January 2010 1st Court of Appeals Decisions in Civil Appeals

NOTEWORTHY JAN 2010 CIVIL APPELLATE OPINIONS FROM THE FIRST COURT OF APPEALS IN HOUSTON

Released Opinions

January 29, 2010

Civil Causes Decided:

In re Willie (pdf) (Tex.App.- Houston [1st Dist.] Jan 29, 2010)(per curiam denial of mandamus petition)
(attorney disciplinary proceeding)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Sharp and Massengale
01-10-00069-CV In re Joseph R. Willie, II
Appeal from 113th District Court of Harris County
Trial court: The Honorable Donna S. Rayes, Specially Appointed Judge in disciplinary proceeding

January 28, 2010

Civil Causes Decided:

Straus v. Auto Management, Inc. (Tex.App.- Houston 1st Dist] Jan 28, 2010)(Radack)
(DWOP dismissal for want of prosecution reversed)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00158-CV Robert Straus d/b/a/ Bob Straus Photography v. Auto Management, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker

Phillips v. Willy (Tex.App.- Houston [1st Dist.] Jan. 28, 2010)(Taft)
(real estate dispute, adverse possession, repudiation)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00159-CV Lonnie Phillips, Jr., and Lance Phillips a/n/f v. Betty Willy, and The Executor of the Estate of Kenneth Bing, Kimberlyrae Bing Thompson and Kenneth W. Bing, Jr.
Appeal from 23rd District Court of Brazoria County
Trial Court Judge: Hon. Ben Hardin

Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(Bland)
(real estate transactions, failure to promptly provide pay-off amount for real estate loan not actionable)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00359-CV Deborah H. Underwood Graves v. Nancy D. Logan
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

January 26, 2010

Civil Causes Decided:

In re Coritino (pdf) (Tex.App.- Houston [1st Dist.] Jan. 26, 2010)(per curiam) (mandamus petition moot)
By petition for writ of mandamus, relator, John Cortino, challenges the trial court's denial of his motion to proceed in forma pauperis. The trial court has informed this Court that Cortino's motion to proceed in forma pauperis was denied in error, and that John Cortino may proceed without payment of costs. We dismiss the petition for writ of mandamus as moot. The stay entered January 25, 2010, is lifted. All outstanding motions are overruled as moot.
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Hanks and Bland
01-10-00034-CV In re John Cortino
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York

January 22, 2010

Civil Causes Decided:

In re Texas Tri-Care Rehabilitation (pdf) (Tex.App.- Houston [1st Dist.] Jan. 22, 2010)(per curiam) (discovery mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Alcala and Hanks
01-10-00003-CV In re Texas Tri-Care Rehabilitation and Lawrence Roddick, D.C.
Appeal from 111th District Court of Webb County

January 21, 2010

Civil Causes Decided:

Royce Homes, LP v. Bates (pdf) (Tex.App.- Houston [1st Dist.] Jan. 21, 2010)(Keyes)
(arbitration award confirmed by trial court, multiple challenges fail)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-00191-CV Royce Homes, L.P.; Hammersmith Group, Inc. v. Deborah F. Bates, Verdia L. Boyce, Wadie & Demetria Butler, Robert & Billye Evans, Darlene Handy, Josaulyn Hoskins, Jinnell Ray, Trilyon Taylor, Barbara Wilson Appeal from 268th District Court of Fort Bend County

January 19, 2010

Civil Causes Decided:

In re James A. Baker (pdf) (Tex.App.- Houston [1st Dist.] Jan. 19, 2010)(per curiam)
(primary election candidacy contest, mandamus denied)
By petition for writ of mandamus, relator James A. Baker seeks to compel respondent Jared R. Woodfill, V, Chairman of the Harris County Republican Party, to remove Ricardo L. Ramos’s name from the March 2010 primary ballot for the 308th District Family Court. We deny relator’s motion for temporary relief. We dismiss for want of jurisdiction relator’s petition for writ of mandamus.
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Jennings, Keyes and Massengale
01-10-00022-CV In re James A. Baker
Appeal from 308th District Court of Harris County

January 15, 2010

Civil Causes Decided:

In re Certain Underwriters at Lloyd's London (pdf) (Tex.App.- Houston [1st Dist.] Jan. 15, 2009)(Bland)
(plenary power of trial court expired, void order, mandamus granted)(unless motion extending plenary power is filed, plenary power expires thirty days after final judgment is signed) trial court lacked plenary power;)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00851-CV In Re Certain Underwriters at Lloyd's London
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Robert Schaffer

January 14, 2010

Civil Causes Decided:

Barber v. Cangelosi (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Bland)(probate case, will dispute)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00781-CV Lena Jo Barber v. Dorothea Cangelosi, as Independent Executrix of the Estate of Anna Lee
Cangelosi, Deceased
Appeal from County Court at Law of Waller County
Trial Court Judge: Hon. June Jackson

Dyer v. Tex. Bd. of Pardons and Paroles (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Bland)
(petition for expunction of an arrest record pursuant to Chapter 55 of the Texas Code of Criminal Procedure,
Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2009), finality issue and appellate jurisdiction, DWOJ)
(no interlocutory appeal of denial of indigency status)
DISMISS APPEAL: Opinion by Justice Jane Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00884-CV Fredrick Dwayne Dyer v. Texas Board of Pardons and Paroles
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan

City of Houston v. Chemam (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Keyes)
(governmental immunity, plea to the jurisdiction improperly denied, wrong court for inverse condemnation)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks
01-08-01005-CV City of Houston v. Sherif Chemam and Diann Chemam
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock

Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)
(Jennings)(conversion, trespass, fraud, negligent misrepresentation, breach of contract and bailment
agreement, violations of the Texas Theft Liability Act, the Texas Deceptive Trade Practices Act (“DTPA”),
and the Texas Insurance Code)
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, Higley and Sharp
01-09-00021-CV Cash Rent-A-Car, Inc. v. Old American County Mutual Fire Insurance Company, and
Affirmative Insurance Services, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble

Matthews v. McCall Northrup (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Jennings)
(child support determination of amount, insufficient record waiver of issue urged on appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-09-00063-CV Matthew A. Matthews v. Elizabeth McCall Northrup
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz

Adams v. Liberty Mutual Ins. Co. (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Bland)
(worker’s compensation judicial review proceeding)
AFFIRM TC JUDGMENT: Opinion by Justice Jane Nenninger Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00178-CV Donna Adams v. Liberty Mutual Insurance Company
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta

In re Texas Windstorm Ins. Ass'n (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(per curiam)
(discovery mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Sharp and Massengale
01-09-00964-CV In re Texas Windstorm Insurance Association
Appeal from 56th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

January 11, 2010


January 8, 2010

Civil Causes Decided:

In Re Miller Ins. Services Ltd. (pdf) (Tex.App.- Houston [1st Dist.] Jan. 8, 2009)(per curiam denial of
mandamus) (challenge to trial court’s decision to delay ruling on relator’s motion to dismiss)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Hanks and Massengale
01-09-01101-CV In re Miller Insurance Services Ltd.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. Bill Burke

January 7, 2010

Civil Causes Decided:

Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works (pdf) (Tex.App.- Houston [1st Dist.]
Jan. 7, 2009)(Opinion on motion for rehearing by Higley)(suit dismissed in deference to arbitration, preclusive effect of arbitration in foreign jurisdiction that has already taken place, arbitration not compelled in Texas; dismissal of suit affirmed on appeal, not all grounds for dismissal challenged on appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-05-00964-CV Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works
Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle