| Decisions of the Fourteenth Court of Appeals in Houston November 2009 |
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Opinion Release Dates: November 3, 5, 10, 12, 13, 17, 19, 24, 2009 NOVEMBER 2009 DECISIONS WITH LINKS TO APPELLATE OPINIONS IN CIVIL CASES DETAILS FOR CASES DECIDED BY THE FOURTEENTH COURT OF APPEALS IN NOV '09 Released Opinion November 24, 2009 Civil Causes Decided: Keys v. Litton Loan Servicing LP (Tex.App.- Houston [14th Dist.] Nov. 24, 2009)(Sullivan) (property foreclosure dispute, attorney's fees remanded) In this longstanding property-foreclosure dispute, Patrick William Keys, pro se, appeals the final judgment in favor of Litton Loan Servicing, L.P., the loan servicer for an adjustable rate note on real property owned by Keys. We affirm the trial court in all respects with the limited exception of its granting of Litton’s “Motion for Summary Judgment as to Attorneys’ Fees.” Accordingly, we reverse and remand for further proceedings limited to the award of those attorneys’ fees. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Brock Yates and Sullivan 14-07-00809-CV Patrick William Keys v. Litton Loan Servicing L.P, Et Al Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman Mullins v. Briarwick Condo Owners Ass'n (Tex.App.- Houston [14th Dist.] Nov. 24, 2009)(Brown) (premises liability, falling object)(discovery abuse sanctions) (hindrance of the discovery process justified a presumption her claims lacked merit, the trial court did test and consider lesser sanctions, the sanction was not too severe given the circumstances of the case, and the sanction was not based solely on litigant's failure to produce documents) AFFIRMED: Opinion by Justice Brown Before Justices Seymore, Brown and Sullivan 14-08-00129-CV Susan McGee Mullins v. Briarwick Condominium Owners Association, Inc and KRJ Management, Inc Appeal from 80th District Court of Harris County Trial Court Judge: Lynn M. Bradshaw-Hull Criminal Causes Decided: November 19, 2009 Civil Causes Decided: Hintz v. Lally, MD (pdf) (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(Boyce) (TTCA, dismissal of employee) Election of Remedies Under the Tort Claims Act Dismissal Under Section 101.106(f) Section 101.106(a) AFFIRMED: Opinion by Justice Bill Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00635-CV Sheryl Hintz, as next of friend for Donald Hintz, Jr. v. Kevin Lally, M.D. Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Douglas v. American Title Co. (pdf) (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam) In this appeal from an order dismissing his case for want of prosecution, appellant Douglas, an indigent inmate appearing in propria persona, raises three issues asserting that the trial court abused its discretion by failing to conduct a dismissal hearing or a hearing on his motion to reinstate and by failing to consider his motion to retain. We affirm the trial court’s order. We find that the trial court did not abuse its discretion in failing to conduct a dismissal hearing to consider Douglas’s motion to retain or a hearing on Douglas’s motion to reinstate. We overrule Douglas’s three issues. AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00676-CV Ralph O. Douglas v. American Title Company Appeal from 133rd District Court of Harris County Trial Court Judge: Lamar McCorkle Bejjani v. TRC Services, Inc. (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(Boyce) (DTPA car repair, foreclosure of mechanic's lien, segregation of attorney’s fees) AFFIRMED: Opinion by Justice Boyce Before Justices Anderson, Frost and Boyce 14-08-00750-CV Khalil Bejjani, Individually and dba Bejjani Enterprises, Inc., and dba Bejjani Automotive Group, Inc., and dba Toyex Bimmer Sales & Services and dba Toyex/Bimmer; Bejjani Enterprises, Inc., Individually, Et al v. TRC Services, Inc. Appeal from County Civil Court at Law No 2 of Harris County Trial Court Judge: Jacqueline Lucci-Smith Avshalomov v. Property Improvements, Inc. (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam) (trial court did not err in denying appellant’s special appearance) AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00305-CV Shally Avshalomov, Individually and as the Personal Representative of the Estate of Josua Avshalomov v. Property Improvements, Inc. and Avishai Ron Appeal from 151st District Court of Harris County Trial Court Judge: Mike Engelhart DISMISSED 11/19: Per Curiam (case settled) Before Justices Brock Yates, Frost and Brown 14-09-00464-CV Loren Truman Johnston, III v. Lou Ann (Johnston) Robertson Appeal from 246th District Court of Harris County Tombaco Investments, LLC v. HCAD (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam) (vacated per settlement agreement, joint motion) VACATED AND REMANDED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00680-CV Tombaco Investments, LLC v. Harris County Appraisal District Appraisal Review Board Appeal from 281st District Court of Harris County Trial Court Judge: Sylvia Matthews DISMISSED 11/19: Per Curiam (nonpayment of fees) Before Justices Brock Yates, Frost and Brown 14-09-00710-CV Ronald Pingor v. Melissa G. Fertel Appeal from 312th District Court of Harris County DISMISSED 11/19: Per Curiam (no arrangements to pay for the record) Before Justices Anderson, Frost and Boyce 14-09-00717-CV Letitia Heaton Watson v. John Heaton Appeal from 309th District Court of Harris County VACATED AND REMANDED: Per Curiam (joint motion to reverse) Before Justices Brock Yates, Frost and Brown 14-09-00734-CV Alamo Enviornmental, Inc. v. JCR Trucking Services, L.L.C. Appeal from 129th District Court of Harris County Trial Court Judge: Michael Gomez DISMISSED 11/19: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00836-CV Robertson-Finley Resources, Inc and Penn Virginia Oil and Gas L.P. v. Square Mile Energy, L.L.C., Kiwi Energy, LTD and Winn Exploration Co., Inc. Appeal from 295th District Court of Harris County DISMISSED 11/19: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00953-CV In Re Michael Kennedy Appeal from of County Criminal Causes Decided: AFFIRMED: Opinion by Justice Boyce Before Justices Brock Yates, Seymore and Boyce 14-06-00528-CR Antonio Sierra v. The State of Texas Appeal from 185th District Court of Harris County AFFIRMED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00533-CR Cedric Brown v. The State of Texas Appeal from 183rd District Court of Harris County DISMISSED 11/19: Per Curiam Before Justices Anderson, Frost and Boyce 14-09-00762-CR Christian Ismael Hunt v. The State of Texas Appeal from 248th District Court of Harris County DISMISSED 11/19: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00823-CR Romona Faye George v. The State of Texas Appeal from 230th District Court of Harris County DISMISSED 11/19: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00916-CR Lawrence Ray Crooks III v. The State of Texas Appeal from 263rd District Court of Harris County DISMISSED 11/19: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00917-CR Lawrence Ray Crooks III v. The State of Texas Appeal from 263rd District Court of Harris County DISMISSED 11/19: Per Curiam Before Justices Anderson, Frost and Boyce 14-09-00921-CR Terrance Lyn Tony v. The State of Texas Appeal from 232nd District Court of Harris County November 17, 2009 Civil Causes Decided: In Interest of HGL (pdf) (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Brown) (child-support obligor, appeals the trial court's judgment denying his motion to confirm child-support arrearages and for declaratory judgment) AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-08-00087-CV In the Interest of H.G.L. and A.R.L. Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne In Interest of JJC (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce)(termination of parental rights) The mother of three children and the father of one of the children appeal the termination of their respective parental rights. Because we conclude that the trial court did not err in determining that termination of parental rights is in each child’s best interest, and the parents’ remaining challenges are waived, we affirm. AFFIRMED: Opinion by Justice Boyce Before Justices Anderson and Boyce 14-08-01074-CV In the Interest of J.J.C. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne In Interest of KJS (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce) (termination) AFFIRMED: Opinion by Justice Bill Boyce Before Justices Anderson and Boyce 14-08-01091-CV In the Interest of K.J.S. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne In Interest of JJR (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Boyce) (termination of parental rights) AFFIRMED: Opinion by Justice William Boyce Before Justices Anderson and Boyce 14-08-01129-CV In the Interest of J.J.R. Appeal from 311th District Court of Harris County Trial Judge: Doug C. Warne In Interest of MG (pdf) (Tex.App. - Houston [14th Dist.] Nov. 17, 2009)(Hedges) Appellant, “Jane Doe,” appeals from the termination of her parental rights to M.G. based on trial court findings that: (1) appellant failed to comply with provisions of the court’s prior orders establishing actions necessary for the return of the child after removal for abuse or neglect, and (2) termination was in the child’s best interest. On appeal, appellant contends that there was legally and factually insufficient evidence to support the court’s findings and that she received ineffective assistance of counsel. We affirm. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00136-CV In the Interest of M.G. Appeal from 306th District Court of Galveston County Trial Court Judge: Janis Louise Yarbrough Criminal Causes Decided: AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-07-00865-CR Fredrick Jordan Batts v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00919-CR Simminette Drake Shinette v. The State of Texas Appeal from 212th District Court of Galveston County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00930-CR Lewis W. Barnes v. The State of Texas Appeal from 228th District Court of Harris County November 13, 2009 Civil Causes Decided: Christopher Columbus Street Market LLC v. The Zoning Board of Adjustment of The City of Galveston, Texas (Tex.App.- Houston [14th Dist.] Nov. 13, 2009)(Frost) (zoning board appeal, severance) Property owners appeal the district court’s order affirming the decision of a municipal zoning board to uphold a decision by a city administrative agency to deny the property owners’ application for a city permit to demolish property in a historical area of the city. The property owners also challenge the district court’s severance of their constitutional claims against the city and zoning board from the appeal of the zoning board’s decision. We affirm. AFFIRMED: Opinion by Justice Kem T. Frost Before Justices Brock Yates, Frost and Brown 14-07-00980-CV Christopher Columbus Street Market LLC; Alfio Fischera; and Ed Eubanks v. The Zoning Board of Adjustment of The City of Galveston, Texas Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Criminal Causes Decided: November 12, 2009 Civil Causes Decided: Criminal Causes Decided: DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-09-00607-CR Nathaniel Dwayne Welch v. The State of Texas Appeal from 248th District Court of Harris County November 10, 2009 Civil Cases Decided: MOTION OR WRIT DENIED 11/10: Per Curiam (mandamus regarding contempt order denied) Before Justices Brock Yates, Frost and Brown 14-09-00885-CV In Re Bree Anne Finch Appeal from 300th District Court of Brazoria County Honorable K. Randall Hufstetler Criminal Causes Decided: AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00345-CR Robert Martinez v. The State of Texas Appeal from 174th District Court of Harris County AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00514-CR Willie Charles Ross v. The State of Texas Appeal from 400th District Court of Fort Bend County AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00715-CR Franklin Albert Pearce v. The State of Texas Appeal from 402nd District Court of Wood County AFFIRMED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00719-CR David Allen Gann v. The State of Texas Appeal from 124th District Court of Gregg County DISMISSED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-01046-CR Bradley Stephan Beasley v. The State of Texas Appeal from 232nd District Court of Harris County November 5, 2009 Civil Causes Decided: 2900 Smith, Ltd v. Constellation Newenergy, Inc. (Tex.App.- Houston [14th Dist.] Nov. 5, 2009) (Anderson) (sworn account suit, electricity service, dispute over amount due, findings of facts not filed before judge left bench, abatement for successor judge to make findings) AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice John Anderson Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00061-CV 2900 Smith, Limited and Katie Pham v. Constellation Newenergy, Inc. Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker Information Services Group, Inc. v. Rawlinson (Tex.App. - Houston [14th Dist.] Nov. 5, 2009)(Brown) (accelerated, interlocutory appeal from the trial court’s order granting appellee’s special appearance) (defendant found to lack sufficient minimum contacts to support the assertion of specific jurisdiction) AFFIRMED: Opinion by Justice Jeff Brown Before Justices Brock Yates, Frost and Brown 14-09-00242-CV Information Services Group, Inc., Technology Partners International, Inc. and TPI Eurosourcing, L.L.C. v. Tony Rawlinson Appeal from 61st District Court of Harris County Trial Court Judge: Al Bennett DISMISSED: Per Curiam Before Justices Brock Yates, Anderson and Boyce 14-09-00424-CV James D. Strachan v. Marie J. Starich, Byron K. Barclay, Lori A. Hood, and Hon. James H. Shoemake, Individually and in his capacity as Judge, 434th District Court Appeal from 434th Judicial District Court of Fort Bend County Trial Court Judge: Hon. William R. Burke. Jr. DISMISSED: Per Curiam Before Justices Brock Yates, Anderson and Boyce 14-09-00441-CV Texas Department of Public Safety v. Peter William Benson Appeal from County Civil Court at Law No 3 of Harris County DISMISSED: Per Curiam (interlocutory appeal from an order vacating an arbitration award - case settled) Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00529-CV Internacional Realty, Inc., USA Bellmeade, L.L.C., USA Bellmeade LeaseCo, L.L.C., International Realty Management, Ltd and Hugh L. Caraway v. Bellmeade I, L.P., Bellmeade II, L.P., Charles Schlangen, Marbichar, a California Limited Partnership, and Plaza Escuela Holding Company, L. L.C. | Appeal from 133rd District Court of Harris County Trial Court Judge: Jaclanel McFarland DISMISSED: Per Curiam (dismissed by appellant) Before Justices Brock Yates, Frost and Brown 14-09-00536-CV Texas Department of Public Safety v. Christopher Daniel Hogan Appeal from Co Civil Ct at Law No 3 of Harris County Trial Court Judge: Linda Storey DISMISSED: Per Curiam Before Justices Brock Yates, Anderson and Boyce 14-09-00539-CV James D. Strachan v. Marie Starich and James G. Strachan Appeal from 434th Judicial District Court of Fort Bend County Trial Court Judge: Hugo Touchy DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00588-CV Jack Markman, Trustee, Markman-Humphries, Inc., d/b/a Markman Humphries Investments, William Humphries and Brenda Gorman v. Jose Jaime Pardo and Maria Pardo Appeal from 270th District Court of Harris County Trial Court Judge: Brent Gamble DISMISSED: Per Curiam (nonpayment of fee) Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00678-CV Howlil, Inc. v. Hector Guerrero d/ba S&B Masonry Appeal from 151st District Court of Harris County DISMISSED: Per Curiam (dismissed by appellant) Before Justices Brock Yates, Frost and Brown 14-09-00722-CV Michael Lindsay, Independent Executor of the Estate of Mark F. Kay, Deceased v. American General Life Insurance Company | Appeal from Probate Court No 4 of Harris County Trial Court Judge: WM CAMERON MCCULLOCH DISMISSED: Per Curiam (no appellate jurisdiction, case originated in small claims court) Before Justices Brock Yates, Frost and Brown 14-09-00725-CV Arcadio D. Rodriguez v. Mark T. Womack Appeal from County Civil Court at Law No 3 of Harris County DISMISSED: Per Curiam (untimely notice for restricted appeal) Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00850-CV Maggy Horgan v. Jerry Hecht Appeal from County Civil Court at Law No 3 of Harris County MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00908-CV In Re J.A. Jay Asafi as independent administrator of the Estate of Alosia Smith Rauscher, deceased and Todd Reagan Smith Appeal from Probate Court No 2 of Harris County Trial Court Judge: Michael James Wood MOTION OR WRIT DENIED: Per Curiam (mandamus denied re: order granting partial summary judgment on bill of review) Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00920-CV In Re Arugha Etuwewe and Ubong Etuwewe Appeal from 333rd District Court of Harris County Trial Court Judge: Joseph J. Halbach Criminal Causes Decided: AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00268-CR Jerold Anthony Williams v. The State of Texas Appeal from 339th District Court of Harris County AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00262-CR Richard Owens v. The State of Texas Appeal from 412th District Court of Brazoria County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00581-CR Dwight Leon Davis v. The State of Texas Appeal from 248th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00582-CR Dwight Leon Davis v. The State of Texas Appeal from 248th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00777-CR Jimmie Jones v. The State of Texas Appeal from 351st District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00778-CR Jimmie Jones v. The State of Texas Appeal from 351st District Court of Harris County November 3, 2009 Civil Causes Decided: Kessling v. Friendswood ISD (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Hedges) (suit alleging violations of the Texas Open Meetings Act (TOMA), Texas Public Information Act (TPIA), and Texas Education Code) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Frost 14-07-01063-CV Nancy Kessling v. Friendswood Independent School District, and Patricia Hanks Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Dissenting Opinion by Justice Frost in Kessling v. Friendswood ISD In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson)(motion to recuse trial judge) (Judge Wood did not have the option of denying the motion to recuse as untimely). MOTION OR WRIT GRANTED: Opinion by Justice John Anderson Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00595-CV In Re Miguel Angel Gonzales Guilbot Appeal from Probate Court No 2 of Harris County Trial Court Judge: Michael James Wood In Re Spartan Adjusting Co., LLC (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(per curiam) (mandamus denied re: order denying motion to dismiss, order denying their motion for a protective order) MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00854-CV In Re Spartan Adjusting Company LLC and Home State County Mutual Insurance Company Appeal from 165th District Court of Harris County (Judge Josefina Muniz Rendon) In Re Stamper (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(per curiam) (mandamus re recusal denied) On October 19, 2009, relator, Gordon Allen Stamper, filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator complains of the September 10, 2009 order signed by the Honorable Olen Underwood, presiding judge of the Second Administrative Judicial Region of Texas, denying relator’s motion to recuse the Honorable Sharon McCally, presiding judge of the 334th District Court of Harris County, in the underlying suit. Relator requests that an order be entered recusing Judge McCally from the underlying suit. Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus. MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00884-CV In Re Gordon Allen Stamper Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Criminal Causes Decided: AFFIRMED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00723-CR Aldener Widemon Dunning v. The State of Texas Appeal from 241st District Court of Smith County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00880-CR Daniel Shaffer v. The State of Texas Appeal from 400th District Court of Fort Bend County MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00843-CR In Re John Whitson Appeal from 263rd District Court of Harris County |
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