November 2009 Civil Appellate Decisions from the Fourteenth Court of Appeals in Houston, Texas

TEX.APP.- HOUSTON [14TH DIST.] Nov. 2009

NOVEMBER 2009 FOURTEENTH COURT OF APPEALS CASES
DECISIONS IN CIVIL APPEALS

November 24, 2009

Civil Causes Decided:

Keys v. Litton Loan Servicing LP (Tex.App.- Houston [14th Dist.] Nov. 24, 2009)(Sullivan)
(property foreclosure dispute, attorney's fees remanded)
In this longstanding property-foreclosure dispute, Patrick William Keys, pro se, appeals the final
judgment in favor of Litton Loan Servicing, L.P., the loan servicer for an adjustable rate note on real property owned by Keys. We affirm the trial court in all respects with the limited exception of its granting of Litton’s “Motion for Summary Judgment as to Attorneys’ Fees.” Accordingly, we reverse and remand for further proceedings limited to the award of those attorneys’ fees.
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Sullivan
Before Chief Justice Hedges, Justices Brock Yates and Sullivan
14-07-00809-CV Patrick William Keys v. Litton Loan Servicing L.P, Et Al
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman

Mullins v. Briarwick Condo Owners Ass'n (Tex.App.- Houston [14th Dist.] Nov. 24, 2009)(Brown)(premises liability, falling object) (discovery abuse sanctions) (hindrance of the discovery process justified a presumption her claims lacked merit, the trial court did test and consider lesser sanctions, the sanction was not too severe given the circumstances of the case, and the sanction was not based solely on litigant's failure to produce documents)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00129-CV Susan McGee Mullins v. Briarwick Condominium Owners Association, Inc and KRJ Management, Inc
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

Criminal Causes Decided:

November 19, 2009

Civil Causes Decided:

Hintz v. Lally, MD (pdf) (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(Boyce) (TTCA, dismissal of employee) Election of Remedies Under the Tort Claims Act Dismissal Under Section 101.106(f) Section 101.106(a)
AFFIRMED: Opinion by Justice Bill Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00635-CV Sheryl Hintz, as next of friend for Donald Hintz, Jr. v. Kevin Lally, M.D.
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Douglas v. American Title Co. (pdf) (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam)
In this appeal from an order dismissing his case for want of prosecution, appellant Douglas, an indigent inmate appearing in propria persona, raises three issues asserting that the trial court abused its discretion by failing to conduct a dismissal hearing or a hearing on his motion to reinstate and by failing to consider his motion to retain. We affirm the trial court’s order. We find that the trial court did not abuse its discretion in failing to conduct a dismissal hearing to consider Douglas’s motion to retain or a hearing on Douglas’s motion to reinstate. We overrule Douglas’s three issues.
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00676-CV Ralph O. Douglas v. American Title Company
Appeal from 133rd District Court of Harris County
Trial Court Judge: Lamar McCorkle

Bejjani v. TRC Services, Inc. (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(Boyce) (DTPA car repair, foreclosure of mechanic's lien, segregation of attorney’s fees)
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson, Frost and Boyce
14-08-00750-CV Khalil Bejjani, Individually and dba Bejjani Enterprises, Inc., and dba Bejjani
Automotive Group, Inc., and dba Toyex Bimmer Sales & Services and dba Toyex/Bimmer; Bejjani Enterprises, Inc., Individually, Et al v. TRC Services, Inc.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Jacqueline Lucci-Smith

Avshalomov v. Property Improvements, Inc. (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam) (trial court did not err in denying appellant’s special appearance)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00305-CV Shally Avshalomov, Individually and as the Personal Representative of the Estate of Josua Avshalomov v. Property Improvements, Inc. and Avishai Ron
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart

DISMISSED 11/19: Per Curiam (case settled)
Before Justices Brock Yates, Frost and Brown
14-09-00464-CV Loren Truman Johnston, III v. Lou Ann (Johnston) Robertson
Appeal from 246th District Court of Harris County

Tombaco Investments, LLC v. HCAD (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam) (vacated per settlement agreement, joint motion)
VACATED AND REMANDED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00680-CV Tombaco Investments, LLC v. Harris County Appraisal District Appraisal Review Board
Appeal from 281st District Court of Harris County
Trial Court Judge: Sylvia Matthews

DISMISSED 11/19: Per Curiam (nonpayment of fees)
Before Justices Brock Yates, Frost and Brown
14-09-00710-CV Ronald Pingor v. Melissa G. Fertel
Appeal from 312th District Court of Harris County

DISMISSED 11/19: Per Curiam (no arrangements to pay for the record)
Before Justices Anderson, Frost and Boyce
14-09-00717-CV Letitia Heaton Watson v. John Heaton
Appeal from 309th District Court of Harris County

VACATED AND REMANDED: Per Curiam (joint motion to reverse)
Before Justices Brock Yates, Frost and Brown
14-09-00734-CV Alamo Enviornmental, Inc. v. JCR Trucking Services, L.L.C.
Appeal from 129th District Court of Harris County
Trial Court Judge: Michael Gomez

DISMISSED 11/19: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00836-CV Robertson-Finley Resources, Inc and Penn Virginia Oil and Gas L.P.
v. Square Mile Energy, L.L.C., Kiwi Energy, LTD and Winn Exploration Co., Inc.
Appeal from 295th District Court of Harris County

DISMISSED 11/19: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00953-CV In Re Michael Kennedy
Appeal from of County

November 17, 2009

Civil Causes Decided:

In Interest of HGL (pdf) (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Brown) (child-support obligor, appeals the trial court's judgment denying his motion to confirm child-support arrearages and for declaratory judgment)
AFFIRMED: Opinion by Justice Brown
Before Justices Frost, Brown and Boyce
14-08-00087-CV In the Interest of H.G.L. and A.R.L.
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne

In Interest of JJC (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce)(termination of parental rights) The mother of three children and the father of one of the children appeal the termination of their respective parental rights. Because we conclude that the trial court did not err in determining that termination of parental rights is in each child’s best interest, and the parents’ remaining challenges are waived, we affirm.
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson and Boyce
14-08-01074-CV In the Interest of J.J.C.
Appeal from 311th District Court of Harris County
Trial Court Judge: Douglas C. Warne

In Interest of KJS (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce) (termination)
AFFIRMED: Opinion by Justice Bill Boyce
Before Justices Anderson and Boyce
14-08-01091-CV In the Interest of K.J.S.
Appeal from 311th District Court of Harris County
Trial Court Judge: Douglas C. Warne

In Interest of JJR (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce) (termination of parental rights)
AFFIRMED: Opinion by Justice William Boyce
Before Justices Anderson and Boyce
14-08-01129-CV In the Interest of J.J.R.
Appeal from 311th District Court of Harris County
Trial Judge: Doug C. Warne

In Interest of MG (pdf) (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Hedges)
Appellant, “Jane Doe,” appeals from the termination of her parental rights to M.G. based on trial court findings that: (1) appellant failed to comply with provisions of the court’s prior orders establishing actions necessary for the return of the child after removal for abuse or neglect, and (2) termination was in the child’s best interest. On appeal, appellant contends that there was legally and factually insufficient evidence to support the court’s findings and that she received ineffective assistance of counsel. We affirm.
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00136-CV In the Interest of M.G.
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough

November 13, 2009

Civil Causes Decided:

Christopher Columbus Street Market LLC v. The Zoning Board of Adjustment of The City of Galveston, Texas (Tex.App.- Houston [14th Dist.] Nov. 13, 2009)(Frost) (zoning board appeal, severance) Property owners appeal the district court’s order affirming the decision of a municipal zoning board to uphold a decision by a city administrative agency to deny the property owners’ application for a city permit to demolish property in a historical area of the city. The property owners also challenge the district court’s severance of their constitutional claims against the city and zoning board from the appeal of the zoning board’s decision. We affirm.
AFFIRMED: Opinion by Justice Kem T. Frost
Before Justices Brock Yates, Frost and Brown
14-07-00980-CV Christopher Columbus Street Market LLC; Alfio Fischera; and Ed Eubanks
v. The Zoning Board of Adjustment of The City of Galveston, Texas
Appeal from 56th District Court of Galveston County
Trial Court Judge: Lonnie Cox

Criminal Causes Decided:

November 12, 2009

Civil Causes Decided: None

November 10, 2009

Civil Cases Decided:

MOTION OR WRIT DENIED 11/10: Per Curiam
(mandamus regarding contempt order denied)
Before Justices Brock Yates, Frost and Brown
14-09-00885-CV In Re Bree Anne Finch
Appeal from 300th District Court of Brazoria County
Honorable K. Randall Hufstetler

November 5, 2009

Civil Causes Decided:

2900 Smith, Ltd v. Constellation Newenergy, Inc. (Tex.App.- Houston [14th Dist.] Nov. 5, 2009) (Anderson) (sworn account suit, electricity service, dispute over amount due, findings of facts not filed before judge left bench, abatement for successor judge to make findings)
AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice John 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

Information Services Group, Inc. v. Rawlinson (Tex.App. - Houston [14th Dist.] Nov. 5, 2009)(Brown) (accelerated, interlocutory appeal from the trial court’s order granting appellee’s special appearance) (defendant found to lack sufficient minimum contacts to support the assertion of specific jurisdiction)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-09-00242-CV Information Services Group, Inc., Technology Partners International, Inc. and TPI Eurosourcing, L.L.C. v. Tony Rawlinson
Appeal from 61st District Court of Harris County
Trial Court Judge: Al Bennett

DISMISSED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00424-CV James D. Strachan v. Marie J. Starich, Byron K. Barclay, Lori A. Hood, and Hon. James H. Shoemake, Individually and in his capacity as Judge, 434th District Court
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge: Hon. William R. Burke. Jr.

DISMISSED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00441-CV Texas Department of Public Safety v. Peter William Benson
Appeal from County Civil Court at Law No 3 of Harris County

DISMISSED: Per Curiam (interlocutory appeal from an order vacating an arbitration award - case settled)
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00529-CV Internacional Realty, Inc., USA Bellmeade, L.L.C., USA Bellmeade LeaseCo, L.L.C., International Realty Management, Ltd and Hugh L. Caraway v. Bellmeade I, L.P., Bellmeade II, L.P., Charles Schlangen, Marbichar, a California Limited Partnership, and Plaza Escuela Holding Company, L.L.C. | Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

DISMISSED: Per Curiam (dismissed by appellant)
Before Justices Brock Yates, Frost and Brown
14-09-00536-CV Texas Department of Public Safety v. Christopher Daniel Hogan
Appeal from Co Civil Ct at Law No 3 of Harris County
Trial Court Judge: Linda Storey

DISMISSED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00539-CV James D. Strachan v. Marie Starich and James G. Strachan
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge: Hugo Touchy

DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00588-CV Jack Markman, Trustee, Markman-Humphries, Inc., d/b/a Markman Humphries Investments, William Humphries and Brenda Gorman v. Jose Jaime Pardo and Maria Pardo
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

DISMISSED: Per Curiam (nonpayment of fee)
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00678-CV Howlil, Inc. v. Hector Guerrero d/ba S&B Masonry
Appeal from 151st District Court of Harris County

DISMISSED: Per Curiam (dismissed by appellant)
Before Justices Brock Yates, Frost and Brown
14-09-00722-CV Michael Lindsay, Independant Executor of the Estate of Mark F. Kay, Deceased v.
American General Life Insurance Company Appeal from Probate Court No 4 of Harris County
Trial Court Judge: WM CAMERON MCCULLOCH

DISMISSED: Per Curiam (no appellate jurisdiction, case originated in small claims court)
Before Justices Brock Yates, Frost and Brown
14-09-00725-CV Arcadio D. Rodriguez v. Mark T. Womack
Appeal from County Civil Court at Law No 3 of Harris County

DISMISSED: Per Curiam (untimely notice for restricted appeal)
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00850-CV Maggy Horgan v. Jerry Hecht
Appeal from County Civil Court at Law No 3 of Harris County

MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00908-CV In Re J.A. Jay Asafi as independent administrator of the Estate of Alosia Smith Rauscher, deceased and Todd Reagan Smith
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood

MOTION OR WRIT DENIED: Per Curiam
(mandamus denied re: order granting partial summary judgment on bill of review)
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00920-CV In Re Arugha Etuwewe and Ubong Etuwewe
Appeal from 333rd District Court of Harris County
Trial Court Judge: Joseph J. Halbach

November 3, 2009

Civil Causes Decided:

Kessling v. Friendswood ISD (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Hedges) (suit alleging violations of the Texas Open Meetings Act (TOMA), Texas Public Information Act (TPIA), and Texas Education Code)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-07-01063-CV Nancy Kessling v. Friendswood Independent School District, and Patricia Hanks
Appeal from 56th District Court of Galveston County
Trial Court Judge: Lonnie Cox
Dissenting Opinion by Justice Frost in Kessling v. Friendswood ISD

In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson)(motion to recuse trial judge) (Judge Wood did not have the option of denying the motion to recuse as untimely).
MOTION OR WRIT GRANTED: Opinion by Justice John Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00595-CV In Re Miguel Angel Gonzales Guilbot
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood

In Re Spartan Adjusting Co., LLC (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(per curiam) (mandamus denied re: order denying motion to dismiss, order denying their motion for a rotective order)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00854-CV In Re Spartan Adjusting Company LLC and Home State County Mutual Insurance Company
Appeal from 165th District Court of Harris County (Judge Josefina Muniz Rendon)

In Re Stamper (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(per curiam) (mandamus re recusal denied)(Relator requests that an order be entered recusing Judge McCally from the underlying suit. Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus.)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00884-CV In Re Gordon Allen Stamper
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally