First Court of Appeals August 2009 Opinions in Civil Cases

August 14, 2009 (click dates for complete lists of decided cases, and related links)

Civil Causes Decided:

Wilson v. Davis (Tex.App. - Houston [1st Dist.] Aug. 14, 2009)(Taft) (wrongful death DWI collision, theories of corporate liability for deadly car wreck caused by intoxicated individual, respondeat superior, course and scope of employment, piercing corporate veil, alter ego theory, and others)
REVERSE TC JUDGMENT AND RENDER JUDGMENT:
Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00424-CV Rhonda Wilson and Thomas Stevenson, et al. v. Sam Davis, Amalgam Western, et al
Appeal from Probate Court No 1 of Harris County

August 13, 2009

Shipley Brothers, Ltd v. Republic National Bank (Tex.App.- Houston [1st Dist.] Aug. 13, 2009)(Jennings) (Subst. Op. by Jennings)(judgment vacated and case remanded regardless of merits pursuant to settlement agreement) SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT
IN ACCORDANCE WITH PARTIES' AGREEMENT: Opinion by Justice Jennings
Before Judge Wilson, Justices Jennings and Bland
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 County
Trial Court Judge: Hon. Roberta A. Lloyd

August 6, 2009

Kurtzemann v. TDPS (Tex.App.- Houston [1st Dist.] Aug. 6, 2009)(Radack)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00543-CV David Kurtzemann v. Texas Department of Public Safety
Appeal from County Civil Ct at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle

August 4, 2009

In re Coffer (Tex.App.- Houston [1st Dist.] Aug. 4, 2009)(Sharp)
(habeas corpus, mother held in contempt for nonpayment of child support)
DENY PETITION FOR WRIT OF HABEAS CORPUS:
Opinion by Justice Sharp
Before Justice Sharp
01-08-00666-CV In re Alicia M. Coffer
Appeal from 312th District Court of Harris County
Trial court judge: David Farr | Robert Hinojosa

Directed Verdict Affirmed in Car Collision Suit

Two cars collided cruising through the parking lot, but to establish a driver's negligence and legal liability for damages, more is needed than merely evidence (or agreement) that an accident did indeed occur. Court of Appeals panel holds that trial court properly granted directed verdict where there was no showing of negligence on the part of the defendant.

Analysis by Justice Guzman, who wrote the opinion:

To prevail on a negligence claim, a plaintiff must prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Here, Murchison presented less than a scintilla of evidence that Pham breached a duty to Murchison. To the contrary, the evidence is uncontroverted that a car was parked in a way that impaired Pham's view, and the collision occurred suddenly while Pham was “inching" forward to see beyond this obstruction. There is no evidence that either driver could have seen the other in time to avoid an accident, even given the low speed at which Walsh admits Pham was traveling.

On this record, any inference that Pham breached a duty to Murchison would be based solely on the fact that a collision occurred. The occurrence of a motor vehicle accident is not itself, however, evidence of negligence. Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.- Houston [14th Dist.] 1989, writ denied). We therefore overrule Murchison's sole issue on appeal.

V. Conclusion

Because Murchison failed to present legally sufficient evidence of negligence, we affirm the trial court's judgment.

Murchison v. Pham (Tex.App.- Houston [14th Dist.] Aug. 11, 2009) (Guzman) (no negligence demonstrated in car collision suit, directed verdict affirmed)
AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00080-CV Gary Murchison v. Minh Quoc Pham
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull

JUDGMENT FOR HOME OWNERS' ASSOCIATION NOT VOID Bankruptcy Discharge Defense Was Not Presented to the Trial Court and WasThus Waived

In this pro-se appeal from a summary judgment in favor of a home owners' association, the Fourteenth Court of Appeals, in a panel opinion penned by a former justice sitting as a visiting judge, holds that the collection of delinquent assessments was not barred by homeowner's bankruptcy discharge. The argument was not properly presented to the trial court. As an affirmative defense, the bankruptcy discharge defense must be properly pleaded, and must be asserted in a proper response when the Plaintiff moves for summary judgment on its claim. The defendant/appellant in this case did neither. It was too late to raise the issue in a motion for new trial.

Relevant part of the opinion by Senior Justice Price follows:

Discharge in Bankruptcy

In the final issue presented on appeal, [the homeowner/appellant] claims the trial court's judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no pet.).

An affirmative defense that is not pleaded or proved, and on which findings are not obtained,
is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative defense was not presented to the trial court until Monk's motion for new trial, which did not preserve the issue for our review. See id. Thus, we overrule [the homeowner's] final issue.

Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price) (motion for new trial and preservation of error for appellate review, discharge in bankruptcy as affirmative defense required to be pleaded)
AFFIRMED: Opinion by Senior Justice Frank C. Price
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble