June 2009 First Court of Appeals Opinions in Civil Cases

June 26, 2009 [ click for docket ]

In Re The Methodist Hospital (Tex.App. Houston [1st Dist.] Jun. 26, 2009)(per curiam denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Taft and Sharp 01-09-00576-CV In re The Methodist Hospital Appeal from 125th District Court of Harris County Trial Court Judge: Hon. Kyle Carter

June 25, 2009

DBHL, Inc. v. Moen Inc. (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (product liability, no indemnity owed) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane Bland Panel members: Justices Taft, Bland and Sharp 01-08-00046-CV DBHL, Inc. and Dearborn HL, S. de R.L. de C.V.v. Moen Incorporated and Moen Sonora S.A. de C.V. Appeal from 295th District Court of Harris County Trial Court Judge: Hon. Tracy Christopher

Solomon-Williams v. Desai (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (med mal suit, failure to timely file expert report, constitution challenges, due process, open courts) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane N. Bland Panel members: Justices Keyes, Hanks and Bland 01-08-00733-CV Donna Solomon-Williams v. Shetal Nicholas Desai, Individually, and d/b/a Foot Centers of America, Foot Centers of Texas, PLLC, and The Methodist Hospital Appeal from 268th District Court of Fort Bend County

Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (wrongful death, dump truck wreck, negligent hiring, training, supervision, training, and negligence per se claims)(no imposition of vicarious liability through proof of an employer-employee relationship, right to control test for employee or independent contractor status) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane Nenninger Bland Panel members: 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

East Houston Estate Apartments, LLC v. City of Houston (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Keyes) (city held immune, City of Mexia v. Tooke progeny, statutory waiver for breach of contract suits against local governments not applicable) (trial court did not err in sustaining the City's plea to the jurisdiction) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes Panel members: Justices Keyes, Hanks and Bland 01-08-00966-CV
East Houston Estate Apartments, L.L.C. v. The City of Houston Appeal from 333rd District Court of Harris County Trial Court Judge: Hon. Lamar McCorkle

Heinrich v. Christian (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(case settled)SET ASIDE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR RENDITION OF JUDGMENT IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam Panel members: Justices Keyes, Hanks and Bland 01-08-00984-CV Timothy Heinrich and Boyar & Miller, P. C. v. James Wesley Christian and Christian & Smith , L.L.P. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton Spiller v. Richardson

Folicure, Inc. v Hair Club for Men, LLC (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (noncompete nonsolicitation agreement enforced, temporary injunction granted and affirmed on appeal) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Panel members: Justices Keyes, Hanks and Bland 01-09-00024-CV Folicure, Inc., Mallory York, Bennetta Reynolds, Hamilton Daniels, and ALNA Holdings, L.L.C., d/b/a Folicure v. Hair Club for Men, LLC d/b/a for Men and Women Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton

Martin v. Martin (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (untimely notice of appeal in SAPCR modification action, attempted appeal dismissed for lack of jurisdiction) DISMISS APPEAL: Opinion by Justice Bland Panel members: Justices Keyes, Hanks and Bland 01-09-00136-CV Mayuko Saeki Martin v. Timothy E. Martin Appeal from 328th District Court of Fort Bend County In re Pernia

June 18, 2009

Aeternia Enterprises, U.S.A., v. Magnitogorsk Steel and Wire Works (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Higley) (order compelling arbitration is not an appealable judgment, DWOJ)(arbitration disputes)DISMISS APPEAL: Opinion by Justice Higley Before Justices Jennings, Alcala and Higley 01-05-00964-CV Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works Appeal from 133rd District Court of Harris CountyTrial Court Judge: Hon. Lamar McCorkle

Fogal v. Stature Construction, Inc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Alcala)(improper modification of arbitration award, adding of post-judgment interest, interest deleted, otherwise confirmation of arb award was proper) MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Alcala Before Justices Taft, Keyes and Alcala 01-07-00456-CV Mary Fogal and Robert Fogal v. Stature Construction, Inc., Jorge Casimiro, Tom Thibodeau and Bernie Kane Appeal from 80th District Court of Harris County Trial Court Judge: Hon. Lynn Bradshaw-Hull

Dolan v. Dolan (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Higley)(probate law, trustee, breach of fiduciary duty, preservation of error) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Alcala and Higley 01-07-00694-CV George Diehl Dolan v. Zelie M. Dolan Appeal from 281st District Court of Harris County Trial Court Judge: Hon. David J. Bernal

Walker v. DFPS (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Hanks)(termination of parental rights, ineffective assistance of counsel claim) (appeal with dissenting opinion) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-07-00867-CV Frederick Dewayne Walker v. Department of Family and Protective Services Appeal from 314th District Court of Harris County Trial Court Judge: Hon. John Phillips
Dissenting Opinion by Justice Jennings in Walker v. DFPS termination case

Gundogan v. Woodgrove Condominium Assoc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes)(suit for damages against Condo Assoc. re: maintainance, appeal from justice court to county court, no appeals bond posted, appeal dismissed for lack of jurisdiction in county court DWOJ) VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Keyes Before Justices Jennings, Keyes and Higley 01-07-00876-CV Peter Kemal Gundogan v. Woodgrove CondominumAppeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: Hon. R. Jack Cagle

Cantu v. Salaeh (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes) (breach of contract suit, post-answer default judgment, appellant had reasonable notice of new trial date) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Hanks and Bland 01-08-00017-CV Gerald Lee Cantu and Mickaeline Cantu v. Shawki Salaeh Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

Rapid Settlements, Ltd v. Green (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala) (transfer of structured settlement rights, grounds for vacature of arbitration award entered under the Federal Arbitration Act (FAA), applicability of FAA, does the FAA preempt the TAA?, nonexistence of arbitration agreement between the parties, when are nonsignatories bound to by arbitration agreement? nonparties to the agreement, nonsignatories)(arbitrator exceeded his authority in issuing the award. See 9 U.S.C.S. § 10(a)(4).AFFIRM TC JUDGMENT DENYING CONFIRMATION OF ARB AWARD: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley 01-08-00109-CV Rapid Settlements, Ltd. v. Jerry M. Green Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey

Ray v. McMaster (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala)(PROBATE LAW: contractual will finding rejected, judgment reversed)REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala Before Judge Wilson, Justices Alcala and Hanks 01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster Appeal from Probate Court No 4 of Harris CountyTrial Court Judge: Hon. William McCulloch DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Taft and Sharp 01-08-00434-CV Geneva Herrera v. Department of Family and Protective Services Appeal from 257th District Court of Harris County

Robinson v. DPFS (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Taft) (no timely statement of points for termination of parental rights appeal)AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Chief Justice Radack, Justices Taft and Sharp 01-08-00479-CV Tawana Robinson v. Department of Protective and Family Services Appeal from 310th District Court of Harris County Trial Court Judge: The Honorable Lisa Millard

McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Bland)(settlement reached after opinion issued, majority does not withdraw opinion, Justice Sharp would) DISMISS APPEAL: Opinion by Justice Bland Before Justices Taft, Bland and Sharp 01-08-00493-CVJudge: Hon. John Coselli
Tilotta v. Smith (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Bland)(untimely post-judgment motion in termination case, no appellate jurisdicition, DWOJ)DISMISS APPEAL: Opinion by Justice Bland Before Justices Keyes, Hanks and Bland 01-08-00587-CV Michael S. Tilotta v. Dewana Jo Smith Appeal from 257th District Court of Harris County Trial Court Judge: Hon. Judy Warne

Rittger, MD v. Danos (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Hanks)(HCLC expert report sufficiency challenged, interlocutory appeal, ILA) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Keyes, Hanks and Bland 01-08-00588-CV Kevin Rittger, M.D. v. Lou Virgina Danos Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey A. Shadwick

Villagomez Investments, LLC v. Magee (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Justice Higley) (unavailable reporter's records, lost or destroyed clerks record, supplemental record, entitlement to new trial) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:Opinion by Justice Higley Before Justices Jennings, Keyes and Higley 01-08-00851-CV Villagomez Investments, L.L.C. v. Janie (Penny) Magee Appeal from 125th District Court of Harris County Trial Court Judge: Hon. Shearn Smith

Harris County, Texas v. Luna (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes) (TTCA: Denial of plea to the jurisdiction affirmed, notice of claim issue under Texas Tort Claim Act) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Hanks and Bland 01-09-00039-CV Harris County, Texas v. Sonia Luna - Prudencio Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

June 11, 2009

Thurman v. Harris County (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Hanks) (TTCA, survivor of passenger in car that fell of ferry and drowned, plea to the jurisdiction improperly granted) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Judge Wilson, Justices Hanks and Bland. Opinion by Justice George C. Hanks, Jr.01-07-00235-CV Joe Thurman, Individually, And As Sole Heir of the Estate of Amanda Rene Thurman v. Harris County, Texas, As a Local Governmental Unit of the State of Texas Appeal from 269th District Court of Harris County Trial Court Judge: The Honorable John T. Wooldridge

Shipley Brothers, Ltd v. Republic National Bank (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings) (conversion, theft, and fraud, Texas Theft Liability Act, election of remedies doctrine, remittitur of the exemplary damages) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Judge Wilson, Justices Jennings and Bland. Opinion by Justice Terry Jennings 01-07-00911-CV Shipley Brothers, Ltd., Shipley Brothers, Inc., Lone Star Investments, Kenneth Shipley and Calvin Junek, Jr. v. Republic National Bank and Robert F. Larson Appeal from County Civil Court at Law No 4 of Harris CountyTrial Court Judge: Hon. Roberta A. Lloyd Concurring and Dissenting Opinion by Justice Bland (subrogation, double recovery, election of remedies)

Green v. Harris County DA's Office (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Sharp)(Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Sharp) (expunction petition denied, frivolous suit dismissal) AFFIRM TC JUDGMENT: Before Justices Taft, Bland and Sharp. Opinion by Jim Sharp 01-07-00917-CV Anthony Ray Green v. Harris County District Attorney's Office, County Clerk of Harris County, and Sheriff of Harris CountyAppeal from 295th District Court of Harris CountyTrial Court Judge: Hon. Tracy Christopher

Leax v. Leax (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Keyes)(suit for annulment, marriage and divorce fraud, serial wife divorcee, pattern of domestic violence allegations, concealment of numerous prior marriages, fraud in the inducement) AFFIRM TC JUDGMENT: Before Justices Keyes, Hanks and Bland. Opinion by Justice Evelyn Keyes01-08-00149-CVJudge: Hon. Jim York

D & KW Family, LP v. Bidinger (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Radack) (property access dispute, easement by necessity, trespass) AFFIRM TC JUDGMENT: Before Chief Justice Radack, Justices Alcala and Hanks. Opinion by Chief Justice Sherry Radack01-08-00260-CV D & KW Family, L.P. v. Kimberly Kay Bidinger and Alfredo Arturo Ballestas Appeal from 190th District Court of Harris CountyTrial Court Judge: Hon. Jennifer Walker Elrod McGlown v. Park

Bosch v. Armstrong (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)(suit barred by judicial communications tort immunity, absolute privilege for communications in legal courtsanctions for baseless claim) AFFIRM TC JUDGMENT: Opinion by Justice Terry Jennings Before Justices Jennings, Alcala and Higley01-08-00847-CV Yigal Bosch v. Mark S. Armstrong and Paul Bailiff and Squire, Sanders & Dempsey L.L.C.Appeal from 280th District Court of Harris CountyTrial Court Judge: The Honorable Tony Lindsay

June 5, 2009 Civil Causes Decided:

In Re Corder (Tex.App.- Houston [1st Dist.] Jun. 5, 2009)(Taft)(child support contempt, civil coercive contempt, criminal contempt, habeas corpus petition premature) DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Tim Taft Before Justices Taft, Bland and Sharp01-09-00386-CV In re Dale Corder Appeal from 245th District Court of Harris CountyTrial Court Judge: Hon. Annette Kuntz

June 4, 2009 Civil Causes Decided:

FCLT Loans Asset Corporation v. First City Fin. Corp. (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Bland) (demutualization dispute, conversion of entity)REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-06-00798-CV FCLT Loans Asset Corporation and Timothy J. Blair, Class Representative v. FIRST CITY FINANCIAL CORPORATION, Appellee/Appellant; J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION AS SUCCESSOR TRUSTEE OF FIRST CITY BANCORPORATION EMPLOYEES RETIREMENT TRUST. Appeal from 152nd District Court of Harris CountyTrial Court Judge: Hon. Kenneth P. Wise

DISMISS APPEAL: Per Curiam 01-07-01112-CV Finis L. Taylor v. Gulf Bayport Chemicals, L.P.Appeal from 215th District Court of Harris CountyTrial Court Judge: Hon. Steven E. Kirkland

Orr Archibald v. Archibald (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Sharp)(attempted post-divorce redivision of benefits fails, divorce decree not ambiguous, res judicata) AFFIRM TC JUDGMENT: Opinion by Justice Sharp Before Chief Justice Radack, Justices Taft and Sharp 01-08-00015-CV Aurore Hope Orr Archibald v. Larry Donald Archibald Appeal from County Court at Law of Washington CountyTrial Court Judge: Hon. Matthew Reue

Briggs Equipment Trust v. HCAD (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Radack)(property tax litigation, valuation of equipment for property tax appraisal purposes, subsequent sales) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00190-CV
Briggs Equipment Trust v. Harris County Appraisal District Appeal from 280th District Court of Harris County

City of Inkster Policeman and FIreman Retirement System v. Kinder (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Alcala) (shareholder derivative action, standing issue after buyout) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley01-08-00308-CV City of Inkster Policeman and Fireman Retirement System, derivatively on behalf of Kinder Morgan, Inc. v. Richard D. Kinder, Michael C. Morgan, William V. Morgan, Fayez Sarofm, Edward H. Austin, Jr., William J. Hybl, Ted A. Gardner, Charles W. Battey, H.A. True, III, James M. Stanford, Stewart A. Bliss, Edward Randall, III, Douglas W.G. Whitehead, Et Al Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble

Gonzalez v. AAG-Las Vegas, LLC (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Wilson, Davie) (challenge to personal jurisdiction, special appearance) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Judge WilsonBefore Chief Justice Radack, Judge Wilson, Justice Alcala 01-08-00377-CV David M. Gonzalez v. AAG-Las Vegas, L.L.C., Ascent Automotive Group, L.P., KW#1 Acquisition Company, L.L.C.--Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

Aquilar v. Texas La Fiesta Auto Sales LLC (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Bland) (IFP appeal, finality, no appealable final order judgment) DISMISS APPEAL: Opinion by Justice Bland Before Justices Keyes, Hanks and Bland 01-08-00653-CV Timothy Aguilar v. Texas La Fiesta Auto Sales LLC & Patrick J. Miller and Harris County Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan

American National Ins v. Deutsche Bank (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Radack) (summary judgment appeals appellate procedure, need to challenge all bases for summary judgment) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack 01-08-00791-CVJudge: Hon. Lamar McCorkle Mark S. McShaffry v. Amegy Bank National Association Appeal from 125th District Court of Harris County