July 2009 14th Court of Appeals Opinions in Civil Cases

CASES IN WHICH THE FOURTEENTH COURT OF APPEALS ISSUED NOTEWORTHY OPINIONS IN JULY 2009

July 28, 2009

Civil Cases Decided:

Larsen v. Santa Fe ISD (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(Boyce) (public employment,
workers compensation retaliation, exhaustion of administrative remedies not required here)
AFFIRMED: Opinion by Justice Boyce
Before Justices Frost, Brown and Boyce
14-07-01038-CV Erik Larsen v. Santa Fe Independent School District
Appeal from 10th District Court of Galveston County
Trial Court Judge: DAVID EDWARD GARNER

Grynberg v. Grey Wolf Drilling Co., LP (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(Guzman) (commercial contract dispute, accord and satisfaction defense) (neither party established a right to judgment as a matter of law)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan)
14-08-00101-CV Jack J. Grynberg Individually and d/b/a Grynberg Petroleum Company v. Grey Wolf
Drilling Company, L.P. Appeal from 165th District Court of Harris County
Trial Court Judge: Elizabeth Ray

In Re Van Dyke (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(per curiam denial) (mandamus re: nunc pro tunc judgment) (mandate, subsequent appeals) MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-09-00556-CV In Re Scott Van Dyke
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Jaclanel McFarland

July 23, 2009

Civil Cases Decided:

Walston v. Anglo-Dutch Petroleum Int., Inc. (Tex.App.- Houston [14th Dist.] Jul. 23, 2009) (breach of contract claim, counterclaims for breach of fiduciary duty, conversion, estoppel, unjust enrichment, breach of the duty of good faith and fair dealing, fraud, negligent misrepresentation, constructive fraud, money had and received, assumpsit, quantum meruit, and constructive trust.
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Sullivan
14-07-00959-CV Gerald M. Walston, Ben C. Morris and William L. Childress v. Anglo-Dutch Petroleum
(Tenge) L.L.C., Anglo-Dutch Petroleum International, Inc. and Scott V. Van Dyke
Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson

Beluga Chartering B.V. v. Timber S.A. (Tex.App.- Houston [14th Dist.] Jul. 23, 2009) (Boyce) (appeal from order denying special appearance, recognition of foreign judgments)
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-08-00311-CV Beluga Chartering B.V. v. Timber S.A.,
Appeal from 281st District Court of Harris County
Trial Court Judge: David J. Bernal

Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges) (probate law: mental capacity of testator to convey real estate property, undue influence, void deed, claim of ,jury charge error)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00589-CV Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns, Individually and as
Administrator of the Estate of Karen Dean Burns, Deceased
Appeal from 12th District Court of Madison County

Boateng v. USA and Trailblazer Health Enterprises, LLC (Tex.App.- Jul. 23, 2009)
DISMISSED: Per Curiam (mediation ordered by court of appeals successful, joint motion to dismiss)
Before Justices Anderson, Guzman and Boyce
14-09-00093-CV Afuah Boateng, Johnell Sanders Fernandez, Sharon Gay, Dr. Joel S. Hochman,
Rosalind Hull, Gloria Ann Tucker and Missy L. Walker v. United States of America and Trailblazer Health
Enterprises, LLC Appeal from 280th District Court of Harris County
Trial Court Judge: TONY LINDSAY

DISMISSED: Per Curiam (accelerated appeal from an order denying a special appearance; appeal
dismissed on appellant' s request)
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00502-CV Favret, Demarest, Russo & Lutkewitte, a Professional Law Corporation v. Rimkus
Consulting Group Appeal from County Civil Court at Law No 3 of Harris County

In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial of mandamus)
(mandamus challenge to allegedly void order improper, regular appeal from final judgment available)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00603-CV In Re R. Wayne Johnson
Appeal from 122nd District Court of Galveston County (name of judge not shown)

In Re Thompson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(mandamus petition re: forwarding of
notice of appeal mooted by docketing of appeal)
DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00604-CV In re Lawrence Edward Thompson
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Robert Schaffer

In Re Kennedy (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam dismissal)
(mandamus petition re free record for appeal moot)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00612-CV In Re Michael Kennedy
Appeal from 334th District Court of Harris County

In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial)
(allegedly void final orders dismissing cases with prejudice are nevertheless appealable; mandamus
relief denied)(IFP appeal, finality of order for purposes of regular appeal, mandamus criteria)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00614-CV In Re R. Wayne Johnson
Appeal from 10th District Court of Galveston County (judge's name not on docket)

July 21, 2009 <-- Click hyperlink to go to docket sheet and opinions

Loposer v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Yates) (tax appraisal appeal, judicial
review suit)(agreement on appraisal value of home precludes subsequent appeal)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Sullivan
14-07-00956-CV Timothy C. & Leeann Loposer v. Harris County Appraisal District and The Appraisal
Review Board of Harris County Appraisal District
Appeal from 80th District Court of Harris County
Trial Court Judge: LYNN M. BRADSHAW-HULL

Mid-Continent Casualty Co. v. Global Enercom Management, Inc. (Tex.App.- Houston [1st Dist.] Jul. 21,
2009)(Anderson)(insurance law, coverage dispute, construction of policy, applicability of exclusion,
causality analysis, formation of contract without signature, performance by party)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-01006-CV Mid-Continent Casualty Company v. Global Enercom Management, Inc
Appeal from 215th District Court of Harris County
Trial Court Judge: LEVI JAMES BENTON
Concurring and Dissenting Opinion by Justice Seymore

2900 Smith, Ltd. v. Constellation Newenergy, Inc. (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Anderson)
(sworn account, electricity service, notice of higher rate by new provider disputed, sufficiency review,
findings of facts and conclusions of law, abatement for new judge to file findings)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00061-CV 2900 Smith, Limited and Katie Pham v. Constellation Newenergy, Inc.
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker

Financial Freedom Senior Funding Corp. v. Horrocks (Tex.App.- Houston [1st Dist.] Jul. 21,
2009)(Anderson) (real estate litigation, probate law, suit to quiet title, declaratory judgment, demand
note, life estate, reverse mortgages, statute of limitations for foreclosure of lien in real property, deed of
trust)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00109-CV Financial Freedom Senior Funding Corp v. Michael L. Horrocks, Administrator of Estate
of Mary Edythe Mullane, Deceased
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: WM CAMERON MCCULLOCH

BACM 2002 PBs Westpart Dr LP v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Frost)
(prior owner did not have standing to bring ad valorem tax protests appeal, judicial review suit, assumed
name theory as basis for substitution of correct party rejected, no standing - no subject matter
jurisdiction).
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00493-CV BACM 2002 PB2 Westpark Dr LP, Houston Parkwest Place Ltd, as the Property Owners
and the Property Owners v. Harris County Appraisal District and the Appraisal Review Board of Harris
County Appraisal District Appeal from 11th District Court of Harris County
Trial Court Judge: Mark Davidson

Martin v. State of Texas (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam)
(dismissal of lawsuit without a hearing, dismissal with prejudice)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-01174-CV Timothy Paul Martin v. The State of Texas
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman

In Re Kenefick (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam denial)
(discovery order mandamus denied)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00547-CV In Re Brian Kenefick
Appeal from 308th District Court of Harris County
Trial Court Judge: Judge Georgia Dempster

July 16, 2009 Opinions:

Frick v. Total Separation Solutions, LLC (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(per curiam
dismissal of temporary injunction appeal, temporary injunction moot, jury trial and stipulation to vacate TI,
order entered dissolving temporary injunction)
DISMISSED: Per Curiam
Before Justices Brock Yates, Guzman and Brown
14-07-00290-CV F. Alan "Bud" Frick, Butler & Cook, Inc. d/b/a Butler and Cook, Inc. Butler and Cook
Hydraulic Center, Inc., B & C of Fort Smith, Inc. and John J. "Toby" Koprovic v. Total Separation
Solutions, LLC
Appeal from 215th District Court of Harris County
Trial Court Judge: LEVI JAMES BENTON

Gentry v. HPD (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(Anderson) (inmate litigation, pro se, IFP,
dismissal of inmate suit without a hearing affirmed)(no collateral attack on criminal conviction in civil suit)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-01094-CV Frankie R. Gentry v. Houston Police Department
Appeal from 280th District Court of Harris County
Trial Court Judge: TONY LINDSAY

In Interest of KLB (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(Hedges) (termination of parental rights,
prebirth conduct by parent, transfer of cases between courts of appeal and precedent to follow)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00061-CV In the Interest of K.L.B., a Child
Appeal from 74th District Court of McLennan County
Trial Court Judge: [Judge not identified on appellate docket]

Argo v. Select Portfolio Servicing, Inc. (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(per curiam
dismissal) (no interlocutory appeal of expedited foreclosure order, home equity loans)
DISMISSED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00309-CV John Robert Argo v. Select Portfolio Servicing, Inc., U.S. Bank National Association, As
Trustees, Et Al.
Appeal from 55th District Court of Harris County
Trial Court Judge: Dion Ramos
Trial Court Case #: 2008-37488

Midland Funding, LLC v. Chafi (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)
(per curiam dismissal per settlement; debt suit)
DISMISSED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00504-CV Midland Funding, LLC v. Fariborz Chafi
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Jacqueline Lucci-Smith

July 14, 2009 Opinions:

Church v. Quick (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(Guzman)(restricted appeal, a nonresident
spouse)(Because the trial court lacked personal jurisdiction over the nonresident spouse, the court of
appeals modifies the judgment to eliminate all relief other than the divorce and affirms the judgment as
modified.)
AFFIRMED AS MODIFIED: Opinion by Justice Guzman
Before Justices Anderson, Guzman and Boyce)
14-08-00131-CV Joyce Gail Church v. Kenneth Richard Quick
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York

Jones v. Smith (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(real estate law: action to quiet title, not
bona fide purchaser, quantum meruit cross-claim, findings of fact and conclusions of law)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan)
14-08-00639-CV Guy Jones v. Jeanne M. Smith and Peter A. Morgenroth
Appeal from 405TH District Court of Galveston County
Trial Court Judge: WAYNE J. MALLIA

In Re N.W. Enterprises, Inc. (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(per curiam)
(temporary injunction challenge brought by mandamus)
MOTION OR WRIT DENIED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan)
14-09-00577-CV In Re N.W. Enterprises, Inc. d/b/a Gaslight News and Video
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

July 7, 2009 Civil Causes Decided:

The Methodist Hospital v. Zurich American Inc. Co. (Tex. App. - Houston [14th Dist.] Jul. 7, 2009) (Seymore) (INSURANCE LITIGATION: insured's suits against worker's compensation carrier alleging wrongful payment of noncompensable injury claims within the deductible)(insurer's duty of good faith and fair dealings, negligent claims handling, express warranty claim, breach of warranty - elements, conclusory affidavit) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00663-CV The Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and Mary Vu Appeal from 280th District Court of Harris County CONCURRING: Concurring Opinion by Justice Frost (highlighting applicable binding Supreme Court precedent)

Anthony v. Owens (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Brown) (prisoners pro se IFP suit complaining of denial of parole dismissal without opportunity to amend, dismissal with prejudice, dismissal without evidentiary hearing) AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-07-01077-CV Milton James Anthony v. Rissie Owens, Linda Garcia, Charles Aycock, Juanita Gonzales, Jose Aliseda, Jane/John Doe et al. Appeal from 412th District Court of Brazoria County

Garza v. Reed (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Hudson) (DTPA claim against insurer of complained-of business fails on summary judgment; misrepresentation as to insurance coverage of buy-back guarantee)(no-evidence summary judgment affirmed) (motion to transfer venue for convenience) AFFIRMED: Opinion by Justice Hudson Before Chief Justice Hedges, Justices Hudson and Frost 14-08-00211-CV Joe M Garza, Pay Phone Owners Legal Fund, and Ernest R. Bustos v. Jack P. Reed and Houston Surplus Lines, Inc. Appeal from 434th Judicial District Court of Fort Bend County

July 2, 2009 Civil Causes Decided:

Mallory v. Mallory (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown)(post-judgment default judgment in child support case without proper notice to defendant was reversible error) (objection to affidavit based on best knowledge and belief not preserved for appellate review)REVERSED AND REMANDED: Opinion by Justice Jeff Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas Appeal from 310th District Court of Harris CountyTrial Court Judge: LISA A. MILLARD

Askari v. Endevco, Inc. (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(breach of contract for consulting services claim, payment in company stock in lieu of cash, court sustained both parties' objections to parol evidence, applicability of parol evidence rule, ambiguous and unambiguous contract provisions, preservation of error regarding evidentiary objections). AFFIRMED: Opinion by Justice Seymore Before Justice Seymore 14-08-00278-CV Farzad Askari v. Endevco, Inc. Appeal from 11th District Court of Harris CountyTrial Court Judge: Mark Davidson

Approx. $5,602 v. State of Texas (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Yates)(forfeiture proceeding) (discovery sanctions, death-penalty sanctions) (preservation of error for appeal) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Sullivan 14-08-00359-CV Approximately $5,602.00 v. The State of Texas Appeal from 55th District Court of Harris CountyTrial Court Judge: PUTNAM REITER

Clearview Properties, LP v. T Reit, LP (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam)(turnover order reversed) (If the judgment underlying a turnover order is reversed, the turnover order must also be reversed. REVERSED AND RENDERED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-08-00827-CV Clearview Properties, L.P. v. T Reit, L.P. Appeal from 270th District Court of Harris County Trial Court Judge: Brent Gamble

Owens, Ed.D. v. UTHSC Houston (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(DWOP dismissal) (objection to mediation on appeal sustained, but no brief filed)DISMISSED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-08-00998-CV Emiel W. Owens, Ed.D., v. The University of Texas Health Science Center at Houston, Lemuel Moye, M.D.; Ph.D., Ronald B. Harris, Ph.D., Ralph F. Frankowski, Ph.D., L. Kay Bartholomew, Ed.D. MPH; and J. Kay Dunn, Ph.D. Appeal from 215th District Court of Harris County

Premier Towers, L.P. v. Laughlin Environmental, Inc. (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam) (unopposed motion to dismiss, mediation successful on appeal) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00454-CV Premier Towers, L.P. v. Laughlin Environmental, Inc. Appeal from 189th District Court of Harris CountyTrial Court Judge: LEVI JAMES BENTON

In the Matter of the Marriage of Leticia B. Loya and Miguel Angel Loya (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam dismissal)(no interlocutory appeal of denial of special appearance in family law case)DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00481-CV In the Matter of the Marriage of Leticia B. Loya and Miguel Angel Loya Appeal from 257th District Court of Harris CountyTrial Court Judge: Judge Judy L. Warne

James v. Chang (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam dismissal on appellant's motion)DISMISSED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-09-00512-CV David James v. Theresa Chang Appeal from 281st District Court of Harris County Trial Court Judge:[judge's name not on docket]