Nov. 2009 First Court of Appeals Decisions in Civil Appeals

TEX. APP. - HOUSTON [1st Dist.] Nov. 2009

RECENTLY DECIDED CASES FROM THE FIRST COURT OF APPEALS IN HOUSTON, TEXAS

November 30, 2009

Civil Causes Decided:

Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia) (fatal car wreck, negligent entrustment claim)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00572-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased v. G & H Towing Company Appeal from Probate Court No 1 of Harris County

Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia)
AFFIRM TC JUDGMENT: Opinion by Justice Sam Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00837-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased v. William C. Colson
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

In re McLane (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(per curiam)
DISMISS PETITION FOR WRIT OF HABEAS CORPUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-08-00763-CV In re Michael McLane Appeal from 309th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz

NOV. '09 CIVIL CASE TABLE

November 25, 2009

Civil Causes Decided:

Hourani v. Katzen (Tex.App.- Houston [1st Dist.] Nov. 25, 2009)(Higley) (suit for declaratory relief, dispute over restrictive covenants in a residential subdivision, defense of waiver, estoppel, UDJA attorney's fees, appointment of master in chancery)
AFFIRM TC JUDGMENT: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-07-00971-CV Monzer Hourani and Carlton Park Owner's Association v. Jonathan Katzen
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Jennifer Walker Elrod

Criminal Causes Decided:

November 23, 2009

Civil Causes Decided:

WPS, Inc. v. Enervest Operating, LLC (pdf) (Tex.App.- Houston [1st. Dist.] Nov. 23,2009)(Taft)
(jury charge error claim rejected, juror misconduct affidavit properly struck as inadmissible)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00759-CV WPS, Inc. v. Enervest Operating, LLC
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood

DISMISS PETITION FOR WRIT OF INJUNCTION: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00765-CV In re Albert Morris
Appeal from County Court at Law No 4 of Fort Bend County

DISMISS PETITION FOR WRIT OF INJUNCTION: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00766-CV In re Albert Morris
Appeal from County Court at Law No 4 of Fort Bend County

DISMISS PETITION FOR WRIT OF INJUNCTION: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00767-CV In re Albert Morris
Appeal from County Court at Law No 4 of Fort Bend County

Criminal Causes Decided:

November 20, 2009

Civil Cases Decided

In re Osornia (Tex.App.- Houston [1st Dist.] Nov. 20, 2009)(per curiam)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00535-CV In Re Fernando Osornia
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Robert Schaffer

Criminal Causes Decided: None

November 19, 2009

Civil Causes Decided:

DISMISS APPEAL 11/19 11/19: Per Curiam (nonpayment of fees, challenge to affidavit of indigence sustained)
Before Justices Keyes, Alcala and Hanks
01-07-00322-CV Michael Washington v. UTMB; et al.
Appeal from County Civil Court at Law No 4 of Harris County

DISMISS APPEAL 11/19: Per Curiam (failure to designate items for clerks record on appeal)
Before Justices Jennings, Higley and Sharp
01-07-00358-CV Ralph O. Douglas v. American Title Company
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Cantu v. McKinney (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley)
(sanctions, injunction, challenge to agreed judgment, Rule 11 agreement)
(challenge to agreed judgment barred by acceptance of benefits doctrine)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-07-00638-CV Tony Cantu v. Wade E. McKinney, Jr., Rebecca McKinney, Justin McKinney, Daniel Broussard, Craig Dehaan, Jonnie Harker, Epernay Homeowners Association
Appeal from 129th District Court of Harris County
Trial Court Judge: Hon. Grant Dorfman

Niessen Velasco v. Ayala (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley) (void judgment)
(motion for new trial, service by publication, service of process on defendant in foreign country)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-07-01053-CV Betsabe Ivonne Niessen Velasco v. Alfonso Ignacio Ayala
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster

Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00481-CV Graham Mensa-Wilmot v. Smith International, Inc.
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray

DISMISS APPEAL 11/19: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00853-CV Albert Jerome Wallace, Jr. v. Dianna Lynn Wallace
Appeal from County Court at Law No 3 of Galveston County

Siddiqui v. Unlimited Asset Recovery, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Sharp)
(credit card debt suit, transfer from JP court to county court, notice of appeal not timely, interlocutory appeal not authorized)
DISMISS APPEAL 11/19: Opinion by Justice Sharp
Before Justices Jennings, Higley and Sharp
01-09-00026-CV Iram Siddiqui v. Unlimited Asset Recovery, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

Woofter, M.D. v. Benitez (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Sharp) (HCLC, denial of defendant's motion to dismiss affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Sharp
Before Justices Jennings, Higley and Sharp
01-09-00161-CV Aaron Lee Woofter, M.D. Danny Chu, M.D., Johnathan Charles Daniel, M.D. and Fred Milton Sutton, Jr. M.D. v. Molly Benitez, Individually and as Representative of the Estate and Kazi M. Islam
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: The Honorable Kathleen S Stone

DISMISS APPEAL 11/19: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00170-CV Priscilla Celestine v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County
Trial Court Judge: Hon. Pat Shelton

Santi v. UTHSC at Houston (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (public employment dispute, discrimination, retaliation under the TCHRA) (plea to the jurisdiction granted)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00186-CV Kristi Santi v. The University of Texas Health Science Center at Houston, A Component Institution of the University of Texas System
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan

City of Houston v. Norcini (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley) (unconstitutional taking - flood control ordinance, ripeness issue, denial of plea to the jurisdiction affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-09-00426-CV The City Of Houston v. Bruce A. Norcini
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey

DISMISS APPEAL 11/19: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00549-CV Eduardo S. Gutarra v. Adriana Velez Thames
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Robert Newey

DISMISS APPEAL 11/19: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00918-CV Theraworks, Inc. v. Tom Arriola
Appeal from 270th District Court of Harris County

Lakota Resources, Inc. v. Pathex Petroleum, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(per curiam) (severance on appeal, vacate judgment pursuant to settlement agreement)
SET ASIDE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR RENDITION OF JUDGMENT IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00955-CV Lakota Resources, Inc. v. Pathex Petroleum, Inc. and Dernick Resources, Inc.,
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison

November 17, 2009

Civil Causes Decided: None


November 12, 2009

Civil Causes Decided:

Offord v. West Houston Trees, LLP (pdf) (Tex.App.- Houston [1st Dist.] Nov. 12, 2009)(Bland) (bill of review, motion for summary judgment, mental legal competency issue)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Sharp
01-08-01027-CV Diana G. Offord, as Guardian of the Estate of Winter Gordon, Jr., a/k/a Winter Gordon Sr. v. West Houston Trees, L.L.P.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00333-CV Tina Southworth v. Farmers Mutual Protective Association of Texas
Appeal from 284th District Court of Montgomery County
Trial Court Judge: Judge Cara Wood

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00486-CV In the Matter T.T.L. v. The State of Texas
Appeal from County Court at Law of Waller County
Trial Court Judge: Hon. June Jackson

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00550-CV Richard E. O'der III and Randy E. O'Der v. City of Stafford
Appeal from County Court at Law No 4 of Fort Bend County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00642-CV In re Jesus Mejia
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne

DISMISS APPEAL: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00750-CV Zachry Industrial, Inc., f/k/a/ Zachry Construction Corporation and incorrectly sued as Zachry GP Holdings, LLC ( hereinafter " Zachry" v. Lazaro Pimentel
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Dion Ramos

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00752-CV Brian Smith v. Enterprise Bank
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Hon. Thomas R. Culver III

DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00841-CV Merit Electric Company Ltd. v. Jerry Duane Lilley and Tag Electric Company, L.P.
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. Dan Hinde

November 10, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam (mandamus re child custody order denied)
Before Justices Jennings, Higley and Sharp
01-09-00929-CV In re Dionne Malaika Mukuro
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Hon. Ronald Pope

November 6, 2009

Civil Causes Decided: None this day

November 5, 2009

Civil Causes Decided:

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-07-00163-CV Donald C. Jackson v. Texas Board of Pardons and Paroles
Appeal from 133rd District Court of Harris County
Trial Court Judge: Lamar McCorkle

DISMISS APPEAL: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-07-00280-CV Donald Jackson v. Texas Board of Pardons & Parole
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Tow v. Pagano (Tex.App. - Houston [1st Dist.] Nov. 5, 2009)(Higley) (no judicial estoppel based on nondisclosure of med-mal cause of action as asset in bankruptcy suit, suit by trustee no time-barred, relationship between federal bankruptcy and state court proceedings)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley
Before Justices Higley, Sharp and Mirabal
01-07-00464-CV Rodney Tow, Trustee for the Bankruptcy Estate of Erwina v. Scott K. Pagano, D.C. and Campbell Chiropractic Wellness Center
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach

DISMISS APPEAL 11/5: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00545-CV Freddie L. Walker v. K.M. McDougald, et al.
Appeal from County Court at Law No 2 & Probate Court of Brazoria County
Trial Court Judge: Hon. Mark Holder

Andy's Sunmart #352, Inc. v. Reliant Energy Retail Services (Tex.App.- Houston [1st Dist.] Nov. 5, 2009) (Jennings) (sworn account judgment reversed, reasonableness of charges not established) (quantum meruit claim also fails)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00890-CV Andy's Sunmart #352, Inc., Holcombe Sunmart Inc., aka Sunmart #139 and Adnan A. Najm, Individually v. Reliant Energy Retail Services
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

General Metal Fabricating, Inc. v. Stergiou (Tex.App.- Houston [1st Dist.] Nov. 5, 2009)(Hanks) (Court lacks jurisdiction over this case because the order entitled "Final Judgment" in the underlying suit was, in fact, interlocutory)(finality of judgment as prerequisite for appeal)
DISMISS APPEAL: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00921-CV General Metal Fabricating, Inc., GMF Leasing, Inc., and Arnold Curry v. John Stergiou and Main Marine Repair and Industrial Cleaning, Co.
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Stewart & Stevenson, L.L.C. v. Galveston Party Boats, Inc. (Tex.App.- Houston [1st Dist.] Nov. 5,2009)(Keyes) (consolidated interlocutory appeal and petition for writ of mandamus challenging the trial court’s order denying a motion to compel arbitration)(court of appeals dismisses the interlocutory appeal for lack of jurisdiction and denies the petition for writ of mandamus) (no valid underlying agreement to arbitrate dispute) (FAA vs. TAA)
DISMISS APPEAL: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-09-00030-CV Stewart & Stevenson, L.L.C., and MTU Detroit Diesel, Inc. v. Galveston Party Boats, Inc., and Boat Service of Galveston
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-09-00111-CV In re Stewart & Stevenson, LLC, MTU Detroit Diesel, Inc.
Appeal from 405th District Court of Galveston County

Morris, MD v. Umberson (Tex.App.- Houston [1st Dist.] Nov. 5, 2009)(Jennings) (HCLC, interlocutory appeal re extension of deadline for expert report not authorized and dismissed for want of jurisdiction) DISMISS APPEAL: Opinion by Justice Jennings (Because section 51.014(a)(9) plainly prohibits interlocutory appeals of orders granting extensions, appeal is premature and is dismissed for lack of jurisdiction)(attempted interlocutory appeal dismissed for lack of jurisdiction)
Before Justices Jennings, Higley and Sharp
01-09-00644-CV Michael Morris, M.D.'s v. Mary Umberson
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. Dan Hinde

November 4, 2009

Civil Causes Decided:

Senko v. BP Products North America, Inc. (Tex.App.- Houston [1st Dist.] Nov. 4, 2009)(Keyes)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks)
01-08-01022-CV David Senko v. BP Products North America, Inc., and Don Parus
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

November 3, 2009

Civil Causes Decided:

In re Jennings (Tex.App.- Houston [1st Dist.] Nov. 3, 2009)(per curiam) (mandamus relief denied re: order for a physical examination)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-09-00907-CV In re Thomas E. Jennings, II
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Dion Ramos

Released Opinions

November 2, 2009

Civil Causes Decided:

In re Domino's Pizza, LLC (Tex.App. - Houston [1st Dist.] Nov. 2, 2009)(per curiam) (Mandamus denied re: denial of "Motion to Determine Jury Questions")
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Higley and Sharp
01-09-00863-CV In re Domino's Pizza, L.L.C., and Hugo Espinosa
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble