October 2009 Cases Decided by the First Court of Appeals | Houston, TX
(Tex. App.- Houston [1st Dist.] 2009)
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October 2009 Decisions and Opinion Release Dates:  

October 1, 7, 8, 9, 12, 15, 16, 20, 22, 23, 26, 29, 2009           

OCT. '09 CIVIL CASE TABLE

Released Opinions

October 29, 2009

Civil Causes Decided:

Washington v. TDCJ-ID (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings) (inmate litigation, prisoner's
pro se suit dismissed
, noncompliance with disclosure requirements re prior law suits)(trial court's order
dismissing case for "
want of prosecution" and for "lack of merit" affirmed)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings     
Before Justices Jennings, Higley and Sharp   
01-06-01188-CV     Michael G. Washington v. TDCJ-ID AGCY   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Gary Michael Block

Lee-Way Prince Enterprises, LLC v. Qai Assurance, Inc. (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Bland)
(
award of attorney’s fees on contract breach attorney's fees for promissory estoppel claim, breach of contract,
breach of settlement  agreement, common-law fraud)
AFFIRM TC JUDGMENT: Opinion by
Justice Bland     
Before Chief Justice Radack, Justices Bland and Massengale  
01-07-01004-CV Lee-Way Prince Enterprises, LLC v. Qai Assurance, Inc. and Arthur Kwok   
Appeal from 269th District Court of Harris County
Trial Court Judge:
Hon. John T. Wooldridge     

Gonzalez v. AAG-Law Vegas, LLC (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Op. on Rehearing by Davie L.
Wilson) (
accelerated, interlocutory appeal challenging denial of special appearance, minimum contacts
analysis
) (court of appeals renders judgment sustaining the special appearance) (no personal jurisdiction)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Judge Davie L. Wilson     
Before Judge Wilson, Justices Alcala and Hanks  
01-08-00377-CV  David M. Gonzales v. AAG-Las Vegas, L.L.C., Ascent Automotive Group, L.P., KW#1
Acquisition Company, L.L.C.   
Appeal from 189th District Court of Harris County
Trial Court Judge:
Hon. William R. Burke. Jr.  

David Rafes, Inc. v. Huml (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings)
(
defamation business disparagement loss of reputation and goodwill claim re product quality, tortious
interference with prospective business relationships, substantial truth defense to defamation claim succeeds)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings     
Before Justices Jennings, Higley and Sharp  
01-08-00856-CV    David Rafes, Inc. v. Michael Huml and Slowboy Racing, Inc.   
Appeal from 11th District Court of Harris County
Trial Court Judge:
Hon. Mark Davidson

ERG Resources LLC v. Merlon Texas, Inc. (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings)
(
oil gas and minerals law, no breach of contract for sale, no conversion claim if no longer owned by plaintiff)
AFFIRM TC JUDGMENT: Opinion by
Justice Terry Jennings     
Before Justices Jennings, Higley and Sharp  
01-08-01007-CV   ERG Resources. LLC v. Merlon Texas, Inc.   
Appeal from 333rd District Court of Harris County
Trial Court Judge:  The
Honorable Joseph J. Halbach

DISMISS APPEAL 10/29: Per Curiam  (dismissed by appellant)    
Before Justices Alcala, Hanks and Higley  
01-09-00508-CV        Gina Pack v. Amegy Bank   
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

Vu v. Solanic (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Massengale)(health care liability claim, expert
report sufficiency, medical-malpractice claims)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT:
Opinion by
Justice Massengale     
Before Chief Justice Radack, Justices Bland and Massengale  
01-09-00551-CV Tuan A. Vu, Individually and d/b/a Southwest Cosmetic Surgery and Skin Care Center and
Tuan A. Vu, M.D., P.A. v. Cicely Solanic   Appeal from 400th District Court of Ft. Bend County
Trial Court Judge: Hon Clifford J. Vacek  

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam     
Before Justices Jennings, Higley and Sharp  
01-09-00825-CV  In Re Michael Francis Palma   
Appeal from 157th District Court of Harris County
Trial Court Judge:
Hon. Randy Wilson

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Keyes     
Before Justices Keyes, Alcala and Hanks  
01-07-01038-CR        Peter Silva v. The State of Texas   
Appeal from 262nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala     
Before Justices Keyes, Alcala and Hanks  
01-08-00411-CR        Dominique Anthony Dorsey v. The State of Texas   
Appeal from 230th District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam     
Before Chief Justice Radack, Justices Bland and Massengale  
01-08-00412-CR        Virgilio Perez Vasquez v. The State of Texas   
Appeal from 182nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland     
Before Chief Justice Radack, Justices Bland and Massengale  
01-08-00557-CR        Horace Hiawathai Walker v. The State of Texas   
Appeal from 284th District Court of Montgomery County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala     
Before Justices Keyes, Alcala and Hanks  
01-08-00724-CR        Herschell Dean Shinette v. The State of Texas   
Appeal from 405th District Court of Galveston County

AFFIRM TC JUDGMENT: Opinion by Justice Higley     
Before Justices Higley, Sharp and Mirabal  
01-08-00872-CR        Terrance Lee Williams v. The State of Texas   
Appeal from 230th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp     
Before Justices Jennings, Higley and Sharp  
01-08-00873-CR        Kevin Ricardo Dorsey v. The State of Texas   
Appeal from 182nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Higley     
Before Justices Jennings, Higley and Sharp  
01-09-00145-CR        Omar Marquise Henry v. The State of Texas   
Appeal from 262nd District Court of Harris County

DISMISS APPEAL: Per Curiam     
Before Justices Jennings, Higley and Sharp  
01-09-00146-CR        Nakia Kiyanna Washington v. The State of Texas   
Appeal from 337th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings     
Before Justices Jennings, Higley and Sharp  
01-09-00213-CR        Sherril Lee Rooks v. The State of Texas   
Appeal from 2nd District Court of Cherokee County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp     
Before Justices Jennings, Keyes and Sharp  
01-09-00332-CR        Andrew Stubblefield v. The State of Texas   
Appeal from 258th District Court of Polk County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp  
Before Justices Jennings, Keyes and Sharp  
01-09-00406-CR        Andrew Stubblefield v. The State of Texas   
Appeal from 258th District Court of Polk County

October 26, 2009

Civil Causes Decided:

Sharp Dissent in Dyess v. Harris (corrected opinion) (Tex.App.- Houston [1st Dist.] Oct. 26, 2009)(Sharp,
Dissenting)  ("I dissent. The trial court preemptively usurped the jury’s fact-finding role.")
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by
Justice Sharp  
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00673-CV  Carl D. Dyess a/n/f of Allison Veasey v. Leon Harris, Donna L. Harris and Spaulding for
Childrens   
Appeal from 234th District Court of Harris County
Trial Court Judge:
The Honorable Reece Rondon

Criminal Causes Decided: None this day

October 23, 2009  

Civil Causes Decided:

Benavente v. Granger (Tex.App.- Houston [1st Dist.] Oct. 23, 2009)(Radack)
(
rear-end automobile collision, negligence not established, no negligence per se based on rear-end collision,
take-nothing judgment affirmed,
appeal based on partial reporter's record)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00227-CV Maricella Benavente v. Daniel Granger and Beverly Granger
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Hon. Joseph Halbach
Dissenting Opinion by Justice Sharp in Benavente v. Granger (would find driver negligent)   

Criminal Causes Decided:

October 22, 2009  

Civil Causes Decided:

Gillum v. Harris County (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley)
(
ad valorem property tax case, tax suit, tax delinquency suit and foreclosure of tax lien,
appeal from tax master to referring court, de novo trial)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley    
Before Justices Jennings, Higley and Sharp)
01-08-00551-CV   Jennifer Gillum v. Harris County   
Appeal from 157th District Court of Harris County  
Trial Court Judge:
Hon. Randy Wilson

Hyatt v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley)
(
termination of parental rights, frivolous appeal finding)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley    
Before Justices Jennings, Higley and Sharp
01-09-00159-CV  Kenneth A. Hyatt III v. Department of Family and Protective Services   
Appeal from 315th District Court of Harris County
Trial Court Judge:  Hon. Michael H. Schneider

City of Houston v. HS Tejas, Ltd. (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Massengale)
(
inverse condemnation, regulatory takings claim, plea to the jurisdiction proper, ripeness issue,
opportunity to amend)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by
Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00393-CV   City of Houston v. HS Tejas, Ltd   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Bland    
Before Chief Justice Radack, Justices Bland and Massengale
01-07-01027-CR        Willie Paul Walton v. The State of Texas   
Appeal from 182nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks
01-08-00460-CR        Joshua Tyrone Lane v. The State of Texas   
Appeal from 300th District Court of Brazoria County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala     
Before Justices Keyes, Alcala and Hanks
01-08-00584-CR        Rudy Rodriguez, Jr. v. The State of Texas   
Appeal from 183rd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp    
Before Justices Jennings, Higley and Sharp
01-08-00734-CR        Umekki Marshall v. The State of Texas   
Appeal from 185th District Court of Harris County

OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Sharp    
Before Justices Jennings, Higley and Sharp
01-08-00734-CR        Umekki Marshall v. The State of Texas   
Appeal from 185th District Court of Harris County

AFFIRM TC JUDGMENT: Per Curiam    
Before Justices Keyes, Alcala and Hanks
01-08-00974-CR        Joshua Martan Pleasant v. The State of Texas   
Appeal from 178th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Justices Keyes, Alcala and Hanks
01-09-00645-CR        Joshua Tyrone Lane v. The State of Texas   
Appeal from 300th District Court of Brazoria County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala    
Before Justices Keyes, Alcala and Hanks
01-09-00646-CR        Joshua Tyrone Lane v. The State of Texas   
Appeal from 300th District Court of Brazoria County  

October 20, 2009

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00901-CV        In re Carla I. Velasco
Appeal from 308th District Court of Harris County  
Trial Court Judge:
Hon. Georgia Dempster

Criminal Causes Decided:

October 16, 2009  

Civil Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before
01-08-00673-CV  Carl D. Dyess a/n/f of Allison Veasey v. Leon Harris, Donna L. Harris and Spaulding
for Children--Appeal from 234th District Court of Harris County

OPINION DISSENTING TO THIS COURT'S JUDGMENT:   
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00673-CV  Carl D. Dyess a/n/f of Allison Veasey v. Leon Harris, Donna L. Harris and Spaulding
for Children--Appeal from 234th District Court of Harris County

Criminal Causes Decided:

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Jennings, Higley and Sharp
01-09-00823-CR        In re Howard G. Green
Appeal from 180th District Court of Harris County

October 15, 2009  

Civil Causes Decided:

SCTW Health Care Center, Inc v. AAR Incorporated (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)
(Hanks)
(
construction law, mold remediation work, breach of contract jury verdict affirmed, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Hanks   
Before Chief Justice Radack, Justices Alcala and Hanks    
01-07-00762-CV SCTW Health Care Center, Inc., Stan Steele, Wynell Suitt and WTCS Health Care
Center, Inc. v. AAR Incorporated    
Appeal from 212th District Court of Galveston County
Trial Court Judge:
Hon. Susan Elizabeth Criss

Houchins v. Devon Energy Production Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Massengale)
(
determination whether language of a deed is ambiguous)(interpretation of deed language)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00273-CV  Cynthia A. Houchins and Darrell E. Houchins v. Devon Energy Production Co., L.P.    
Appeal from 18th District Court of Johnson County
Trial Court Judge: Hon. John Edward Neill

Saxon v. Saxon (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(per curiam)
(
untimely notice of appeal)
DISMISS APPEAL: Per Curiam   
Before Justices Jennings, Higley and Sharp    
01-08-00310-CV  Dannie Reece Saxon v. Frank E. Saxon    
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

Requena v. Otis Elevator Company and Fisk Electric Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)
(Keyes)
(personal injury - freight elevator,
negligence, no breach of duty, JNOV affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Keyes   
Before Justices Keyes, Alcala and Hanks    
01-08-00378-CV  Jose Hermilo Requena and Mary Sue Requena v. Otis Elevator Company and Fisk
Electric Company    Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Levi J. Benton

Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Alcala)
(jury findings that defendant committed
forgery, misapplication of fiduciary property, fraud, and
conversion, exemplary damages affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-08-00539-CV  Janell S. Marin v. IESI TX Corporation    
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

KM Timbercreek, LLC v. HCAD (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Bland)
(
tax appraisal judicial review suit, exhaustion of administrative remedies, standing to bring action,
Rule 28)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Bland   
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00689-CV  KM Timbercreek, LLC v. Harris County Appraisal District    
Appeal from 334th District Court of Harris County
Trial Court Judge:
Hon Sharon McCally

Aranda v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Higley)
(
termination of parental rights appeal, frivolousness finding)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Higley   
Before Justices Jennings, Higley and Sharp    
01-09-00058-CV  Ernesto Aranda v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County
Trial Court Judge:  Hon. John Phillips  

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks    
01-09-00167-CV  Mary Beth Clawson and Robert Taylor, Individually and as Trustees for the Mary
Beth Clawson 1986 Trust, The Meredith Mccarthy Riddle 1986 Trust , The Elizabeth Karthleen
Riddle 1986 Trust, The Elizabeth Marenfield 1986 Trust, Arbor Holding Company, Inc., v. Beltway
Green Partnership, Ltd    
Appeal from 164th District Court of Harris County
Trial Court Judge:  
Hon Alexandra Smoots-Hogan

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks    
01-09-00394-CV  John Altaire Coil, Dee and Dee Enterprises, Inc., and I-45 North News & Video, Inc.
v. Odilia Espinosa, Individually; Odilia Espinosa, as Personal Representative of the Estate of
Jacinto Espinosa; Marco Espinosa    
Appeal from 129th District Court of Harris County
Trial Court Judge:
Hon. Michael Gomez

In re Newton B. Schwartz, Sr. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(per curiam)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Chief Justice Radack, Justices Higley and Bland    
01-09-00806-CV  In re Newton B. Schwartz, Sr.    
Appeal from 157th District Court of Harris County
Trial Court Judge:
Hon. Randy Wilson  

(Tex.App.- Houston [1st Dist.] Oct. 15, 2009)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Chief Justice Radack, Justices Higley and Bland    
01-09-00807-CV  In re Newton B. Schwartz, Sr.    
Appeal from 157th District Court of Harris County
Trial Court
Judge: Randy Wilson  

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks)
(
SAPCR petition in intervention in DFPS/CPS child protection suit, timeliness of intervention)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Hanks   
Before Justices Keyes, Alcala and Hanks    
01-09-00814-CV  In Re David Arnold Northrop    
Appeal from
257th District Court of Harris County
Trial Court Judge: Hon. Judy Warne

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks)  
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice George C. Hanks, Jr.    
Before Justices Keyes, Alcala and Hanks    
01-09-00815-CV  In Re David Arnold Northrop    
Appeal from 257th District Court of Harris County
Trial Court Judge:
Hon. Judy Warne

Criminal Causes Decided:

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-04-01252-CR        Ronald David Rogers v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-04-01253-CR        Ronald David Rogers v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes   
Before Justices Keyes, Alcala and Hanks    
01-08-00305-CR        David Thomas v. The State of Texas    
Appeal from 180th District Court of Harris County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-08-00426-CR        Michael Lee Trevino v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-08-00427-CR        Michael Lee Trevino v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-08-00428-CR        Michael Lee Trevino v. The State of Texas    
Appeal from 268th District Court of Fort Bend County

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala   
Before Justices Keyes, Alcala and Hanks    
01-08-00527-CR        Erick Roberto Aguilar-Montino v. The State of Texas    
Appeal from 176th District Court of Harris County

October 12, 2009

Civil Causes Decided:

Criminal Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Bland and Sharp
01-08-01019-CR  In re Floyd P. Tarvin, IV
Appeal from County Criminal Court at Law No 8 of Harris County

October 9, 2009

Civil Causes Decided:

Sharp Dissent from denial of en banc review in Walker v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 9,
2009)(Sharp) (
termination of parental rights)
OPINION DISSENTING TO THIS COURT'S JUDGMENT:
Dissenting Opinion by Justice Sharp   
Before Justices Jennings, Hanks and Bland
01-07-00867-CV  Frederick Dewayne Walker v. Department of Family and Protective Services   
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

Criminal Causes Decided:

October 8, 2009

Civil Causes Decided:

Showbiz Multimedia LLLC v. Mountain States Mortgage Co. (Tex.App.- Houston [1st Dist.] Oct. 8,
2009)(Sharp)
(
improper incurable jury argument, inflammatory judicial terrorism rhetoric)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Sharp   
Before Justices Taft, Bland and Sharp
01-07-00810-CV  Showbiz Multimedia, LLC; Showbiz Multimedia Entertainment, LLC; and Vinay Karna
v. Mountain States Mortgage Company; Remington Financial Group, Inc.; and Matthew McManus   
Appeal from 387th District Court of Fort Bend County
Concurring Opinion by Justice Taft  in Showbiz Multimedia v. Mountain States Mortgage Company

National Fire Insurance Co. v. State and County Mutual Fire Ins. Co.  (Tex.App.- Houston [1st Dist.]
Oct. 8, 2009)(Massengale)(
insurance litigation)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00845-CV  National Fire Insurance Company of Hartford, as Assignee of Kelvin Ray Gatlin
v. State and County Mutual Fire Insurance Company   
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn Wood

Aguilar v. Dojo Enterprises, Inc. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale)
(take-nothing judgment in personal injury suit affirmed) (
statute of limitations and due diligence in
serving defendant, deemed admissions, waiver of arguments on appeal on account in inadequate
briefing)   
AFFIRM TC JUDGMENT: Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00903-CV Estelita Aguilar v. Dojo Enterprises, Inc. d/b/a Party City   
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn Wood

Harris County Medical Examiner v. Saghian (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Hanks)
(
autopsy, free exercise of religion, Texas Religious Freedom Restoration Act, temporary injunction
preventing autopsy vacated,
standing)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Hanks   
Before Justices Jennings, Hanks and Bland
01-07-00951-CV Harris County Medical Examiner Luis Arturo Sanchez, M.D. v. Afsaneh Saghian   
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle

Stephens v. SBOT (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes)
(
petition to reinstate law license denied, summary judgment affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Keyes   
Before Justices Keyes, Alcala and Hanks
01-08-00210-CV  McCuller C. Stephens, III v. State Bar of Texas   
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Lynn Bradshaw-Hull

O'Conor v. The Frost National Bank (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes)
(
invasion of privacy claim fails, disclosure of social security number)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Keyes   
Before Justices Keyes, Alcala and Hanks
01-08-00229-CV  Robert O'Conor, Jr. v. The Frost National Bank   
Appeal from 234th District Court of Harris County
Trial Court Judge: The
Honorable Reece Rondon

Resurgence Financial, LLC v. Lawrence (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Radack)
(
credit card debt suit not properly brought as sworn account suit under Rule 185, damages not
proven)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00341-CV  Resurgence Financial, L.L.C. v. James T. Lawrence   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Equipment Resources International, Inc. v. Webb (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Bland)
(
MSA,
(
breach of mediated settlement agreement, bad faith sanctions, contractual agreement to dismiss
pending suit not complied with)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Bland   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00374-CV  Equipment Resources International, Inc. v. Julie L. Webb   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan

DISMISS APPEAL: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00754-CV  Rapid Settlement, LTD. v. Voshunda Roquemore, Hartford Fire Insurance
Company   Appeal from
County Civil Court at Law No 4 of Harris County

Royalton Condominium, LP v. Albright (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Radack)
(pending
interlocutory appeal mooted by nonsuit in the trial court)
DISMISS APPEAL: Opinion by
Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00139-CV Royalton Condominiums, L.P. and The Royalton Management, Inc. v. Gerry Albright,
Vivian Leong, Ronald Gensburg, Hal Kuntz,
Annette Kuntz, Lucky Chopra and Alvin Thomas   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. Al Bennett

In Interest of G.T.S. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Jennings)
(
paternity proceedings to rebut presumption of paternity and establish other man's paternity
barred by limitations,
equitable estoppel theory not properly presented)  
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TRIAL
COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Jennings   
Before Justices Jennings, Higley and Sharp
01-09-00212-CV In the Interest of G. T. S., a child   
Appeal from 173rd District Court of Henderson County
Trial Court Judge: Judge Dan Moore

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-06-00416-CR        Jay Dee Smith v. The State of Texas   
Appeal from 337th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks   
Before Justices Keyes, Hanks and Bland
01-07-00670-CR        Ronald A Combs v. The State of Texas   
Appeal from 184th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00885-CR        Joseph Flucas v. The State of Texas   
Appeal from 185th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Keyes   
Before Justices Keyes, Alcala and Hanks
01-08-00272-CR        Alford Brent Jeffrey v. The State of Texas   
Appeal from 13th District Court of Navarro County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings   
Before Justices Jennings, Higley and Sharp
01-08-00797-CR        Andrew Barnes v. The State of Texas   
Appeal from 183rd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00837-CR        Ernest Lovell Davis v. The State of Texas   
Appeal from 184th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Sharp   
Before Justices Jennings, Higley and Sharp
01-08-00906-CR        Alton D. Brown v. The State of Texas   
Appeal from 184th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00907-CR        Matthew James Acheampong v. The State of Texas   
Appeal from 209th District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justice Sharp
01-08-00947-CR        Robert Eric Ballard v. The State of Texas   
Appeal from 263rd District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Jennings, Higley and Sharp
01-08-00948-CR        Robert Eric Ballard v. The State of Texas   
Appeal from 263rd District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Jennings, Higley and Sharp
01-09-00798-CR        Carlos Humberto Morales v. The State of Texas   
Appeal from 176th District Court of Harris County

October 7, 2009

Civil Causes Decided:

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Justices Keyes, Alcala and Hanks
01-09-00814-CV        In Re David Arnold Northrop   
Appeal from 257th District Court of Harris County

In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Justices Keyes, Alcala and Hanks
01-09-00815-CV        In Re David Arnold Northrop   
Appeal from
257th District Court of Harris County

In Re Velasco (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(per curiam denial of mandamus)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00824-CV        In re Carla I. Velasco   
Appeal from
308th District Court of Harris County

Criminal Causes Decided:

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam   
Before Justices Keyes, Alcala and Hanks
01-09-00698-CR        In re Donald Fred Hobbs   
Appeal from 56th District Court of Galveston County

October 1, 2009

Civil Causes Decided:

Chambers v. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Opinion on remand by Taft)
(
right to arbitration of attorney-client / legal malpractice dispute not waived, conflict in arb
agreement as to whether TAA or FAA applies resolved in favor of Texas Arbitration Act, arbitration
of
legal malpractice claims)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Tim Taft   
Before Justices Taft, Keyes and Hanks   
01-04-01029-CV  Bob Chambers, et al. v. John M. O'Quinn, individually d/b/a O'Quinn & Laminack,
and John M. O'Quinn, P.C.   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan

Nguyen v. Yovan (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Keyes)
(
real estate transaction, statute of frauds as it applies to sale of real estate, contract for deed)  
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-07-00660-CV  Anna Marie Nguyen v. Alex Yovan and Philip Yovan   
Appeal from 212th District Court of Galveston County
Trial Court
Judge: Hon. Susan Elizabeth Criss

Choy v. Graziano Roofing of Texas, Inc. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)
(
construction law, Trust Fund Act violations alleged)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-07-00761-CV  Andrew Choy v. Graziano Roofing of Texas, Inc.   
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble

Nicholson v. Shinn, MD (Tex.App.- Houston [1st Dist.] Oct. 1, 2009) (HCLC, limitations and accrual of
claim, timeliness of notice of claim and filing of suit, motion for continuance of summary judgment
hearing for additional discovery, adequate time for discovery)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack   
Before Chief Justice Radack, Justices Alcala and Hanks   
01-07-00973-CV  Litzi Nicholson v. Mary Shinn, MD   
Appeal from 133rd District Court of Harris County
Trial Court
Judge: Hon. Lamar McCorkle  

Vice v. Kasprzak (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Keyes)
(
interlocutory appeal, defamation suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-08-00168-CV  Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak and
Katherine D. Kasprzak   
Appeal from 125th District Court of Harris County
Trial Court
Judge: Hon. John Coselli

Union Carbide & Hexion Specialty Chemicals, Inc v. Smith (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)
(Jennings)(
asbestos case, exclusive remedy defense, Workers Compensation Act).
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Jennings   
Before Justices Jennings, Alcala and Higley   
01-08-00641-CV  Union Carbide & Hexion Specialty Chemicals, Inc.'s v. Oliver D. Smith
and Peggy Ann Bowen Smith   
Appeal from 122nd District Court of Galveston County
Trial Court Judge: Hon. John Ellisor

Plaza At 610 Commons Inc v. HCAD (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Higley)
(
ad valorem property tax appeal, plea to the jurisdiction, no substitution of different entity as
owner under
Rule 28 governing dba-s, suit in common names) (property tax protest, appeal administrative
remedies and judicial review suit, plea to the jurisdiction, no substitution of different entity as
owner under Rule 28 governing dbas, common names, identity of property owner is the issue, real
owner did not bring protest and suit within the filing deadline)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley   
Before Justices Jennings, Higley and Sharp   
01-08-00690-CV  Plaza At 610 Commons Inc. v. Harris County Appraisal District   
Appeal from 334th District Court of Harris County
Trial Court Judge:
Hon Sharon McCally

Perry v. UH-Downtown (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Bland)
(
public employment - retaliatory discharge claim;
summary judgment for defendant university in race discrimination retaliation case affirmed)
AFFIRM TC JUDGMENT: Opinion by
Justice Jane Bland   
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00807-CV  Jacqueline Perry v. University of Houston Downtown   
Appeal from 295th District Court of Harris County
Trial Court Judge:
Hon. Tracy Christopher

Lamar v. Poncon, Morgan's Rock Hacienda & Ecolodge (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)
(Bland)
(
special appearance, special jurisdiction, general jurisdiction, discovery re jurisdictional facts
should proceed)
REVERSE TRIAL COURT JUDGMENT: Opinion by Justice Bland   
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-01036-CV  John and Nanci Lamar v. Eric Poncon and Morgan's Rock Hacienda & Ecolodge   
Appeal from
215th District Court of Harris County  

DISMISS APPEAL: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00042-CV  Chris Stone and Gary Walker v. Glazier Foods Company   
Appeal from
334th District Court of Harris County

UT Med. Branch Galveston v. Brisco (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Massengale)
(
Texas Tort Claims Act TTCA case, claim dismissed, sufficiency of  notice of claim letter, immunity
not waived)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00064-CV  The University of Texas Medical Branch Galveston and The University of Texas
System v. Dawn Nico Brisco   Appeal from 56th District Court of Galveston County
Trial Court Judge: Hon Lonnie Cox

Thomas & Son's Inc. v. Seabrook Land Co. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Bland)
(
finality, interlocutory appeal from sanctions order not authorized and dismissed for want of
jurisdiction)
DISMISS APPEAL: Opinion by
Justice Bland   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00420-CV Thomas & Son's Inc., United Seafood, Inc., and Gulf Coast Harvest, Inc.
v. Seabrook Land Company   
Appeal from 125th District Court of Harris County
Trial Court
Judge: Hon. Kyle Carter

DISMISS APPEAL: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00540-CV  Carl S. Birk v. FIA Card Services   
Appeal from
281st District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Jennings, Higley and Sharp   
01-09-00554-CV  Kerry Walter v. Unifund CCR Partners   
Appeal from
County Civil Court at Law No 1 of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks   
01-09-00681-CV  Teresa Stephens v. Virgie Arthur   
Appeal from 280th District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00683-CV  Rapid Settlements, Ltd. v. American Mayflower Life Insurance Company N/K/A
Genworth Life Insurance Company of New York and Mayflower Assignment Corporation   
Appeal from
County Civil Court at Law No 3 of Harris County

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack   
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00101-CR  Edward Galvan Coronado v. The State of Texas   
Appeal from 209th District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00658-CR  Jeremiah Bernard Ellis v. The State of Texas   
Appeal from 248th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks   
Before Justices Keyes, Alcala and Hanks   
01-08-00710-CR  Tamina Denise Hamid v. The State of Texas   
Appeal from 434th District Court of Fort Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Hanks   
Before Justices Keyes, Alcala and Hanks   
01-08-00711-CR  Tamina Denise Hamid v. The State of Texas   
Appeal from 434th District Court of Fort Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Higley   
Before Justices Jennings, Higley and Sharp   
01-08-00927-CR  Jason Wayne Liles v. The State of Texas   
Appeal from Co Crim Ct at Law No 12 of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00114-CR  John Antwon Pete v. The State of Texas   
Appeal from 337th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Higley   
Before Justices Jennings, Higley and Sharp   
01-09-00206-CR  Kelly Jeanette Saxton v. The State of Texas   
Appeal from 3rd District Court of Anderson County

AFFIRM TC JUDGMENT: Opinion by Justice Higley   
Before Justices Jennings, Higley and Sharp   
01-09-00218-CR  Frank D. Patton, Jr. v. The State of Texas   
Appeal from 349th District Court of Houston County

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks   
01-09-00598-CR  Sherman Dwayne Waller a/k/a Sherman Dwayne Walker v. The State of Texas   
Appeal from 185th District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks   
01-09-00716-CR  Chad Dwayne Provorse v. The State of Texas   
Appeal from 248th District Court of Harris County

DISMISS APPEAL: Per Curiam   
Before Justices Keyes, Alcala and Hanks   
01-09-00738-CR  Jose Santos Lopez v. The State of Texas  
Appeal from 178th District Court of Harris County
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