March 2010 1st Court Appellate Opinions in Civil Cases

CIVIL CASE OPINIONS FROM THE FIRST COURT OF APPEALS IN HOUSTON

March 11, 2010

Civil Causes Decided:

Conte v. Ditta (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (opinion on remand from Texas Supreme Court, which held that “[n]o statute of limitations period applies in a trustee-removal suit)
Ditta v. Conte, 298 SW3d 187, No. 07-1026 (Tex. Jun. 5, 2009)(trustee removal suit, accounting by trustee, appointment of successor trustee, modification of trust due to change in circumstances) AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT
IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice
Hanks
Before Justices Alcala, Hanks and Bland
01-05-00603-CV Susan Conte v. Louis Ditta, Guardian of the Estate of Doris L. Conte, IP
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

Eastern Bloc Entertainment, Ltd. v. ABCO Properties, Inc. (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)
(Higley) (appeal of turnover order)
Appellants, Eastern Bloc Entertainment, Ltd., Altar Boys Management Company, L.L.C., Robert W. Thomas, and John S. “Skip” Woods (collectively, “Eastern”), appeal from a turnover order granted in favor of appellee, Abco Properties, Inc., Trustee.In three issues, Eastern contends that the trial court abused its discretion because (1) there was no evidence to support the order, (2) the judgment has been satisfied, and (3) the order violates public policy.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00238-CV Eastern Bloc Entertainment, Ltd., Altar Boys Management Company, L.L.C., Robert W.
Thomas and John S. "Skip" Woods v. ABCO Properties, Inc., Trustee
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Kenneth P. Wise

Villarreal v. Wells Fargo Brokerage Services (pdf) (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Higley)
we affirm the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Wells Fargo for breach of fiduciary duty, fraud, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and violating the DTPA and the Texas Securities Act. We also affirm the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations. We reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Wells
Fargo for assisting Pena in breaching his fiduciary duty. We also reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of fiduciary duty, fraud, violating the Texas Securities Act, and assisting Pena in breaching his fiduciary. We remand the case for further proceedings.
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00258-CV Olga (Chapa) Villarreal and Israel Chapa v. Wells Fargo Brokerage Services, LLC, Wells
Fargo Investments, LLC, Pastor Ramiro A. Pena, Jr., L.B. Myers, Jr. (d/b/a Jubilee Investments) and Joyce Q. Myers d/b/a Jubilee Investments
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown

Kite v. Kite (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Alcala)(separate property in divorce, inception of title rule) (spouse's separate property may not be awarded to the other spouse in division of community property)
We hold the trial court erred in divesting Michael of his separate property. This necessitates remand for a new division of the community estate. We reverse the portion of the final decree of divorce that divides the marital estate. We remand for a new division of the community estate and other appropriate proceedings. We affirm the final decree of divorce in all other aspects.
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00643-CV Michael David Kite v. Kendra Senja Kite
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York

Doherty v. JPMorgan Chase Bank NA (pdf) (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks)
(probate case, trust, declaratory judgment)
in light of the terms of the Trust at issue and JPMorgan's November 20, 2006 letter, JPMorgan failed to act as the trustee with respect to Doherty's request to remodel a bathroom for her use. We hold that JPMorgan's actions as trustee, outlined above, triggered the provisions of Paragraph 6.5 and allowed Doherty to appoint a successor trustee. Based upon the record before us, including JPMorgan's November 20, 2006 letter deferring action on Doherty's request to a future unnamed successor trustee, the trial court erred by granting summary judgment in JPMorgan's favor and denying Doherty's motion for summary judgment on these grounds. We sustain Doherty's issue. Because this point is dispositive of the appeal, we do not reach Doherty's fourth issue.
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-08-00682-CV Lois Doherty v. JPMorgan Chase Bank, N. A.
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: The Honorable Mike Wood

Clear Lake City Water Authority v. MCR Corporation (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Radack) (interlocutory appeal from order denying plea to the jurisdiction on governmental immunity grounds, legis
waived immunity)
This case arises from a contract dispute between a water authority and a developer. When the developer
brought suit asserting breach of contract, the water authority asserted governmental immunity from suit. By
interlocutory appeal, the water authority now challenges the trial court's order denying its plea to the
jurisdiction. Concluding that the Texas Legislature waived the water authority's immunity from suit under
section 271.152 of the Texas Local Government Code, we affirm the trial court's order.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00955-CV Clear Lake City Water Authority v. MCR Corporation
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach

Lyle v. Guinn Revocable Trust (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Keyes)
(oil and gas law, assignment of oil and gas lease, statute of limitations, laches, statute of frauds)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Sharp and Massengale
01-09-00081-CV Kenneth R. Lyle and Warbonnet Exploration Company v. Jane Guinn Revocable Trust,
Perry B. Menking, Jr. Investment Management Trust, Lynn Sahin, Kate Lutken Bruno Grantor Trust, Wesley
Lutken Grantor Trust, Daniel R. Japhet, Jr., Gretchen Japhet, Susan Japhet Scotty and Larken Japhet
Sutherland
Appeal from 149th District Court of Brazoria County
Trial Court Judge: The Honorable Robert E. May

Doyle v. Heilman (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks)(probate matter, claim against estate by friend/caregiver not provided for in care-recipient's will fails, judgment on quantum meruit claim for personal care services reversed, element of notice of expectation to be paid for
services not satisfied in this case)
Following a bench trial, the court awarded appellee, Leticia G. Heilman, $72,300 in damages on her claim for quantum meruit against Charlotte Doyle, as executor of the estate of Alfred Miller. The court also awarded $16,177.50 in attorney’s fees and additional amounts in the event of an appeal. On appeal, Doyle contends that the trial court erred by (1) failing to apply Texas Probate Code Section 59A, the statute of frauds, statute of limitations, and laches; (2) applying the equitable principle of quantum meruit to allow for a recovery barred by Probate Code Section 59A; (3) finding the evidence to be legally and factually sufficient to support Heilman’s claim for quantum meruit; (4) awarding damages not supported by the evidence; (5) overruling Doyle’s Daubert challenge to the qualifications of Heilman’s expert; and (6) awarding legal fees.Because we find that Heilman failed to establish a claim for quantum meruit as a matter of law, we sustain Doyle’s third issue and need not address the others. We reverse the judgment of the trial court and render judgment that Heilman take nothing.
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-09-00164-CV Charlotte Doyle, as Executor of The Estate of Alfred Miller, Deceased v. Leticia G. Heilman Appeal from Probate Court No 1 of Harris County

March 10, 2010

Civil Causes Decided: None

March 9, 2010

Civil Causes Decided:

In re Exxon Mobil Corp. (Tex.App.-Houston [1st Dist.] Mar. 9, 2010)(per curiam)
(discovery mandamus denied)
ExxonMobil Corporation challenged the trial court's order denying ExxonMobil’s motion to compel production and upholding the privilege claims of real party in interest Duke Energy Field Services, Inc.
DENY MOTION: Per Curiam
Before Justices Keyes, Alcala and Massengale
01-09-01033-CV In re Exxon Mobil Corporation
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally

Criminal Causes Decided:

March 4, 2010

Civil Causes Decided:

Thomas v Radioshack Corp. (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack)
(request for jury trial, motion for continuance properly denied, oral motion to continue trial date was insufficient)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00400-CV Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes,
Employee in her Official and Individual Capacity
Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson

Nawal Automotive v. JPMorgan Chase Bank (pdf)(Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam
dismissal)(appeal is moot due to settlement)
DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00979-CV Nawal Automotive v. JP Morgan Chase Bank
Appeal from 234th District Court of Harris County
Trial Court Judge: The Honorable Reece Rondon

Petroleum Analyzer Company, L.P. v. Franek Olstowski (Tex.App.- Houston [1st Dist.] March 4, 2010)(Alcala)(judgment confirming arbitration award affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00076-CV Petroleum Analyzer Company, L.P. v. Franek Olstowski, Individually and DBA Atomic
Analytical Consulting Services and Atom Instrument Corporation
Appeal from 269th District Court of Harris County
Trial Court Judge: John Thomas Wooldridge

Tilotta v. Smith-Tilotta (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam)(no final order to appeal from, interlocutory appeal not authorized)
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Hanks and Bland
01-09-00817-CV Michael Tilotta v. Dewana Smith-Tilotta
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne

Robertson v. Robertson (pdf) (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam)(dismissed on appellant's motion)
DISMISS APPEAL: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-01138-CV Dwayne Eric Robertson v. Stephanie Lee Robertson
Appeal from 310th District Court of Harris County
Trial Court Judge: Hon. Lisa Millard

Houston-Galveston Area Council v. Walters (pdf) (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Massengale)
DISMISS APPEAL: Opinion by Justice Massengale <-- minimalist dismissal opinion should be "per curiam" Before Justices Keyes, Sharp and Massengale 01-10-00019-CV Houston-Galveston Area Council v. Allison Walters
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May