Sunday, July 19, 2009

July 2009 1st CoA Civil Appellate Opinions of Note


July 30, 2009

Civil Cases Decided:

Goffney v. HISD (Tex.App.- Houston [1st Dist.] Jul. 30, 2009)(Hanks)
(
delinquent property tax suit, standing to appeal, preservation of error re: constitutional challenge, due
process challenge
, inadequate briefing results in waiver of argument on appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Hanks and Bland
01-08-00063-CV Willie H. Goffney and Gladys R. Goffney v. Houston Independent School District
Appeal from 165th District Court of Harris County
Trial Court Judge:
Hon. Elizabeth Ray

Brock v. Fannie Mae (Tex.App.- Houston [1st Dist.] Jul. 30, 2009)(per curiam) (appeal dismissed due to
nonpayment for appellate record)
DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Sharp
01-08-00848-CV Loretter Brock v. Fannie Mae
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Clark v. Clark (Tex.App.- Houston [1st Dist.] Jul. 30, 2009)(appellant moved to dismiss appeal; motion granted)
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Alcala and Higley
01-08-00885-CV Lee Clark v. Marie L. Clark
Appeal from
Probate Court No 3 of Harris County
Trial Court Judge: The Honorable Rory R. Olsen


July 23, 2009

MasTec North America, Inc. v. El Paso Field Services, LP (Tex.App.- Houston [1st Dist.] Jul. 23, 2009) (Higley) (oil and gas business, pipeline replacement, breach of contract, due diligence lacking, JNOV reversed, entry of judgment on jury verdict ordered)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Higley
Before Justices Jennings, Keyes and Higley
01-07-00319-CV MasTec North America, Inc. and Mastec, Inc. v. El Paso Field Services, L.P. and Gulfterra
South Texas, L.P. f/n/a El Paso South Texas, L.P. Appeal from
334th District Court of Harris County
OPINION DISSENTING TO THE COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings

Cobb v. Morace (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings)(mediated settlement agreement MSA, breach of settlement agreement)(summary judgment addressed more issues than covered by motion)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Justice Jennings
Before Justices Jennings, Hanks and Bland
01-07-01036-CV W. Neil Cobb v. Johnny B. Morace and Geo-Lab, Inc.
Appeal from 269th District Court of Harris County

Trial Court Judge:
Hon. John Thomas Wooldridge

Cassidy v. TeamHealth, Inc. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings) (no standing to pursue
declaratory judgment claim, plea to the jurisdiction, opportunity to amend pleadings not exercised)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00324-CV Crystal Cassidy v. The American Academy of Emergency Medicine, The Texas Academy of Emergency Medicine and Richard J. Ybarra v. TeamHealth, Inc., TeamHealth, P.A., Memorial Hermann
Healthcare System, ACS Primary Care Physcians Southwest, P.A., and Teamhealth West
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull

Expo Motorcars, LLC v. HCAD (Tex.App.-Houston [1st Dist.] Jul. 23, 2009)(Jennings)
(
tax protests suit, constitutionality, due process, motor vehicle inventory value)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00473-CV Expo Motorcars, LLC. v. Harris County Appraisal District, Harris County Appraisal Review Board Appeal from 270th District Court of Harris County

Ferro v. Dinicolantonio (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(per curiam dismissal)
(grant of final judgment renders
appeal of temporary injunction moot) (judicial notice of signed final judgment)
DISMISS APPEAL: Per Curiam
Before Justices Taft, Bland and Sharp
01-08-00744-CV Edward Ferro, Edward Orechia v. Arthur Dinicolantonio and Stephen Dinicolantonio
Appeal from County Court at Law No 3 of Galveston County
Trial Court Judge: Hon. Roy M. Quintanilla

Schuring v. Kingwood Horsemen's Association (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Bland)
(
no jurisdiction over further appeal from eviction appeal to county court from JP court involving nonresidential
premises, here horse stall)
DISMISS APPEAL: Opinion by
Justice Bland
Before Justices Keyes, Hanks and Bland
01-08-00760-CV Thomas G. Schuring, Rose Schuring v. Kingwood Horsemen's Association
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

Johnson v. DFPS (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Bland)I(termination of parental rights,
constructive abandonment)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00795-CV Dashonnon D. Johnson, Sr. v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

In Re Bashaw & Co. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Keyes) (arbitration, direct benefits estoppel)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00803-CV In re James E. Bashaw & Co.
Appeal from 133rd District Court of Harris County
Trial Court Judges: Lamar McCorkle | Jaclanel McFarland


July 16, 2009 <-- Click for docket Cricket Hollow Partners, L.P. v. MMA Cricket Hollow, LLC (Tex.App.- Houston [1st Dist.] Jul. 16,
2009)(Jennings) (
partnership agreement, interpretation, construction of contract)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00254-CV Cricket Hollow Partners, L.P. and Cricket Hollow Development, Inc.
v. MMA Cricket Hollow, LLC
Appeal from 11th District Court of Harris County
Trial Court Judge:
Hon. Mark Davidson

Poock v. Washington Mutual Bank [WaMu] (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Jennings)
(
venue caselaw, mandatory venue, transfer required)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00415-CV Steven Poock & David Edwards v. Washington Mutual Bank
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble

Amidei v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Higley)
(
HCAD property tax appeals, property tax appraisal protests, excessive tax appraisal claim rejected,
admissibility of evidence)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley
Before Justices Jennings, Alcala and Higley
01-08-00833-CV Maurice Amidei and Sara Amidei v. Harris County Appraisal District, Appraisal Review
Board of Harris County
Appeal from 125th District Court of Harris County
Trial Court Judge:
Hon. John Coselli

Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(trustee removal,
temporary injunction appeal fails, UDJA claim)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00904-CV Nancy D. Twyman v. William Earl Twyman
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

Lockhart, MD v. Guyden (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Sharp)
(ILA, denial of motion to dismiss found error, sufficiency of expert report in
HCLC suit, wrongful death)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Sharp
Before Justices Taft, Bland and Sharp
01-08-00983-CV Christopher Lockhart, M.D. v. Normell W. Guyden, Individually and as
Heir to the Estate of Natalie J. Guyden, Deceased
Appeal from 113th District Court of Harris County
Trial Court Judge:
Hon. Patricia Hancock

M.H. v. State of Texas iio M.H. (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(appeal from order authorizing the administration of psychoactive medications, mental health intervention)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes
Before Justices Keyes, Hanks and Bland
01-09-00205-CV The State of Texas for the Best Interest and Protection of M. H. Appeal from County Court at Law of Cherokee County
Trial Court: County Court at Law
Trial Court Judge: Judge Craig A. Fletcher

July 15, 2009

In re Weeks Marine, Inc. (Tex.App.- Houston [1st Dist.] Jul. 15, 2009)(per curiam) (mandamus relief re:
independent medical examination denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Hanks and Bland
01-09-00603-CV In re Weeks Marine, Inc.
Appeal from 334th District Court of Harris County
Trial Court Judge:
Hon Sharon McCally

July 14, 2009

In Re Fabian (Tex.App. - Houston [1st Dist.] Jul. 14, 2009)(per curiam)
(mandamus relief re: motion to show authority denied)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Hanks and Bland
01-09-00557-CV In re Maria E. Fabian
Appeal from 11th District Court of Harris County
Trial Court
Judge: Hon. Mike Miller

In Re Forward (Tex.App.- Houston [1st Dist.] Jul. 14, 2009)(per curiam)
(mandamus re: provision of free appellate record denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Alcala and Higley
01-09-00626-CV In re John Patrick Forward
Appeal from 80th District Court of Harris County
Trial Court
Judge: Hon. Larry Weiman


July 10, 2009

In re Northern Natural Gas Co. (Tex.App.- Houston [1st Dist.] Jul. 10, 2009)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Taft and Sharp
01-09-00440-CV In re Northern Natural Gas Company
Appeal from 269th District Court of Harris County
Trial Court
Judge: Hon. Dan Hinde

July 9, 2009

Azteck International Business Corporation v. UPI Communications (Tex.App.- Houston [1st Dist.] Jul. 9,
2009)(Sharp) (
finality issue, no final order from which appeal may be taken)(DWOJ)
DISMISS APPEAL: Opinion by
Justice Sharp
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00907-CV Azteck International Business Corporation v. UPI Communications
Appeal from 295th District Court of Harris County
Trial Court Judge:
Hon. Tracy Christopher

Jimenez v. Dunham (Tex.App.- Houston [1st Dist.] Jul. 9, 2009) (Keyes)
(jury trial
breach of contract judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00117-CV Jose Raul Jimenez v. Teresa Dunham
Appeal from 113th District Court of Harris County
Trial Court
Judge: Hon. Patricia Hancock

Harrison v. Smith (Tex.App.- Houston [1st Dist.] Jul. 9, 2009) (per curiam)
(agreed set-aside of final judgment for entry of agreed judgment)
SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT
IN ACCORDANCE WITH PARTIES' AGREEMENT: Per Curiam
Before Justices Keyes, Hanks and Bland
01-09-00035-CV Jim Harrison v. Carl Smith
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble

July 2, 2009

Potter v. Clear Channel Outdoor, Inc. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Taft)
(
billboard lease, billboard lease, construction of lease, contract interpretation, quantum meruit, declaratory
judgment, UDJA, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND
REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00578-CV Larry E. Potter v. Clear Channel Outdoor, Inc.
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Hon. Joseph Halbach

Lawrence v. Geico (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Sharp)
(
car wreck, subrogation claim in car collision, SoL, diligence in procuring service on defendant, admission of
evidence, police report, requirements for proper evidentiary objection, specificity, hearsay objection)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00873-CV Jonathan A. Lawrence v. Geico General Insurance Company, as Subrogee
Appeal from the 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

Merenco Realty, Inc. v. Mobil Producing Texas & New Mexico, Inc. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)
(per curiam) (joint motion to dismiss moots appeal)
DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00401-CV Merenco Realty, Inc. v. Mobil Producing Texas & New Mexico, Inc.,
and ExxonMobil Oil Corporation
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Kent C. Sullivan

Harris County v. Hinojosa (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)
(
worker's comp appeal, whether auto accident occurred in course and scope of officer's employment)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Elsa Alcala
Before Justices Jennings, Alcala and Higley
01-08-00439-CV Harris County v. Eluid Hinojosa
Appeal from 55th District Court of Harris County
Trial Court Judge:
Hon. Jeffrey A. Shadwick

In the Matter of CJ, III (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
(
juvenile law: disposition adjudication, evidentiary sufficiency)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Alcala
Before Justices Jennings, Alcala and Higley
01-08-00771-CV In the Matter of C.J. III
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

Cobbs v. Stern, Miller & Higdon (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Alcala)
(
denial of special appearance reversed in interlocutory appeal, attorney-client disputes and litigation,
void or voidable contracts, solicitation of clients contingency fee agreement as against public policy, affidavit
testimony by interested witness, interlocutory appeal-special appearance)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00112-CV John L. Cobbs v. Stern, Miller & Higdon
Appeal from 151st District Court of Harris County
Trial Court Judge:
Hon. Michael Engelhart

In re Halliburton Co. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Sharp) (arbitration mandamus)
(
FAA: trial court should have granted motion to compel arbitration in employment dispute)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Sharp
Before Chief Justice Radack, Justices Taft and Sharp
01-09-00150-CV In re Halliburton Company
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel M. McFarland


July 1, 2009

In Re T&L Distributing, LP (Tex.App.- Houston [1st Dist.] Jul. 1, 2009) (per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Taft and Sharp
01-09-00573-CV In Re Re T & L Distributing, L.P. and Walter J. Autry
Appeal from 129th District Court of Harris County
Trial Court Judge:
Hon. Michael Gomez