Sunday, April 19, 2009

April 2009 Decisions of the 14th Court of Appeals - Houston, TX


April 2009 Civil Appellate Opinions from the Fourteenth Court of Appeals in Houston

Cano v. Nino's Paint and Body Shop (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce) (admissibility of business records, business records affidavit, failure to disclose documentary evidence in discovery, attorneys fees on breach of contract, presentment of claim as condition precedent) AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce 14-08-00033-CV Richard Cano v. Nino's Paint and Body Shop and Jerry NinoAppeal from County Court at Law No 2 of Galveston County Trial Court Judge: Judge C. G. Dibrell III

Vaughn v. Hicks (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(per curiam)(pro se prison inmate suit should have been dismissed without prejudice, rather than with prejudice) AFFIRMED AS MODIFIED: Per Curiam Before Justices Seymore, Brown and Sullivan 14-08-00726-CV Carlos A. L. Vaughn v. Natrenia L. Hicks, Russell D. Mittach, Jay A. North, Darron A. Lane, Wade A. King, Jr., Joe N. Ross, Freddie M. English, and Gweldolyn J. Spurlock Appeal from 3rd District Court of Anderson County Trial Court Judge: Mark A. Calhoon

Brockert v. Wyeth Pharmaceuticals, Inc. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Brown)(federal preemption, product liability drugs FDA, defective design claim) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-07-00445-CV Susan Brockert v. Wyeth Pharmaceuticals, Inc., Kay Lamberth, Lana Pavlesic, James Ty, Ann Callan, and Patrick Tyrrell Appeal from 151st District Court of Harris County Trial Court Judge: Caroline Elizabeth Baker

BCM v. Pokluda (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Boyce)(health care liability claim, adequacy of expert report, interlocutory appeal) DISMISSED: Opinion by Justice Bill Boyce Before Justices Brock Yates, Seymore and Boyce 14-07-00962-CV Baylor College of Medicine v. Bernadette Pokluda Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker

Shelton v. UTMB Galveston (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Anderson) (premises liability vs. health care liability suit, characterization of claim, frivolous suit / appeal sanctions) AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00994-CV Minnie Shelton Individually and as Representative of the Estate of Annie Mae Brown v. The University of Texas Medical Branch at Galveston and The University of Texas Medical Branch at Galveston d/b/a John Sealy Hospital Appeal from 405TH District Court of Galveston County Trial Court Judge: Wayne J. Mallia

Jackson v. Textron Fin. Corp. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Boyce) (no answer default judgment reversed, answer was on file, general vs. sworn denial and counterclaim) REVERSED AND REMANDED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce 14-07-01011-CV Robert W. Jackson v. Textron Financial Corporation and Longagribusiness LLC N/K/A Farmtrac North America Appeal from 80th District Court of Harris CountyTrial Court Judge: Lynn M. Bradshaw-Hull

BCM v. Pokluda (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Boyce)(health care liability claim, adequacy of expert report) AFFIRMED: Opinion by Justice Boyce Before Justices Brock Yates, Seymore and Boyce 14-07-01096-CV Baylor College of Medicine v. Bernadette Pokluda Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker

In Interest of RCR (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Hedges) (termination of parental rights, constitutional issue waived, frivolousness)AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00904-CV In the Interest of R.C.R., Jr., A Child Appeal from County Court at Law of Washington County Trial Court Judge: Matthew Alfred Reue

Nogle & Black Aviation, Inc. v. Faveretto (Tex.App.- Houston [14th Dist.] Apr. 9, 2009)(Yates)(special appearance, personal jurisdiction) AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Boyce 14-08-00272-CV Nogle & Black Aviation, Inc. and Charles Judson Nogle v. Anna Maria Faveretto as Next Friend of Alejandro Migliori and Mariana Migliori, Minors, AmeriCountyMigliori as Administrator of the Estate of Peitro Foster MiglioriAppeal from Probate Court No 1 of Harris County Trial Court Judge: Russel P. Austin

Ob-Gyn Assoc, P.A. v. McCoy (Tex.App.- Houston [14th Dist.] Apr. 9, 2009)(Brown)(HCLC, ILA, motion to dismiss, expert report requirement) AFFIRMED: Opinion by Justice Sullivan, Opinion by Justice Brown, Opinion by Justice Boyce Before Justices Brown, Boyce and Sullivan 14-08-00762-CV Obstetrical and Gynecological Associates, P.A. v. Andre McCoy, Individually and as Permanent Guardian of Shannon Miles McCoy, an incapacitated person Appeal from Probate Court No 3 of Harris County Trial Court Judge: Rory R. Olsen

Meehl v. Wise (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Hedges) (home owner law, real estate law, restrictive covenants, discriminatory zoning, group community homes for mentally impaired) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Guzman and Brown 14-07-00592-CV Debra J. Meehl and Mark Meehl, Individually and as Officers and Agents of the Maureen J. Meehl Bipolar/BPD Foundation, Inc., and the Maureen J. Meehl Bipolar/BPD Foundation, Inc. v. Alfred M. Wise, Jr., Ketherine D. Wise, John P. Hundl, Donna G. Hundl, Wilmer Conner, Margie Ann Alexander, John T. Horn, Martha G. Horn, John T. Horn, Jr., Christopher Blake Broadway, Paula Lee Broadway, James Zimmer, Mildred Zimmer, Et Al Appeal from 239th District Court of Brazoria County Concurring Opinion by Justice Guzman

In Interest of RCT, LJT, CLT (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost) (child support lien by operation of law, definition of arrearage, federal tax intercept)AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00642-CV In Interest of R.C.T., L.J.T., C.L.T. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne

Mallia v. Mallia (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Yates)(judgment on mediated settlement agreement MSA, revocation of consent, rescission, rescinding agreement prior to judgment) AFFIRMED: Opinion by Justice Brock Yates 14-07-00695-CV Sharon Fountain Mallia and Charles Christopher Mallia v. Sharon Biering Mallia Before Justices Brock Yates, Seymore and Boyce Trial Court Judge: Russell P. Austin

Trojacek v. Estate of Kveton (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Sullivan)(real estate dispute, constructive trust, cancellation of deeds, breach of fiduciary duty,lis pendens, property transfer in expectation of marriage, lack of consideration)AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Sullivan Before Justices Brock Yates, Guzman and Sullivan) 14-07-00911-CV Theresa Elizabeth Trojacek and Ronald David Ludwig v. Estate of Magnolia Kveton Appeal from County Court at Law of Austin County

Richard v. Dretke (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost)(pro se litigants, IFP prisoner inmate suit dismissal, frivolous finding)AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce) 14-08-00714-CV Anthony Joseph Richard v. Douglas Dretke, Et Al. Appeal from 349th District Court of Houston County

McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Subst. op. by Hedges) (SAPCR divorce attorneys fees cannot be ordered as additional child support enforceable by contempt) AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges Before Price, Chief Justice Hedges, Justice Boyce 14-06-00470-CV Christopher Joseph McCloskey v. Anne Miriam McCloskey Appeal from 387th District Court of Fort Bend County Trial Court Judge: Robert J. Kern

Weissman v. Unifund CCR Partners (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Yates) (debt collection suit, FDCPA claim) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Boyce14-07-00863-CV Janice M. Weissman v. Unifund CCR Partners Assignee of Discover Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey

In Interest of CAB (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Frost)(termination of parental rights) AFFIRMED: Opinion by Justice Frost AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00360-CV In the Interest of C.A.B Trial Court Judge: John Phillips