March 2010 14th Court of Appeals Decisions

CIVIL APPEALS DECIDED BY THE FOURTEENTH COURT OF APPEALS IN MARCH 2010

March 25, 2010

Civil Causes Decided:

De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010)(Mirabal) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding)
AFFIRMED: Opinion by Justice Mirabal
Before Justices Mirabal, Boyce and Sullivan
14-08-00429-CV Dennis C. De Acetis v. Marianne Whitley, Michael W. DeAcetis, James M. Gary, Kimberly C. Gary, and Martha C. Fonke
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Patrick Edward Sebesta

M7 Capital LLC. v. Miller (Tex.App.- Houston [14th.] Mar. 25, 2010)(Christopher) (option contract, existence of contract, existence of valid contract, performance)
REVERSED AND REMANDED: Opinion by Justice Christopher
Before Justices Anderson, Boyce and Christopher
14-08-00951-CV M7 Capital LLC v. Theodore B. Miller, Jr. a/k/a Ted B. Miller, Jr.
Appeal from 11th District Court of Harris County
Trial Court Judge: Mark Davidson

Ellis v. Eadie (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (agreed child support review order, no timely motion for new trial filed)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00560-CV Joseph Ellis v. Tamiko Eadie
Appeal from 310th District Court of Harris County
Trial Court Judge: Lisa A. Millard

Lambertz v. Robinson (HCAD) (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (tax protest appeal and due process, administrative remedies exclusive remedy)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00650-CV Robert W. Lambertz v. Jim Robinson and Oliver Esch
Appeal from 333rd District Court of Harris County
Trial Court Judge: Joseph ("Tad") Halbach

Douglas v. Ingersoll (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (indigency contest, IFP status should have been granted)
REVERSED AND RENDERED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00930-CV RALPH O. DOUGLAS v. ELISE SELMA INGERSOLL
Appeal from 270th District Court of Harris County

March 23, 2010

Civil Causes Decided:

McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Frost)
(appeal from garnishment order, subsequent appeal, divorce and SAPCR case, characterization of attorney's fees as child support in divorce case, bankruptcy stay)
In seven issues, Chris, the garnishment debtor, contends that (1) the trial court abused its discretion by not complying with the mandate of the appellate court, (2) the garnishment action violated the automatic bankruptcy stay, (3) the garnishment action is improper because it is the second action for the same fees, (4) the manner in which Chris’s assets were taken from two separate-property accounts was improper, (5) this court should stay execution of judgment
until this court “rules on the characterization of attorney fees as child support,”(6) Chris was improperly divested of his assets, and (7) the judgment is manifestly unjust. We affirm.
AFFIRMED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-08-00365-CV Christopher J. McCloskey v. Anne Miriam McCloskey, Michael A. Craig, and Fidelity Investments D/B/A National Financial Services, L.L.C.
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern

Miller v. City of Houston [and its police chief] (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Mirabal) (city civil service, disciplinary proceeding appeal, plea to the jurisdiction)(hearing examiner was not authorized to impose a suspension of more than fifteen days)
REVERSED AND REMANDED: Opinion by Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-08-01018-CV Lt. Ken Miller v. City of Houston and Harold Hurtt
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton

In re Frazier (Tex.App.- Houston [14th Dist.] Mar. 23, 2010) (per curiam denial of mandamus in CPS child removal case)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-10-00176-CV In Re Marshall James Frazier
Appeal from 314th District Court of Harris County
Trial Court Judge: John Phillips

March 18, 2010

Civil Causes Decided:

Haines v. Sheeley (Tex.App.- Houston [14th Dist.] Mar. 18, 2010)(per curiam) (inmate litigation, Chapter 14 of CPRC)
Appellant Rodney Steve Haines, appeals the dismissal of his suit under Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). In one issue, he asserts that the trial court abused its discretion in dismissing his suit. We affirm.
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-09-00064-CV Rodney Steve Haines v. Mary K. Sheeley, Correctional Warden
Appeal from 87th District Court of Freestone County
[Name of trial judge not shown on appellate docket]

Carlson v. TDFPS (Tex.App.- Houston [14th Dist.] Mar. 18, 2010)(Christopher) (termination of parental rights, race issue raised and overruled)
AFFIRMED: Opinion by Justice Christopher
Before Justices Anderson, Boyce and Christopher
14-09-00133-CV CHERYL CARLSON v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES Appeal from 300th District Court of Brazoria County
Trial Court Judge: K. RANDALL HUFSTETLER

March 16, 2010

Civil Causes Decided:

Gay v. Dummar (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Mirabal)
In this probate case, appellants Frank William Gay, II and Robert Gay[1] contend, among other things, that the trial court erred by refusing to appoint them as the independent co-executors of the estate of their father, Frank William Gay (“Mr. Gay”), as provided in their father’s will. We reverse and remand.
REVERSED AND REMANDED: Opinion by Justice Mirabal
Before Justices Anderson, Mirabal and Boyce
14-08-00699-CV Frank William Gay, II and Robert C. Gay v. Melvin Dummar & Clifton A. Goodwin
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: RORY ROBERT OLSEN

Davis v. Friedson (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Subst. op. by Boyce)
This case arises from a dispute involving a real estate broker’s commission. Scott Friedson and NIP Real Estate L.L.C. d/b/a National Income Property (“National Income Property”) challenge the trial court’s (1) order granting James Davis’s motion for partial summary judgment on Friedson’s breach of contract and fraud claims; and (2) denial of Friedson’s motion for continuance.[1] Davis appeals the trial court’s (1) dismissal of certain counterclaims without prejudice for want of prosecution;[2] and (2) denial of his motion to reinstate.
We dismiss in part; affirm in part; and reverse and remand in part.
AFFIRMED IN PART & REVERSED & DISMISSED IN PART: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-01098-CV James W. Davis, Thomas B. Wilkinson, IV KET Enterprises, Incorporated, and Melissa Jones v. Scott Friedson ("Friedson")
Appeal from 80th District Court of Harris County
Trial Court Judge: LYNN M. BRADSHAW-HULL

Reardon, MD v. Nelson (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Seymore)
Appellant, Michael J. Reardon, M.D. (“Dr. Reardon”), appeals the trial court’s order denying his motion to dismiss appellee, Royce Nelson’s (“Nelson”), medical- malpractice suit on the ground that Nelson’s expert, John F. Seaworth, M.D. (“Dr. Seaworth”), provided an inadequate report. In three issues, Dr. Reardon contends the trial court abused its discretion by (1) finding Dr. Seaworth was “qualified to provide opinions on how the alleged breach of the standard of care
caused [Nelson’s] damages,” (2) determining “that the causation opinion of [Nelson’s] cardiology expert was linked to facts in the expert’s report, and not just speculation and assumptions,” and (3) “failing to dismiss all claims regarding the standard of care during the performance of a coronary artery bypass surgery.” Because all dispositive issues are settled in Texas law, we issue this memorandum opinion and affirm the trial court’s order. See Tex. R. App. P. 47.4.
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00532-CV Michael J. Reardon, M.D. v. Royce Nelson
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

UTMB-Galveston v. Nightingale (Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Hedges)
This is a healthcare liability case governed by chapter 74 of the Texas Civil Practice and Remedies Code.[1] Appellant, University of Texas Medical Branch - Galveston (“UTMB”), filed this interlocutory appeal to challenge the trial court’s order denying its motion to dismiss based on appellee’s alleged failure to file a sufficient expert report. We affirm.
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-09-00538-CV University of Texas Medical Branch - Galveston v. James Nightingale, Individually and as Independent Executor of the Estate of Karen Nightingale, Deceased
Appeal from Probate Court of Galveston County
Trial Court Judge: Gladys Burwell

Cypress Forest PUD v. Kleinwood MUD (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Hedges) (annexation-related dispute, takings claim, eminent domain, vested property interest)
This case involves a municipal utility district’s allegation that rights acquired under an annexation agreement were appropriated by another utility district in violation of the takings clause under article I, section 17 of the Texas Constitution. Appellee, Kleinwood Municipal Utility District (“Kleinwood”), filed suit against appellant, Cypress Forest Public Utility
District (“Cypress Forest”), claiming an unconstitutional taking of rights created under an annexation agreement. Kleinwood answered the lawsuit by filing a plea to the jurisdiction. The trial court denied the plea, and in turn, Cypress Forest brings this interlocutory appeal. In two issues, Cypress Forest complains that the trial court erred in denying its
plea to the jurisdiction. We reverse and render.
REVERSED AND RENDERED: Opinion by Chief Justice Hedges, Concurring Opinion by Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-09-00679-CV Cypress Forest Public Utility District v. Kleinwood Municipal Utility District Appeal from 215th District Court of Harris County
Trial Court Judge: Steven Kirkland
Concurrence by Mirabal with Note (no separate opinion)

March 11, 2010

Civil Causes Decided:

Hatfiled v. Solomon (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Boyce) (no harmful jury charge error, costs deleted from judgment)
AFFIRMED AS MODIFIED: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Brock Yates and Boyce
14-08-00487-CV Ronald C. Hatfield v. Glenn J. Solomon
Appeal from 127th District Court of Harris County
Trial Court Judge: Sharolyn P. Wood

Sweeney v. Dyncorp International LLC (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Brown)
(workforce commission appeal, denial of bonus claim)
Appellant Patrick N. Sweeney appeals the trial court’s decision to uphold the Texas Workforce Commission’s ruling denying Sweeney’s claim of an unpaid bonus. Sweeney argues that (1) there was not substantial evidence to support the Texas Workforce Commission’s conclusion, and (2) the trial court erred by allowing appellee Dyncorp International, LLC to invoke a state-secrets privilege during Sweeney’s cross examination of appellee’s sole witness. We affirm.
AFFIRMED: Opinion by Justice Brown
Before Justices Brock Yates, Seymore and Brown
14-08-00923-CV Patrick N. Sweeney v. Dyncorp International, LLC
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle

Davis v. Friedson (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Boyce)(elements of contract, breach of contract, motion for continuance, DWOP of counterclaim)
This case arises from a dispute involving a real estate broker’s commission. Scott Friedson challenges the trial court’s (1) order granting James Davis’s motion for partial summary judgment on Friedson’s breach of contract and fraud claims; and (2) denial of Friedson’s motion for continuance. Davis appeals the trial court’s (1) dismissal of certain counterclaims without prejudice for want of prosecution;[1] and (2) denial of his motion to reinstate.
We dismiss in part; affirm in part; and reverse and remand in part.
AFFIRMED IN PART & REVERSED & DISMISSED IN PART:
Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-01098-CV James W. Davis, Thomas B. Wilkinson, IV KET Enterprises, Incorporated, and Melissa Jones v. Scott Friedson ("Friedson")
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

Hughes and Bay Architects, Inc. v. Bay Area Montessori House, Inc. (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(subst memo op. by Frost)(attempted interlocutory appeal dismissed, no authorized at the time by statute)
This interlocutory appeal arises out of an architecture-malpractice case. An architect and architectural firm sought dismissal of a school’s claims against them on the basis that the claimant failed to comply with the certificate-of-merit statute. The trial court denied their motion to dismiss without stating the basis for the denial. In a single issue, the architect and architectural firm assert that the trial court incorrectly applied section 150.002 of the Texas Civil Practice and Remedies Code because the affidavit filed by the claimant allegedly did not contain a mandatory element. Because the claimant’s cause of action accrued before the legislature amended the certificate-of-merit statute to permit an interlocutory appeal from the denial of a motion to dismiss, this court lacks jurisdiction to consider this appeal.
DISMISSED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc.
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher

March 9, 2010

Civil Causes Decided: None

March 4, 2010

Civil Causes Decided:

Pham v. Letney (Tex.App.- Houston [14th Dist.] March 4, 2010)(Hedges) (arbitration agreement in legal services contract between lawyer and client enforced by mandamus, interlocutory appeal of order denying motion to compel arbitration dismissed, FAA applied, TAA would be preempted)
INTERLOCUTORY APPEAL DISMISSED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Seymore and Justice Sullivan
14-08-01153-CV Steven Tuan Pham v. Shelly Letney
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton
Dissenting Opinion by Justice Seymore in Pham v. Letney
(In consideration of the unique relationship between attorney and client, Justice Seymore writes
dissenting opinion to express his concern about mandatory arbitration provisions in attorney-client agreements)

In re Tuam Pham (pdf) (Tex.App.- Houston [14th Dist.] March 4, 2010)(Hedges)
MOTION OR WRIT GRANTED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00387-CV In Re Steven Tuam Pham
Appeal from 215th District Court of Harris County
Dissenting Opinion by Justice Seymore In re Tuam Pham (pdf)

Woodway Drive LLC v. HCAD (Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam) (owner must file property tax protext judicial review suit; dismissal for want of jurisdiction affirmed;no substitution of new owner under Rule 28)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00524-CV Woodway Drive LLC aka First Reliance Metering LP v.
Harris County Appraisal District Appeal from 189th District Court of Harris County
Trial Court Judge: William R. Burke JR.

EMS USA, Inc. v. Shary (Tex.App.- Houston [14th Dist.] March 4, 2010)(Boyce) (temporary injunction appeal, elements requirements for temporary injunction, noncompete agreements)
We conclude that the trial court abused its discretion when it denied EMS’s application for a temporary injunction without hearing testimony regarding whether the non-compete covenant was (1) “ancillary to or part of” the personal services contract; and (2) a reasonable restraint.
REVERSED AND REMANDED: Opinion by Justice Bill Boyce
Before Justices Frost, Boyce and Sullivan
14-09-00543-CV EMS USA, Inc v. Robert Shary
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Scott Plaza Associates Ltd v. HCAD (Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam) (HCAD property tax appeal, plaintiff did not own property and did not have standing to bring judicial review suit of property tax appraisal, substitution under rule 28 not available, order granting plea to the jurisdiction affirmed)
Steward did not own the property as of January 1, 2007. Steward did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, Steward lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a). The record does not reflect that Scott Plaza pursued its right of protest as the actual property owner. According to the record, Scott Plaza was not named as a party until May 22, 2009 when Steward filed a
first amended original petition. Therefore, the Review Board had not determined a protest by the actual property owner, Scott Plaza, upon which Scott Plaza could premise a right to appeal as the property owner.
AFFIRMED: Per Curiam
Before Justices Brock Yates, Anderson and Seymore
14-09-00707-CV Scott Plaza Associates LTD, commonly known as J & Friedman S. Steward v.
Harris County Appraisal District
Appeal from 55th District Court of Harris County (trial judge not identified on appellate docket)

Hendrix v. Bryant (pdf) (Tex.App.- Houston [14th Dist.] Mar. 4, 2010)(per curiam) (untimely notice of appeal; no motion for extension for additional 15 days)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00897-CV Jake Hendrix v. Cheryl Bryant
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

March 3, 2010

Civil Causes Decided:

In Re Rapid Settlements, Ltd (Tex.App.- Houston [14th Dist.] Mar. 3, 2010)(per curiam denial of mandamus against sanctions order and discovery order) relator asked this court to compel the Honorable Patricia Hancock, presiding judge of the 113th District Court of Harris
County, to set aside her February 22, 2010, order compelling the deposition of relator’s corporate representative, compelling the production of documents, and awarding sanctions,
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-10-00204-CV In Re Rapid Settlements, Ltd
Appeal from 113th District Court of Harris County
Trial Court Judge: Patricia Ann Hancock

March 2, 2010

Civil Causes Decided:

WTG Gas Processing, LP v. ConocoPhillips Company (pdf) (Tex.App.- Houston [14th Dist.] Mar. 2, 2010) (Corrected superseding opinion by Seymore) (cross appeals, breach of contract and tortious-interference claims, no contract formed, statute of frauds, summary judgment affirmed)
AFFIRMED: Opinion by Justice Charles 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

Peredo v. Grupo Cuadro, S.A. De C.V. (Tex.App.- Houston [14th Dist.] Mar 2. 2010)(Anderson)
(denial of special appearance was error, severance and dismissal for want of in personal jurisdiction ordered)
A Mexican corporation brought suit in Harris County against a vendor and two of the vendors’ Texas employees. The vendor counterclaimed against the Mexican corporation’s president, who resides in California, and the trial court denied the nonresident counterdefendant’s special appearance. Because the evidence does not support the trial court’s exercise of personal jurisdiction over the nonresident, we reverse and remand.
REVERSED AND REMANDED: Opinion by Justice John S. Anderson
Before Justices Anderson and Brown
14-08-01032-CV Miguel Peredo v. Grupo Cuadro, S.A. de C.V.
Appeal from 234th District Court of Harris County
Trial Court Judge: Reese Rondon