December 2009 Fourteenth Court of Appeals Decisions

CASES DECIDED BY HOUSTON'S
FOURTEENTH COURT OF APPEALS IN DECEMBER 2009

December 31, 2009

Civil Causes Decided:

DISMISSED: Per Curiam (dismissal after voluntary bankruptcy case closed)
Before Justices Frost, Boyce and Sullivan)
14-05-00477-CV Jose Santiago and Amelia Santiago v. Walmart Stores Inc., Walmart Supercenter,
Store #849, The Chemins Company, Inc. and Metabolife International, Inc.
Appeal from 280th District Court of Harris County
Trial Court Judge: Tony Lindsay

American Golf Corporation v. Sugar Creek Country Club (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)
(per curiam) (joint motion to reverse the judgment and remand the cause to the trial court in accordance
with a settlement agreement granted)
REVERSED AND REMANDED: Per Curiam
Before Justices Anderson, Frost and Boyce)
14-08-00180-CV American Golf Corporation v. Sugar Creek Country Club
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge: The Honorable James H Shoemake

Jedkins v. Varghese (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam)
(dismissal with prejudice of pro se inmate suit affirmed)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-08-00895-CV Larry Wayne Jedkins v. Mariamma Varghese, Et Al
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman

Hughes v. Bay Area Montessori Houston, Inc. (Tex.App. - Houston [14th Dist.] Dec. 31, 2009)(Frost)
(interlocutory appeal, professional malpractice suit)
DISMISSED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc.
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher

In re Strebel (pdf) (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(Yates)
(mandamus re order for deposit of $250,000 into registry denied)
MOTION OR WRIT DENIED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Frost and Brown)
14-09-00819-CV In Re Douglas W. Strebel
Appeal from 10th District Court of Galveston County
Trial Court Judge: Honorable David Garner

Ex parte Strebel (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam)
MOTION OR WRIT DENIED: Opinion by Justice Leslie Brock Yates
Before Justices Brock Yates, Frost and Brown)
14-09-00820-CV Ex Parte Douglas W. Strebel
Appeal from 10th District Court of Galveston County
Trial Court Judge: Hon. David Garner

December 30, 2009

Civil Causes Decided:

In re John Doe (Tex.App. - Houston [14th Dist.] Dec. 30, 2009)(Minimalist opinion Sullivan)
(mandamus regarding motion for stay denied)
MOTION OR WRIT DENIED: Opinion by Justice Sullivan
Before Justices Frost, Boyce and Sullivan
14-09-01050-CV In Re John Doe and Jane Doe, Individually and a/n/f James Doe, a minor
Appeal from 80th District Court of Harris County
Trial Court Judge: Larry Weiman

December 29, 2009

Civil Causes Decided:

In re Vossdale Townhouse Ass'n (Tex.App.- Houston [14th Dist.] Dec. 29, 2009)(Seymore)
(sanctions for discovery abuse, attorney disqualification not authorized as sanction, fundamental right to
their counsel of choice)(mandamus granted)
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00723-CV In Re Vossdale Townhouse Association, Inc.; John B. Baird, as President of the
Vossdale Townhouse Association, Inc., and Individually; and Pauletta Gwen Holley Gilbert, as Secretary
of the Vossdale Townhouse Association, Inc., and Individually
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart

December 22, 2009

Civil Causes Decided:

Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Sullivan)(oil and gas law, commercial contract dispute, direct vs. consequential damages) .
REVERSED AND REMANDED: Opinion by Justice Sullivan
Before Chief Justice Hedges, Justices Hudson and Sullivan
14-08-00086-CV Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., DMT Holdings, LP, DMT G.P., LLC and Chevron U.S.A. Inc.
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Brown

Skylane West Ltd. v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009) (Seymore)
(plea to the jurisdiction, lack of standing, not property owner, thus no standing to litigate) (trial court properly concluded it lacked subject-matter jurisdiction over the claims of all appellants)
AFFIRMED: Opinion by Justice Charles Seymore
Before Justices Seymore, Brown and Sullivan
14-08-00507-CV Skylane West Ltd., Houston Skylane One LLC a/k/a Skylane West Ltd., an Skylane West Apartments, as the Property Owners and the Property Owners v. Harris County Appraisal District
Appeal from 113th District Court of Harris County
Trial Court Judge: Patricia Ann Hancock

DL Louetta Village Square LP v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Seymore) (dismissal for lack of standing affirmed)(before use of a common name is adequate to justify substitution under Rule 28, a party must show it was in fact doing business under that common name, dba)
AFFIRMED: Opinion by Justice Seymore
Before Justices Seymore, Brown and Sullivan
14-08-00549-CV DL Louetta Village Square LP and JL Louetta Village Square LP a/k/a Nomura Credit Capital Inc as the Property Owners and the Property Owners v. Harris County Appraisal District
Appeal from 280th District Court of Harris County
Trial Court Judge: Tony Lindsay

Nguyen v. Chapa (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Hedges) (real estate transaction, deeds, actual notice, constructive notice, bona fide purchaser, bona fide
mortgagee)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00634-CV Hue Nguyen & Southwestern National Bank v. Alonso Chapa
Appeal from 269th District Court of Harris County
Trial Court Judge: John T. Wooldridge

In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam denial of mandamus) (multiple procedural deficiencies in seeking mandamus relief in the court of appeals)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00942-CV In Re Ted Lawrence Robertson
Appeal from 312th District Court of Harris County
Trial Court Judge: Hon. Robert Hinojosa

In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam) (defective petition for mandamus, inadequate record)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-01053-CV In Re Ted Lawrence Robertson
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

December 17, 2009

Civil Causes Decided:

Azad v. Aaron Rents Inc. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 17, 2009)(Seymore) (commercial lease case, attorney's fees)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-01087-CV Hardam S. Azad and Manohar S. Mann v. Aaron Rents Inc. d/b/a Aaron Rents, Inc. d/b/a Texas Aaron Rents, Inc
Appeal from 333rd District Court of Harris County
Trial Court Judge: Joseph J. Halbach

December 15, 2009

Civil Causes Decided:

LJ Charter, LLC v. Air America Jet Charter, Inc. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Anderson)(one satisfaction rule double recovery for a single injury, application of settlement credits) (unjust enrichment)
AFFIRMED AS MODIFIED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00534-CV LJ Charter, LLC C.N. Schwarz, III, R & S Aircraft Investments, LLC, CNS Ventures, LLC, and Starflite Management Group, Inc. v. Air America Jet Charter, Inc.
Appeal from 165th District Court of Harris County
Trial Court Judge: Elizabeth Ray

Santex Builders, LLC v. Guefen Construction, LLC (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Boyce)(default judgment set aside, defective service of citation)
Santex Builders, LLC (“Santex”) and Curtis R. Medlin appeal the trial court’s final default judgment in favor of Guefen Construction, LLC (“Guefen”) and the trial court’s order denying their motion to set aside default judgment and alternative motion for new trial. Because we conclude service of process was defective, we reverse and remand.
REVERSED AND REMANDED: Opinion by Justice Boyce
Before Justices Anderson, Seymore and Boyce
14-08-00840-CV Santex Builders, LLC and Curtis R. Medlin v. Guefen Construction, LLC Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray

UTMB at Galveston v. Simmons (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Boyce) (HCLC, denial of motion to dismiss affirmed in interlocutory appeal)
AFFIRMED: Opinion by Justice Bill Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00246-CV University of Texas Medical Branch at Galveston, Texas v. Marvin Simmons Appeal from 122nd District Court of Galveston County
Trial Court Judge: John A. Ellisor JR.

Frank v. Brittany Square Apartments (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Hedges) (eviction suit appeal, error in bringing appeal, incomplete appellate record, DWOJ on appeal) In this forcible detainer suit, the tenant appealed the judgment of the justice court to the county court at law. She asserts that the county court upheld the justice court’s judgment and granted possession of the premises to the landlord, but she identifies no appealable order in the record. We therefore dismiss this appeal for want of jurisdiction.
DISMISSED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00288-CV Linda Frank v. Brittany Square Apartments
Appeal from County Court at Law #4 of Fort Bend County
Trial Court Judge: Sandy Bielstein

December 10, 2009

Civil Causes Decided:

EZ Postal Plus v. Capital One, N.A. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 10, 2009)(per curiam dismissal)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00889-CV EZ Postal Plus and Bilal Farahshah v. Capital One, N.A.
Appeal from County Civil Court at Law No 3 of Harris County

McCarroll v. My Sentinel, LLC (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Hedges) (personal liability imposed on officers and directors based on forfeiture of corporate charter, res judicata not applicable)AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01171-CV Steven and Robbie McCarroll v. My Sentinel, LLC.,
Appeal from 405th District Court of Galveston County
Trial Court Judge: Wayne J. Mallia

In Interest of CW (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Boyce) (appeal from a final order terminating parental rights)
AFFIRMED: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00306-CV In the Intererst of C.W., Jr., I.S., E.R., & D.G
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough

December 8, 2009

Civil Causes Decided:

Shanley v. First Horizon Home Loan Corp. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan) (misrepresentation, reliance element)
Because the Shanleys failed to present evidence raising a genuine issue of material fact as to the element of reliance, we conclude that the trial court properly granted summary judgment to Digital Draw on their negligent misrepresentation claim. Issue one as to Digital Draw is overruled.
AFFIRMED: Opinion by Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-07-01023-CV Michael E. Shanley and Veronica R. Shanley v. First Horizon Home Loan Corp
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Shanley v. Digital Draw Network (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan)
(Motion for Leave to Amend, Expert Witness Affidavit, Motion for Continuance)
AFFIRMED: Opinion by Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-08-00060-CV Michael E. Shanley and Veronica R. Shanley v. Digital Draw Network
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Ex Parte S.C. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Seymore)(expunction appeal)
Appellant, Texas State Securities Board appeals from an expunction order concerning files and records relating to appellee, S.C. In its sole issue, the Board contends the order is broader than authorized by the statute governing expunction. Because we agree, we modify the order and affirm as modified.
AFFIRMED AS MODIFIED: Opinion by Justice Charles Seymore
Before Justices Seymore, Brown and Boyce
14-08-00381-CV Ex Parte S.C
Appeal from 189th District Court of Harris County
Trial Court Judge: Bill Burke

City of Alvin v. Zindle (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (oil and gas law, mineral estate, tax lien foreclosure)
AFFIRMED AS MODIFIED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00458-CV City of Alvin v. Sallie Zindle
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta

McKinney & Moore, Inc. v. City of Longview, Tx (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (Hedges)(plea to the jurisdiction governmental immunity)
AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00628-CV McKinney & Moore, Inc. v. City of Longview, Texas
Appeal from 188th District Court of Gregg County
Trial Court Judge: Judge David Scott Brabham

In Interest of JJJ (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Hedges)(SAPCR dispute)
Kelli Lane Lowery appeals from the trial court’s dismissal for want of jurisdiction of Lowery’s action seeking joint managing conservatorship of J.J.J., a child. J.J.J. had been adopted in a prior action in a different court by appellee, Roderick L. Jones. In her first issue on appeal, Lowery challenges the trial court’s dismissal of her claims on jurisdictional grounds. In her second issue, she argues that the trial court should have permitted her to (1) present evidence in support of her standing to bring the lawsuit, and (2) amend her pleadings. Finding that the trial court erred in dismissing for want of jurisdiction, we reverse and remand for further proceedings below.
REVERSED AND REMANDED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01015-CV In the Interest of J.J.J., a Child
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne

Citrin Holdings, LLC v. Minnis (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Boyce) (denial of special appearance affirmed in interlocutory appeal)
Appellants Jacob Citrin, Citrin Holdings LLC, Cargo Investors LLC, and Cargo Investors II LLC challenge the trial court’s order denying their special appearances. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon 2008). We affirm.
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-09-00186-CV Citrin Holdings, LLC, Jacob Citrin, Cargo Investors LLC, and Cargo Investors II LLC v. Matthew Minnis and Cullen 130, LLC
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

December 3, 2009

Civil Causes Decided:

Sharma v. Routh (pdf) (Tex.App.- Houston [14th Dist.] Dec. 3,2009)(Concurrence by Hedges)(divorce, characterization of property)
Because the trial court mischaracterized a portion of the marital property, namely the trust income from Alice's testamentary trusts, the majority correctly reverses and remands this case. Although I agree with the majority's disposition, I would reverse and remand for different reasons. I therefore concur in the judgment only and write separately to explain my reasons.
CONCURRING: Concurring Opinion by Chief Justice Adele Hedges
14-06-00717-CV Timothy L. Sharma v. Lisa C. Routh
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York

Walker v. Rangel (pdf) (Tex.App.- Houston [14th Dist.] Dec. 3, 2009)(Seymore) (A jury found Rangel’s negligence did not proximately cause the accident. Walker now appeals, contending the trial court erred in admitting opinion testimony of Senior Police Officer Daryl Woods of the Houston Police Department and Rangel’s accident reconstruction expert, Dale King. After a thorough review of the appellate record, we conclude the trial court erroneously admitted testimony) (harm analysis re admission/exclusion of evidence)
REVERSED AND REMANDED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00643-CV Juanita Walker v. April Rangel
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd

December 1, 2009

Civil Causes Decided: