| November 2010 Decisions of the Fourteenth Court of Appeals in Houston [14th Dist.] 2010) HOUSTON OPINIONS |
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Opinion Release Dates: November 2010 NOVEMBER 2010 DECISIONS WITH LINKS TO APPELLATE OPINIONS IN CIVIL CASES DETAILS FOR CASES DECIDED BY THE FOURTEENTH COURT OF APPEALS IN NOVEMBER 2010 Released Opinions November 30, 2010 Civil Causes Decided: Graves v. Michael Tomlinson and Byran Rice (Tex.App.- Houston [14th Dist.] November 30, 2010)(Boyce) (complex DIVORCE SUIT appeal with many issues raised, judicial estoppel, $250,000 sanctions award reversed, jury charge error) Sandra Graves and Michael Tomlinson each appeal from the trial court’s divorce decree on numerous grounds. Sandra Graves also appeals from the trial court’s separate judgment awarding fees in favor of court-appointed auditor Bryan Rice and his firms Hartman Leito & Bolt, LLP, and Rice Stewart Faris & Co. We affirm in part and reverse and remand in part. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Boyce Before 14-08-00654-CV Sandra Graves v. Michael Tomlinson and Byran Rice Appeal from County Court at Law No 2 of Galveston County Trial Court Judge: Judge C. G. Dibrell III In the Interest of R.D.S., Minor Child (Tex.App.- Houston [14th Dist.] November 30, 2010)(Frost)(parental rights termination) In this accelerated appeal, a mother challenges the trial court’s judgment terminating her parental rights to a minor child, asserting the evidence is legally and factually insufficient to support the termination and the finding that termination is in the best interest of the minor child. We affirm. AFFIRMED: Opinion by Justice Frost Before 14-09-00980-CV In the Interest of R.D.S., Minor Child Appeal from 315th District Court of Harris County Trial Court Judge: MICHAEL H. SCHNEIDER Criminal Causes Decided: Wesley Joel Smith v. The State of Texas (Tex.App.- Houston [14th Dist.] November 30, 2010)(Boyce) AFFIRMED: Opinion by Justice Boyce Before 14-09-00030-CR Wesley Joel Smith v. The State of Texas Appeal from Crim Dist Ct of Jefferson County Bruce Edward Mason v. The State of Texas (Tex.App.- Houston [14th Dist.] November 30, 2010)(Hedges) AFFIRMED: Opinion by Chief Justice Hedges Before 14-09-00670-CR Bruce Edward Mason v. The State of Texas Appeal from 212th District Court of Galveston County Bruce Edward Mason v. The State of Texas (Tex.App.- Houston [14th Dist.] November 30, 2010)(Hedges) AFFIRMED: Opinion by Chief Justice Hedges Before 14-09-00671-CR Bruce Edward Mason v. The State of Texas Appeal from 212th District Court of Galveston County Bruce Edward Mason v. The State of Texas (Tex.App.- Houston [14th Dist.] November 30, 2010)(Hedges) AFFIRMED: Opinion by Chief Justice Hedges Before 14-09-00672-CR Bruce Edward Mason v. The State of Texas Appeal from 212th District Court of Galveston County November 23, 2010 Civil Causes Decided: Dorothy Armstrong v. MARILU ROBBINS D/B/A AFFORDABLE DENTAL (Tex.App.- Houston [14th Dist.] November 23, 2010)(Curiam)(HCLC, money had and received) Appellant Dorothy Armstrong (“Dorothy”) sued appellee Marilu Robinsons d/b/a Affordable Dental[1] (“Affordable Dental”), relative to certain dentures she had purchased. She filed an original petition making various claims and later amended the petition to include only a claim for “money had and received.” The trial court dismissed her claim with prejudice for Dorothy’s failure to serve an expert report under chapter 74 of the Texas Civil Practice and Remedies Code. On appeal, Dorothy contends chapter 74 does not apply, and the trial court abused its discretion in dismissing her claim. We affirm. The acts or omissions of which Dorothy complains are an inseparable part of the rendition of dental services, and her claim is a health care liability claim. See Diversicare Gen. Partners, Inc., 185 S.W.3d at 848; Walden, 907 S.W.2d at 448. Because Dorothy failed to file the required expert report within the prescribed period, the trial court properly granted Affordable Dental’s motion to dismiss Dorothy’s suit. AFFIRMED: Per Curiam Before 14-08-01077-CV Dorothy Armstrong v. MARILU ROBBINS D/B/A AFFORDABLE DENTAL Appeal from County Court at Law No 2 of Galveston County Trial Court Judge: Judge C. G. Dibrell III Snodgrass v. Snodgrass (Tex.App.- Houston [14th Dist.] November 23, 2010)(Frost)(divorce, contempt) This is a consolidated appeal and mandamus proceeding arising out of an action to enforce the provisions of a divorce decree. The ex-husband sought enforcement by various means including by contempt. The ex-wife challenges the trial court’s enforcement order, which includes contempt findings. We conclude that the trial court did not err in denying the ex- wife’s motion for clarification and that the ex-wife did not conclusively prove her involuntary inability to obtain refinancing on certain real property. But, we conclude that the trial court erred in the enforcement order by (1) impermissibly modifying the final divorce decree, (2) determining that the property is the ex-husband’s separate property, (3) ordering the ex-wife to vacate the property, and (4) ordering the ex-wife to sign a deed conveying to the ex-husband all of her interest in the property. The trial court did not err in denying Kimberly’s motion for clarification. However, in the Enforcement Order, the trial court erred by (1) impermissibly modifying the final divorce decree, (2) determining that Oakbrook is Michael’s separate property, (3) ordering Kimberly to vacate Oakbrook, and (4) ordering Kimberly to sign a deed conveying to Michael all of her interest in Oakbrook. Accordingly, on appeal, we reverse the Enforcement Order and remand for further proceedings consistent with this opinion. The only issue regarding contempt raised in Kimberly’s mandamus petition lacks merit. Therefore, we deny Kimberly’s mandamus petition. REVERSED AND REMANDED: Opinion by Justice Frost Before 14-09-00258-CV Kimberly A. Snodgrass v. Michael L. Snodgrass Appeal from 300th District Court of Brazoria County Trial Court Judge: K. RANDALL HUFSTETLER Markwardt v. Texas Industries, Inc. (Tex.App.- Houston [14th Dist.] November 23, 2010)(Seymore) (permanent vs. temporary nuisance, accrual of claim and the Discovery Rule, fraudulent concealment) Appellant appeals a summary judgment in favor of appellee, Texas Industries, Inc. (“TXI”), in Markwardt’s suit for trespass, nuisance, negligence, and gross negligence, alleging damages arising out of emissions from TXI’s cement plant located near Markwardt’s property. In ten issues, Markwardt contends the trial court erred by granting summary judgment on the ground that her claims are barred by the statute of limitations. We affirm. Having overruled all of Markwardt’s contentions pertaining to the specific limitations issues, we conclude the trial court did not err by determining Markwardt’s claims accrued more than two years before she filed suit and granting summary judgment in favor of TXI. Accordingly, we overrule her more general first and fifth issues. AFFIRMED: Opinion by Justice Seymore Before 14-09-00335-CV Debra Markwardt v. Texas Industries, Inc. Appeal from 40th District Court of Ellis County Richardson v. Stewart & Stevenson Services, Inc dba Santana Resolution Corp and Stewart & Stevenson L.L.C (Tex.App.- Houston [14th Dist.] November 23, 2010)(Hedges)(quantum meruit claim barred because of express contract) Appellant appeals from a summary judgment rendered against him in his breach of contract and quantum meruit suit against his former employer. In five issues, appellant contends that the trial court erred in rendering summary judgment on his breach of contract and quantum meruit claims and denying his motion for new trial. We affirm. Here, there is an express contract covering the services for which Richardson seeks compensation—the MICP award agreement, which, as discussed above, expressly precludes Richardson’s recovery. Additionally, Richardson performed his work in the scope of employment, for which he was paid a salary of over $100,000. Richardson seeks payment through a theory of quantum meruit for the value of the services he performed in the scope of his employment. The fact that Richardson “over-achieved” and went “above and beyond the call of duty” in performing his job, for which he was compensated by a salary, does not entitle him to extra compensation. See Beverick, 186 S.W.3d at 154; Shannon, 2002 WL 1733243, at *2. Under these circumstances, we agree that the trial court properly granted summary judgment on Richardson’s quantum meruit claim. We thus overrule his fourth issue. AFFIRMED: Opinion by Chief Justice Hedges Before 14-09-00559-CV Robert Richardson v. Stewart & Stevenson Services, Inc dba Santana Resolution Corp and Stewart & Stevenson L.L.C Appeal from 269th District Court of Harris County Trial Court Judge: Dan T. Hinde In Re Kimberly A. Snodgrass (Tex.App.- Houston [14th Dist.] November 23, 2010)(Frost) This is a consolidated appeal and mandamus proceeding arising out of an action to enforce the provisions of a divorce decree. The ex-husband sought enforcement by various means including by contempt. The ex-wife challenges the trial court’s enforcement order, which includes contempt findings. We conclude that the trial court did not err in denying the ex- wife’s motion for clarification and that the ex-wife did not conclusively prove her involuntary inability to obtain refinancing on certain real property. But, we conclude that the trial court erred in the enforcement order by (1) impermissibly modifying the final divorce decree, (2) determining that the property is the ex-husband’s separate property, (3) ordering the ex-wife to vacate the property, and (4) ordering the ex-wife to sign a deed conveying to the ex-husband all of her interest in the property. The trial court did not err in denying Kimberly’s motion for clarification. However, in the Enforcement Order, the trial court erred by (1) impermissibly modifying the final divorce decree, (2) determining that Oakbrook is Michael’s separate property, (3) ordering Kimberly to vacate Oakbrook, and (4) ordering Kimberly to sign a deed conveying to Michael all of her interest in Oakbrook. Accordingly, on appeal, we reverse the Enforcement Order and remand for further proceedings consistent with this opinion. The only issue regarding contempt raised in Kimberly’s mandamus petition lacks merit. Therefore, we deny Kimberly’s mandamus petition. MOTION OR WRIT DENIED: Opinion by Justice Frost Before 14-09-00766-CV In Re Kimberly A. Snodgrass Appeal from 300th District Court of Brazoria County Susan E. Appell, Execurtix of the Estate of Rodney Appell, M.D., Deceased v. Shari Muguerza and Cyrene Muguerza (Tex.App.- Houston [14th Dist.] November 23, 2010)(Frost)(med-mal vs. assault) A doctor’s patient and her mother sued the doctor asserting claims for assault based on the doctor’s alleged physical assault of the patient and her mother in an examination room at the doctor’s office. The plaintiffs allege that the doctor punched his patient in the nose and mouth, violently threw her to the ground, and violently shoved her mother. Based on their assertion that the claims are not health care liability claims, the plaintiffs did not file an expert report under section 74.351 of the Texas Civil Practice and Remedies Code. After the doctor died, the executrix of his estate was substituted as the defendant, and she moved for dismissal, asserting that these claims are subject to section 74.351. The trial court denied this motion, and the executrix appeals this ruling. We affirm in part and reverse and remand. Based on the Current Definition, the Medical Procedure Claims are health care liability claims, and the Attack Claims are not. Accordingly, in denying the Executrix’s motion to dismiss relative to the Medical Procedure Claims, the trial court erred, and we sustain the Executrix’s appellate issue to this extent. We overrule the remainder of this issue. Accordingly, we affirm the trial court’s denial of the Executrix’s motion relative to the Attack Claims, reverse the trial court’s order relative to the Medical Procedure Claims, and remand for further proceedings regarding the Attack Claims. We instruct the trial court to (1) dismiss the Medical Procedure Claims under section 74.351(b) and (2) determine the amount of reasonable attorney’s fees and costs to be awarded under section 74.351(b) for the dismissal of the Medical Procedure Claims. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before 14-09-00932-CV Susan E. Appell, Execurtix of the Estate of Rodney Appell, M.D., Deceased v. Shari Muguerza and Cyrene Muguerza Appeal from 80th District Court of Harris County Weatherbee v. Washington Mutual Bank, Mortgage Association (Tex.App.- Houston [14th Dist.] November 23, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00626-CV Jerry A. Weatherbee, Jr., and Teresa A. Weatherbee v. Washington Mutual Bank, Mortgage Association Appeal from Co Civil Ct at Law No 3 of Harris County Mendoza v. Olandez (Tex.App.- Houston [14th Dist.] November 23, 2010)(Curiam)(non-appealable order) DISMISSED: Per Curiam Before 14-10-00819-CV Carlos Mendoza, Jr. v. Vielca Aida Olandez endoza--Appeal from 311th District Court of Harris County Hung Pin Lee and Daniel R. Kirshbaum, P.C. v. Xenos Yuen and the Law Offices of Yuen & Associates, P. C. (Tex.App.- Houston [14th Dist.] November 23, 2010)(Curiam)(failure to pay fee) DISMISSED: Per Curiam Before 14-10-00848-CV Hung Pin Lee and Daniel R. Kirshbaum, P.C. v. Xenos Yuen and the Law Offices of Yuen & Associates, P.C. Appeal from 55th District Court of Harris County Shema v. Harris County (Tex.App.- Houston [14th Dist.] November 23, 2010)(Curiam) (Appellant has not paid the appellate filing fee) DISMISSED: Per Curiam Before 14-10-00857-CV Franco Dukuze Shema v. Harris County Appeal from Co Civil Ct at Law No 2 of Harris County TFT Galveston Portfolio, Ltd and Walter Teachworth v. Paramount Insurance Repair Services, Inc. (Tex. App.- Houston [14th Dist.] November 23, 2010)(Curiam) (appellant did not make arrangements to pay for the record) DISMISSED: Per Curiam Before 14-10-00918-CV TFT Galveston Portfolio, Ltd and Walter Teachworth v. Paramount Insurance Repair Services, Inc. Appeal from 56th District Court of Galveston County Anderson v. June G. Rinehart & Charles Arnold (Tex.App.- Houston [14th Dist.] November 23, 2010) (Curiam)(no clerk’s record has been filed,nonpayment) DISMISSED: Per Curiam Before 14-10-00947-CV Debra Kay Anderson v. June G. Rinehart & Charles Arnold Appeal from Probate Court No 4 of Harris County VALERIE U. OJI (Tex.App.- Houston [14th Dist.] November 23, 2010)(Yates)(defective mandamus record) A mandamus action requires certainty as to both pleadings and facts. Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex. App.— Houston [1st Dist.] 1983, orig. proceeding); see also Tex. R. App. P. 52.3(g) (“Every statement of fact in the petition must be supported by citation to competent evidence included in the appendix or record.”). We may not resolve disputed fact issues in an original proceeding. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). MOTION OR WRIT DENIED: Opinion by Justice Brock Yates Before 14-10-01107-CV VALERIE U. OJI Appeal from 311th District Court of Harris County Criminal Causes Decided: Mathew Louis Barrera v. The State of Texas (Tex.App.- Houston [14th Dist.] November 23, 2010) (Hedges) AFFIRMED: Opinion by Chief Justice Hedges Before 14-09-00544-CR Mathew Louis Barrera v. The State of Texas Appeal from 434th Judicial District Court of Fort Bend County Juan Antonio Arriaga v. The State of Texas (Tex.App.- Houston [14th Dist.] November 23, 2010)(Boyce) AFFIRMED: Opinion by Justice Boyce Before 14-09-00870-CR Juan Antonio Arriaga v. The State of Texas Appeal from 228th District Court of Harris County Nathaniel Dwayne Welch v. The State of Texas (Tex.App.- Houston [14th Dist.] November 23, 2010) (Christopher) AFFIRMED: Opinion by Justice Christopher Before 14-09-01020-CR Nathaniel Dwayne Welch v. The State of Texas Appeal from 248th District Court of Harris County In Re Thomas Florence v. The State of Texas (Tex.App.- Houston [14th Dist.] November 23, 2010) (Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01101-CR In Re Thomas Florence v. The State of Texas Appeal from County Court No. 3 of Galveston County November 18, 2010 Civil Causes Decided: Charles So. T. Chea and Diana Chea v. Paul Poon, Jason Poon, Raymond Poon and Marine Foods Express, Ltd. (Tex.App.- Houston [14th Dist.] November 18, 2010)(Frost)(no-evidence summary judgment, civil conspiracy claim requires underlying tort, at-will employment, conclusory statements) Appellants/plaintiffs, former owners of a wholesale importation and distribution business appeal the trial court’s summary judgment in favor of the appellees/defendants, one of whom purchased most of the assets of one of the appellants’ companies at a foreclosure sale. The record reflects that, in response to the appellees’ no-evidence summary-judgment grounds, the appellants failed to raise a genuine issue of material fact to preclude summary judgment as to their claims. Accordingly, we affirm the trial court’s judgment. Because the trial court’s July 25, 2008 judgment modified its prior final judgment, this court has jurisdiction over this appeal. The Cheas cannot prevail on appeal because they failed to raise a genuine fact issue as to an essential element of each of their claims. Thus, the trial court did not err in granting summary judgment based on the no-evidence grounds. [4] Accordingly, we overrule the Cheas’ second issue and affirm the trial court’s judgment. AFFIRMED: Opinion by Justice Frost Before 14-08-01134-CV Charles So. T. Chea and Diana Chea v. Paul Poon, Jason Poon, Raymond Poon and Marine Foods Express, Ltd. Appeal from 152nd District Court of Harris County Trial Court Judge: LAMAR MCCORKLE Braniff CB Ltd v. Harris County Appraisal District (Tex.App.- Houston [14th Dist.] November 18, 2010) (Curiam)(property tax protest tax appraisal, who may appeal appraisal and bring judicial review suit? Texas Rule of Civil Procedure 28, substitution rule) Braniff CB Ltd. appeals from the trial court’s order granting Harris County Appraisal District’s (“HCAD”)[1] plea to the jurisdiction. We affirm. Braniff contends the trial court had jurisdiction because section 42.21(e)(1) permits amendment of a timely filed petition “to correct or change the name of a party.” See Tex. Tax Code Ann. § 42.21(e)(1). Braniff further contends the court erred in granting HCAD’s plea to the jurisdiction because Sam Houston Parkway merely amended its petition to cure a misnomer. We disagree. Section 42.21(e) specifies that only petitions that are “timely filed under Subsection (a) or amended under Subsection (c)” may later be amended to correct or change a party’s name.[3] See Tex. Tax Code Ann. 42.21(e)(1). To seek judicial review under Subsection (a), the plaintiff must be a “party who appeals as provided by [Chapter 42],” meaning the plaintiff must be the property owner, a properly designated agent, or a lessee. Id. § 42.21(a). Sam Houston Parkway timely filed a petition for review; however, it did not own the property on January 1, 2008, and thus lacked standing to seek judicial review. AFFIRMED: Per Curiam Before 14-10-00089-CV Braniff CB Ltd v. Harris County Appraisal District Appeal from 129th District Court of Harris County Sunblik, Inc. v. Harris County Appraisal District (Tex.App.- Houston [14th Dist.] November 18, 2010) (Curiam) DISMISSED: Per Curiam Before 14-10-00198-CV Sunblik, Inc. v. Harris County Appraisal District Appeal from 269th District Court of Harris County Trial Court Judge: Dan T. Hinde Hartman Reit Operating Partnership III, L.P v. Harris County Appraisal District (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam)(property tax protest) Hartman Parent did not own the property as of January 1, 2008. Hartman Parent did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, Hartman Parent lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a). The record does not reflect that Hartman Subsidiary pursued its right of protest as the actual property owner. According to the record, Hartman Subsidiary was not named as a party until November 9, 2009, when Hartman Parent filed a first amended original petition. Therefore, the Review Board had not determined a protest by the actual property owner, Hartman Subsidiary, upon which Hartman Subsidiary could premise a right to appeal as the property owner. See Tex. Tax Code Ann. §§ 42.01(1)(A), 42.21(a); Woodway Drive, 311 S.W.3d at 653. AFFIRMED: Per Curiam Before 14-10-00242-CV Hartman Reit Operating Partnership III, L.P v. Harris County Appraisal District Appeal from 281st District Court of Harris County Wilson v. Judge Joel Clouser, Sr. and Constable Ruben Davis (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam)(joint motion to reverse the judgment and remand the cause to the trial court) REVERSED AND REMANDED: Per Curiam Before 14-10-00246-CV Rachael Wilson v. Judge Joel Clouser, Sr. and Constable Ruben Davis Appeal from County Court at Law No 1 of Fort Bend County Trial Court Judge: Ben "Bud" W. Childers Hightower v. Hightower (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam)(case settled) DISMISSED: Per Curiam Before 14-10-00683-CV Kenneth Lee Hightower v. Linda Marie Hightower Appeal from 359th District Court of Montgomery County Trial Court Judge: Judge Kathleen Hamilton New Deliverance Church, Inc. v. H R D Corporation d/b/a Marcus Oil & Chemicals (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) (no proof of payment for the record) DISMISSED: Per Curiam Before 14-10-00728-CV New Deliverance Church, Inc. v. H R D Corporation d/b/a Marcus Oil & Chemicals Appeal from 189th District Court of Harris County In the Interest of B.A.M., a Child (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam)(notice of appeal was not filed timely) DISMISSED: Per Curiam Before 14-10-00810-CV In the Interest of B.A.M., a Child Appeal from 247th District Court of Harris County Denbury Green Pipeline-Texas, LLC v. Ellen L. Johnson (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) (unopposed motion to dismiss the appeal because the case has settled) DISMISSED: Per Curiam Before 14-10-00824-CV Denbury Green Pipeline-Texas, LLC v. Ellen L. Johnson Appeal from 212th District Court of Galveston County Trial Court Judge: SUSAN ELIZABETH CRISS Petley v. Harris County (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) DISMISSED: Per Curiam (appellant filed a motion to dismiss the appeal) Before 14-10-00867-CV Richard Petley v. Harris County Appeal from 247th District Court of Harris County Allison v. Adegbindin (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) DISMISSED: Per Curiam (appellant filed a motion to dismiss the appeal) Before 14-10-00921-CV Nurat Allison v. Mosudi Adegbindin Appeal from 280th District Court of Harris County In Re Danny Lee Gonzales (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) DISMISSED: Per Curiam (mandamus petition) Relator has not provided file-stamped copies of his motions demonstrating they are actually pending in the trial court. Absent a showing the trial court is aware of and been asked to rule on his motions, 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. Before 14-10-00998-CV In Re Danny Lee Gonzales Appeal from 245th District Court of Harris County Trial Court Judge: Judge Annette Kuntz In Re RSL Funding , LLC and Rapid Settlements, LTD., (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam)(finality of order) We conclude that the April 7, 2010 summary judgment order was not final and appealable, and that the trial court retained jurisdiction over the case. Because we conclude that the trial court retained jurisdiction to act after the April 7, 2010 interlocutory summary judgment order was signed, we deny relators’ petition for writ of mandamus. MOTION OR WRIT DENIED: Per Curiam Before 14-10-01111-CV In Re RSL Funding , LLC and Rapid Settlements, LTD., Appeal from 113th District Court of Harris County Trial Court Judge: PATRICIA ANN HANCOCK Criminal Causes Decided: Thomas George Pence v. The State of Texas (Tex.App.- Houston [14th Dist.] November 18, 2010)(Frost) AFFIRMED: Opinion by Justice Frost Before 14-09-00497-CR Thomas George Pence v. The State of Texas Appeal from Co Crim Ct at Law No 9 of Harris County Angelo Keith Clark v. The State of Texas (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) AFFIRMED: Per Curiam Before 14-09-00944-CR Angelo Keith Clark v. The State of Texas Appeal from 351st District Court of Harris County Chance Tone Powell v. The State of Texas (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) AFFIRMED: Per Curiam Before 14-10-00690-CR Chance Tone Powell v. The State of Texas Appeal from 252nd District Court of Jefferson County In Re Warren Pierre Canady (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01024-CR In Re Warren Pierre Canady Appeal from 248th District Court of Harris County Robert Earl Holmes v. The State of Texas (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01033-CR Robert Earl Holmes v. The State of Texas Appeal from 228th District Court of Harris County Matthew Joseph Collazo v. The State of Texas (Tex.App.- Houston [14th Dist.] November 18, 2010) (Curiam) DISMISSED: Per Curiam Before 14-10-01048-CR Matthew Joseph Collazo v. The State of Texas Appeal from 232nd District Court of Harris County In Re Erick Lawson (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01060-CR In Re Erick Lawson Appeal from 176th District Court of Harris County In Re Thomas Florence (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01073-CR In Re Thomas Florence Appeal from 56th District Court of Galveston County In Re Kenneth Williams (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01074-CR In Re Kenneth Williams Appeal from 56th District Court of Galveston County In Re Calvin Edward Weaver (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01097-CR In Re Calvin Edward Weaver Appeal from 230th District Court of Harris County In Re James Edward Jackson (Tex.App.- Houston [14th Dist.] November 18, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01105-CR In Re James Edward Jackson Appeal from 179th District Court of Harris County November 17, 2010 Civil Causes Decided: BP Lubricant USA Inc. f/k/a Castrol North America Inc. v. Jenkins Management LLC d/b/a Dr. Gleem Car Wash (Tex.App.- Houston [14th Dist.] November 17, 2010)(majority opinion by Jeffrey V. Brown) This case involves alleged breaches of a supply agreement between appellant BP Lubricant USA Inc. f/k/a Castrol North America Inc. (hereinafter "BP Lubricant") and appellee Jenkins Management LLC d/b/a Dr. Gleem Car Wash (hereinafter "Dr. Gleem"). The jury found that BP Lubricant breached the agreement and committed fraud, and awarded Dr. Gleem damages and attorney's fees. The trial court rendered judgment on the verdict and ordered conditional appellate attorney's fees. On appeal, BP Lubricant (1) challenges the legal and factual sufficiency of the evidence to support the jury's findings that BP Lubricant breached the supply agreement and committed fraud; (2) contends the trial court erred in awarding damages for breach of contract and fraud because the award constituted a double recovery; (3) claims Dr. Gleem failed to segregate its attorney's fees; and (4) argues that the trial court erred in failing to render judgment for BP Lubricant on its breach-of-contract claim. We agree that the evidence is legally insufficient to support the jury's findings that BP Lubricant breached the supply agreement and committed fraud. We reverse the judgment against BP Lubricant for damages and attorney's fees and render judgment that Dr. Gleem takes nothing. We disagree that the trial court erred in failing to render judgment for BP Lubricant on its breach-of-contract claim. We affirm the trial court's take-nothing judgment as to BP Lubricant. AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Brown Panel consists of Justices Brown, Sullivan, and Christopher. (Christopher, J. concurs in result only, without opinion.) Before 14-09-00363-CV BP Lubricant USA Inc. f/k/a Castrol North America Inc. v. Jenkins Management LLC d/b/a Dr. Gleem Car Wash Appeal from 127th District Court of Harris County Trial Court Judge: SHAROLYN P. WOOD Southern Crushed Concrete, LLC v. City of Houston (Tex.App.- Houston [14th Dist.] November 17, 2010) (Christopher)(Texas Clean Air Act) We conclude that the ordinance does not make unlawful an act or condition authorized or approved under the Act or the Commission's rules or orders. We accordingly overrule Southern's first issue and hold that the ordinance does not violate the Act or the state constitution and is not preempted. We conclude that the City's ordinance governing the location of concrete-crushing sites is neither preempted nor unconstitutional, but is instead a land-use regulation that is exempt from the uniformity-of-requirements provision of the Local Government Code. We therefore affirm the trial court's judgment. AFFIRMED: Opinion by Justice Christopher Before 14-09-00873-CV Southern Crushed Concrete, LLC v. City of Houston Appeal from 333rd District Court of Harris County Trial Court Judge: JOSEPH J. HALBACH Southern Crushed Concrete, LLC v. City of Houston (Tex.App.- Houston [14th Dist.] November 17, 2010) (Brown dissent)The ordinance in this case is unconstitutional. It accomplishes nothing that state law doesn't already accomplish except when it varies from state law. And when it does that, it's preempted. I respectfully dissent. DISSENTING: Dissenting Opinion by Justice Brown Before 14-09-00873-CV Southern Crushed Concrete, LLC v. City of Houston Appeal from 333rd District Court of Harris County Trial Court Judge: JOSEPH J. HALBACH Criminal Causes Decided: November 16, 2010 Civil Causes Decided: Circle X Land and Cattle Co., LTD v. Mumford Independent School District 325 S.W.3d 859 (2010)(Tex. App.- Houston [14th Dist.] November 16, 2010)(substitute opinion by Brown)(condemnation, eminent domain) We originally issued our opinion affirming the trial court's judgment on August 31, 2010. Appellant Circle X Land & Cattle Company, Ltd., moved for rehearing. We overrule the motion for rehearing, vacate our August 31 judgment, withdraw our previous opinion, and issue this substitute opinion in its place. Our disposition of the appeal is unchanged. This case arises out of a school district's condemnation of thirty acres of ranch land in Robertson County. Circle X is appealing the trial court's grant of Mumford Independent School District's motion for partial summary judgment. Circle X contends the school district failed to meet its burden to prove as a matter of law it was entitled to the summary judgment because it did not establish there was a public purpose for the condemnation or that the condemnation of all thirty acres was necessary. Circle X argues that its response to the motion for partial summary judgment raised fact issues about whether the school district acted arbitrarily or capriciously in condemning the land. Finally, Circle X complains the trial court erred in including in its judgment a clause stating Circle X 862*862 does not have the right to ingress and egress on the condemned property for the purpose of exploring, developing, drilling, or mining for oil and gas. We affirm.. AFFIRMED: Opinion by Justice Brown Before 14-09-00330-CV Circle X Land and Cattle Co., LTD v. Mumford Independent School District Appeal from 82nd District Court of Robertson County Trial Court Judge: Hon. Robert M. Stem Nguyen v. Nguyen (Tex.App.- Houston [14th Dist.] November 16, 2010)(Anderson) (defamation, judicial communicative privilege, judicial proceedings privilege, immunity) Appellant brings this appeal from the trial court’s granting of a summary judgment in favor of appellee, who asserted the communicative privilege as a bar to appellant’s slander and defamation claims. We affirm. AFFIRMED: Opinion by Justice Anderson 14-09-00695-CV Thanh D. Nguyen v. Phu Do Nguyen Appeal from 281st District Court of Harris County 281st District Court Trial Court Judge: Sylvia Matthews Enright v. GOODMAN DISTRIBUTION, INC. 330 S.W.3d 392 (Tex.App.- Houston [14th Dist.] November 16, 2010)(Boyce)(PI suit, proving pain injury damages, evidence of subjective pain, damages for disfigurement and physical impairment) This negligence suit arises from an accident in which Michael Enright, an employee of Randall’s Refrigeration, was struck by an air-conditioning condenser unit while it was being loaded onto a trailer at a facility controlled by Goodman Distribution, Inc. The district court signed a judgment in conformity with the jury’s verdict, and Enright appeals. We affirm. AFFIRMED: Opinion by Justice Boyce Before 14-09-00759-CV Michael Enright v. GOODMAN DISTRIBUTION, INC. Appeal from 152nd District Court of Harris County Trial Court Judge: Robert K. Schaffer Grupo TMM, S.A.B., TMM Logistics, S.A. de C.V. and Lacto Comercial Organizada, S.A. de C.V. v. Juan Gerardo Perez, Elizabeth Carolina Perez, Individually and as the Representative of the Estate of Xochitl Carolina Castillo Perez and the Estate of Xochitl Y. Perez Castillo, Christine Dolores Perez, Felipe Manuel Perez, Maria Delores Castillo, Et Al 327 S.W.3d 357 ((Tex.App.- Houston [14th Dist.] November 16, 2010)(Frost) This is an interlocutory appeal from the trial court's denial of the special appearances of three Mexican companies. Because we conclude that the trial court did not have personal jurisdiction over these parties, we reverse the trial court's judgment and remand with instructions to dismiss this suit for lack of personal jurisdiction. As a matter of law, Grupo, Lacto, and TMM do not have sufficient contacts with Texas to establish personal jurisdiction based on either specific or general jurisdiction, and therefore the trial court erred in denying their special appearances. We reverse the trial court's judgment and remand with instructions for the trial court to dismiss this case for lack of personal jurisdiction. As a matter of law, Grupo, Lacto, and TMM do not have sufficient contacts with Texas to establish personal jurisdiction based on either specific or general jurisdiction, and therefore the trial court erred in denying their special appearances. We reverse the trial court's judgment and remand with instructions for the trial court to dismiss this case for lack of personal jurisdiction. REVERSED AND REMANDED: Opinion by Justice Frost Before 14-09-01072-CV Grupo TMM, S.A.B., TMM Logistics, S.A. de C.V. and Lacto Comercial Organizada, S.A. de C.V. v. Juan Gerardo Perez, Elizabeth Carolina Perez, Individually and as the Representative of the Estate of Xochitl Carolina Castillo Perez and the Estate of Xochitl Y. Perez Castillo, Christine Dolores Perez, Felipe Manuel Perez, Maria Delores Castillo, Et Al Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Criminal Causes Decided: Donald Lee Bowie v. The State of Texas (Tex.App.- Houston [14th Dist.] November 16, 2010)(Sullivan) AFFIRMED AND REFORMED: Opinion by Justice Sullivan Before 14-09-00621-CR Donald Lee Bowie v. The State of Texas Appeal from 337th District Court of Harris County November 12, 2010 Civil Causes Decided: Lee Shafer and Pamela Shafer v. Joel Gulliver and Maryanne Gulliver (Tex.App.- Houston [14th Dist.] November 12, 2010)(Yates) AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Brock Yates Before 14-09-00646-CV Lee Shafer and Pamela Shafer v. Joel Gulliver and Maryanne Gulliver Appeal from County Court at Law No 1 of Fort Bend County Criminal Causes Decided: November 9, 2010 Civil Causes Decided: IN THE ESTATE OF LUCILLE REILY RICHARDSON, DECEASED (Tex.App.- Houston [14th Dist.] November 9, 2010)(Sullivan) DISMISSED: Opinion by Justice Sullivan Before 14-09-00219-CV IN THE ESTATE OF LUCILLE REILY RICHARDSON, DECEASED Appeal from Probate Court of Galveston County 1993 GF PARTNERSHIP; ET AL AND ST. JAMES CAPITAL PARTNERS, LP v. Simmons & Co. International and Warrior Energy Services Corporation (Tex.App.- Houston [14th Dist.] November 9, 2010)(Anderson) AFFIRMED: Opinion by Justice Anderson Before 14-09-00268-CV 1993 GF PARTNERSHIP; ET AL AND ST. JAMES CAPITAL PARTNERS, LP v. Simmons & Co. International and Warrior Energy Services Corporation Appeal from 129th District Court of Harris County Gonzalez Financial Holdings, Inc v. WILLIE MOORE, THELMA MOORE, AND UNITY NATIONAL BANK (Tex.App.- Houston [14th Dist.] November 9, 2010)(Frost) REVERSED AND RENDERED: Opinion by Justice Frost Before 14-09-00503-CV Gonzalez Financial Holdings, Inc v. WILLIE MOORE, THELMA MOORE, AND UNITY NATIONAL BANK Appeal from Co Civil Ct at Law No 1 of Harris County Reservoir Systems, Inc. and Axel Sigmar v. TGS-NOPEC Geophysical Co., LP. (Tex.App.- Houston [14th Dist.] November 9, 2010)(Brown) AFFIRMED: Opinion by Justice Brown Before 14-09-00528-CV Reservoir Systems, Inc. and Axel Sigmar v. TGS-NOPEC Geophysical Co., LP. Appeal from 280th District Court of Harris County Keck v. Loftin (Tex.App.- Houston [14th Dist.] November 9, 2010)(Hedges) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before 14-10-00178-CV Scott Louis Keck v. Shannon Michelle Loftin Appeal from 280th District Court of Harris County In Re Scott Louis Keck (Tex.App.- Houston [14th Dist.] November 9, 2010)(Hedges) MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before 14-10-00565-CV In Re Scott Louis Keck Appeal from 280th District Court of Harris County Criminal Causes Decided: Eddie Shaw v. The State of Texas (Tex.App.- Houston [14th Dist.] November 9, 2010)(Yates) AFFIRMED: Opinion by Justice Brock Yates Before 14-09-00412-CR Eddie Shaw v. The State of Texas Appeal from 230th District Court of Harris County Jose Castillo Ledezma v. The State of Texas (Tex.App.- Houston [14th Dist.] November 9, 2010)(Sullivan) AFFIRMED: Opinion by Justice Sullivan Before 14-09-00483-CR Jose Castillo Ledezma v. The State of Texas Appeal from 338th District Court of Harris County Salvador Torres Rodriguez v. The State of Texas (Tex.App.- Houston [14th Dist.] November 9, 2010) (Yates) AFFIRMED: Opinion by Justice Brock Yates Before 14-09-00625-CR Salvador Torres Rodriguez v. The State of Texas Appeal from 149th District Court of Brazoria County Juan Carlos Leyva v. The State of Texas (Tex.App.- Houston [14th Dist.] November 9, 2010)(Christopher) AFFIRMED: Opinion by Justice Christopher Before 14-09-00636-CR Juan Carlos Leyva v. The State of Texas Appeal from 230th District Court of Harris County Judy Ann Pruitt v. The State of Texas (Tex.App.- Houston [14th Dist.] November 9, 2010)(Boyce) AFFIRMED: Opinion by Justice Boyce Before 14-09-00999-CR Judy Ann Pruitt v. The State of Texas Appeal from 177th District Court of Harris County November 4, 2010 Civil Causes Decided: In the Matter of B.J.W.S., A Child (Tex.App.- Houston [14th Dist.] November 4, 2010)(Sullivan) AFFIRMED AS MODIFIED: Opinion by Justice Sullivan Before 14-08-01154-CV In the Matter of B.J.W.S., A Child Appeal from 300th District Court of Brazoria County Kastner v. Gutter Management Inc., Guttermaxx, L.P., Frank Fulco, Jack Heath, Russell Lund, and Jim McLaughlin (Tex.App.- Houston [14th Dist.] November 4, 2010)(Frost) AFFIRMED: Opinion by Justice Frost Before 14-09-00055-CV Kristofer Thomas Kastner v. Gutter Management Inc., Guttermaxx, L.P., Frank Fulco, Jack Heath, Russell Lund, and Jim McLaughlin Appeal from 127th District Court of Harris County In the Interest of Q.D.T, Jr., a Child (Tex.App.- Houston [14th Dist.] November 4, 2010)(Brown) AFFIRMED AS MODIFIED: Opinion by Justice Brown Before 14-09-00696-CV In the Interest of Q.D.T, Jr., a Child Appeal from 310th District Court of Harris County Alvin Community College v. Manhattan Contruction Company (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00363-CV Alvin Community College v. Manhattan Contruction Company Appeal from 149th District Court of Brazoria County Wilson v. GERRY BIRNBERG AND JERRY EVERSOLE (Tex.App.- Houston [14th Dist.] November 4, 2010)(Anderson) DISMISSED: Opinion by Justice Anderson Before 14-10-00371-CV David Buren Wilson v. GERRY BIRNBERG AND JERRY EVERSOLE Appeal from 61st District Court of Harris County Pickard v. Curmak (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00541-CV Gariela Curmak Pickard v. Erol Curmak Appeal from 257th District Court of Harris County Murski v. Tiemann (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00612-CV Tim Murski and Denise Murski v. Ralph Tiemann Appeal from County Court of Washington County In Re Salomon Juan Hernandez (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01023-CV In Re Salomon Juan Hernandez Appeal from 284th District Court of Montgomery County Criminal Causes Decided: Frances Unoka Nwosoucha v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010) (Christopher) AFFIRMED: Opinion by Justice Christopher Before 14-08-01131-CR Frances Unoka Nwosoucha v. The State of Texas Appeal from 185th District Court of Harris County Frances Unoka Nwosoucha v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010) (Mirabal) DISSENTING: Dissenting Opinion by Justice Mirabal Before 14-08-01131-CR Frances Unoka Nwosoucha v. The State of Texas Appeal from 185th District Court of Harris County Treyveon Marcelle Pipkin v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Frost) AFFIRMED: Opinion by Justice Frost Before 14-09-00018-CR Treyveon Marcelle Pipkin v. The State of Texas Appeal from 263rd District Court of Harris County Brian Joseph Edwards v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Frost) AFFIRMED: Opinion by Justice Frost Before 14-09-00074-CR Brian Joseph Edwards v. The State of Texas Appeal from 85th District Court of Brazos County Edgar Josias Vasquez v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010) (Anderson) AFFIRMED: Opinion by Justice Anderson Before 14-09-00620-CR Edgar Josias Vasquez v. The State of Texas Appeal from 337th District Court of Harris County Edgar Josias Vasquez v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Frost) CONCURRING: Concurring Opinion by Justice Frost Before 14-09-00620-CR Edgar Josias Vasquez v. The State of Texas Appeal from 337th District Court of Harris County Billy Holmes v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Anderson) AFFIRMED: Opinion by Justice Anderson Before 14-09-00742-CR Billy Holmes v. The State of Texas Appeal from 178th District Court of Harris County Larry D. Williams v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) AFFIRMED: Per Curiam Before 14-09-00911-CR Larry D. Williams v. The State of Texas Appeal from 178th District Court of Harris County Larry D. Williams v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) AFFIRMED: Per Curiam Before 14-09-00912-CR Larry D. Williams v. The State of Texas Appeal from 178th District Court of Harris County Ex Parte Marcial Fernandez (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00844-CR Ex Parte Marcial Fernandez Appeal from 400th District Court of Fort Bend County Dwaine Allen Collier v. The State of Texas (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-00991-CR Dwaine Allen Collier v. The State of Texas Appeal from 230th District Court of Harris County In Re Warren Pierre Canady (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) MOTION OR WRIT DENIED: Per Curiam Before 14-10-01002-CR In Re Warren Pierre Canady Appeal from 248th District Court of Harris County In Re Bradley Hughes Dunbar (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01027-CR In Re Bradley Hughes Dunbar Appeal from Justice of the Peace of Harris County In Re Bradley Hughes Dunbar (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01028-CR In Re Bradley Hughes Dunbar Appeal from Justice of the Peace of Harris County In Re Bradley Hughes Dunbar (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01029-CR In Re Bradley Hughes Dunbar Appeal from Justice of the Peace of Harris County In Re Dwayne Andre Tyson (Tex.App.- Houston [14th Dist.] November 4, 2010)(Curiam) DISMISSED: Per Curiam Before 14-10-01035-CR In Re Dwayne Andre Tyson Appeal from 337th District Court of Harris County November 2, 2010 Civil Causes Decided: In the Interest of R.T.K. (Tex.App.- Houston [14th Dist.] November 2, 2010)(Sullivan) AFFIRMED: Opinion by Justice Sullivan Before 14-08-00948-CV In the Interest of R.T.K. Appeal from 312th District Court of Harris County Criminal Causes Decided: Dominic Deshawn Gaston v. The State of Texas (Tex.App.- Houston [14th Dist.] November 2, 2010) (Christopher) REVERSED AND ACQUITTAL: Opinion by Justice Christopher Before 14-09-00426-CR Dominic Deshawn Gaston v. The State of Texas Appeal from 23rd District Court of Brazoria County Rodolfo Paredes v. The State of Texas (Tex.App.- Houston [14th Dist.] November 2, 2010)(Christopher) AFFIRMED: Opinion by Justice Christopher Before 14-09-00732-CR Rodolfo Paredes v. The State of Texas Appeal from 209th District Court of Harris County |
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