February 2010 First Court Appellate Opinions (Tex.App.- Houston [1st Dist.] 2010)

FEB '09 FIRST COURT OPINIONS IN CIVIL APPEALS

February 16, 2010

Civil Causes Decided:

In re Essler (Tex.App.- Houston [1st Dist.] Feb. 16, 2010)(per curiam denial) (petition for mandamus challenging order compelling arbitration denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Sharp and Massengale
01-09-00233-CV In re Jerry Esser
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon Alexandra Smoots-Hogan

In re Allen and Martin Lewis Revocable Trust (Tex.App. - Houston [1st Dist.] Feb. 16, 2010)(per curiam)
(mandamus denied re: trial court’s decision on the special exception, evidentiary objections, and motion for
leave to late-file summary judgment evidence)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Sharp and Massengale
01-09-00294-CV In re Allen and Martin Lewis Revocable Trust, et al.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey A. Shadwick

February 12, 2010

Civil Causes Decided:

In Re NFL Players Ass'n (pdf) (Tex.App.- Houston [1st Dist.] Feb. 12, 2010)(per curiam) (mandamus denied re: denial of motion to compel arbitration by trial court)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Keyes, Higley and Sharp
01-10-00096-CV In re National Football League Players Association
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

February 11, 2010

Civil Causes Decided:

American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Alcala) (carrier loses workers compensation appeal over worker's impairment rating, plea to the jurisdiction in judicial review suit affirmed, attorney fees award for prevailing claimant workers comp appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00233-CV American Zurich Insurance Company v. Daniel Samudio
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood

Valencia v. DFPS (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion by Jennings) (termination of father's parental rights based on prior criminal conduct reversed, ineffective assistance of
counsel)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00345-CV Joe Lewis Valencia v. Department of Family and Protective Services
Appeal from 313th District Court of Harris County
Trial Court Judge: Hon. Pat Shelton

United Fire & Casualty Company v. Boring & Tunneling Company of America (Tex.App.- Houston [1st Dist.]
Feb. 11, 2010)(Keyes) (construction bond, substantial compliance with notice provisions of the McGregor Act found even though sworn statement was defective because notary signature and seal was missing, but issue overruled as a technicality)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Keyes, Hanks and Sharp
01-08-00487-CV United Fire & Casualty Company v. Boring & Tunneling Company of America d/b/a
Bortunco Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble

Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Opinion on rehearing by Alcala)
(forgery, misapplication of fiduciary property, fraud, and conversion of checks, exemplary damages)
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00539-CV Janell S. Marin v. IESI TX Corporation
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

Said v. Maria Investment (pdf) (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion by Bland)
(special appearance appeal)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00962-CV Asif Said and Asma Said v. Maria Investment
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker

Offord v. West Houston Trees, L.L.P. (pdf) (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion
by Bland)(bill of review, default judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-01027-CV Diana G. Offord, as Guardian of the Estate of Winter Gordon, Jr., a/k/a Winter Gordon Sr. v. West Houston Trees, L.L.P.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks)
(breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense,
trial by consent in summary judgment context, partial summary judgment on liability only,
proving amount of damages, attorney's fees)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-09-00454-CV Francisca Rosales and Jose Ontiveros v. Kimberly Williams
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey

February 5, 2010

Civil Causes Decided:

Uptegraph v. Sandalwood Civic Club (Tex.App.- Houston [1st Dist.] Feb. 5, 2010)(Taft) (homeowner law, HOA litigation, restrictive covenants, deed restrictions, fence)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00764-CV Scott D. Uptegraph, Jr. and Kara K. Uptegraph v. Sandalwood Civic Club
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach

February 4, 2010

Civil Causes Decided:

Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (21 days vs 24 days notice prior to summary judgment hearing depending on method of service; requirement for preservation of complaint about inadequate notice in the trial court)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00181-CV Paul Hatler v. Moore Wallace North America, Inc.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

Brannan v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Opinion on rehearing by Alcala) (Open Beaches Act, effect of moving line of vegetation on existing houses on beach, takings claim)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, Deceased, et al v. The State of Texas, et al
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta

Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes) (expunction reversed in restricted appeal)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Keyes, Sharp and Massengale
01-08-00559-CV Texas Department of Public Safety v. Sharon R. Dahlquist
Appeal from 1st District Court of Jasper County
Trial Court Judge: Judge Joe Bob Golden

Laine v. Farmers Ins. Exchange (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Bland) (JNOV judgment notwithstanding the verdict) (insurance law, insurance coverage litigation, punitive damages, UM policy, drunk driver, exemplary damages)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Hon. Wilson, Justices Bland and Massengale
01-08-01010-CV Sandra Gervais Laine v. Farmers Insurance Exchange
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally

DP v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)
(mental health civil commitment order affirmed, medication order) (We affirm the trial court's order of commitment for temporary in-patient mental health services (appellate cause no. 01-09-00097-CV) and the trial court's order to administer psychoactive medication (appellate cause no. 01-10-00002-CV))
AFFIRM TC JUDGMENT: Opinion by Justice Laura Carter Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00097-CV David S. Petersen III v. The State of Texas
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: The Honorable Georgia Akers

In Re Martin (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Jennings) (inmate litigation, prison-bound author's suit against would-be publisher dismissed as frivolous)
Appellant, Timothy Paul Martin, who is incarcerated and represents himself pro se, contends that the trial court abused its discretion in determining that his lawsuit is frivolous and dismissing his lawsuit with prejudice without holding an evidentiary hearing. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-09-00175-CV In re Timothy Paul Martin
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

Seiflein v. City of Houston (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)
(ad valorem tax delinquency suit judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00361-CV Phil Seiflein v. City of Houston
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon Alexandra Smoots-Hogan

Ashkar Engineering Corp. v. Gulf Chemical & Metallurgical Corp. (pdf) (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(interlocutory appeal in an industrial construction design defect suit, claim against a licensed professional engineering firm, failure to file a certificate of merit required by statute)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00855-CV Ashkar Engineering Corporation v. Gulf Chemical & Metallurgical Corporation
Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Steven E. Kirkland

In re Jain (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(per curiam)
(mandamus petition re order of disqualification of counsel moot)
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00944-CV In Re Umesh Jain
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Ravi K. Sandill

In re Gill (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-01080-CV In re Anthony E. Gill
Appeal from 23rd District Court of Brazoria County

DP v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-10-00002-CV David S. Petersen III v. The State of Texas
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: The Honorable Georgia Akers

February 3, 2010

Civil Causes Decided:

In re Sherman (Tex.App.- Houston [1st Dist.] Feb. 3, 2010)(Keyes)
DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Keyes, Sharp and Massengale
01-10-00070-CV In Re C.A. (Tony) Sherman
Appeal from of County

February 2, 2010

Civil Causes Decided: None