September 2009 Houston [14th Dist] Court of Appeals Opinions

September 29, 2009

Civil Causes Decided:

In Interest of EBLG et al (Tex.App.- Houston [14th Dist.] Sep. 29, 2009)(Seymore)
(family court mediation and arbitration, numerous challenges to arbitration and arbitrator's decision,
attempted recusal of arbitrator, consideration of family violence, appropriateness of mediation)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-06-01095-CV In the Interest of E.B.L.G, H.L.L.G, and N.L.G.
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne

Rodarte v. Investeco Group, LLC (Tex.App. - Houston [14th Dist.] Sep. 29, 2009)(Brown)
AFFIRMED: Opinion by Justice Brown
Before Justices Frost, Brown and Boyce
14-08-00093-CV Victor Rodarte v. Investeco Group, LLC.; Morad Mekhail, Individually and as Trustee of
Certain Real Property and Vincent Rodriguez
Appeal from 157th District Court of Harris County
Trial Court Judge: Randy Wilson
Concurring Opinion by Justice Frost in Victor Rodarte v. Investeco Group, LLC.; Morad Mekhail,
Individually and as Trustee of Certain Real Property and Vincent Rodriguez

September 24, 2009

Civil Causes Decided:

Badaiki v. Tia Smith, Overhaulin Tow Company (Tex.App.- Houston [14th Dist.] Sep. 24, 2009)(per
curiam) (nonconsent tow of vehicle, tow hearing in Justice court, appeal from JP court)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-08-00224-CV Fidelis Badaiki v. Tia Smith, Rita Casey, Overhaulin Tow Company
and West Houston Auto Storage
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey

Giddings v. FIA Card Services, N.A. f/k/a MBNA America Bank (Tex.App.- Houston [14th Dist.] Sep. 24,
2009)(per curiam) (appeal moot because trial court granted motion for new trial)
DISMISSED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00542-CV Gary Giddings v. FIA Card Services, N.A. fka MBNA America Bank
Appeal from 152nd District Court of Harris County

September 22, 2009

Civil Causes Decided:

In Interest of ADS, Jr. (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Seymore) (Attorney General child support enforcement; no credit against judgment on arrears for time obligor parent was in jail, contempt order for failure to pay child support not challenged)
AFFIRMED AS MODIFIED: Opinion by Justice Charles Seymore
Before Justices Brock Yates, Seymore and Brown
14-08-00147-CV In the Interest of A.D.S, Jr.
Appeal from County Court at Law No 2 of Galveston County
Trial Court Judge: Mary Nell Crapitto

Britt v. Jones (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Frost)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00331-CV Anthony Britt v. James B. Jones and James B Jones, III Family Limited Partnership
Appeal from 163rd District Court of Orange County
Trial Court Judge: Judge Dennis Powell

Kerr v. Kerr (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Yates) (post-divorce enforcement of property division, no modification of substance of decree)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00529-CV In The Matter of the Marriage of Don Scott Kerr and Gabriella A. Kerr
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York

Hawkins, MD v. Herrera (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Sullivan) (interlocutory appeal of denial of motion to dismiss in med-mal suit; failure to preserve error by obtaining a ruling from the trial court)
AFFIRMED: Opinion by Justice Sullivan
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00142-CV Kimberly Hawkins, M.D. v. Alberto and Amy Herrera
as next friends of Tiana Herrera, A Minor
Appeal from 80th District Court of Harris County
Trial Court Judge: Larry Weiman

September 17, 2009

Civil Causes Decided:

MBP Corp. v. Board of Trustees of the Galveston Wharves (Tex.App.- Houston [14th Dist.] Sep. 17, 2009)(Sullivan) (takings claim rejected, governmental immunity, waiver-by-conduct exception rejected)
AFFIRMED: Opinion by Justice Sullivan
Before Justices Hudson, Guzman and Sullivan
14-07-01064-CV MBP Corp. v. Board of Trustee of the Galveston Wharves; and The Galveston Port Facilities Corporation Appeal from 212th District Court of Galveston County
Trial Court Judge: Susan Elizabeth Criss

Lefoumba v. Legend Classic Homes, Ltd (Tex.App.- Houston [14th Dist.] Sep. 17, 2009) (Sullivan) (challenge to arbitration award that reduced attorney's fees rejected) )(confirmation / modification /vacature of arb award)
AFFIRMED: Opinion by Justice Kent Sullivan
Before Justices Seymore, Brown and Sullivan
14-08-00243-CV Claude Lefoumba v. Legend Classic Homes, Ltd and Legend Home Corp.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Jacqueline Lucci-Smith

Brazoria County v. Gelder (Tex.App.- Houston [14th Dist.] Sep. 17, 2009) (Sullivan)
(Texas Tort Claims Act, dangerous road condition, no waiver of immunity)
REVERSED AND RENDERED: Opinion by Justice K. Sullivan
Before Justices Seymore, Brown and Sullivan
14-08-01092-CV Brazoria County v. Kym Van Gelder
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Patrick Edward Sebesta

Smith v. State of Texas (Tex.App.- Houston [14th Dist.] Sep. 17, 2009) (inmate suit dismissed)
AFFIRMED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00057-CV Trent Alvon Smith v. The State of Texas, Nathaniel Quarterman, Alfred C. Janicek, Jr.,
Michael D. Barnett, Kenzie A. Bond, and Pedro M. Boykin
Appeal from 278th District Court of Walker County
Name of trial court judge not shown on appellate docket

Guetersloh v. Guetersloh (Tex.App. - Houston [14th Dist.] Sep. 17, 2009)(per curiam)
(untimely notice of appeal)
DISMISSED 9/17: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00314-CV Michael Fred Guetersloh, Jr. v. James Graig Guetersloh
Appeal from 151st District Court of Harris County

September 15, 2009

Civil Causes Decided:

U.S. Bank N.A. v. Stanley (Tex.App.- Houston [14th Dist.] Sep. 15, 2009)(Brown)
(do company directors owe fiduciary duty to creditors?) (Delaware law applied)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00567-CV U.S. Bank National Association, a National Banking Association, as Liquidating Trustee v. John R. Stanley, Walter S. Piontek, Ted E. Davis, Ronald H. Benson, R. Gerald Bennett, and John Does I-X Appeal from 133rd District Court of Harris County
Trial Court Judge: LAMAR MCCORKLE

September 10, 2009

Civil Causes Decided:

Lerner, MD v. First Commerce Bank (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Yates)
(claim based on bank's failure to honor check time-barred, 4-year statute of limitations for breach of contract)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-07-01084-CV Marvin W. Lerner, MD v. First Commerce Bank
Appeal from County Court at Law No 3 & Probate Court of Brazoria County
[Name of trial court judge not shown on the docket]

Cantu v. Dominguez (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Brown)
(vix lit no security posted, lawsuit against attorney, jurisdictional limits of county court)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00156-CV Tony Cantu and Elsa Cantu v. Ben Dominguez
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd

Sico North America, Inc. v. Willis (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Boyce)
(choice of law when not agreed to in contract, statute of repose, products liability, defective folding table used in schools, amputation of finger caught between panels)
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-08-00158-CV Sico North America, Inc v. James R. Willis Individually, and as Next Friend of John Willis
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Southern Chemical Corp. v. Celanese, Ltd. (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Sullivan) (contract interpretation, contract ambiguous, ambiguity creates fact issue which is not proper for resolution by summary judgment; summary judgment reversed and case remanded for further proceedings)
REVERSED AND REMANDED: Opinion by Justice Sullivan
Before Justices Seymore, Brown and Sullivan
14-08-00348-CV Southern Chemical Corporation v. Celanese, LTD
Appeal from 190th District Court of Harris County
Trial Court Judge: Patricia J Kerrigan

Losier v. Ravi, M.D. (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Brown)
(res ipsa loquitur, complaint of improper conduct of juror overruled, communication with party's agent outside the courtroom)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00399-CV Orville Losier and Wife Joelle Losier v. Shivarajpur K. Ravi, M.D., and Ambika Medical Group, P.A.
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman

Neely v. Commission for Lawyer Discipline (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Frost) (commingling of funds, use of IOLTA trust account for personal and business expenses)
(admission of bank records issue, improper subpoena)
AFFIRMED: Opinion by Justice Frost
Before Justice Frost
14-08-00526-CV George R. Neely v. Commission for Lawyer Discipline
Appeal from 164th District Court of Harris County
Trial Court Judge: Jack Hollis Robison

McNeill v. AMEX (Tex.App.- Houston [14th Dist.] Sep. 10, 2009)(per curiam)
(appeal mooted by trial court's grant of motion to reconsider the summary judgment)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00691-CV Kenneth McNeil v. American Express Centurion Bank
Appeal from County Civil Court at Law No 2 of Harris County

In Re A&P Transportation Co., Inc. (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(per curiam denial) (compulsory counterclaim, not same deadline as for filing answer to original petition & citation)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00729-CV In Re A&P Transportation Co., Inc., Clayton Allen Potter, Toby Allen Potter, T.A. Potter Management, LLC, and Superior Nationwide Logistics, Ltd.
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

September 3, 2009

Civil Causes Decided:

In Re Boxer Property Management Corp. (Tex.App.- Houston [14th Dist.] Sep. 3, 2009)(Boyce)
(discovery mandamus granted)
MOTION OR WRIT GRANTED: Opinion by Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-09-00579-CV In Re Boxer Property Management Corporation and 9343 North Loop, L.P.
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

In Re Kastner (Tex.App..- Houston [14th Dist.] Sep. 3, 2009)(per curiam) (mandamus denied re indigency sought to be established with affidavit, discovery stay in the trial court)
MOTION OR WRIT DENIED: Per Curiam Opinion
Before Justices Brock Yates, Frost and Brown
14-09-00653-CV In Re Kristofer Thomas Kastner
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.

September 1, 2009

Civil Causes Decided:

In Interest of MV, MV and EV (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Yates)
(child support arrearage based on nunc-pro-tunc judgment, amount of child support had not been filled in on the original order) (effective date of nunc pro tunc judgment as to support amount) (clerical error vs. judicial error, NPT order adding monthly amount to blank space on decree not deemed judicial error) (void judgments and orders)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00418-CV In the Interest of M.V, M.V. and E.V.
Appeal from 311th District Court of Harris County
Trial Court Judge: DOUGLAS C. WARNE

Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)
(legal malpractice, breach of fiduciary duty) (summary judgment for defendant affirmed)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00592-CV Willard E. Brown III v. George Maynard Green and Sheehy, Lovelace & Mayfield, P.C.
Appeal from 74th District Court of McLennan County (name of judge not shown on docket)

In Re Smotherman (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(per curiam mandamus denial) (mandamus petition was defective, errors to avoid when filing a petition for writ of mandamus)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00692-CV In Re David Smotherman
Appeal from 434th Judicial District Court of Fort Bend County