August 2009 Civil Appellate Opinions from the Fourteenth Court of Appeals

Decisions and Links to Opinions in Significant Cases

August 28, 2009

Civil Cases:

Alcala Concurrence in Denial of En Banc Review in Macy v. Waste Management, Inc. (Tex.App.- Houston [1st
Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by Justice Alcala) (proper
designation of opinions issues by the court)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge: The Honorable Randall Wilson

Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County

Brannan v. Estate of Brannan (Tex. App.- Houston [1st Dist.] Aug. 28, 2009)(Open Beaches Act)
AFFIRM TC JUDGMENT:
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob
Albert Brannan, Deceased, et al v. The State of Texas, et al
Appeal from 239th District Court of Brazoria County

August 27, 2009

Civil Causes Decided:

Sheppard v. Interbay Funding, LLC (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(real estate transactions, deeds, refinancing, declaratory judgment lien priority status, equitable subrogation)
Air Products & Chemicals Inc. v. Odfjell Seachem (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(jury charge error claim overruled, harmful error analysis, what is negligence per se claim, amending
pleadings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00591-CV Air Products & Chemicals Inc. v. Odfjell Seachem A/S, Odfjell Asia Pte. Ltd., and Odfjell
Singapore Pte., Ltd Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(TTCA, drowning death of child, uncovered culvert, siblings' bystander claim rejected)( drowning death of child, uncovered culvert, siblings' bystander claim for wrongful death of brother rejected, drowning deaths)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Alcala and Higley
01-08-00905-CV Landon Jones and Loren Jones v. City of Houston
Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Levi J. Benton
Dissenting Opinion by Justice Alcala in Jones v. City of Houston


A Utterly Rare Criminal Reversal (with dissent)

Blackman v. State of Texas (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
("A jury found appellant, James Blackman, guilty of the offense of possession of a controlled substance,
namely cocaine, with intent to deliver (1) and assessed his punishment at confinement for thirty years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his
conviction and that the trial court erred in (2) denying his Batson challenge. ... we hold that the evidence is
legally insufficient to support appellant's conviction of the offense of possession of a controlled substance. We reverse and render.")
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00138-CR James Blackman v. The State of Texas
Appeal from 230th District Court of Harris County
Dissenting Opinion by Justice Keyes
(“I respectfully dissent. I would hold that the evidence was legally and factually sufficient to establish affirmative links showing that appellant exercised "care, custody, control or management" over the cocaine at issue in this case. (1) Therefore, I would overrule appellant's first issue rather than reversing and rendering judgment acquitting him.”)

August 21, 2009

Civil Causes Decided:

Gallagher Healthcare Ins. Service, Inc. v. Vogelsang (Tex.App.- Houston [1st Dist.] Aug. 21, 2009)(Keyes)
(enforceability of covenant-not-to-compete provision in employment agreement; noncompete held enforceable)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Jennings, Keyes and Higley
01-07-00478-CV Gallagher Healthcare Insurance Services, Inc. v. Page M. Vogelsang, Michelle Friede, Patti
Philippone, Trisha Birdsong, and Lockton Companies, Inc.
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle
Dissenting Opinion by Justice Jennings in Gallagher Healthcare Insurance Services, Inc. v. Vogelsang


August 20, 2009

Civil Causes Decided:

Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st Dist] Aug. 20, 2009)(Bland)
(work site injury, premises liability, direct negligence,
right to control issue as predicate for liability for worker's injury, jury instructions)
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Before Justices Jennings, Hanks and Bland
01-07-01106-CV Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc. Appeal
from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Dissent by Justice Jennings in Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st
Dist] Aug. 20, 2009)(Jennings) ("I would hold that the trial court erred in submitting the question to the jury
predicating Waste Management's liability to Moss on its right to control Rustin's work. Because it is
fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in
the law and the trial court's error probably caused the rendition of a harmful judgment, I would remand the
case to the trial court for a new trial. See Tex. R. App. P. 44.1(a)(1); Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378, 388 (Tex. 2000). The majority's holding and judgment to the contrary is in error. Accordingly, I
respectfully dissent.") See --> other Houston appellate cases with dissent (or concurring opinion)

In re Elliott (Tex.App.- Houston [1st Dist] Aug. 20, 2009)
(no appellate jurisdiction to issue mandamus against JP court judge)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Hanks, Higley and Massengale
01-09-00713-CV In re Michael W. Elliott
[Docket says] Appeal from County Court [sic] of Harris County
Trial Court Judge: David Patronella [Harris County JP Court 1-2]

In Re Elliott (Tex.App.- Houston [1st Dist.] Aug. 20, 2009)(per curiam)
(court of appeals has no authority to issue writ of mandamus against Justice of the Peace)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Hanks, Higley and Massengale
01-09-00714-CV In re Micheal W. Elliott
Appeal from County Court [?] of Harris County
Trial court judge: David Patronella [Harris County JP Precinct 1, Place 2]

August 6, 2009

Noteworthy Civil Cases:

Virginia Power Energy Marketing, Inc v. Apache Corp. (Tex.App.- Houston [14th Dist.] Aug. 6, 2009 (Sullivan) (dispute involving the interpretation, application and effect of force majeure provisions in a natural-gas supply contract, contract construction, excuse for nonperformance) (fact issue precludes summary judgment)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Sullivan
Before Justices Brock Yates, Guzman and Sullivan
14-07-00787-CV Virginia Power Energy Marketing, Inc and Dominion Resources, Inc v. Apache
Corporation Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson

Langston v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost)
(bill of review denied, tax suit, failure to avail oneself of available remedies, i.e. direct appeal precludes bill-of-review relief, claim of fundamental error rejected)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Boyce
14-08-00063-CV C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena
Independent School District and San Jacinto Community College
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Brown

August 4, 2009

Noteworthy Civil Cases:

Langhorne v. Miller (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore) (conversion of aircraft, proof of conversion damages, market value, owner may testify, quantum meruit claim fails)
AFFIRMED: Opinion by Justice Seymore
Before Justices Seymore, Brown and Sullivan
14-08-00081-CV Danny Langhorne v. Kay M. Miller
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey

Office Buildings of Houston, Inc. v. Newman (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Frost) (dispute over the amount of commission owed as a result of a real estate transaction, contract construction)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-00173-CV Office Buildings of Houston, Inc v. Carlton B. Newman
Appeal from 215th District Court of Harris County
Trial Court Judge: LEVI JAMES BENTON

Rosemond v. Al-Lahiq, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore)
(med mal suit, untimely, insufficient expert report, presumption of receipt based on service pursuant to Rule 21a and rebuttal of presumption by controverting affidavit of nonreceipt)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00550-CV Ulysses L. Rosemond v. Maha Khalifa Al-Lahiq, M.D.
Appeal from 133rd District Court of Harris County
Trial Court Judge: LAMAR MCCORKLE

North Cypress Med. Ctr. Operation Co, Ltd. v. Laurent, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Sullivan) (interlocutory appeal of temporary injunction, no irreparable damages shown, temporary injunction dissolved by court of appeals)(partnership dispute)
REVERSED AND REMANDED: Opinion by Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-09-00204-CV North Cypress Medical Center Operating Company, Ltd. and North Cypress Operating G.P. LLC v. Matthew St. Laurent, M.D
Appeal from 333rd District Court of Harris County
Trial Court Judge: JOSEPH J. HALBACH

In Re North Cypress Medical Center Operating Company, Ltd (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Sullivan) (mandamus granted to vacate order requiring funds to be paid into the registry of the court, criteria for such order not satisfied)
MOTION OR WRIT GRANTED: Opinion by Justice Kent Sullivan
Before Justices Seymore, Brown and Sullivan
14-09-00289-CV In Re North Cypress Medical Center Operating Company, Ltd. and North Cypress Medical Center Operating Company GP, LLC
Appeal from 333rd District Court of Harris County