt suit, account stated theory) AFFIRMED: Opinion by Justice Hudson Before Justices Anderson, Hudson and Frost14-07-00534-CV Paul A. Butler and Afton J. Butler v. Hudson & Keyse, L.L.C Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle

Sutton, MDS Ranch, LLC v. Horseshoe Hills, Ltd (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Guzman) (agreed settlement reversal)VACATED AND REMANDED: Opinion by Justice Eva Guzman Before Justices Frost, Seymore and Guzman 14-07-00723-CV Mark B. Sutton, MDS Ranch, L.L.C. and Meridian Exchange Corporation, d/b/a Bee Creek Realty v. Horseshoe Hills, Ltd., Horseshoe Holdings, L.C., and Don R. Riddle Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon

In Interest of A.G.C. (Tex.App..- Houston [14th Dist.] Feb. 19, 2009)(Brown)(effort to undo voluntary relinquishment, termination of parental rights, mediated settlement agreement) Trial Court Judge: DONALD GENE RITTER AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-07-00820-CV In the Interest of A.G.C., a Minor ChildAppeal from 247th District Court of Harris CountyTrial Court Judge: DONALD GENE RITTER

Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)(commercial debt suit, personal guaranty, summary judgment evidence, affidavit by interested witness) AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce 14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey

In Interest of MKM (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(per curiam)(termination of parental rights, Anders brief) AFFIRMED: Per Curiam Before Justices Frost, Brown and Boyce14-08-00690-CV In the Interest of M.K.M., a child Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne

Kinsel Industries, Inc. v. Main Lane Industries, Ltd (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(per curiam) (motion to vacate, settlement) VACATED AND REMANDED: Per Curiam Before Justices Frost, Brown and Boyce 14-08-00852-CV Kinsel Industries, Inc. v. Main Lane Industries, LTD. Appeal from 280th District Court of Harris County

Hill v. Smith, MD (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(per curiam)(interlocutory appeal in HCLC suit dismissed, DWOJ) DISMISSED: Per Curiam Before Justices Brock Yates, Guzman and Sullivan 14-08-01016-CV Kenneth Hill v. Bruce W. Smith, M.D., Michelle Lastrape, P.A., and Kathryn Bell Appeal from 412th District Court of Brazoria County Trial Court Judge: W. Edwin Denman

Moore v. Verizon Wireless (Tex.App.- Houston [14th Dist.] Feb. 29, 2009)(per curiam)(ILA, arbitration and interlocutory appeal) DISMISSED: Per Curiam Before Justices Frost, Brown and Boyce14-08-01164-CV Walter Moore v. Verizon Wireless and Derrick Keys Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey

Moneyhon v. Moneyhon (Tex.App.- Houston -14th Dist.] Feb. 12, 2009)(Frost)(judgment not supported by the pleadings, TRCP 301 judgment to conform to the pleadings, breach of fiduciary duty claim not tried by consent, pleading deficiency, constructive trust improperly imposed) REVERSED AND RENDERED: Opinion by Justice Frost Before Justices Anderson, Frost and Guzman14-06-00873-CV Brian D. Moneyhon and Cheryl Parrish-Moneyhon v. Patricia Moneyhon Appeal from 412th District Court of Brazoria County Trial Court Judge: W. Edwin Denman

In the Matter of ECL (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Brown)(juvenile case, murder of father) REVERSED AND REMANDED: Opinion by Justice Jeff Brown Before Justices Brock Yates, Anderson and Brown 14-06-01106-CV In the Matter of E.C.L. Appeal from 315th District Court of Harris County Trial Court Judge: Michael H. Schneider

In the Interest of ALE (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Sullivan)(SAPCR modification suit, supervised visitation, alcohol)AFFIRMED: Opinion by Justice Sullivan Before Justices Brock Yates, Guzman and Sullivan 14-07-00329-CV In the Interest of A.L.E. Appeal from 245th District Court of Harris County Trial Court Judge: Judge Annette Kuntz

Peterson v. Jansen (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Seymore)(homeowner law, dispute between neighbors, invasion of privacy, nuisance, elements of breach of contract claim not proven, special exceptions, adverse possession). AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00535-CV Gary Peterson v. James Jansen and Vikki Jansen Appeal from Co Civil Ct at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle

Jaco v. Rivera (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Seymore)(post-answer default judgment, trial court erred in denying motion for new trial, Craddock test elements satisfied, pro se defendant, appearance in suit)REVERSED AND REMANDED: Opinion by Justice Charles Seymore Before Justices Brock Yates, Seymore and Boyce 14-07-00572-CV Gerald Randall Jaco v. Angel Roman Rivera Appeal from 212th District Court of Galveston County Trial Court Judge: SUSAN ELIZABETH CRISS

Simon v. D. Miller & Assoc. PLLC (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Boyce)(legal malpractice, expert testimony required, suit within suit requirement, default judgment denied,causality element of cause of action, no proof of damages)AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce14-07-00894-CV Brian Simon v. D. Miller & Associates, PLLC, Timothy John Clyne, Jamilah O. Driver, and Ryan Bradley Bormaster Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey

Israel v. Autotainment Partners, LP (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(per curiam)(DWOP)(failure to file brief, too many motions for extension, final one denied)DISMISSED: Per Curiam motion for extension of time to file his brief is deniedBefore Justices Frost, Brown and Boyce14-07-01014-CV Solomon Israel v. Autotainment Partners, L.P d/b/a Planet Ford and Worldwide Autotainment Inc.--Appeal from 127th District Court of Harris County

Crystal Power Company v. Coastal Savadoran Power, Ltd., Coastal Nejapa, Ltd, El Paso CGP Company, Successor in Interest to Coastal States Gas Company and The Coastal Corporation, and El Paso Corporation, Successor in Interest to Coastal Sates Gas Company and The Coastal Corp.--Appeal from 23rd District Court of Brazoria County Trial Court Judge: BEN HARDIN

In re Adair (Tex.App.- Houston [14th Dist] Feb. 12, 2009)(Yates)(sanctions, filing of false claim in probate proceeding, claim that person died intestate where there was a will)MOTION OR WRIT DENIED: Opinion by Justice Brock Yates Before Justices Brock Yates, Anderson and Brown14-08-00505-CV In Re James Derek Adair Appeal from Probate Court of Galveston County Trial Court Judge: Gladys Burwell

Bottenstein v. UTMB (Tex.App.- Houston [14th Dist.] Feb. 10, 2009)(Frost)(public employment, gender discrimination, retaliation, discovery dispute, motion for continuance)AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost14-07-00747-CV Jan Bottenstein, PH. D., Individually and on behalf of Similarly Situated Female Professional Employees v. University of Texas Medical Branch at Galveston Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox

Brower v. Hearn, MD (Tex.App.- Houston [14th Dist.] Feb. 10, 2009)(Seymore)(HCLC, med-mal suit, attorney's fees) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00967-CV Diana Brower v. Claude D. Hearn. M.D., Harry L. Braeuer, M.D., and Bay Area Surgical Associates--Appeal from 234th District Court of Harris County No trial court judge shown on docket

In re Sedeno-Suarez, MD (Tex.App.- Houston [14th Dist.] Feb. 6,2 009)(per curiam)(discovery mandamus denied, order of protection) MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Guzman and Brown14-08-01080-CV In Re: Heriberto Sedeno-Suarez, M.D.Appeal from 280th District Court of Harris County

In re Investment Capital Corp. (Tex.App.- Houston [14th Dist.] Feb. 4, 2009)(per curiam)MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore14-09-00105-CV In Re Investment Capital Corporation and Service Corporation International--Appeal from Probate Court No 1 of Harris County

Environmental Procedures, Inc. v. Guidry (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(subst. op. by Guzman)AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Guzman 14-05-01090-CV Environmental Procedures, Inc. and Advanced Wirecloth, Inc. v. George E. Guidry, Dwight W. Andrus, III, Dwight W. Andrus Insurance, Inc., and Lexington Insurance Co.Appeal from 164th District Court of Harris County Trial Court Judge: MARTHA HILL JAMISON
Concurring and Dissenting Opinion by Justice Frost

Speedy Stop Food Stores, Ltd v. Reid Road Municipal Utility District No. 2 (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(Frost)(condemnation case, testimony as to value of easement) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-07-00225-CV Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Utility District No. 2 Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd
Dissenting Opinion by Justice Seymore

Priddy v. Rawson (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(Seymore)(waiver fraud, breach of fiduciary duty, sj evidence)AFFIRMED: Opinion by Justice SeymoreBefore Justices Brock Yates, Seymore and Boyce14-07-00806-CV Ronald C. Priddy, Sammy Bingham and Douglas McGraw v. John V. Rawson, Rick Stevens, E.M (Liz) Stevens, Steve J. Schifani, and Richard Dickson Appeal from 239th District Court of Brazoria County Trial Court Judge: PATRICK EDWARD SEBESTA

Proskauer Rose LLP v. Pelican Trading, Inc. (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(Brown)(special appearance, foreign defendant) REVERSED AND REMANDED: Opinion by Justice Brown Before Chief Justice Hedges, Justices Guzman and Brown14-08-00283-CV Proskauer Rose LLP v. Pelican Trading, Inc., GMF Trading, LLC and George M. Fleming--Appeal from 164th District Court of Harris County Trial Court Judge: Martha Hill Jamison

In re Fort Bend County (Tex.App.- Houston [14th Dist.] Feb 3, 2009)(Brown)(venue mandamus)MOTION OR WRIT GRANTED: Opinion by Justice Jeff Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-08-00912-CV In Re Fort Bend County Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally
Concurring Opinion by Justice Guzman