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March 2010 Appellate Decisions with Links to Opinions in Civil Cases: Opinion Release Dates: March 4, 9, 10, 11, 12, 18, 19, 25, ___, 2010 Released Opinions March 25, 2010 Civil Causes Decided: Brown & Brown of Texas v. Omni Metals, Inc. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Keyes) MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED: Opinion by Justice Keyes Before Justices Nuchia, Keyes and Higley 01-05-01190-CV f/k/a Poe & Brown of Texas, Inc. and Transcontinental Insurance Company v. Omni Metals, Inc. Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan Dissenting Opinion by Justice Nuchia in Brown & Brown of Texas, Inc. v. Omni Metals, Inc. SCTW Health Care Center, Inc. v. AAR Inc. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Hanks) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Chief Justice Radack, Justices Alcala and Hanks 01-07-00762-CV SCTW Health Care Center, Inc., Stan Steele, Wynell Suitt and WTCS Health Care Center, Inc. v. AAR Incorporated Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss Budzyn v. Citibank (South Dakota), N.A. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Radack) (account stated theory for credit card debt collection, segregation of attorney's fees required) AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00211-CV Teresa J. Budzyn v. Citibank (South Dakota) , N.A. Appeal from Co Civil Ct at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey Donihoo v. Lewis (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Higley) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-08-00277-CV Maria Santos Donihoo v. Virginia Lewis and Ellen Carson, as Co-Executrices of the Estate of Edward R. Donihoo, Deceased, and as Remainder Beneficiaries Under the Will Appeal from 220th District Court of Hamilton County Trial Court Judge: Hon. James E. Morgan Valencia v. DFPS (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Jennings) 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 TIN Inc. v. Action Box Co., Inc. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Hanks) REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Hanks Before 01-08-00472-CV TIN Inc. d/b/a Temple-Inland, fromerly Gaylord Container Corpration v. Action Box Co., Inc. Appeal from 234th District Court of Harris County Trial Court Judge: The Honorable Reece Rondon Duran v. Entrust, Inc. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Keyes) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Sharp and Massengale 01-08-00589-CV Thomas Duran d/b/a Duran Ins. Brokerage and Duran Ins. Brokerage, Inc. v. Entrust, Inc. Appeal from 151st District Court of Harris County Trial Court Judge: Hon. Caroline Baker Last v. Quail Valley Country Club, L.P. (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Radack) AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00759-CV Robert Last and Stephanie Last v. Quail Valley Country Club, L.P.; and Bull Power, Inc. Appeal from 240th District Court of Fort Bend County Trial Court Judge: Hon. Thomas R. Culver III McGehee v. Campbell (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Hanks) MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-08-01023-CV Jo Ann H. McGehee v. Douglas B. Campbell Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Randall W. Wilson Scott v. Garza (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(Jennings) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00277-CV Michael Scott v. Pablo Garza; and Denise Kerr, In Her Official Capacity ; and University of Texas Medical Branch at Galveston Appeal from 268th District Court of Fort Bend County Trial Court Judge: Hon. Brady G. Elliott In re Kadar Hamilton (Tex.App.- Houston [1st Dist.] Mar. 25, 2010)(per curiam denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00741-CV In re Kadar Hamilton Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne Criminal Causes Decided: AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00529-CR Nereo Pena Garza v. The State of Texas Appeal from 337th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00530-CR Nereo Pena Garza v. The State of Texas Appeal from 337th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale Before Justices Keyes, Sharp and Massengale 01-08-00723-CR Joseph Bailey Malone v. The State of Texas Appeal from 176th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-08-00817-CR Guillermo Manzano Perez v. The State of Texas Appeal from 176th District Court of Harris County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00156-CR Keyo Kershun Kingsley v. The State of Texas Appeal from 338th District Court of Harris County March 19, 2010 Civil Causes Decided: In re Aramco Services Co (Tex.App.- Houston [1st Dist.] Mar. 19, 2010)(Sharp) (arbitration mandamus) (choice of law and forum and language for arbitration and notices) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Sharp Before Justices Keyes, Sharp and Massengale 01-09-00624-CV In re Aramco Services Company Appeal from 334th District Court of Harris County Trial Court Judge: Hon Sharon McCally Criminal Causes Decided: DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-10-00127-CR In re Shawn Ray Koester Appeal from 338th District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-10-00181-CR In re Curtis Earl Jackson, Jr. Appeal from 178th District Court of Harris County March 18, 2010 Civil Causes Decided: In the Matter of JSH (pdf) (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Massdengale) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale Before Justices Keyes, Sharp and Massengale 01-08-00563-CV In the Matter of J.S.H. Appeal from 279th District Court of Jefferson County Trial Court Judge: Judge Jeffery R. Shelton (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(per curiam dismissal) DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-08-00601-CV Arched Bridge Company, Inc. v. Homestead Commercial Group, LLC Appeal from 281st District Court of Harris County Jones v. Guidry (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Hanks) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-08-00729-CV Danny L. Jones v. Kelly A. Guidry, Jr., Mariangelina Martinez Appeal from 412th Judicial District Court of Brazoria County Trial Court Judge: Hon. W. Edwin Denman Jefferson v. UTMB Hospital at Galveston (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Hanks) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-09-00062-CV Robert Wiliam Jefferson v. University of Texas Medical Branch Hospital at Galveston; Eduardo Orihuela, M.D.; William Alex Elfarr, M.D.; Joanna Lucja Borkowski, M.D.; and Alexander Brian West, M. D. Appeal from 122nd District Court of Galveston County Trial Court Judge: Hon. John Ellisor Houser v. Young (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Jennings) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00343-CV Bruce Wayne Houser v. Bonnie Young Appeal from 172nd District Court of Jefferson County Trial Court Judge: Judge Donald Floyd Aloysius v. Kislingbury (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Hanks) AFFIRM TRIAL COURTJUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-09-00365-CV Jeniffer Aloysius v. Mark Kislingbury & Stenomaster, Inc. Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble Vrazel v. Smith (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(dismissal) DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00513-CV Philip Joseph Vrazel v. Mary Ann Smith Appeal from 239th District Court of Brazoria County Trial Court Judge: Hon. Patrick Edward Sebesta In re Newton B. Schwartz, Sr. (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(per curiam denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Higley and Bland 01-09-00806-CV In re Newton B. Schwartz, Sr. Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Randy Wilson In re Schwartz (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Higley and Bland 01-09-00807-CV In re Newton B. Schwartz, Sr. Appeal from 157th District Court of Harris County Clear Lake Rehab. Hospital (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Jennings) AFFIRM TRIAL COURTJUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00883-CV Clear Lake Rehabilitation Hospital, L.L.C. v. Lily Karber Appeal from 164th District Court of Harris County Trial Court Judge: Hon Alexandra Smoots-Hogan TDPS v. Lambert (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(per curiam dismissal) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01003-CV Texas Department of Public Safety v. Rachel Lambert Appeal from County Court at Law No 4 of Fort Bend County (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(dismissal) DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-01027-CV Roberto Benitez v. Jacqueline Romero Appeal from 308th District Court of Harris County (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(dismissal) DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-01036-CV MTSandoval v. Office Max Inc. Appeal from 281st District Court of Harris County (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(dismissal) DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-01083-CV Donna Scroggins v. Memorial Hermann Hospital System Appeal from 400th District Court of Ft. Bend County (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(dismissal) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-10-00079-CV Clear Lake Automotive Group, LLC v. Gamma Construction Company Appeal from 61st District Court of Harris County Criminal Causes Decided: State v. River Forest Dev. Co., Inc. (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Bland) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-09-00252-CR The State of Texas v. River Forest Development Company Inc. Appeal from County Court at Law No 4 of Fort Bend County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-09-00260-CR Freddie Lee Gilmore v. The State of Texas Appeal from 177th District Court of Harris County State v. Siller (Tex.App. - Houston [1st Dist.] Mar. 18, 2010)(Bland) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Justices Jennings, Hanks and Bland 01-09-00494-CR The State of Texas v. Lawrence Kelom Siller Appeal from County Court at Law No 4 of Fort Bend County March 12, 2010 Civil Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-10-00183-CV In re Ralph O. Douglas Appeal from 127th District Court of Harris County DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Sharp and Massengale 01-10-00184-CV In re Ralph O. Dougals Appeal from 127th District Court of Harris County Criminal Causes Decided: DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-01007-CR In re Lamar Burks Appeal from 208th District Court of Harris County March 11, 2010 Civil Causes Decided: Conte v. Ditta (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (opinion on remand from Texas Supreme Court, which held that “[n]o statute of limitations period applies in a trustee-removal suit) Ditta v. Conte, 298 SW3d 187, No. 07-1026 (Tex. Jun. 5, 2009) (trustee removal suit, accounting by trustee, appointment of successor trustee, modification of trust due to change in circumstances) AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Justices Alcala, Hanks and Bland 01-05-00603-CV Susan Conte v. Louis Ditta, Guardian of the Estate of Doris L. Conte, IP Appeal from Probate Court No 1 of Harris County Trial Court Judge: Hon. Russell Austin Eastern Bloc Entertainment, Ltd. v. ABCO Properties, Inc. (Tex.App.- Houston [1st Dist.] Mar. 11, 2010) (Higley) (appeal of turnover order) Appellants, Eastern Bloc Entertainment, Ltd., Altar Boys Management Company, L.L.C., Robert W. Thomas, and John S. “Skip” Woods (collectively, “Eastern”), appeal from a turnover order granted in favor of appellee, Abco Properties, Inc., Trustee. In three issues, Eastern contends that the trial court abused its discretion because (1) there was no evidence to support the order, (2) the judgment has been satisfied, and (3) the order violates public policy. AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-08-00238-CV Eastern Bloc Entertainment, Ltd., Altar Boys Management Company, L.L.C., Robert W. Thomas and John S. "Skip" Woods v. ABCO Properties, Inc., Trustee Appeal from 152nd District Court of Harris County Trial Court Judge: Hon. Kenneth P. Wise Villarreal v. Wells Fargo Brokerage Services (pdf) (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Higley) we affirm the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Wells Fargo for breach of fiduciary duty, fraud, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and violating the DTPA and the Texas Securities Act. We also affirm the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations. We reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Wells Fargo for assisting Pena in breaching his fiduciary duty. We also reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of fiduciary duty, fraud, violating the Texas Securities Act, and assisting Pena in breaching his fiduciary. We remand the case for further proceedings. AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Chief Justice Radack, Justices Alcala and Higley 01-08-00258-CV Olga (Chapa) Villarreal and Israel Chapa v. Wells Fargo Brokerage Services, LLC, Wells Fargo Investments, LLC, Pastor Ramiro A. Pena, Jr., L.B. Myers, Jr. (d/b/a Jubilee Investments) and Joyce Q. Myers d/b/a Jubilee Investments Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey Brown DISMISS APPEAL: Opinion by Justice Keyes Before Justices Keyes, Sharp and Massengale 01-08-00292-CV Yahvah thru His "Yahweh Kingdom People" ekklesia via "Y.K.P." Kingdom Corporation Sole Ambassador Claude Hugh Lloyd the Second of Yahvah YahvahShua Yahvah Ruach v. Harris County, Harris County Hospital District, City of Baytown, Goose Creek School District, Lee College District Appeal from 165th District Court of Harris County Kite v. Kite (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Alcala)(separate property in divorce, inception of title rule) (spouse's separate property may not be awarded to the other spouse in division of community property) We hold the trial court erred in divesting Michael of his separate property. This necessitates remand for a new division of the community estate. We reverse the portion of the final decree of divorce that divides the marital estate. We remand for a new division of the community estate and other appropriate proceedings. We affirm the final decree of divorce in all other aspects. AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-08-00643-CV Michael David Kite v. Kendra Senja Kite Appeal from 246th District Court of Harris County Trial Court Judge: Hon. Jim York Doherty v. JPMorgan Chase Bank NA (pdf) (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (probate case, trust, declaratory judgment) in light of the terms of the Trust at issue and JPMorgan's November 20, 2006 letter, JPMorgan failed to act as the trustee with respect to Doherty's request to remodel a bathroom for her use. We hold that JPMorgan's actions as trustee, outlined above, triggered the provisions of Paragraph 6.5 and allowed Doherty to appoint a successor trustee. Based upon the record before us, including JPMorgan's November 20, 2006 letter deferring action on Doherty's request to a future unnamed successor trustee, the trial court erred by granting summary judgment in JPMorgan's favor and denying Doherty's motion for summary judgment on these grounds. We sustain Doherty's issue. Because this point is dispositive of the appeal, we do not reach Doherty's fourth issue. REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-08-00682-CV Lois Doherty v. JPMorgan Chase Bank, N. A. Appeal from Probate Court No 2 of Harris County Trial Court Judge: The Honorable Mike Wood Clear Lake City Water Authority v. MCR Corporation (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Radack) (interlocutory appeal from order denying plea to the jurisdiction on governmental immunity grounds, legis waived immunity) This case arises from a contract dispute between a water authority and a developer. When the developer brought suit asserting breach of contract, the water authority asserted governmental immunity from suit. By interlocutory appeal, the water authority now challenges the trial court's order denying its plea to the jurisdiction. Concluding that the Texas Legislature waived the water authority's immunity from suit under section 271.152 of the Texas Local Government Code, we affirm the trial court's order. AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00955-CV Clear Lake City Water Authority v. MCR Corporation Appeal from 333rd District Court of Harris County Trial Court Judge: Hon. Joseph Halbach Lyle v. Guinn Revocable Trust (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Keyes) (oil and gas law, assignment of oil and gas lease, statute of limitations, laches, statute of frauds) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Sharp and Massengale 01-09-00081-CV Kenneth R. Lyle and Warbonnet Exploration Company v. Jane Guinn Revocable Trust, Perry B. Menking, Jr. Investment Management Trust, Lynn Sahin, Kate Lutken Bruno Grantor Trust, Wesley Lutken Grantor Trust, Daniel R. Japhet, Jr., Gretchen Japhet, Susan Japhet Scotty and Larken Japhet Sutherland Appeal from 149th District Court of Brazoria County Trial Court Judge: The Honorable Robert E. May Doyle v. Heilman (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (probate matter, claim against estate by friend/caregiver not provided for in care-recipient's will fails, judgment on quantum meruit claim for personal care services reversed, element of notice of expectation to be paid for services not satisfied in this case) Following a bench trial, the court awarded appellee, Leticia G. Heilman, $72,300 in damages on her claim for quantum meruit against Charlotte Doyle, as executor of the estate of Alfred Miller. The court also awarded $16,177.50 in attorney’s fees and additional amounts in the event of an appeal. On appeal, Doyle contends that the trial court erred by (1) failing to apply Texas Probate Code Section 59A, the statute of frauds, statute of limitations, and laches; (2) applying the equitable principle of quantum meruit to allow for a recovery barred by Probate Code Section 59A; (3) finding the evidence to be legally and factually sufficient to support Heilman’s claim for quantum meruit; (4) awarding damages not supported by the evidence; (5) overruling Doyle’s Daubert challenge to the qualifications of Heilman’s expert; and (6) awarding legal fees. Because we find that Heilman failed to establish a claim for quantum meruit as a matter of law, we sustain Doyle’s third issue and need not address the others. We reverse the judgment of the trial court and render judgment that Heilman take nothing. REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Hanks Before Justices Jennings, Hanks and Bland 01-09-00164-CV Charlotte Doyle, as Executor of The Estate of Alfred Miller, Deceased v. Leticia G. Heilman Appeal from Probate Court No 1 of Harris County Criminal Causes Decided: AFFIRM TRIAL COURT 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 TRIAL COURT 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 TRIAL COURT JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Alcala and Hanks 01-08-00286-CR Christopher Dwayne Banks v. The State of Texas Appeal from 228th District Court of Harris County DISMISS APPEAL: Per Curiam Before Justices Keyes, Sharp and Massengale 01-09-00600-CR Marquise Amini Summers v. The State of Texas Appeal from 263rd District Court of Harris County March 10, 2010 Civil Causes Decided: Criminal Causes Decided: DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Keyes and Massengale 01-10-00087-CR In re Artemio Reyes v. The State of Texas Appeal from 185th District Court of Harris County March 9, 2010 Civil Causes Decided: In re Exxon Mobil Corp. (Tex.App.-Houston [1st Dist.] Mar. 9, 2010)(per curiam) (discovery mandamus denied) ExxonMobil Corporation challenged the trial court's order denying ExxonMobil’s motion to compel production and upholding the privilege claims of real party in interest Duke Energy Field Services, Inc. DENY MOTION: Per Curiam Before Justices Keyes, Alcala and Massengale 01-09-01033-CV In re Exxon Mobil Corporation Appeal from 334th District Court of Harris County Trial Court Judge: Hon Sharon McCally Criminal Causes Decided: March 4, 2010 Civil Causes Decided: Thomas v Radioshack Corp. (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack) (request for jury trial, motion for continuance properly denied, oral motion to continue trial date was insufficient) AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Higley 01-08-00400-CV Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes, Employee in her Official and Individual Capacity Appeal from 11th District Court of Harris County Trial Court Judge: Hon. Mark Davidson Nawal Automotive v. JPMorgan Chase Bank (pdf)(Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam dismissal)(appeal is moot due to settlement) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-08-00979-CV Nawal Automotive v. JP Morgan Chase Bank Appeal from 234th District Court of Harris County Trial Court Judge: The Honorable Reece Rondon Petroleum Analyzer Company, L.P. v. Franek Olstowski (Tex.App.- Houston [1st Dist.] March 4, 2010)(Alcala) (judgment confirming arbitration award affirmed) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Higley 01-09-00076-CV Petroleum Analyzer Company, L.P. v. Franek Olstowski, Individually and DBA Atomic Analytical Consulting Services and Atom Instrument Corporation Appeal from 269th District Court of Harris County Trial Court Judge: John Thomas Wooldridge Tilotta v. Smith-Tilotta (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam) (no final order to appeal from, interlocutory appeal not authorized) DISMISS APPEAL: Per Curiam Before Justices Jennings, Hanks and Bland 01-09-00817-CV Michael Tilotta v. Dewana Smith-Tilotta Appeal from 257th District Court of Harris County Trial Court Judge: The Honorable Judy L. Warne Robertson v. Robertson (pdf) (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam) (dismissed on appellant's motion) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-09-01138-CV Dwayne Eric Robertson v. Stephanie Lee Robertson Appeal from 310th District Court of Harris County Trial Court Judge: Hon. Lisa Millard Houston-Galveston Area Council v. Walters (pdf) (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Massengale) DISMISS APPEAL: Opinion by Justice Massengale <-- minimalist dismissal opinion should be "per curiam" Before Justices Keyes, Sharp and Massengale 01-10-00019-CV Houston-Galveston Area Council v. Allison Walters Appeal from 149th District Court of Brazoria County Trial Court Judge: Hon. Robert E. May Criminal Causes Decided: AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland 01-09-00197-CR Jimmy Darrell Huskey v. The State of Texas Appeal from 56th District Court of Galveston County AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Sharp Before Justices Keyes, Sharp and Massengale 01-09-00724-CR Jorge Enrique Martinez v. The State of Texas Appeal from 248th District Court of Harris County |
RECENT BLOG POSTS ON HOUSTON APPEALS COURT OPINIONS Property tax protester must have standing to bring tax appeal, judicial review suit Appeal from partial summary judgment in bill-of-review suit not final appealable order No tolling of statute of limitations based on brief absences of the defendant from the state Landlord required to mitigate damages in breach of lease cases Carrier loses workers compensation appeal over injured worker's impairment rating Wrongful termination of employment: Can Sabine Pilot claim be brought against supervisor individually Right to nonsuit vindicated by mandamus Two-step in suit to partition land explained Settlement agreement enforced APPELLATE PROCEDURE Another appeal dismissed in the absence of a final appealable order or judgment Texas court may not issue advisory opinions - Temporary injunction appeal dismissed Mistrial order not immediately appealable CIVIL PROCEDURE - TRCP ISSUES ON APPEAL Right to jury trial is guaranteed by the constitution, but subject to waiver, proper demand must be made Spoliation no reason to overturn summary judgment for defendant in premises liability suit against grocery store Plea to the jurisdiction explained Oral presentment of claim sufficient meet condition precedent for recovery of attorney's fees What if the motion for new trial is not verified, sworn? Insufficient notice of summary judgment hearing complaint requires specific steps to preserve error for appeal FAMILY LAW CASES | APPEALS FROM DIVORCE COURTS Property division in divorce from foreign tag-along spouse affirmed - gender roles reversed No community property - Nothing for the divorce court to divided Protective order against ex-girlfriend affirmed |
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