October 2009 Fourteenth Court of Appeals Decisions in Civil Cases

APPELLATE OPINIONS ISSUED BY THE 14TH COURT OF APPEALS HOUSTON IN OCTOBER 2009 IN CIVIL CASES (updated 11/1)

October 29, 2009

Civil Causes Decided:

Mattox v. County Commissioner's Court-Grimes Cty. (Tex.App.- Houston [14th Dist.] Oct. 29, 2009) (Hedges)(mandamus against public official, commissioner's court, statutory construction) (cancellation of a roadway dedication, interpretation of section 232.008 of the Texas Local Government Code, which governs cancellation of all or part of a subdivision located outside of any municipality)(both parties' motions for summary judgment denied)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00193-CV Gregory R. Mattox and Barbara Wilkerson v. County Commissioners' Court-Grimes County, Betty Shiflett-Grimes County Judge, John Bertling-County Commissioner Pct 1., and Pam Finke- County Commissioner Pct 4
Appeal from 506th Judicial District Court of County
Trial Court Judge: Albert M McCaig Jr.
Dissenting Opinion by Justice Frost in Mattox v. County Commissioners' Court of Grimes County

Knight v. Knight (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Hedges) (divorce property division, reimbursement claim, preservation of error for appellate review)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00424-CV Monica Faye Knight v. Bobby Wayne Knight
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York

O and B Farms, Inc.v. Black (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Yates) (fraud and civil conspiracy claims award of attorney's fees, exemplary damages reversed) (breach of contract damages proven)(contingency fee contract insufficient to establish reasonable
attorney's fees) (detrimental reliance as element of fraud cause of action)
AFFIRMED AS MODIFIED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00595-CV O and B Farms, Inc., and B and O Farms, LLC v. Eldon Jay Black, Kevin Lee
Donahoo, Thomas David Horrell, Jr., Charles Richard Weeks, Ronald Russell Swisshelm, and Casey
Ross Gray
Appeal from 220th District Court of Hamilton County
Trial Court Judge: Hon. James E. Morgan

Melawer v. Tipton (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Sullivan) (attempted appeal arises from a lawsuit originally filed in small claims court; dismissed for lack of appellate jurisdiction under law in effect prior to recent enactment permitting appeal)
DISMISSED-WANT OF JURISDICTION: Opinion by Justice Sullivan
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00721-CV Abraham Melawer v. Robert S. Tipton
Appeal from County Court of Shelby County
Trial Court Judge: Judge Shelby County

October 22, 2009

Civil Causes Decided:

In Re GeoMet, Inc. (Tex.App.- Houston [14th Dist.] Oct. 22, 2009)(per curiam) (arbitration mandamus denied, no agreement to arbitrate established, gateway issues re: arbitration)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00685-CV In Re Gomet, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart

In Re Penrod (Tex.App.- Houston [14th Dist.] Oct. 22, 2009)(per curiam denial of mandamus)
(mandamus denied re striking of petition in intervention)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Brown
14-09-00776-CV In Re Kathleen Penrod
Appeal from 280th District Court of Harris County
Trial Court Judge: Tony Lindsay

In Re Melendez (Tex.App.- Houston [14th Dist.] Oct. 22, 2009)(per curiam denial of mandamus)
(mandamus denied re: order denying a motion for the continuance)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Boyce
14-09-00883-CV In Re Miguel Melendez
Appeal from 245th District Court of Harris County
Trial Court Judge: Judge Annette Kuntz

October 20, 2009

Civil Causes Decided:

In Re Jacobs, MD (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(Brown) (proper scope of net worth discovery when exemplary damages are sought for gross negligence)
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Brown
Before Justices Brown, Boyce and Sullivan
14-09-00123-CV In Re Mark A. Jacobs, M.D., and Debra C. Gunn, M.D., and Obstetrical and
Gynecologist Associates, P.A. Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Concurring and Dissenting Opinion by Justice Sullivan in In Re Jacobs, M.D.

In Re Johnson (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam) (SAPCR modification) (motion for new trial, order setting aside default judgment, extension of deadline from weekend day to following Monday, order signed within plenary power)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00782-CV In Re Jacqueline Johnson
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern

In re Van Dyke (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam denial) (mandamus re discovery order denied, request moot, turnover order is appealable,
hence no mandamus relief available)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00822-CV In Re Scott Van Dyke
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

October 15, 2009

Civil Causes Decided:

Sheppard v. Travelers Lloyds of Texas Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 15, 2009)(Boyce) (summary judgment for insurer on breach of contract and violations of the Texas Insurance Code claims affirmed)(breach of contract and statutory insurance code claim denial cause of action time-barred, accrual date, contractual shortening of limitations period)
AFFIRMED: Opinion by Justice Bill Boyce
Before Justices Anderson and Boyce
14-08-00248-CV Anthony Sheppard v. Travelers Lloyds of Texas Insurance Company
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli

In Interest of KLG (Tex.App.- Houston [14th Dist.] Oct. 15, 2009) (trial court’s frivolousness finding and final decree terminating parental rights affirmed)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00403-CV In the Interest of K.L.G. aka C.G., a child
Appeal from 315th District Court of Harris County
Trial Court Judge: Michael H. Schneider

DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00521-CV Investment Capital Corporation v. Nancy Israel, Individually and as Personal
Representative of the Estate of Harold W. Israel, Deceased
Appeal from Probate Court No 1 of Harris County

DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00562-CV David Christopher Russell v. Janna Russell
Appeal from 246th District Court of Harris County

October 13, 2009

Civil Causes Decided:

In Re Rodriguez (Tex.App.- Houston [14th Dist.] Oct. 13, 2009)(per curiam dismissal) (no jurisdiction to issue mandamus against judge of small claims court)
DISMISSED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00824-CV In Re Arcadio D. Rodgriguez
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey

In Re Alam (Tex.App.- Houston [14th Dist.] Oct. 13, 2009)(per curiam) (mandamus seeking disqualification of trial judge denied)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson and Boyce
14-09-00841-CV In Re Armughan Alam
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

October 6, 2009

Civil Causes Decided:

Samson v. Manley (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Anderson) (client' suit against his lawyer and opposing counsel, summary judgment on multiple causes of actions
affirmed, underlying suit: workers compensation suit)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-07-01085-CV Fred Samson v. James Manley and Don Jackson
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli

Smith v. Harford Underwriters Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Frost) (workers compensation appeal by both sides, compensable injury)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00133-CV Janice Smith v. Hartford Underwriters Insurance Company
Appeal from 234th District Court of Harris County
Trial Court Judge: Reese Rondon

October 1, 2009

Civil Causes Decided:

Leigh v. Kuenstler (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Guzman) (DTPA, dispute about allegedly inadequate UIM insurance coverage; insurance agent's duty to procure insurance; judgment for defendant affirmed)
AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00245-CV Theresa Leigh v. Richard Kuenstler, Jr.
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Shadwick

City of Pasadena, Texas v. Belle (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Sullivan) (collision involving emergency vehicle) (plea to the jurisdiction properly denied, official immunity not established)
AFFIRMED: Opinion by Justice Sullivan
Before Rondon, Justices Seymore and Sullivan
14-08-00531-CV City of Pasadena, Texas v. Steven Belle and James West
Appeal from 61st District Court of Harris County
Trial Court Judge: John J. Donovan

In Interest of R.S. (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(per curiam) (termination of parental rights affirmed)(grounds for termination of parent's rights and best interest factors, ineffective assistance of counsel claim rejected where client did not cooperate with attorney)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01013-CV In the Interest of R.S.
Appeal from 310th District Court of Harris County
Trial Court Judge: Lisa A. Millard

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00162-CV Michele M. Duran v. William David McClain
Appeal from 245th District Court of Harris County

DISMISSED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00165-CV RICHARD AND LAURA BUNN, CHRIS TREVINO, SHANNON HAVARD, ANGELA AND
RAYMOND PHILLIPS, THOMAS AND ELOISE ELAM, MICHAEL BARFIELD, DONNA MCGENIE, ZAKIYYA CALDWELL, CHARLES AND CHRISTY VENEABLE, COLLEEN FOLEY, WALTER BUTLER, LOIS NIEZGODA, TANISHA LEWIS, GREGOR v. MICHAEL P. MARTZ, INDIVIDUALLY, INLINE DEVELOPMENT CORPORATION, INLINE UTILITIES, LLC, SUGARBERRY PLACE, PHASE II, LTD., MMRM, LTD., AND ONE MARTZ, LLC, Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCauley [McCally]

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00170-CV Cecil Gammill, Jr. v. David Fettner
Appeal from County Civil Court at Law No 3 of Harris County

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00195-CV Ronald Kay Durst v. Harsco Corporation/ Patent Construction Systems
Appeal from 151st District Court of Harris County

DISMISSED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00404-CV Methanex Methanol (GP LLC, BMC Holdings, Inc. and Terra International (Oklahoma ,
Inc. v. Methylchem Company, LLC
Appeal from 189th District Court of Harris County

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00480-CV In the Interest of R.A.K.M.,aka, R.M., A.D.R.H., R.D.H., R.D.S., and R.A.S
Appeal from 315th District Court of Harris County

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00501-CV Dalida Touma, Galleria Diamonds, LLC and Mike Loutifi v. Bette J. "Liz" Baker, Dale A.
Lyons and LDL Diamonds and Associates, LLC
Appeal from 234th District Court of Harris County

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00534-CV Wendy D. Duong v. Nam Nguyen dba Koi Hahn Cuc Thi Nguyen dba Koi Hanh, Et Al
Appeal from 334th District Court of Harris County

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00591-CV Eloy Garza v. Eunice Fang, Et Al
Appeal from County Civil Court at Law No 3 of Harris County

In Re Holland (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Frost) (mandamus vs interlocutory appeal and temporary order, challenge to trial court's temporary injunction)
MOTION OR WRIT DENIED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00656-CV In Re Robert V. Holland, Jr.
Appeal from 113th District Court of Harris County
Trial Court Judge: Patricia Ann Hancock

DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00664-CV Cecil Gammill, Jr v. David Fettner, Trustee of the Gammill Trust; Jack F. Abercia, Constable of Harris County, Precinct One; Sergeant Albert Lui, Deputy; Loren Jackson, Harris County District Clerk Appeal from 190th District Court of Harris County (name of judge not on appellate docket)