March 2010 Cases Decided by the First Court of Appeals
(Tex. App.- Houston [1st Dist.] 2010)
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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 Co
unty

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
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1/18/10
 
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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