Feb 2010 Fourteenth Court of Appeals Decisions

MOST RECENT DECISIONS OF THE 14th COURT OF APPEALS SITTING IN HOUSTON, TEXAS (in reverse chronological order of release date) WITH HYPER-LINKS TO OPINIONS (significant civil cases only)

February 23, 2010

Civil Causes Decided:

WTG Gas Processing, LP v. ConocoPhillips Company (Tex.App.- Houston [14th Dist.] Feb. 23, 2010) (Seymore)(cross appeals, breach of contract and tortious-interference claims, no contract formed, statute of frauds, summary judgment affirmed)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00019-CV WTG Gas Processing, LP v. ConocoPhillips Company, Targa Field Services, LLC, Targa Resources Texas GP LLC, Targa Resouces, Inc., Targa Texas Field Services, LP and Warburg Pincus, LLC | Appeal from 333rd District Court of Harris County
Trial Court Judge: Joseph J. Halbach

Jensen v. Jensen (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Brown) (divorce property division, foreign spouse, international aspects of family/divorce law)(divorce property division affirmed) (community vs. separate property, reimbursement claim)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00221-CV Tammy C. Jensen v. Barry Dale Jensen
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Ronald R. Pope

Royal v. Harris County Constable (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost)
(official immunity defense asserted in high-speed chase collision PI suit, TTCA no waiver of
governmental unit's immunity to suit when officer establishes official immunity defense)
AFFIRMED: Opinion by Justice Frost
Before Justices Hudson, Frost and Brown
14-08-00551-CV Mary Royal and Ira Royal, Jr., Individually and As Next Friends of Ira Royal, III v. Harris
County; Harris County Constable
Appeal from 190th District Court of Harris County
Trial Court Judge: Patricia J Kerrigan

Teel v. Shifflett (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost)
(protective order against domestic/intimate partner, same household finding affirmed, constitutional challenge not preserved for appellate review, intimate partner finding not supported by the pleadings or tried by consent)
AFFIRMED AS MODIFIED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-08-00836-CV Ashleigh Elise Teel v. Kenneth Richard Shifflett
Appeal from 309th District Court of Harris County
Trial Court Judge: David D. Farr
Concurring Opinion by Justice Brock Yates in Teel v. Shifflett (no right to jury trial in suit for protective order under family code)

Man Industries (INDIA), Ltd. v. Bank of Tokyo (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Yates)(interlocutory appeal from the trial court’s order denying special appearance as to the cross-claim, denial of special appearance affirmed; claim not severable)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Brown and Boyce
14-09-00362-CV Man Industries (INDIA) Ltd. v. Bank of Tokyo-Mitsubishi UFJ, Ltd.
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

Zavadil v. Safeco Ins. Co. of Illinois (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Mirabal)
(tolling of limitations based on defendant's absence from state, no SoL tolling based on brief absences)
REVERSED AND RENDERED: Opinion by Senior Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-09-00568-CV Jessica Zavadil v. Safeco Insurance Company of Ilinois
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle

February 18, 2010

Civil Causes Decided:

Alattar v. Ganim (Tex.App.- Houston [14th Dist.] Feb. 18, 2010)(Hedges)
(real estate transaction, statute of frauds applies and was not satisfied, judgment reversed and take-nothing judgment entered)
REVERSED AND RENDERED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00756-CV Farouck (Frank) Alattar v. John Ganim
Appeal from 400th District Court of Fort Bend County
Trial Court Judge: Clifford J. Vacek

Carlson v. City of Houston (Tex.App.- Houston [14th Dist.] Feb. 18, 2010)(Boyce) (appeal from grant of plea to the jurisdiction succeeds, district court’s order dismissing appellants’ case for want of jurisdiction reversed, statutory right to judicial review, building safety ordinance)
REVERSED AND REMANDED: Opinion by Justice Bill Boyce
Before Justices Frost, Boyce and Sullivan
14-08-01044-CV James and Elizabeth Carlson, Jose and Elizabeth Referente, Roger Compodonico, Sergio A. Lopez, Yan Wang and Hui Yao, Danial and Andrea Seluk, Robert Hutchins, Robert and Kelly Farfan, Bonnie Corbett, Helen Pagola, and Manny Espinola v. City of Houston
Appeal from 152nd District Court of Harris County
Trial Court Judge: Ken Wise

In re Clewis (pdf) (Tex.App.- Houston [1eth Dist.] Feb. 18, 2010)(per curiam denial)
(defective mandamus petition denied re: abatement sought in suit, related probate matter)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-10-00086-CV In Re Boris Twain Clewis
Appeal from 269th District Court of Harris County

February 11, 2010

Civil Causes Decided:

Hatton v. D.R. Horton, Inc. (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(Christopher)
(arbitration agreement held enforceable in appeal from final judgment, with reference to prior grant of mandamus relief on same facts and law) (arbitration in the employment context)
AFFIRMED: Opinion by Justice Christopher
Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-00054-CV Brenda Hatton v. D.R. Horton, Inc.
Appeal from 152nd District Court of Harris County
Trial Court Judge: Kenneth Price Wise

Jones v. Union Pacific RR Co. (Tex.App. - Houston [14th Dist.] Feb. 11, 2010)(per curiam dismissal) (appeal dismissed for noncompliance with terms of mediation order)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-00541-CV Donald R. Jones, Sr. v. Union Pacific Railroad Company
Appeal from 164th District Court of Harris County
Trial Court Judge: Alexandra Smoots-Hogan

In Re John D. Hanby (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam)
(declaratory judgment counterclaims that mirrored plaintiff's causes of action were not independent claims that could survive nonsuit by plaintiff) (mandamus granted to vindicate plaintiff's right to nonsuit)
MOTION OR WRIT GRANTED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00896-CV In Re John D. Hanby
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

In re United Production & Construction Services, Inc.(pdf)(Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam)(denial of relator’s motion to dismiss for forum non conveniens)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-10-00023-CV In re United Production & Construction Services, Inc
Appeal from 164th District Court of Harris County
Trial Court Judge: Alexandra Smoots-Hogan

February 9, 2010

Civil Causes Decided:

Hernandez v. Labella (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Anderson)
(breach of settlement agreement in attorney malpractice case, settlement agreement enforced)
(fee forfeiture for breach of fiduciary duty by lawyer to client, election of remedies in breach of contract case, repudiation of settlement agreement, anticipatory repudiation, rescission of contract)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00327-CV Salomon Juan Hernandez v. Joseph Labella and LaBella Dennis & Associates, PLLC
Appeal from 284th District Court of Montgomery County (name of trial court judge not shown on docket)

Giannakopulos v. Eris (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Brown)
(presentment of claim as condition precedent in attorney's fees claim based on breach of contract)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00566-CV Illas Giannakopulos v. Bill Eris
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher

Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges)
(suit for partition of land, two-stage proceedings with two final judgments, effect of nonsuit)
(amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)
AFFIRMED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00610-CV Gerald K. Johnson v. Christine Evans and Frederick M. Evans
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley

In re Drake (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(per curiam)
(mandamus challenging order granting new trial denied; default judgment was only partial, did not dispose of all claims in suit, thus there was no final judgment, unaddressed claims remained pending and court retained plenary power to set aside the default judgment)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-01058-CV In Re John Drake
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

February 4, 2010

Civil Causes Decided:

Physio, Ltd v. Naifeh (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Yates)
(employment law - wrongful termination; liability on Sabine-Pilot wrongful termination claim)
Appellants appeal the trial court’s judgment holding them individually liable for firing appellee for the sole reason that she refused to perform an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Because we hold that the Sabine Pilot doctrine should not be extended to impose liability on individual employees rather than the plaintiff’s employer, we reverse and render.
DISMISSED IN PART AND REVERSED AND RENDERED IN PART: Opinion by Justice Brock Yates
Before Justices Brock Yates, Hudson and Sullivan
14-08-00017-CV Physio GP, Inc., Physio, Ltd, Tanja Saadat and Shawn Saadat v. Natalie Naifeh
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher
Dissenting Opinion by Justice Hudson in Physio GP, Inc.v. Natalie Naifeh (Sabine Pilot claim against bosses individually should be viable)

RRB Land Investmenst Ltd v. HCAD (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam)
(only owner has standing to challenge property tax appraisal, application of Texas Rule of Civil
Procedure 28 re substitution of true name for common name, dba)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00317-CV RRB Land Investments Ltd., aka Cypresswood Venture I Ltd and Cypresswood
Venture I Ltd, as the Property Owners v. Harris County Appraisal District
Appeal from 269th District Court of Harris County

Rose v. Bank (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam dismissal - no brief filed)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00510-CV Lucille C Rose v. Christina Bank and Trust Company, as Owner Trustee of Security
Funding Trust
Appeal from County Court at Law #4 of Fort Bend County
Trial Court Judge: Sandy Bielstein

NW Enterprises, Inc. v. City of Houston (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam)
(temporary injunction appeal dismissed as moot, court may not render advisory opinions)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00561-CV N.W. Enterprises, Inc d/b/a Gaslight News & Video v. City of Houston
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland

In Re Continental Airlines, Inc. (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Seymore)
(mandamus relief granted to quash apex disposition)
MOTION OR WRIT GRANTED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00952-CV In Re Continental Airlines, Inc.
Appeal from 11th District Court of Harris County
Trial Court Judge: Mike Miller

Gann v. Kamman (pdf) (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam)
(failure to make arrangements to pay for the record)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00966-CV Sabrina Gann v. Alvin E. Kamman
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern

In re Bishop (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Anderson)
(habeas corpus, child support contempt order, revocation of suspension, void orders)
MOTION OR WRIT GRANTED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00990-CV In Re Jason Paul Bishop
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough

Vo v. Doan (pdf) (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam dismissal)
(no interlocutory appeal permitted from trial court's order granting mistrial)
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-01009-CV Andrew T. Vo d/b/a Larry Vo, Viet Le, Tam Van Le, and Vo-Le, Inc. v. Ho Kim Doan
Appeal from 129th District Court of Harris County
Trial Court Judge: Michael Gomez

Bui v. METRO of Harris County (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per curiam dismissal)(attempted appeal from commissioners' award in condemnation case dismissed for lack of jurisdiction)
DISMISSED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-01064-CV Ngocdung Thi Bui, et al v. Metropolitan Transit Authority of Harris County
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle

In re Tindall (Tex.App.- Houston [14th Dist.] Feb. 4, 2010)(per curiam denial of writ of prohibition)
MOTION OR WRIT DENIED: Per Curiam
14-10-00093-CV In Re Marion H. Tindall, individually and d/b/a Cottage School System, Inc.
and Cottage School System, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Kyle Carter

February 2, 2010

Civil Causes Decided:

Malallah v. Noble Logistic Services, Inc. (Tex.App. - Houston [14th Dist.] Feb. 2, 2010)(Christopher) (employment law, employment contract, statute of limitations, accrual of claim for SOL purposes)
AFFIRMED: Opinion by Justice Christopher
Before Chief Justice Hedges, Justices Anderson and Christopher
14-08-01030-CV Bader Malallah v. Noble Logistic Services, Inc. f/k/a Dedicated Services, Inc.
and SRS Texas Holdings, LLC
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Shadwick

In re Cooper Tire & Rubber Co. (Tex.App. - Houston [14th Dist.] Feb. 2, 2010)(Anderson)
MOTION OR WRIT GRANTED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00906-CV In Re Cooper Tire & Rubber Company
Appeal from 127th District Court of Harris County
Trial Court Judge: R.K. Sandill