February 2010 Cases Decided by the First Court of Appeals
(Tex. App.- Houston [1st Dist.] 2010)
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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
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FIRST COURT OF APPEALS
JUSTICES
Chief Justice Radack
Justice Elsa Alcala
Justice Jane Bland
Justice George Hanks
Justice Laura Higley
Justice Terry Jennings
Justice Evelyn Keyes
Justice Michael Massengale
Justice Jim Sharp (2009-)
Justice Massengale (2009-)
Former Justice Tim Taft
Former Justice Sam Nuchia
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