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January 2010 Appellate Decisions with Links to Opinions in Civil Cases: Opinion Release Dates: Jan 7, 8, 11, 14, 15, 19, 21, 22, 26, 28, 29, 2010 Released Opinions January 29, 2010 Civil Causes Decided: In re Willie (pdf) (Tex.App.- Houston [1st Dist.] Jan 29, 2010)(per curiam denial of mandamus petition) (attorney disciplinary proceeding) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-10-00069-CV In re Joseph R. Willie, II Appeal from 113th District Court of Harris County Trial court: The Honorable Donna S. Rayes, Specially Appointed Judge in disciplinary proceeding Criminal Causes Decided: January 28, 2010 Civil Causes Decided: Straus v. Auto Management, Inc. (Tex.App.- Houston 1st Dist] Jan 28, 2010)(Radack) (successful pro se appeal)(DWOP dismissal for want of prosecution reversed, trial court did not give adequate notice of intent to dismiss for want of prosecution) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-07-00158-CV Robert Straus d/b/a/ Bob Straus Photography v. Auto Management, Inc. Appeal from 151st District Court of Harris County Trial Court Judge: Hon. Caroline E. Baker Phillips v. Willy (Tex.App.- Houston [1st Dist.] Jan. 28, 2010)(Taft) (real estate dispute, adverse possession, repudiation) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Chief Justice Radack, Justices Taft and Sharp 01-07-00159-CV Lonnie Phillips, Jr., and Lance Phillips a/n/f v. Betty Willy, and The Executor of the Estate of Kenneth Bing, Kimberlyrae Bing Thompson and Kenneth W. Bing, Jr. Appeal from 23rd District Court of Brazoria County Trial Court Judge: Hon. Ben Hardin DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-08-00267-CV Kristina Gaare v. Emmanuel Dwayne Taylor Appeal from County Court at Law No 1 of Brazos County Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(Bland) (real estate transactions, failure to promptly provide pay-off amount for real estate loan not actionable) (failure to prove existence of contractual obligation to provide pay-off statement, no quasi contract, earnest money contract deadline missed, no closing) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Justices Taft, Bland and Sharp 01-08-00359-CV Deborah H. Underwood Graves v. Nancy D. Logan Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Bland and Massengale 01-08-00594-CV Dan Hennigan v. B. & R. 1100 Nasa Parkway Appeal from County Civil Court at Law No 2 of Harris County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00358-CV Joy C. Nwoke, Individually and Joy C. Nwoke, as Representative of Passion Central Home Health Services, Inc. v. Scholar Obasi Appeal from 149th District Court of Brazoria County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00686-CV Ernest R. Koonce v. Homeq Servicing, Wells Fargo Bank, Appeal from 127th District Court of Harris County Criminal Causes Decided: DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Bland and Massengale 01-05-00849-CR Sean-Michael Faber v. The State of Texas Appeal from 9th District Court of Waller County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Bland and Massengale 01-05-00850-CR Sean-Michael Faber v. The State of Texas Appeal from 9th District Court of Waller County REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Judge Duggan, Justices Jennings and Higley 01-08-00302-CR Pablo Lopez v. The State of Texas Appeal from 177th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00466-CR Kyong M. McLean v. The State of Texas Appeal from County Criminal Court at Law No 4 of Harris County DISMISS APPEAL: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-09-00255-CR Larry Gene Waldrup v. The State of Texas Appeal from 262nd District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00408-CR Dejon Andre Dennis v. The State of Texas Appeal from 338th District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00409-CR Dejon Andre Dennis v. The State of Texas Appeal from 338th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00959-CR Jeffery Eugene Harris v. The State of Texas Appeal from 230th District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Hanks and Bland 01-10-00005-CR In re Charles R. Edwards Appeal from 184th District Court of Harris County January 26, 2010 Civil Causes Decided: In re Coritino (pdf) (Tex.App.- Houston [1st Dist.] Jan. 26, 2010)(per curiam) (mandamus petition moot) By petition for writ of mandamus, relator, John Cortino, challenges the trial court's denial of his motion to proceed in forma pauperis. The trial court has informed this Court that Cortino's motion to proceed in forma pauperis was denied in error, and that John Cortino may proceed without payment of costs. We dismiss the petition for writ of mandamus as moot. The stay entered January 25, 2010, is lifted. All outstanding motions are overruled as moot. DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Hanks and Bland 01-10-00034-CV In re John Cortino Appeal from 246th District Court of Harris County Trial Court Judge: Hon. Jim York Criminal Causes Decided: January 22, 2010 Civil Causes Decided: In re Texas Tri-Care Rehabilitation (pdf) (Tex.App.- Houston [1st Dist.] Jan. 22, 2010)(per curiam) (discovery mandamus denied re: order compelling responses to certain requests for production) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Alcala and Hanks 01-10-00003-CV In re Texas Tri-Care Rehabilitation and Lawrence Roddick, D.C. Appeal from 11th District Court of Harris County Trial Court Judge: Hon. Mike Miller Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01006-CR In re Herman Nugent v. The State of Texas Appeal from 183rd District Court of Harris County January 21, 2010 Civil Causes Decided: Royce Homes, LP v. Bates (pdf) (Tex.App.- Houston [1st Dist.] Jan. 21, 2010)(Keyes) (arbitration award confirmed by trial court, multiple challenges fail) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00191-CV Royce Homes, L.P.; Hammersmith Group, Inc. v. Deborah F. Bates, Verdia L. Boyce, Wadie & Demetria Butler, Robert & Billye Evans, Darlene Handy, Josaulyn Hoskins, Jinnell Ray, Trilyon Taylor, Barbara Wilson Appeal from 268th District Court of Fort Bend County Trial Court Judge: Hon. Brady G. Elliott DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-08-00257-CV Bharat Bhushan Kapur v. Taxco, Inc. and Pat Walker Appeal from 189th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00033-CV Brenda Jones Holmes, Individually and as Co-Trustee of the Helen Jones Revocable Trust v. H. Yvonne Landry Appeal from 55th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00152-CV Sherrifu Drammeh v. James E. Kilpatrick Appeal from Co Civil Ct at Law No 1 of Harris County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00272-CV Rami El-Wali, M.D. v. Laura H. Castro, Individually and as Representative of the estate of Edward Lee Castro , Cynthia M. Castro, Laura M. Kelly, and Kimberly Castro Cowart Appeal from 281st District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00655-CV Linda Ross v. Ellen S. Gutierrez Appeal from Co Civil Ct at Law No 4 of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00680-CV Harriette Stephen and Oscar Stephen v. Nancy Vickers and Kevin Martine Appeal from 55th District Court of Harris County Criminal Causes Decided: DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-08-00786-CR Isaiah Ramon Allen v. The State of Texas Appeal from 337th District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01009-CR In re Edwin Carl Debrow Appeal from 112th District Court of Crockett County January 19, 2010 Civil Causes Decided: UPDATE: In re Baker (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Substitute opinion by Massengale) (petition dismissed for want of jurisdiction, complainant had no standing to bring election contest) In re James A. Baker (pdf) (Tex.App.- Houston [1st Dist.] Jan. 19, 2010)(original per curiam opinion)(primary election candidacy contest, mandamus denied) By petition for writ of mandamus, relator James A. Baker seeks to compel respondent Jared R. Woodfill, V, Chairman of the Harris County Republican Party, to remove Ricardo L. Ramos’s name from the March 2010 primary ballot for the 308th District Family Court. We deny relator’s motion for temporary relief. We dismiss for want of jurisdiction relator’s petition for writ of mandamus. DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Keyes and Massengale 01-10-00022-CV In re James A. Baker Appeal from 308th District Court of Harris County Criminal Causes Decided: January 15, 2010 Civil Causes Decided: In re Certain Underwriters at Lloyd's London (pdf) (Tex.App.- Houston [1st Dist.] Jan. 15, 2010)(Bland) (plenary power of trial court expired, void order, mandamus granted)(unless motion extending plenary power is filed, plenary power expires thirty days after final judgment is signed) By a petition for writ of mandamus, Certain Underwriters at Lloyd’s of London, Subscribing to Policy No. FRW14151 (“Lloyds”) challenge the trial court’s September 21, 2009 order vacating an earlier summary judgment and declaring that Lloyds has a duty to defend real party in interest, Keith E. Parker, in a separate lawsuit. Lloyds contends that the trial court’s order is void because its plenary power had expired before it signed the order. We agree that the trial court lacked plenary power; thus, the September 2009 order is void. Accordingly, we conditionally grant mandamus relief. GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-00851-CV In Re Certain Underwriters at Lloyd's London Appeal from 152nd District Court of Harris County Trial Court Judge: Hon. Robert Schaffer Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Higley and Sharp 01-09-00388-CR In Re Todd-Warren Altschul Appeal from 23rd District Court of Brazoria County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Higley and Sharp 01-09-00389-CR In Re Todd-Warren Altschul Appeal from 23rd District Court of Brazoria County January 14, 2010 Civil Causes Decided: Barber v. Cangelosi (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Bland)(probate case, will dispute) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-08-00781-CV Lena Jo Barber v. Dorothea Cangelosi, as Independent Executrix of the Estate of Anna Lee Cangelosi, Deceased Appeal from County Court at Law of Waller County Trial Court Judge: Hon. June Jackson Dyer v. Tex. Bd. of Pardons and Paroles (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Bland) (petition for expunction of an arrest record pursuant to Chapter 55 of the Texas Code of Criminal Procedure, Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2009), finality issue and appellate jurisdiction, DWOJ) (no interlocutory appeal of denial of indigency status) The trial court signed an order sustaining the district clerk’s contest to Fredrick Dyer’s affidavit of indigency. On appeal, Dyer requests that we reverse the trial court’s order and allow him to proceed as indigent in the trial court. We dismiss the appeal for want of jurisdiction because the trial court’s order sustaining the contest to Dyer’s affidavit of indigency is neither final nor appealable. DISMISS APPEAL: Opinion by Justice Jane Bland Before Chief Justice Radack, Justices Bland and Massengale 01-08-00884-CV Fredrick Dwayne Dyer v. Texas Board of Pardons and Paroles Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Patricia J. Kerrigan City of Houston v. Chemam (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Keyes) (governmental immunity, plea to the jurisdiction improperly denied, wrong court for inverse condemnation) We reverse the order of the trial court denying the City’s plea to the jurisdiction. We render judgment dismissing the Chemams’ detrimental reliance, estoppel, tort, UDJA, and selective enforcement claims for lack of subject matter jurisdiction. We dismiss the case without prejudice to the Chemams’ bringing their inverse condemnation claim in a court of appropriate jurisdiction. EVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-01005-CV City of Houston v. Sherif Chemam and Diann Chemam Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Jan. 14, 2010) (Jennings)(conversion, trespass, fraud, negligent misrepresentation, breach of contract and bailment agreement, violations of the Texas Theft Liability Act, the Texas Deceptive Trade Practices Act (“DTPA”), and the Texas Insurance Code) Appellant, Cash Rent-A-Car (“RAC”), challenges the trial court’s rendition of summary judgment in favor of appellees, Old American County Mutual Insurance Company (“Old American”) and Affirmative Insurance Services, Inc. (“Affirmative”), in RAC’s suit against appellees for conversion, trespass, fraud, negligent misrepresentation, breach of contract and bailment agreement, and violations of the Texas Theft Liability Act, Footnote the Texas Deceptive Trade Practices Act (“DTPA”), Footnote and the Texas Insurance Code. Footnote In two issues, RAC contends that the trial court erred in granting summary judgment in favor of appellees because the summary judgment evidence presented a genuine issue of material fact on all of RAC’s claims and because appellees did not file a summary judgment motion addressing all of RAC’s claims. AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-09-00021-CV Cash Rent-A-Car, Inc. v. Old American County Mutual Fire Insurance Company, and Affirmative Insurance Services, Inc. Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble Matthews v. McCall Northrup (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Jennings) (child support determination of amount, insufficient record waiver of issue urged on appeal) Because Matthews has not supplied this Court with a statement of facts with which to review the trial court’s determination of deemed income from the Partnership in calculating his child support obligation, we hold Matthews has waived review of his issue. AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-09-00063-CV Matthew A. Matthews v. Elizabeth McCall Northrup Appeal from 245th District Court of Harris County Trial Court Judge: Hon. Annette Kuntz Adams v. Liberty Mutual Ins. Co. (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Bland) (worker’s compensation judicial review proceeding) AFFIRM TC JUDGMENT: Opinion by Justice Jane Nenninger Bland We hold that the trial court had no jurisdiction over Adams’ second claim. We further hold that the trial court had jurisdiction to review the administrative ruling in the first claim, and that, as the prevailing party, Liberty is entitled to reasonable and necessary attorney’s fees. We therefore vacate the portion of the judgment addressing the second claim, affirm the portion of the judgment addressing the first claim, and remand the cause for approval and entry of an attorney’s fee award for Liberty. Before Chief Justice Radack, Justices Bland and Massengale 01-09-00178-CV Donna Adams v. Liberty Mutual Insurance Company Appeal from 239th District Court of Brazoria County Trial Court Judge: Hon. Patrick Edward Sebesta DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Jennings and Massengale 01-09-00242-CV City of Pasadena, Texas v. Kinsel Industries, Inc. Appeal from 11th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00548-CV International Suppliers, Inc. v. Creative Process Consultants, Inc. Appeal from 11th District Court of Harris County DISMISS APPEAL: Per Curiam (dismissed - nonpayment) Before Justices Jennings, Hanks and Bland 01-09-00776-CV The Law Firm of Timothy C. Anderson, P.L.L.C. and The Davenport Legal Group, P.C. v. Dao K. Nguyen, Linda T. Bui, William Sheilds, and Slay Transportation Co., Inc. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Steven E. Kirkland In re Texas Windstorm Ins. Ass'n (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(per curiam) (discovery mandamus denied) Texas Windstorm Insurance Association (TWIA) filed a petition for a writ of mandamus complaining of Judge Criss's October 26, 2009 discovery order in which she compelled TWIA to produce its complaint log from September 13, 2008, to October 26, 2009. (1) See Tex. Ins. Code Ann. § 542.005(b) (Vernon 2009) (requiring insurer to maintain record of complaints); 28 Tex. Admin. Code §§ 21.2501-.2506 (2009) (maintenance of complaint records). We deny the petition for a writ of mandamus. DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00964-CV In re Texas Windstorm Insurance Association Appeal from 56th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss Criminal Causes Decided: AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Higley and Sharp 01-08-00247-CR Miguel Angel Garcia v. The State of Texas Appeal from 178th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Higley and Sharp 01-08-00248-CR Miguel Angel Garcia v. The State of Texas Appeal from 178th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00454-CR Leonard Ray Atkinson v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00455-CR Leonard Ray Atkinson v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00521-CR Edward Burks v. The State of Texas Appeal from 183rd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Chief Justice Radack, Justices Alcala and Hanks 01-08-00839-CR Bruce Erwin Leadon v. The State of Texas Appeal from 178th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Chief Justice Radack, Justices Alcala and Hanks 01-08-00840-CR Bruce Erwin Leadon v. The State of Texas Appeal from 178th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Keyes, Alcala and Hanks 01-08-00862-CR Byron Jermaine Prophet v. The State of Texas Appeal from 337th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Keyes, Alcala and Hanks 01-08-00863-CR Byron Jermaine Prophet 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 01-09-00224-CR Austin White v. The State of Texas Appeal from 3rd District Court of Anderson County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00601-CR Jordash Jerome Henderson v. The State of Texas Appeal from 262nd District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00890-CR Baretta Robinson v. The State of Texas Appeal from 182nd District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01072-CR Francisco Javier Lira v. The State of Texas Appeal from 263rd District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01149-CR In re Curtis Earl Jackson Jr. v. The State of Texas Appeal from 178th District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-10-00004-CR In re Allen D. Little Appeal from 184th District Court of Harris County DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Hanks and Bland 01-10-00021-CR Ex Parte Evelyn Barber-Mylonas Appeal from of County January 11, 2010 Civil Causes Decided: Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Alcala and Hanks 01-09-00962-CR In re Charles Ray Edwards Appeal from 184th District Court of Harris County January 8, 2010 Civil Causes Decided: In Re Miller Ins. Services Ltd. (pdf) (Tex.App.- Houston [1st Dist.] Jan. 8, 2010)(per curiam denial of mandamus) (challenge to trial court’s decision to delay ruling on relator’s motion to dismiss) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Hanks and Massengale 01-09-01101-CV In re Miller Insurance Services Ltd. Appeal from 189th District Court of Harris County Trial Court Judge: Hon. Bill Burke Criminal Causes Decided: January 7, 2010 Civil Causes Decided: Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works (pdf) (Tex.App.- Houston [1st Dist.] Jan. 7, 2010)(Opinion on motion for rehearing by Higley)(suit dismissed in deference to arbitration, preclusive effect of arbitration in foreign jurisdiction that has already taken place, arbitration not compelled in Texas; dismissal of suit affirmed on appeal, not all grounds for dismissal challenged on appeal) Appellant, Aeternia Enterprises U.S.A., Ltd. (“Aeternia”) filed a motion for rehearing of our June 18, 2009 opinion, which dismissed the appeal. On August 18, 2009, we granted Aeternia’s motion for rehearing. We now withdraw our opinion and judgment of June 18, 2009, and issue the following opinion and accompanying judgment in their stead. In this contract dispute, the trial court granted appellee Magnitogorsk Steel and Wire Works’s (“MMMZ”) “Motion to Enforce Arbitration Clause,” which resulted in the dismissal of Aeternia’s claims against MMMZ. On appeal, Aeternia identifies one global issue in which it offers a number of arguments to defeat the order. We affirm. Aeternia has failed to challenge MMMZ’s contention that the Russian arbitration award has a preclusive effect on Aeternia’s claims in this case. We must accept the validity of that contention. As a result, any error in the grounds actually challenged on appeal by Aeternia is harmless. Thus, we must affirm the judgment of the trial court dismissing Aeternia’s claims. AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Higley and Sharp 01-05-00964-CV Aeternia Enterprises, U.S.A., Ltd. v. Magnitogorsk Steel and Wire Works Appeal from 133rd District Court of Harris County Trial Court Judge: Hon. Lamar McCorkle DISMISS APPEAL: Per Curiam Before Justices Keyes, Alcala and Hanks 01-06-01181-CV Pacific Life Insurance Company and Confederation Life Insurance and Annuity Company v. Rapid Settlements, Ltd.; Joyce Allen Appeal from Co Civil Ct at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd DISMISS APPEAL: Per Curiam Before Justices Keyes, Alcala and Hanks 01-07-00033-CV Pacific Life and CLIAC v. Rapid Settlements, Ltd., Joyce Ann Allen Appeal from County Civil Court at Law No 4 of Harris County Criminal Causes Decided: MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Taft Before Chief Justice Radack, Justices Taft and Sharp 01-08-00188-CR Carlos Castillo v. The State of Texas Appeal from 208th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Bland and Massengale 01-09-00117-CR Teodoro Escobar Robles v. The State of Texas Appeal from 248th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Keyes, Alcala and Hanks 01-09-00201-CR Odie Michael Miles v. The State of Texas Appeal from 241st District Court of Smith County |