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February 2010 Appellate Decisions with Links to Opinions in Civil Cases: Opinion Release Dates: Feb. 2, 3, 4, 5, 11, 12, 18, 19, 22, 23, 25, ___ , 2010 Released Opinion February 25, 2010 Civil Causes Decided: Shell Oil Company v. Ross (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning) (oil & gas law litigation - dispute over royalties, breach of contract, unjust enrichment, and fraud theories) (fraudulent concealment as tolling theory, constructive notice based on public record) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Terry Jennings Before Justices Jennings, Alcala and Higley 01-08-00713-CV Shell Oil Company, SWEPI LP d/b/a Shell Western E&P, Successor in Interest to Shell Western E&P, Inc. v. Ralph Ross Appeal from 133rd District Court of Harris County Trial Court Judge: Hon. Lamar McCorkle Dissenting Opinion by Justice Alcala in Shell Oil Co. v. Ross (would hold that lawsuit is barred by limitations because no evidence establishes fraudulent concealment of royalty underpayment by Shell) Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala) (premises liability suit, spoilation of evidence claim rejected; defendant did not preserve complete video recording of slip & fall incident in store) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Elsa Alcala 01-08-00732-CV Ralph Clark v. Randalls Food Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Randy Wilson Whyte v. Whyte (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Sharp) (bill of review, partial summary judgment, no interlocutory appellate jurisdiction) DISMISS APPEAL: Opinion by Justice Sharp Before Justices Keyes, Sharp and Massengale 01-08-00834-CV Marsha Whyte v. Lawrence Whyte Appeal from 247th District Court of Harris County Trial Court Judge: Hon. Bonnie Hellums Rutherford v. Rutherford (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Sharp)(no final order, involuntary dismissal of attempted appeal for want of jurisdiction)(non-appealable interlocutory order)(no statutory basis for appellate jurisdiction to consider interlocutory appeal) DISMISS APPEAL: Opinion by Justice Jim Sharp Before Justices Keyes, Sharp and Massengale 01-08-00999-CV Nancy D. Rutherford v. Michael G. Rutherford Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne The Cadle Co as assignee of Amex v. Rollings (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jennings) (scire facias, revival of dormant judgment) We reverse the order of the trial court and render judgment granting Cadle’s motion for scire facias, thus reviving the dormant judgment. REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00165-CV The Cadle Company by assignment from American Express Travel Related Services Company v. Frank A. Rollins, Individually, and D/B/A Lord's Pharmacy Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Steven E. Kirkland DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00362-CV Benchmark Engineering Corporation, Mark R. Kosmoski, and Saib Y. Saour v. Inland General Construction Company Appeal from 270th District Court of Harris County Newsom v. Brazoria County Child Protective Services (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala) (termination of parental rights appeal, ineffective assistance of counsel claim overruled) AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-09-00447-CV Helen Newsom v. Brazoria County Child Protective Services, a Unit of the Texas Department of Protective and Regulatory Services Appeal from 300th District Court of Brazoria County Trial Court Judge: Hon. K. Randal Hufstetler DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00545-CV Tony Cantu v. Jack Philip Seeman Appeal from 270th District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00729-CV H T Land Company v. Startex Power Appeal from County Civil Court at Law No 3 of Harris County Curtis & Windham Architects, Inc. (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning) (action complaining of overbilling did not arise from provision of professional services; hence no certificate of merit required to support claim) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-09-00760-CV Curtis & Windham Architects, Inc., Russel Windham and William Curtis v. John E. Williams and Sheridan Williams Appeal from 127th District Court of Harris County Trial Court Judge: Hon. Ravi K. Sandill DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00762-CV Michael F. Jordan v. Ella J. Jordan Appeal from 310th District Court of Harris County Trial Court Judge: Hon. Lisa Millard DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00772-CV Peter Tsegay v. JSB Med, Inc. Appeal from 80th District Court of Harris County Trial Court Judge: Hon. Larry Weiman DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00812-CV Chanel Hall v. Department of Family and Protective Services Appeal from 315th District Court of Harris County DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00917-CV Joyce A. Brown v. Channelview Oaks Mobile Home Park, LLC Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Randy Wilson DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01064-CV Jule Brownfield and Kim Stelter v. Adrian Garcia, in the Official Capacity as Sheriff of Harris County, Texas and Harris County, Texas Appeal from 133rd District Court of Harris County Trial Court Judge: Jaclanel M. McFarland In re Baker (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Massengale) (petition dismissed for want of jurisdiction, complainant had no standing to bring election contest) Baker filed this original proceeding, seeking to have the name of a Republican candidate for judicial office removed from the primary election ballot. We dismissed the petition for writ of mandamus for want of jurisdiction. We now substitute this opinion for our prior memorandum opinion, explaining our conclusion that Baker has failed to demonstrate his standing to bring this original proceeding. DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Massengale Before Justices Jennings, Keyes and Massengale 01-10-00022-CV In re James A. Baker Election contest re: 308th District Court of Harris County Criminal Causes Decided: MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00349-CR Melvin Charles Sweed Jr. v. The State of Texas Appeal from 262nd District Court of Harris County Dissenting Opinion by Justice Alcala AFFIRM TC JUDGMENT: Opinion by Justice Massengale Before Justices Keyes, Sharp and Massengale 01-08-00625-CR Daniel Lee Sandifer v. The State of Texas Appeal from 339th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00010-CR Brent Rashad Edwards v. The State of Texas Appeal from 263rd District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00011-CR Brent Rashad Edwards v. The State of Texas Appeal from 263rd District Court of Harris County DISMISS APPEAL: Per Curiam Before Justice Jennings 01-09-00012-CR Brent Rashad Edwards v. The State of Texas Appeal from 263rd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00256-CR Gobin Ramroop v. The State of Texas Appeal from Co Ct at Law No 1 & Probate Ct of Brazoria County AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00407-CR Barry Hunter Davis v. The State of Texas Appeal from County Criminal Court at Law No 7 of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-01051-CR Timothy James Hall v. The State of Texas Appeal from 263rd District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-10-00063-CR Jody Bivens v. The State of Texas Appeal from 183rd District Court of Harris County February 23, 2010 Civil Causes Decided: None this day Criminal Causes Decided: DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00961-CR In re Ellis McMillon, Jr. Appeal from 230th District Court of Harris County February 22, 2010 Civil Causes Decided: None Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-10-00126-CR In re Bruce Duane Steve Appeal from 338th District Court of Harris County February 19, 2010 Civil Causes Decided: None Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Hanks and Bland 01-10-00088-CR In re Morris Leon Bell Appeal from 262nd District Court of Harris County February 18, 2010 Civil Causes Decided: Dixon Financial Services, Ltd. v. Chang (pdf) (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Higley) (no evidence summary judgment standard, attorney's fees as damages)(case with dissent) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Keyes and Higley 01-07-00233-CV Dixon Financial Services, Ltd. and Hyperdynamics Corporation v. James Chang, Nick H. Johnson, Riley L. Burnett, Jr., and Johnson, Burnett & Chang, L.L.P. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton Dissenting Opinion by Justice Jennings in Dixon Financial v. Chang (pdf) Adi v. Rapid Bail Bonding Co. (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Sharp) (summary judgment improperly granted in favor of surety) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Jim Sharp Before Justices Keyes, Sharp and Massengale 01-08-00290-CV John Adi v. Rapid Bail Bonding Company and Martin Halick Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Jennifer Walker Elrod Bridgwater v. Arceneaux (pdf)(Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(per curiam dismissal) (two-year protective order had expired, rendering appeal moot) DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-08-00416-CV Tom Bridgwater v. Laura Arceneaux Appeal from 311th District Court of Harris County Trial Court Judge: Hon. Annette Kuntz Snowden v. Garcia (pdf) (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Massengale) (failure to state a cause of action as a matter of law; trial court’s judgment modified to show dismissal without prejudice instead of with prejudice) MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED: Opinion by Justice Massengale Before Justices Keyes, Sharp and Massengale 01-08-00687-CV Nathan J. Snowden v. Linda Garcia and Risse Owens Appeal from 412th Judicial District Court of Brazoria County Trial Court Judge: Hon. W. Edwin Denman NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A. (pdf) (Tex.App.- Houston [1st Dist.] Feb. 18, 2010) (Bland) (forged car title, conversion, standing to prosecute appeal) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-09-00018-CV NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A. Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd Merry Homes, Inc. v. Luu (Tex.App.- Houston [1st Dist.] Feb. 18, 2010) (illegality as bar to enforcement of commercial lease, liquor regulation, zoning) In this commercial lease dispute, we determine whether a landlord may enforce a lease to operate a “nightclub or bar” and for “no other” purpose when the tenant cannot legally obtain a liquor license for the leased premises and the lease requires that any activity on the premises comply with applicable law.We hold that the trial court correctly determined that the lease was void because Luu could not perform his obligation under the lease to avoid violating a City of Houston ordinance. We further hold that the trial court’s award of $23,500 in attorney’s fees to Luu was not inequitable or unjust. We therefore affirm the judgment of the trial court. AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-00187-CV Merry Homes, Inc. v. Chi Hung Luu Appeal from 151st District Court of Harris County Trial Court Judge: Hon. Michael Engelhart Whitmire v. Greenridge Place Apartments (pdf) (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Bland) (dispute over unpaid rent, accrual of rent during pendency of appeal, supersedeas bond, liability of surety, recalled mandate) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-09-00291-CV Michael Whitmire and Sureties R.O. Whitmire and Elsi O. Whitmire v. Greenridge Place Apartments Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd Lindley v. FIA Card Services, N.A. f/k/a MBNA America Bank, N.A. (Tex.App.- Houston [1st Dist.] Feb. 18, 2010) (Higley) (restricted appeal, amount of judgment confirming arbitration award varied from arbitration award, no evidence supporting modification of amount entered by arbitrator) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00323-CV John R. Lindley v. FIA Card Service, N. A. fka MBNA America Bank, N. A. Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey Elbar Investments, Inc. v. Johnston (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Massengale) (dispute over attorney's fees awarded in connection with filing and cancellation of lis pendens, complaint not preserved for appellate review) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale Before Justices Keyes, Sharp and Massengale 01-09-00757-CV Elbar Investments, Inc. v. Cheryle R. Johnston Appeal from 309th District Court of Harris County Trial Court Judge: Hon. Frank B. Rynd Criminal Causes Decided: AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-04-00634-CR Telly Wayne Fury v. The State of Texas Appeal from 122nd District Court of Galveston County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-07-00611-CR Jaime Lara v. The State of Texas Appeal from 338th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-07-00955-CR Michael Myles v. The State of Texas Appeal from 344th District Court of Chambers County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-08-00262-CR Arthur Carson v. The State of Texas Appeal from 77th District Court of Limestone County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-08-00785-CR Clinton Mitchell v. The State of Texas Appeal from 179th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-00045-CR Corey Harrison v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-00046-CR Corey Harrison v. The State of Texas Appeal from 232nd District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Higley 01-09-00606-CR Billy Ray Risley v. The State of Texas Appeal from 232nd District Court of Harris County February 16, 2010 Civil Causes Decided: In re Essler (Tex.App.- Houston [1st Dist.] Feb. 16, 2010)(per curiam denial) (petition for mandamus challenging order compelling arbitration denied) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00233-CV In re Jerry Esser Appeal from 164th District Court of Harris County Trial Court Judge: Hon Alexandra Smoots-Hogan In re Allen and Martin Lewis Revocable Trust (Tex.App. - Houston [1st Dist.] Feb. 16, 2010)(per curiam) (mandamus denied re: trial court’s decision on the special exception, evidentiary objections, and motion for leave to late-file summary judgment evidence) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00294-CV In re Allen and Martin Lewis Revocable Trust, et al. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey A. Shadwick Criminal Causes Decided: February 12, 2010 Civil Causes Decided: In Re NFL Players Ass'n (pdf) (Tex.App.- Houston [1st Dist.] Feb. 12, 2010)(per curiam) (mandamus denied re: denial of motion to compel arbitration by trial court) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Higley and Sharp 01-10-00096-CV In re National Football League Players Association Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd Criminal Causes Decided: February 11, 2010 Civil Causes Decided: American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Alcala) (carrier loses workers compensation appeal over worker's impairment rating, plea to the jurisdiction in judicial review suit affirmed, attorney fees award for prevailing claimant workers comp appeal) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-08-00233-CV American Zurich Insurance Company v. Daniel Samudio Appeal from 127th District Court of Harris County Trial Court Judge: Hon. Sharolyn P. Wood Valencia v. DFPS (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion by Jennings) (termination of father's parental rights based on prior criminal conduct reversed, ineffective assistance of counsel) REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-08-00345-CV Joe Lewis Valencia v. Department of Family and Protective Services Appeal from 313th District Court of Harris County Trial Court Judge: Hon. Pat Shelton United Fire & Casualty Company v. Boring & Tunneling Company of America (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Keyes) (construction bond, substantial compliance with notice provisions of the McGregor Act found even though sworn statement was defective because notary signature and seal was missing, but issue overruled as a technicality) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes Before Justices Keyes, Hanks and Sharp 01-08-00487-CV United Fire & Casualty Company v. Boring & Tunneling Company of America d/b/a Bortunco Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Opinion on rehearing by Alcala) (forgery, misapplication of fiduciary property, fraud, and conversion of checks, exemplary damages) We conclude that the trial court did not err in the admission of the evidence, that the evidence is legally and factually sufficient, and that the trial court properly awarded exemplary damages. We affirm. AFFIRM TC JUDGMENT: Opinion by Justice Elsa 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 Said v. Maria Investment (pdf) (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion by Bland) (special appearance appeal) Asif Said and Asma Said (the Saids) appeal the trial court’s orders granting special appearances to the companies—all defendants that the Saids sued along with Asif’s brother, Azhar Said. The Saids claim that Azhar reneged on a partnership agreement he made with Asif, and seek damages to compensate the Saids for Asif’s alleged partnership interest.[1] The Saids contend that the trial court abused its discretion in granting the special appearances. Holding that had no evidence properly before the trial court supports the special appearances, we reverse the portions of the trial court’s orders granting the special appearances. REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-08-00962-CV Asif Said and Asma Said v. Maria Investment Appeal from 151st District Court of Harris County Trial Court Judge: Hon. Caroline E. Baker Offord v. West Houston Trees, L.L.P. (pdf) (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Substituted opinion by Bland)(bill of review, default judgment) Offord, as guardian of the estate of her father Winter Gordon, Jr., appeals the trial court’s denial of her bill of review attempting to set aside a default judgment rendered against Gordon. Offord contends that the trial court erred in granting West Houston Trees’ no-evidence summary judgment and that Gordon was not afforded due process in the trial court because he was not served with process in the underlying lawsuit and was incompetent at the time his property was sold to satisfy the judgment. We affirm the judgment of the trial court. AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-08-01027-CV Diana G. Offord, as Guardian of the Estate of Winter Gordon, Jr., a/k/a Winter Gordon Sr. v. West Houston Trees, L.L.P. Appeal from 268th District Court of Fort Bend County Trial Court Judge: Hon. Brady G. Elliott Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks) (breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense, trial by consent in summary judgment context, partial summary judgment on liability only, proving amount of damages, attorney's fees) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-09-00454-CV Francisca Rosales and Jose Ontiveros v. Kimberly Williams Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey DISMISS APPEAL: Per Curiam (appellant filed unopposed motion to dismiss the appeal) Before Chief Justice Radack, Justices Alcala and Higley 01-09-00695-CV Robert S. Collier v. SKH Management, L.P., Sigmund, Kane & Hatch, Inc., Paul Sigmund, Gregory Kane, Keith Hatch, SKH Energy Fund, L.P., SK Exploration II, Inc. SKH Management II, L.P. and Mike Lance Appeal from 269th District Court of Harris County Trial Court Judge: Hon. Dan Hinde DISMISS APPEAL: Per Curiam (involuntary dismissal - fees not paid) Before Justices Keyes, Sharp and Massengale 01-09-00835-CV Kimberlie Taylor v. Darren Scott-Harris Taylor Appeal from 300th District Court of Brazoria County DISMISS APPEAL: Per Curiam (unopposed motion to dismiss the appeal granted) Before Justices Keyes, Sharp and Massengale 01-09-00875-CV BP Amoco Chemical Company v. Glenda Ann Nix Appeal from 10th District Court of Galveston County Trial Court Judge: Hon. David E. Garner Criminal Causes Decided: AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00156-CR Quinton Maxwell Thompson v. The State of Texas Appeal from 185th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-08-00176-CR Rafaela Davila v. The State of Texas Appeal from 400th District Court of Ft. Bend County AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Bland and Massengale 01-08-00178-CR Jonathan Elliott v. The State of Texas Appeal from 10th District Court of Galveston County AFFIRM TC JUDGMENT: Opinion by Justice Sharp Before Justices Keyes, Sharp and Massengale 01-08-00508-CR Rudy Bentancur Ortiz v. The State of Texas Appeal from 434th District Court of Fort Bend County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Sharp and Massengale 01-08-00510-CR Alejandro Padilla Vilchis a/k/a Abraham Lopez v. The State of Texas Appeal from 230th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00609-CR Evaristo Morales Zamora v. The State of Texas Appeal from 185th District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-08-01017-CR Erick Dewayne Chandler v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRM TC JUDGMENT: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00259-CR Jean Gregoire v. The State of Texas Appeal from 183rd District Court of Harris County AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-09-00445-CR Ismael Espinoza Bacenas v. The State of Texas Appeal from 174th District Court of Harris County February 5, 2010 Civil Causes Decided: Uptegraph v. Sandlwood Civic Club (Tex.App.- Houston [1st Dist.] Feb. 5, 2010)(Taft) (homeowner law, HOA litigation, restrictive covenants, deed restrictions, fence) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Chief Justice Radack, Justices Taft and Sharp 01-07-00764-CV Scott D. Uptegraph, Jr. and Kara K. Uptegraph v. Sandalwood Civic Club Appeal from 333rd District Court of Harris County Trial Court Judge: Hon. Joseph Halbach Criminal Causes Decided: February 4, 2010 Civil Causes Decided: Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (21 days vs 24 days notice prior to summary judgment hearing depending on method of service; requirement for preservation of complaint about inadequate notice in the trial court) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-07-00181-CV Paul Hatler v. Moore Wallace North America, Inc. Appeal from 268th District Court of Fort Bend County Trial Court Judge: Hon. Brady G. Elliott Brannan v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Opinion on rehearing by Alcala) (Open Beaches Act, effect of moving line of vegetation on existing houses on beach, takings claim) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Hanks 01-08-00179-CV Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, Deceased, et al v. The State of Texas, et al Appeal from 239th District Court of Brazoria County Trial Court Judge: Hon. Patrick Edward Sebesta Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes) (expunction reversed in restricted appeal) REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Evelyn Keyes Before Justices Keyes, Sharp and Massengale 01-08-00559-CV Texas Department of Public Safety v. Sharon R. Dahlquist Appeal from 1st District Court of Jasper County Trial Court Judge: Judge Joe Bob Golden Laine v. Farmers Ins. Exchange (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Bland) (JNOV judgment notwithstanding the verdict) (insurance law, insurance coverage litigation, punitive damages, UM policy, drunk driver, exemplary damages) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Hon. Wilson, Justices Bland and Massengale 01-08-01010-CV Sandra Gervais Laine v. Farmers Insurance Exchange Appeal from 334th District Court of Harris County Trial Court Judge: Hon Sharon McCally DP v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (mental health civil commitment order affirmed, medication order) We affirm the trial court's order of commitment for temporary in-patient mental health services (appellate cause no. 01-09- 00097-CV) and the trial court's order to administer psychoactive medication (appellate cause no. 01-10-00002-CV). AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Laura Carter Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00097-CV David S. Petersen III v. The State of Texas Appeal from Probate Court No 3 of Harris County Trial Court Judge: The Honorable Georgia Akers In Re Martin (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Jennings) (inmate litigation, prison-bound author's suit against would-be publisher dismissed as frivolous) Appellant, Timothy Paul Martin, who is incarcerated and represents himself pro se, contends that the trial court abused its discretion in determining that his lawsuit is frivolous and dismissing his lawsuit with prejudice without holding an evidentiary hearing. We affirm. AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00175-CV In re Timothy Paul Martin Appeal from 412th Judicial District Court of Brazoria County Trial Court Judge: Hon. W. Edwin Denman Seiflein v. City of Houston (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (ad valorem tax delinquency suit judgment affirmed) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00361-CV Phil Seiflein v. City of Houston Appeal from 164th District Court of Harris County Trial Court Judge: Hon Alexandra Smoots-Hogan Ashkar Engineering Corp. v. Gulf Chemical & Metallurgical Corp. (pdf) (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(interlocutory appeal in an industrial construction design defect suit, claim against a licensed professional engineering firm, failure to file a certificate of merit required by statute) We conclude that the substance of GCMC’s claims constitute negligence claims because the acts or omissions complained of amount to a claimed departure from accepted standards of the practice of engineering. As such, all of GCMC’s claims, without regard to their titles, are subject to the requirements of Chapter 150. Because, as we concluded above, GCMC failed to timely comply with Section 150.002, the trial court was required, on Ashkar’s motion, to dismiss the suit. We hold that the trial court erred by denying Ashkar’s motion to dismiss GCMC’s claims.We reverse the order of the trial court and remand for entry of judgment dismissing GCMC’s claims. REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00855-CV Ashkar Engineering Corporation v. Gulf Chemical & Metallurgical Corporation Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Steven E. Kirkland In re Jain (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(per curiam) (mandamus petition re order of disqualification of counsel moot) DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00944-CV In Re Umesh Jain Appeal from 127th District Court of Harris County Trial Court Judge: Hon. Ravi K. Sandill In re Gill (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(per curiam denial of mandamus) (motions re: enforcement of judgment) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01080-CV In re Anthony E. Gill Appeal from 23rd District Court of Brazoria County DP v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Laura Carter Higley Before Chief Justice Radack, Justices Alcala and Higley 01-10-00002-CV David S. Petersen III v. The State of Texas Appeal from Probate Court No 3 of Harris County Trial Court Judge: The Honorable Georgia Akers Criminal Causes Decided: AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-09-00482-CR Giovanni Daniel St-Cyr, Sr. v. The State of Texas Appeal from 262nd District Court of Harris County February 3, 2010 Civil Causes Decided: In re Sherman (Tex.App.- Houston [1st Dist.] Feb. 3, 2010)(Keyes) (election mandamus against party chair denied as moot, untimely) (challenge to a candidate’s eligibility to be on primary ballot untimely) DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Evelyn Keyes Before Justices Keyes, Sharp and Massengale 01-10-00070-CV In Re C.A. (Tony) Sherman Appeal from Fort Bend County Criminal Causes Decided: None this day February 2, 2010 Civil Causes Decided: None Criminal Causes Decided: DENY PETITION FOR WRIT OF HABEAS CORPUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-00029-CR In re Abraham Campos Appeal from 23rd District Court of Brazoria County |