Friday, July 10, 2009

June 2009 First Court of Appeals Opinions in Civil Cases


June 26, 2009 [ click for docket ]

In Re The Methodist Hospital (Tex.App. Houston [1st Dist.] Jun. 26, 2009)(per curiam denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Taft and Sharp 01-09-00576-CV In re The Methodist Hospital Appeal from 125th District Court of Harris County Trial Court Judge: Hon. Kyle Carter

June 25, 2009

DBHL, Inc. v. Moen Inc. (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (product liability, no indemnity owed) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane Bland Panel members: Justices Taft, Bland and Sharp 01-08-00046-CV DBHL, Inc. and Dearborn HL, S. de R.L. de C.V.v. Moen Incorporated and Moen Sonora S.A. de C.V. Appeal from 295th District Court of Harris County Trial Court Judge: Hon. Tracy Christopher

Solomon-Williams v. Desai (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (med mal suit, failure to timely file expert report, constitution challenges, due process, open courts) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane N. Bland Panel members: Justices Keyes, Hanks and Bland 01-08-00733-CV Donna Solomon-Williams v. Shetal Nicholas Desai, Individually, and d/b/a Foot Centers of America, Foot Centers of Texas, PLLC, and The Methodist Hospital Appeal from 268th District Court of Fort Bend County

Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (wrongful death, dump truck wreck, negligent hiring, training, supervision, training, and negligence per se claims)(no imposition of vicarious liability through proof of an employer-employee relationship, right to control test for employee or independent contractor status) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane Nenninger Bland Panel members: Justices Taft, Bland and Sharp 01-08-00850-CV Luci Martinez, Individually and the Personal Representative of the Estate of Luis Martinez; and Jose Martinez and Maria Martinez v. Moises Melendez Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Patricia J. Kerrigan

East Houston Estate Apartments, LLC v. City of Houston (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Keyes) (city held immune, City of Mexia v. Tooke progeny, statutory waiver for breach of contract suits against local governments not applicable) (trial court did not err in sustaining the City's plea to the jurisdiction) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes Panel members: Justices Keyes, Hanks and Bland 01-08-00966-CV
East Houston Estate Apartments, L.L.C. v. The City of Houston Appeal from 333rd District Court of Harris County Trial Court Judge: Hon. Lamar McCorkle

Heinrich v. Christian (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(case settled)SET ASIDE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR RENDITION OF JUDGMENT IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam Panel members: Justices Keyes, Hanks and Bland 01-08-00984-CV Timothy Heinrich and Boyar & Miller, P. C. v. James Wesley Christian and Christian & Smith , L.L.P. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton Spiller v. Richardson

Folicure, Inc. v Hair Club for Men, LLC (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (noncompete nonsolicitation agreement enforced, temporary injunction granted and affirmed on appeal) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Panel members: Justices Keyes, Hanks and Bland 01-09-00024-CV Folicure, Inc., Mallory York, Bennetta Reynolds, Hamilton Daniels, and ALNA Holdings, L.L.C., d/b/a Folicure v. Hair Club for Men, LLC d/b/a for Men and Women Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton

Martin v. Martin (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland) (untimely notice of appeal in SAPCR modification action, attempted appeal dismissed for lack of jurisdiction) DISMISS APPEAL: Opinion by Justice Bland Panel members: Justices Keyes, Hanks and Bland 01-09-00136-CV Mayuko Saeki Martin v. Timothy E. Martin Appeal from 328th District Court of Fort Bend County In re Pernia

June 18, 2009

Aeternia Enterprises, U.S.A., v. Magnitogorsk Steel and Wire Works (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Higley) (order compelling arbitration is not an appealable judgment, DWOJ)(arbitration disputes)DISMISS APPEAL: Opinion by Justice Higley Before Justices Jennings, Alcala and Higley 01-05-00964-CV Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works Appeal from 133rd District Court of Harris CountyTrial Court Judge: Hon. Lamar McCorkle

Fogal v. Stature Construction, Inc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Alcala)(improper modification of arbitration award, adding of post-judgment interest, interest deleted, otherwise confirmation of arb award was proper) MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Alcala Before Justices Taft, Keyes and Alcala 01-07-00456-CV Mary Fogal and Robert Fogal v. Stature Construction, Inc., Jorge Casimiro, Tom Thibodeau and Bernie Kane Appeal from 80th District Court of Harris County Trial Court Judge: Hon. Lynn Bradshaw-Hull

Dolan v. Dolan (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Higley)(probate law, trustee, breach of fiduciary duty, preservation of error) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Alcala and Higley 01-07-00694-CV George Diehl Dolan v. Zelie M. Dolan Appeal from 281st District Court of Harris County Trial Court Judge: Hon. David J. Bernal

Walker v. DFPS (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Hanks)(termination of parental rights, ineffective assistance of counsel claim) (appeal with dissenting opinion) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-07-00867-CV Frederick Dewayne Walker v. Department of Family and Protective Services Appeal from 314th District Court of Harris County Trial Court Judge: Hon. John Phillips
Dissenting Opinion by Justice Jennings in Walker v. DFPS termination case

Gundogan v. Woodgrove Condominium Assoc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes)(suit for damages against Condo Assoc. re: maintainance, appeal from justice court to county court, no appeals bond posted, appeal dismissed for lack of jurisdiction in county court DWOJ) VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Keyes Before Justices Jennings, Keyes and Higley 01-07-00876-CV Peter Kemal Gundogan v. Woodgrove CondominumAppeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: Hon. R. Jack Cagle

Cantu v. Salaeh (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes) (breach of contract suit, post-answer default judgment, appellant had reasonable notice of new trial date) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Hanks and Bland 01-08-00017-CV Gerald Lee Cantu and Mickaeline Cantu v. Shawki Salaeh Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

Rapid Settlements, Ltd v. Green (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala) (transfer of structured settlement rights, grounds for vacature of arbitration award entered under the Federal Arbitration Act (FAA), applicability of FAA, does the FAA preempt the TAA?, nonexistence of arbitration agreement between the parties, when are nonsignatories bound to by arbitration agreement? nonparties to the agreement, nonsignatories)(arbitrator exceeded his authority in issuing the award. See 9 U.S.C.S. § 10(a)(4).AFFIRM TC JUDGMENT DENYING CONFIRMATION OF ARB AWARD: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley 01-08-00109-CV Rapid Settlements, Ltd. v. Jerry M. Green Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey

Ray v. McMaster (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala)(PROBATE LAW: contractual will finding rejected, judgment reversed)REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala Before Judge Wilson, Justices Alcala and Hanks 01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster Appeal from Probate Court No 4 of Harris CountyTrial Court Judge: Hon. William McCulloch DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Taft and Sharp 01-08-00434-CV Geneva Herrera v. Department of Family and Protective Services Appeal from 257th District Court of Harris County

Robinson v. DPFS (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Taft) (no timely statement of points for termination of parental rights appeal)AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Chief Justice Radack, Justices Taft and Sharp 01-08-00479-CV Tawana Robinson v. Department of Protective and Family Services Appeal from 310th District Court of Harris County Trial Court Judge: The Honorable Lisa Millard

McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Bland)(settlement reached after opinion issued, majority does not withdraw opinion, Justice Sharp would) DISMISS APPEAL: Opinion by Justice Bland Before Justices Taft, Bland and Sharp 01-08-00493-CVJudge: Hon. John Coselli
Tilotta v. Smith (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Bland)(untimely post-judgment motion in termination case, no appellate jurisdicition, DWOJ)DISMISS APPEAL: Opinion by Justice Bland Before Justices Keyes, Hanks and Bland 01-08-00587-CV Michael S. Tilotta v. Dewana Jo Smith Appeal from 257th District Court of Harris County Trial Court Judge: Hon. Judy Warne

Rittger, MD v. Danos (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Hanks)(HCLC expert report sufficiency challenged, interlocutory appeal, ILA) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Keyes, Hanks and Bland 01-08-00588-CV Kevin Rittger, M.D. v. Lou Virgina Danos Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey A. Shadwick

Villagomez Investments, LLC v. Magee (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. by Justice Higley) (unavailable reporter's records, lost or destroyed clerks record, supplemental record, entitlement to new trial) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:Opinion by Justice Higley Before Justices Jennings, Keyes and Higley 01-08-00851-CV Villagomez Investments, L.L.C. v. Janie (Penny) Magee Appeal from 125th District Court of Harris County Trial Court Judge: Hon. Shearn Smith

Harris County, Texas v. Luna (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes) (TTCA: Denial of plea to the jurisdiction affirmed, notice of claim issue under Texas Tort Claim Act) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Hanks and Bland 01-09-00039-CV Harris County, Texas v. Sonia Luna - Prudencio Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

June 11, 2009

Thurman v. Harris County (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Hanks) (TTCA, survivor of passenger in car that fell of ferry and drowned, plea to the jurisdiction improperly granted) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Judge Wilson, Justices Hanks and Bland. Opinion by Justice George C. Hanks, Jr.01-07-00235-CV Joe Thurman, Individually, And As Sole Heir of the Estate of Amanda Rene Thurman v. Harris County, Texas, As a Local Governmental Unit of the State of Texas Appeal from 269th District Court of Harris County Trial Court Judge: The Honorable John T. Wooldridge

Shipley Brothers, Ltd v. Republic National Bank (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings) (conversion, theft, and fraud, Texas Theft Liability Act, election of remedies doctrine, remittitur of the exemplary damages) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Judge Wilson, Justices Jennings and Bland. Opinion by Justice Terry Jennings 01-07-00911-CV Shipley Brothers, Ltd., Shipley Brothers, Inc., Lone Star Investments, Kenneth Shipley and Calvin Junek, Jr. v. Republic National Bank and Robert F. Larson Appeal from County Civil Court at Law No 4 of Harris CountyTrial Court Judge: Hon. Roberta A. Lloyd Concurring and Dissenting Opinion by Justice Bland (subrogation, double recovery, election of remedies)

Green v. Harris County DA's Office (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Sharp)(Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Sharp) (expunction petition denied, frivolous suit dismissal) AFFIRM TC JUDGMENT: Before Justices Taft, Bland and Sharp. Opinion by Jim Sharp 01-07-00917-CV Anthony Ray Green v. Harris County District Attorney's Office, County Clerk of Harris County, and Sheriff of Harris CountyAppeal from 295th District Court of Harris CountyTrial Court Judge: Hon. Tracy Christopher

Leax v. Leax (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Keyes)(suit for annulment, marriage and divorce fraud, serial wife divorcee, pattern of domestic violence allegations, concealment of numerous prior marriages, fraud in the inducement) AFFIRM TC JUDGMENT: Before Justices Keyes, Hanks and Bland. Opinion by Justice Evelyn Keyes01-08-00149-CVJudge: Hon. Jim York

D & KW Family, LP v. Bidinger (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Radack) (property access dispute, easement by necessity, trespass) AFFIRM TC JUDGMENT: Before Chief Justice Radack, Justices Alcala and Hanks. Opinion by Chief Justice Sherry Radack01-08-00260-CV D & KW Family, L.P. v. Kimberly Kay Bidinger and Alfredo Arturo Ballestas Appeal from 190th District Court of Harris CountyTrial Court Judge: Hon. Jennifer Walker Elrod McGlown v. Park

Bosch v. Armstrong (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)(suit barred by judicial communications tort immunity, absolute privilege for communications in legal courtsanctions for baseless claim) AFFIRM TC JUDGMENT: Opinion by Justice Terry Jennings Before Justices Jennings, Alcala and Higley01-08-00847-CV Yigal Bosch v. Mark S. Armstrong and Paul Bailiff and Squire, Sanders & Dempsey L.L.C.Appeal from 280th District Court of Harris CountyTrial Court Judge: The Honorable Tony Lindsay

June 5, 2009 Civil Causes Decided:

In Re Corder (Tex.App.- Houston [1st Dist.] Jun. 5, 2009)(Taft)(child support contempt, civil coercive contempt, criminal contempt, habeas corpus petition premature) DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Tim Taft Before Justices Taft, Bland and Sharp01-09-00386-CV In re Dale Corder Appeal from 245th District Court of Harris CountyTrial Court Judge: Hon. Annette Kuntz

June 4, 2009 Civil Causes Decided:

FCLT Loans Asset Corporation v. First City Fin. Corp. (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Bland) (demutualization dispute, conversion of entity)REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-06-00798-CV FCLT Loans Asset Corporation and Timothy J. Blair, Class Representative v. FIRST CITY FINANCIAL CORPORATION, Appellee/Appellant; J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION AS SUCCESSOR TRUSTEE OF FIRST CITY BANCORPORATION EMPLOYEES RETIREMENT TRUST. Appeal from 152nd District Court of Harris CountyTrial Court Judge: Hon. Kenneth P. Wise

DISMISS APPEAL: Per Curiam 01-07-01112-CV Finis L. Taylor v. Gulf Bayport Chemicals, L.P.Appeal from 215th District Court of Harris CountyTrial Court Judge: Hon. Steven E. Kirkland

Orr Archibald v. Archibald (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Sharp)(attempted post-divorce redivision of benefits fails, divorce decree not ambiguous, res judicata) AFFIRM TC JUDGMENT: Opinion by Justice Sharp Before Chief Justice Radack, Justices Taft and Sharp 01-08-00015-CV Aurore Hope Orr Archibald v. Larry Donald Archibald Appeal from County Court at Law of Washington CountyTrial Court Judge: Hon. Matthew Reue

Briggs Equipment Trust v. HCAD (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Radack)(property tax litigation, valuation of equipment for property tax appraisal purposes, subsequent sales) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00190-CV
Briggs Equipment Trust v. Harris County Appraisal District Appeal from 280th District Court of Harris County

City of Inkster Policeman and FIreman Retirement System v. Kinder (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Alcala) (shareholder derivative action, standing issue after buyout) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley01-08-00308-CV City of Inkster Policeman and Fireman Retirement System, derivatively on behalf of Kinder Morgan, Inc. v. Richard D. Kinder, Michael C. Morgan, William V. Morgan, Fayez Sarofm, Edward H. Austin, Jr., William J. Hybl, Ted A. Gardner, Charles W. Battey, H.A. True, III, James M. Stanford, Stewart A. Bliss, Edward Randall, III, Douglas W.G. Whitehead, Et Al Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble

Gonzalez v. AAG-Las Vegas, LLC (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Wilson, Davie) (challenge to personal jurisdiction, special appearance) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Judge WilsonBefore Chief Justice Radack, Judge Wilson, Justice Alcala 01-08-00377-CV David M. Gonzalez v. AAG-Las Vegas, L.L.C., Ascent Automotive Group, L.P., KW#1 Acquisition Company, L.L.C.--Appeal from 189th District Court of Harris County Trial Court Judge: Hon. William R. Burke. Jr.

Aquilar v. Texas La Fiesta Auto Sales LLC (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Bland) (IFP appeal, finality, no appealable final order judgment) DISMISS APPEAL: Opinion by Justice Bland Before Justices Keyes, Hanks and Bland 01-08-00653-CV Timothy Aguilar v. Texas La Fiesta Auto Sales LLC & Patrick J. Miller and Harris County Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan

American National Ins v. Deutsche Bank (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Radack) (summary judgment appeals appellate procedure, need to challenge all bases for summary judgment) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack 01-08-00791-CVJudge: Hon. Lamar McCorkle
Mark S. McShaffry v. Amegy Bank National Association Appeal from 125th District Court of Harris County

Sunday, July 5, 2009

July 2009 14th Court of Appeals Opinions in Civil Cases


CASES IN WHICH THE FOURTEENTH COURT OF APPEALS ISSUED NOTEWORTHY OPINIONS IN JULY 2009

July 28, 2009

Civil Cases Decided:

Larsen v. Santa Fe ISD (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(Boyce) (public employment,
workers compensation retaliation, exhaustion of administrative remedies not required here)
AFFIRMED: Opinion by
Justice Boyce
Before Justices Frost, Brown and Boyce

14-07-01038-CV Erik Larsen v. Santa Fe Independent School District
Appeal from 10th District Court of Galveston County
Trial Court Judge: DAVID EDWARD GARNER

Grynberg v. Grey Wolf Drilling Co., LP (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(Guzman) (commercial contract dispute, accord and satisfaction defense) (neither party established a right to judgment as a matter of law)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan)
14-08-00101-CV Jack J. Grynberg Individually and d/b/a Grynberg Petroleum Company v. Grey Wolf
Drilling Company, L.P. Appeal from 165th District Court of Harris County
Trial Court Judge: Elizabeth Ray

In Re Van Dyke (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(per curiam denial) (mandamus re: nunc pro tunc judgment) (mandate, subsequent appeals) MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-09-00556-CV In Re Scott Van Dyke
Appeal from 133rd District Court of Harris County

Trial Court Judge:
Hon. Jaclanel McFarland

July 23, 2009

Civil Cases Decided:

Walston v. Anglo-Dutch Petroleum Int., Inc. (Tex.App.- Houston [14th Dist.] Jul. 23, 2009) (breach of contract claim, counterclaims for breach of fiduciary duty, conversion, estoppel, unjust enrichment, breach of the duty of good faith and fair dealing, fraud, negligent misrepresentation, constructive fraud, money had and received, assumpsit, quantum meruit, and constructive trust.
AFFIRMED: Opinion by
Justice Brock Yates
Before Justices Brock Yates, Guzman and Sullivan
14-07-00959-CV Gerald M. Walston, Ben C. Morris and William L. Childress v. Anglo-Dutch Petroleum
(Tenge
) L.L.C., Anglo-Dutch Petroleum International, Inc. and Scott V. Van Dyke
Appeal from 157th District Court of Harris County
Trial Court
Judge: Randy Wilson

Beluga Chartering B.V. v. Timber S.A. (Tex.App.- Houston [14th Dist.] Jul. 23, 2009) (Boyce) (appeal from order denying special appearance, recognition of foreign judgments)
AFFIRMED: Opinion by
Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-08-00311-CV Beluga Chartering B.V. v. Timber S.A.,
Appeal from 281st District Court of Harris County
Trial Court Judge:
David J. Bernal

Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges) (probate law: mental capacity of testator to convey real estate property, undue influence, void deed, claim of ,jury charge error)
AFFIRMED: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00589-CV Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns, Individually and as
Administrator of the Estate of Karen Dean Burns, Deceased
Appeal from 12th District Court of Madison County

Boateng v. USA and Trailblazer Health Enterprises, LLC (Tex.App.- Jul. 23, 2009)
DISMISSED: Per Curiam (
mediation ordered by court of appeals successful, joint motion to dismiss)
Before Justices Anderson, Guzman and Boyce
14-09-00093-CV Afuah Boateng, Johnell Sanders Fernandez, Sharon Gay, Dr. Joel S. Hochman,
Rosalind Hull, Gloria Ann Tucker and Missy L. Walker v. United States of America and Trailblazer Health
Enterprises, LLC Appeal from 280th District Court of Harris County
Trial Court Judge
: TONY LINDSAY

DISMISSED: Per Curiam (accelerated appeal from an order denying a special appearance; appeal
dismissed on appellant' s request)
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00502-CV Favret, Demarest, Russo & Lutkewitte, a Professional Law Corporation v. Rimkus
Consulting Group Appeal from
County Civil Court at Law No 3 of Harris County

In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial of mandamus)
(mandamus challenge to allegedly
void order improper, regular appeal from final judgment available)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00603-CV In Re R. Wayne Johnson
Appeal from 122nd District Court of Galveston County (name of judge not shown)

In Re Thompson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(mandamus petition re: forwarding of
notice of appeal mooted by docketing of appeal)
DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00604-CV In re Lawrence Edward Thompson
Appeal from 152nd District Court of Harris County
Trial Court
Judge: Hon. Robert Schaffer

In Re Kennedy (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam dismissal)
(mandamus petition re
free record for appeal moot)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00612-CV In Re Michael Kennedy
Appeal from
334th District Court of Harris County

In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial)
(allegedly
void final orders dismissing cases with prejudice are nevertheless appealable; mandamus
relief denied
)(IFP appeal, finality of order for purposes of regular appeal, mandamus criteria)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00614-CV In Re R. Wayne Johnson
Appeal from 10th District Court of Galveston County (judge's name not on docket)

July 21, 2009 <-- Click hyperlink to go to docket sheet and opinions

Loposer v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Yates) (tax appraisal appeal, judicial
review suit
)(agreement on appraisal value of home precludes subsequent appeal)
AFFIRMED: Opinion by
Justice Brock Yates
Before Justices Brock Yates, Guzman and Sullivan
14-07-00956-CV Timothy C. & Leeann Loposer v. Harris County Appraisal District and The Appraisal
Review Board of Harris County Appraisal District
Appeal from 80th District Court of Harris County
Trial Court Judge:
LYNN M. BRADSHAW-HULL

Mid-Continent Casualty Co. v. Global Enercom Management, Inc. (Tex.App.- Houston [1st Dist.] Jul. 21,
2009)(Anderson)(
insurance law, coverage dispute, construction of policy, applicability of exclusion,
causality analysis,
formation of contract without signature, performance by party)
AFFIRMED: Opinion by
Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-01006-CV Mid-Continent Casualty Company v. Global Enercom Management, Inc
Appeal from 215th District Court of Harris County
Trial Court Judge:
LEVI JAMES BENTON
Concurring and Dissenting Opinion by Justice Seymore

2900 Smith, Ltd. v. Constellation Newenergy, Inc. (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Anderson)
(
sworn account, electricity service, notice of higher rate by new provider disputed, sufficiency review,
findings of facts and conclusions of law, abatement for new judge to file findings)
AFFIRMED: Opinion by
Justice 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

Financial Freedom Senior Funding Corp. v. Horrocks (Tex.App.- Houston [1st Dist.] Jul. 21,
2009)(Anderson) (
real estate litigation, probate law, suit to quiet title, declaratory judgment, demand
note, life estate, reverse mortgages, statute of limitations for foreclosure of lien in real property, deed of
trust)
AFFIRMED: Opinion by
Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00109-CV Financial Freedom Senior Funding Corp v. Michael L. Horrocks, Administrator of Estate
of Mary Edythe Mullane, Deceased
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: WM CAMERON MCCULLOCH

BACM 2002 PBs Westpart Dr LP v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Frost)
(prior owner
did not have standing to bring ad valorem tax protests appeal, judicial review suit, assumed
name theory as basis for substitution of correct party rejected, no standing - no subject matter
jurisdiction).
AFFIRMED: Opinion by
Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00493-CV BACM 2002 PB2 Westpark Dr LP, Houston Parkwest Place Ltd, as the Property Owners
and the Property Owners v. Harris County Appraisal District and the Appraisal Review Board of Harris
County Appraisal District Appeal from 11th District Court of Harris County
Trial Court
Judge: Mark Davidson

Martin v. State of Texas (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam)
(
dismissal of lawsuit without a hearing, dismissal with prejudice)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-01174-CV Timothy Paul Martin v. The State of Texas
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman

In Re Kenefick (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam denial)
(
discovery order mandamus denied)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00547-CV In Re Brian Kenefick
Appeal from 308th District Court of Harris County
Trial Court Judge:
Judge Georgia Dempster


July 16, 2009
Opinions:

Frick v. Total Separation Solutions, LLC (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(per curiam
dismissal of temporary injunction appeal, temporary injunction moot, jury trial and stipulation to vacate TI,
order entered dissolving temporary injunction)
DISMISSED: Per Curiam
Before Justices Brock Yates, Guzman and Brown
14-07-00290-CV F. Alan "Bud" Frick, Butler & Cook, Inc. d/b/a Butler and Cook, Inc. Butler and Cook
Hydraulic Center, Inc., B & C of Fort Smith, Inc. and John J. "Toby" Koprovic v. Total Separation
Solutions, LLC
Appeal from 215th District Court of Harris County
Trial Court Judge:
LEVI JAMES BENTON

Gentry v. HPD (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(Anderson) (inmate litigation, pro se, IFP,
dismissal of inmate suit without a hearing affirmed)(no collateral attack on criminal conviction in civil suit)
AFFIRMED: Opinion by
Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-01094-CV Frankie R. Gentry v. Houston Police Department
Appeal from 280th District Court of Harris County
Trial Court Judge:
TONY LINDSAY

In Interest of KLB (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(Hedges) (termination of parental rights,
prebirth conduct by
parent, transfer of cases between courts of appeal and precedent to follow)
AFFIRMED: Opinion by Chief
Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-09-00061-CV In the Interest of K.L.B., a Child
Appeal from 74th District Court of McLennan County
Trial Court Judge: [Judge not identified on appellate docket]

Argo v. Select Portfolio Servicing, Inc. (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(per curiam
dismissal) (
no interlocutory appeal of expedited foreclosure order, home equity loans)
DISMISSED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00309-CV John Robert Argo v. Select Portfolio Servicing, Inc., U.S. Bank National Association, As
Trustees, Et Al.
Appeal from 55th District Court of Harris County
Trial Court J
udge: Dion Ramos
Trial Court Case #: 2008-37488

Midland Funding, LLC v. Chafi (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)
(per curiam dismissal per settlement;
debt suit)
DISMISSED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-09-00504-CV Midland Funding, LLC v. Fariborz Chafi
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Jacqueline Lucci-Smith

July 14, 2009 Opinions:

Church v. Quick (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(Guzman)(restricted appeal, a nonresident
spouse)(Because the
trial court lacked personal jurisdiction over the nonresident spouse, the court of
appeals modifies the judgment to eliminate all relief other than the divorce and affirms the judgment as
modified.)
AFFIRMED AS MODIFIED: Opinion by
Justice Guzman
Before Justices Anderson, Guzman and Boyce)
14-08-00131-CV Joyce Gail Church v. Kenneth Richard Quick
Appeal from 246th District Court of Harris County
Trial Court
Judge: Jim York

Jones v. Smith (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(real estate law: action to quiet title, not
bona fide purchaser, quantum meruit cross-claim, findings of fact and conclusions of law)
REVERSED AND REMANDED: Opinion by
Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan)
14-08-00639-CV Guy Jones v. Jeanne M. Smith and Peter A. Morgenroth
Appeal from 405TH District Court of Galveston County
Trial Court Judge: WAYNE J. MALLIA

In Re N.W. Enterprises, Inc. (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(per curiam)
(
temporary injunction challenge brought by mandamus)
MOTION OR WRIT DENIED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan)
14-09-00577-CV In Re N.W. Enterprises, Inc. d/b/a Gaslight News and Video
Appeal from 133rd District Court of Harris County
Trial Court
Judge: Jaclanel McFarland


July 7, 2009 Civil Causes Decided:

The Methodist Hospital v. Zurich American Inc. Co. (Tex. App. - Houston [14th Dist.] Jul. 7, 2009) (Seymore) (INSURANCE LITIGATION: insured's suits against worker's compensation carrier alleging wrongful payment of noncompensable injury claims within the deductible)(insurer's duty of good faith and fair dealings, negligent claims handling, express warranty claim, breach of warranty - elements, conclusory affidavit) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00663-CV The Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and Mary Vu Appeal from 280th District Court of Harris County CONCURRING: Concurring Opinion by Justice Frost (highlighting applicable binding Supreme Court precedent)

Anthony v. Owens (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Brown) (prisoners pro se IFP suit complaining of denial of parole dismissal without opportunity to amend, dismissal with prejudice, dismissal without evidentiary hearing) AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-07-01077-CV Milton James Anthony v. Rissie Owens, Linda Garcia, Charles Aycock, Juanita Gonzales, Jose Aliseda, Jane/John Doe et al. Appeal from 412th District Court of Brazoria County

Garza v. Reed (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Hudson) (DTPA claim against insurer of complained-of business fails on summary judgment; misrepresentation as to insurance coverage of buy-back guarantee)(no-evidence summary judgment affirmed) (motion to transfer venue for convenience) AFFIRMED: Opinion by Justice Hudson Before Chief Justice Hedges, Justices Hudson and Frost 14-08-00211-CV Joe M Garza, Pay Phone Owners Legal Fund, and Ernest R. Bustos v. Jack P. Reed and Houston Surplus Lines, Inc. Appeal from 434th Judicial District Court of Fort Bend County

July 2, 2009 Civil Causes Decided:

Mallory v. Mallory (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown)(post-judgment default judgment in child support case without proper notice to defendant was reversible error) (objection to affidavit based on best knowledge and belief not preserved for appellate review)REVERSED AND REMANDED: Opinion by Justice Jeff Brown Before Chief Justice Hedges, Justices Guzman and Brown 14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas Appeal from 310th District Court of Harris CountyTrial Court Judge: LISA A. MILLARD

Askari v. Endevco, Inc. (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(breach of contract for consulting services claim, payment in company stock in lieu of cash, court sustained both parties' objections to parol evidence, applicability of parol evidence rule, ambiguous and unambiguous contract provisions, preservation of error regarding evidentiary objections). AFFIRMED: Opinion by Justice Seymore Before Justice Seymore 14-08-00278-CV Farzad Askari v. Endevco, Inc. Appeal from 11th District Court of Harris CountyTrial Court Judge: Mark Davidson

Approx. $5,602 v. State of Texas (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Yates)(forfeiture proceeding) (discovery sanctions, death-penalty sanctions) (preservation of error for appeal) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Sullivan 14-08-00359-CV Approximately $5,602.00 v. The State of Texas Appeal from 55th District Court of Harris CountyTrial Court Judge: PUTNAM REITER

Clearview Properties, LP v. T Reit, LP (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam)(turnover order reversed) (If the judgment underlying a turnover order is reversed, the turnover order must also be reversed. REVERSED AND RENDERED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-08-00827-CV Clearview Properties, L.P. v. T Reit, L.P. Appeal from 270th District Court of Harris County Trial Court Judge: Brent Gamble

Owens, Ed.D. v. UTHSC Houston (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(DWOP dismissal) (objection to mediation on appeal sustained, but no brief filed)DISMISSED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-08-00998-CV Emiel W. Owens, Ed.D., v. The University of Texas Health Science Center at Houston, Lemuel Moye, M.D.; Ph.D., Ronald B. Harris, Ph.D., Ralph F. Frankowski, Ph.D., L. Kay Bartholomew, Ed.D. MPH; and J. Kay Dunn, Ph.D. Appeal from 215th District Court of Harris County

Premier Towers, L.P. v. Laughlin Environmental, Inc. (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam) (unopposed motion to dismiss, mediation successful on appeal) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00454-CV Premier Towers, L.P. v. Laughlin Environmental, Inc. Appeal from 189th District Court of Harris CountyTrial Court Judge: LEVI JAMES BENTON

In the Matter of the Marriage of Leticia B. Loya and Miguel Angel Loya (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam dismissal)(no interlocutory appeal of denial of special appearance in family law case)DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00481-CV In the Matter of the Marriage of Leticia B. Loya and Miguel Angel Loya Appeal from 257th District Court of Harris CountyTrial Court Judge: Judge Judy L. Warne

James v. Chang (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(per curiam dismissal on appellant's motion)DISMISSED: Per Curiam Before Justices Anderson, Guzman and Boyce 14-09-00512-CV David James v. Theresa Chang Appeal from 281st District Court of Harris County Trial Court Judge:[judge's name not on docket]