October 2009 First Court of Appeals Opinions (civil cases)

October 23, 2009

Civil Causes Decided:

Benavente v. Granger (Tex.App.- Houston [1st Dist.] Oct. 23, 2009)(Radack) (rear-end automobile collision, negligence not established, take-nothing judgment affirmed, appeal on partial reporter's record)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00227-CV Maricella Benavente v. Daniel Granger and Beverly Granger
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach
Dissenting Opinion by Justice Sharp in Benavente v. Granger (would find negligence)

October 22, 2009

Civil Causes Decided:

Gillum v. Harris County (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley) (ad valorem property tax case, tax suit, tax delinquency suit and foreclosure of tax lien, appeal from tax master to referring court, de novo trial)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp)
01-08-00551-CV Jennifer Gillum v. Harris County
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson

Hyatt v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley) (termination of parental rights, frivolous appeal finding)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-09-00159-CV Kenneth A. Hyatt III v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County
Trial Court Judge: Hon. Michael H. Schneider

City of Houston v. HS Tejas, Ltd. (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Massengale) (inverse condemnation, regulatory takings claim, plea to the jurisdiction proper, ripeness issue,
opportunity to amend)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00393-CV City of Houston v. HS Tejas, Ltd
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

October 15, 2009

Civil Causes Decided:

SCTW Health Care Center, Inc v. AAR Incorporated (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks) (construction law, mold remediation work, breach of contract jury verdict affirmed, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00762-CV SCTW Health Care Center, Inc., Stan Steele, Wynell Suitt and WTCS Health Care Center,
Inc. v. AAR Incorporated
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

Houchins v. Devon Energy Production Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Massengale) (determination whether language of a deed is ambiguous)(interpretation of deed language)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00273-CV Cynthia A. Houchins and Darrell E. Houchins v. Devon Energy Production Co., L.P.
Appeal from 18th District Court of Johnson County
Trial Court Judge: Hon. John Edward Neill

Saxon v. Saxon (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(per curiam) (untimely notice of appeal)
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-08-00310-CV Dannie Reece Saxon v. Frank E. Saxon
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

Requena v. Otis Elevator Company and Fisk Electric Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Keyes) (personal injury - freight elevator, negligence, no breach of duty, JNOV affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00378-CV Jose Hermilo Requena and Mary Sue Requena v. Otis Elevator Company and Fisk Electric
Company Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Levi J. Benton

Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Alcala) (jury findings that defendant committed forgery, misapplication of fiduciary property, fraud, and conversion, exemplary damages affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00539-CV Janell S. Marin v. IESI TX Corporation
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

KM Timbercreek, LLC v. HCAD (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Bland) (tax appraisal judicial review suit, exhaustion of administrative remedies, standing to bring action, Rule 28)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00689-CV KM Timbercreek, LLC v. Harris County Appraisal District
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally

Aranda v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Higley) (termination of parental rights appeal, frivolousness finding)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-09-00058-CV Ernesto Aranda v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00167-CV Mary Beth Clawson and Robert Taylor, Individually and as Trustees for the Mary Beth Clawson 1986 Trust, The Meredith Mccarthy Riddle 1986 Trust , The Elizabeth Karthleen Riddle 1986 Trust, The Elizabeth Marenfield 1986 Trust, Arbor Holding Company, Inc., v. Beltway Green Partnership, Ltd
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon Alexandra Smoots-Hogan

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00394-CV John Altaire Coil, Dee and Dee Enterprises, Inc., and I-45 North News & Video, Inc. v. Odilia Espinosa, Individually; Odilia Espinosa, as Personal Representative of the Estate of Jacinto Espinosa; Marco Espinosa
Appeal from 129th District Court of Harris County
Trial Court Judge: Hon. Michael Gomez

In re Newton B. Schwartz, Sr. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(per curiam)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Higley and Bland
01-09-00806-CV In re Newton B. Schwartz, Sr.
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson

(Tex.App.- Houston [1st Dist.] Oct. 15, 2009)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Higley and Bland
01-09-00807-CV In re Newton B. Schwartz, Sr.
Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks) (SAPCR petition in intervention in DFPS/CPS child protection suit conservatorship, timeliness issue)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-09-00814-CV In Re David Arnold Northrop
Appeal from 257th District Court of Harris County
Trial Court Judge: Hon. Judy Warne

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks) (intervention by family member without substantial past conduct in child protection proceeding untimely)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice George C. Hanks, Jr.
Before Justices Keyes, Alcala and Hanks
01-09-00815-CV In Re David Arnold Northrop
Appeal from 257th District Court of Harris County
Trial Court Judge: Hon. Judy Warne

October 12, 2009

October 9, 2009

Civil Causes Decided:

Sharp Dissent from denial of en banc review in Walker v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 9, 2009) (Sharp) (termination of parental rights)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Sharp
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

October 8, 2009

Civil Causes Decided:

Showbiz Multimedia LLLC v. Mountain States Mortgage Co. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Sharp) (improper incurable jury argument, inflammatory judicial terrorism rhetoric)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00810-CV Showbiz Multimedia, LLC; Showbiz Multimedia Entertainment, LLC; and Vinay Karna v.
Mountain States Mortgage Company; Remington Financial Group, Inc.; and Matthew McManus
Appeal from 387th District Court of Fort Bend County
Concurring Opinion by Justice Taft in Showbiz Multimedia v. Mountain States Mortgage Company

National Fire Insurance Co. v. State and County Mutual Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale) (insurance litigation)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00845-CV National Fire Insurance Company of Hartford, as Assignee of Kelvin Ray Gatlin v. State and County Mutual Fire Insurance Company
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn Wood

Aguilar v. Dojo Enterprises, Inc. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale) (take-nothing judgment in personal injury suit affirmed) (statute of limitations and due diligence in serving defendant, deemed admissions, waiver of arguments on appeal on account in inadequate briefing)
AFFIRM TC JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00903-CV Estelita Aguilar v. Dojo Enterprises, Inc. d/b/a Party City
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn Wood

Harris County Medical Examiner v. Saghian (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Hanks) (autopsy, free exercise of religion, Texas Religious Freedom Restoration Act, temporary injunction preventing autopsy vacated, standing)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-00951-CV Harris County Medical Examiner Luis Arturo Sanchez, M.D. v. Afsaneh Saghian
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Stephens v. SBOT (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes) (petition to reinstate law license denied, summary judgment affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00210-CV McCuller C. Stephens, III v. State Bar of Texas
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull

O'Conor v. The Frost National Bank (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes) (invasion of privacy claim fails, disclosure of social security number)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00229-CV Robert O'Conor, Jr. v. The Frost National Bank
Appeal from 234th District Court of Harris County
Trial Court Judge: The Honorable Reece Rondon

Resurgence Financial, LLC v. Lawrence (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Radack) (credit card debt suit not properly brought as sworn account suit under Rule 185, damages not proven)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00341-CV Resurgence Financial, L.L.C. v. James T. Lawrence
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

Equipment Resources International, Inc. v. Webb (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Bland) (MSA, breach of mediated settlement agreement, bad faith sanctions, contractual agreement to dismiss pending suit not complied with)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00374-CV Equipment Resources International, Inc. v. Julie L. Webb
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00754-CV Rapid Settlement, LTD. v. Voshunda Roquemore, Hartford Fire Insurance Company
Appeal from County Civil Court at Law No 4 of Harris County

Royalton Condominium, LP v. Albright (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Radack) (pending interlocutory appeal mooted by nonsuit in the trial court)
DISMISS APPEAL: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00139-CV Royalton Condominiums, L.P. and The Royalton Management, Inc. v. Gerry Albright, Vivian
Leong, Ronald Gensburg, Hal Kuntz, Annette Kuntz, Lucky Chopra and Alvin Thomas
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. Al Bennett

In Interest of G.T.S. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Jennings) (paternity proceedings to rebut presumption of paternity and establish other man's paternity barred by
limitations, equitable estoppel theory not properly presented)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TRIAL
COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-09-00212-CV In the Interest of G. T. S., a child
Appeal from 173rd District Court of Henderson County
Trial Court Judge: Judge Dan Moore

October 7, 2009

Civil Causes Decided:

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00814-CV In Re David Arnold Northrop
Appeal from 257th District Court of Harris County

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00815-CV In Re David Arnold Northrop
Appeal from 257th District Court of Harris County

In Re Velasco (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00824-CV In re Carla I. Velasco
Appeal from 308th District Court of Harris County

October 1, 2009

Civil Causes Decided:

Chambers v. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Opinion on remand by Taft) (right to arbitration of attorney-client / legal malpractice dispute not waived, conflict in arb agreement as to whether TAA or FAA applies resolved in favor of Texas Arbitration Act, arbitration of legal malpractice claims)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Tim Taft
Before Justices Taft, Keyes and Hanks
01-04-01029-CV Bob Chambers, et al. v. John M. O'Quinn, individually d/b/a O'Quinn & Laminack, and John M. O'Quinn, P.C.
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan

Nguyen v. Yovan (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Keyes) (real estate transaction, statute of frauds as it applies to sale of real estate, contract for deed)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00660-CV Anna Marie Nguyen v. Alex Yovan and Philip Yovan
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

Choy v. Graziano Roofing of Texas, Inc. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009) (construction law, Trust Fund Act violations alleged)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00761-CV Andrew Choy v. Graziano Roofing of Texas, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble

Nicholson v. Shinn, MD (Tex.App.- Houston [1st Dist.] Oct. 1, 2009) (HCLC, limitations and accrual of claim, timeliness of notice of claim and filing of suit, motion for continuance of summary judgment hearing for additional discovery, adequate time for discovery)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00973-CV Litzi Nicholson v. Mary Shinn, MD
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Vice v. Kasprzak (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Keyes) (interlocutory appeal, defamation suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-08-00168-CV Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak and Katherine D. Kasprzak
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli

Union Carbide & Hexion Specialty Chemicals, Inc v. Smith (Tex.App.- Houston [1st Dist.] Oct. 1, 2009) (Jennings) (asbestos case, exclusive remedy defense, Workers Compensation Act).
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Alcala and Higley
01-08-00641-CV Union Carbide & Hexion Specialty Chemicals, Inc.'s v. Oliver D. Smith
and Peggy Ann Bowen Smith
Appeal from 122nd District Court of Galveston County
Trial Court Judge: Hon. John Ellisor

Plaza At 610 Commons Inc v. HCAD (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Higley) (ad valorem property tax appeal, plea to the jurisdiction, no substitution of different entity as owner under Rule 28 governing dba-s, suit in common names) (property tax protest, appeal administrative remedies and judicial review suit, plea to the jurisdiction, no substitution of different entity as owner under Rule 28 governing dbas, common names, identity of property owner is the issue, real owner did not bring protest and suit within the filing deadline)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-08-00690-CV Plaza At 610 Commons Inc. v. Harris County Appraisal District
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally

Perry v. UH-Downtown (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Bland) (public employment - retaliatory discharge claim; summary judgment for defendant university in race discrimination retaliation case affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00807-CV Jacqueline Perry v. University of Houston Downtown
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher

Lamar v. Poncon, Morgan's Rock Hacienda & Ecolodge (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Bland) (special appearance, special jurisdiction, general jurisdiction, discovery re jurisdictional facts should proceed)
REVERSE TRIAL COURT JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-01036-CV John and Nanci Lamar v. Eric Poncon and Morgan's Rock Hacienda & Ecolodge
Appeal from 215th District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00042-CV Chris Stone and Gary Walker v. Glazier Foods Company
Appeal from 334th District Court of Harris County

UT Med. Branch Galveston v. Brisco (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Massengale) (Texas Tort Claims Act TTCA case, claim dismissed, sufficiency of notice of claim letter, immunity not waived)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00064-CV The University of Texas Medical Branch Galveston and The University of Texas System v.
Dawn Nico Brisco Appeal from 56th District Court of Galveston County
Trial Court Judge: Hon Lonnie Cox

Thomas & Son's Inc. v. Seabrook Land Co. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Bland) (finality, interlocutory appeal from sanctions order not authorized and dismissed for want of jurisdiction)
DISMISS APPEAL: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00420-CV Thomas & Son's Inc., United Seafood, Inc., and Gulf Coast Harvest, Inc.
v. Seabrook Land Company
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. Kyle Carter

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00540-CV Carl S. Birk v. FIA Card Services
Appeal from 281st District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00554-CV Kerry Walter v. Unifund CCR Partners
Appeal from County Civil Court at Law No 1 of Harris County

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00681-CV Teresa Stephens v. Virgie Arthur
Appeal from 280th District Court of Harris County

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00683-CV Rapid Settlements, Ltd. v. American Mayflower Life Insurance Company N/K/A Genworth Life Insurance Company of New York and Mayflower Assignment Corporation
Appeal from County Civil Court at Law No 3 of Harris County