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November 2010 Appellate Decisions with Links to Opinions in Civil Cases: Opinion Release Dates: November 4, 10, 12, 16, 17, 18, 30, 2010 Released Opinions November 30, 2010 Civil Causes Decided: In Re Keith Spooner, M.D. (Tex.App.- Houston [1st Dist.] November 30, 2010)(Higley) (HCLC, mandamus standard, judicial admission) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-10-00953-CV In Re Keith Spooner, M.D. Appeal from 125th District Court of Harris County Kyle Carter, Presiding Judge of the 125th District Court, Harris County In re Cleveland Regional Medical Center and Shirley Kiefer (Tex.App.- Houston [1st Dist.] November 30, 2010) (Higley)(med-mal, mandamus standard, judicial admission) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-10-00956-CV In re Cleveland Regional Medical Center and Shirley Kiefer Appeal from 125th District Court of Harris County Kyle Carter, Presiding Judge of the 125th District Court, Harris County Criminal Causes Decided: Thurston Mitchell v. The State of Texas (Tex.App.- Houston [1st Dist.] November 30, 2010)(Sharp) AFFIRM TC JUDGMENT: Opinion by Justice Sharp Before Justices Jennings, Higley and Sharp 01-07-00889-CR Thurston Mitchell v. The State of Texas Appeal from 185th District Court of Harris County Charlie Mack Thomas, Jr. v. The State of Texas (Tex.App.- Houston [1st Dist.] November 30, 2010)(Higley) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-08-00902-CR Charlie Mack Thomas, Jr. v. The State of Texas Appeal from 300th District Court of Brazoria County Bronwen Nathaniel Turner v. The State of Texas (Tex.App.- Houston [1st Dist.] November 30, 2010)(Higley) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-08-00946-CR Bronwen Nathaniel Turner v. The State of Texas Appeal from 182nd District Court of Harris County November 18, 2010 Civil Causes Decided: Trinity Healthcare Management, L.L.C.. et al v. Pharmerica, Inc. (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam)(We dismiss this appeal for want of prosecution) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-03-00647-CV Trinity Healthcare Management, L.L.C.. et al v. Pharmerica, Inc. Appeal from County Civil Court at Law No 1 of Harris County Rasa Floors, LP v. Spring Village Partners, Ltd. (Tex.App.- Houston [1st Dist.] November 18, 2010)(Bland) (construction law, quantum meruit recovery, fair notice standard for pleadings in Texas) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Justices Higley, Bland and Massengale 01-08-00918-CV Rasa Floors, LP v. Spring Village Partners, Ltd. Appeal from County Civil Court at Law No 1 of Harris County Dyer v. Cotton (Tex.App.- Houston [1st Dist.] November 18, 2010)(Bland) (trespass to try title suit, adverse possession, jury charge, parol evidence rule, mutual mistake, automatic exclusion of evidence because of nondisclosure in discovery) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Keyes, Higley and Bland 01-09-00228-CV J. Eddie Dyer v. Ronald Cotton Appeal from 278th District Court of Grimes County Dillard v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Radack) (civil forfeiture action, timeliness of notice of appeal, postjudgment motion, extension of time to appeal, discovery sanctions, sanctions were not excessive) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Bland and Massengale 01-09-00316-CV Terrance Dillard v. The State of Texas Appeal from 55th District Court of Harris County Hill v. Texas Department of Criminal Justice (Tex.App.- Houston [1st Dist.] November 18, 2010)(Radack) (pro se prisoner suit, in forma pauperis civil suit against TDCJ) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Nuchia and Massengale 01-09-00418-CV Kenneth L. Hill v. Texas Department of Criminal Justice Appeal from 412th Judicial District Court of Brazoria County Hot-Hed, Inc., and Cinaruco International, S.A. v. Safehouse Habitats (Scotland), LTD. (Tex.App.- Houston [1st Dist.] November 18, 2010)(Keyes)(trademark case, UDJA claim, attorney's fees under the UDJA, jury instructions) MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00547-CV Hot-Hed, Inc., and Cinaruco International, S.A. v. Safehouse Habitats Scotland), LTD. Appeal from 215th District Court of Harris County Hon. Levi Benton presided over the trial, but left the bench before entering final judgment. He was succeeded by the Hon. Steven Strickland R.K. Dhingra, Trustee v. Aldine Independent School District (Tex.App.- Houston [1st Dist.] November 18, 2010) (Alcala)(delinquent tax case) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley 01-09-01054-CV R.K. Dhingra, Trustee v. Aldine Independent School District Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Henise Tire Service, Inc. and Henise Enterprises, Inc. v. Victoria Jacobs and her Husband, John Jacobs, Individually and as Next Friend of Her Minor Daughter, V. T. (Tex.App.- Houston [1st Dist.] November 18, 2010) (Radack)(personal jurisdiction, foreign defendant, special appearance) We hold that the record does not support a finding of either general or specific jurisdiction over Henise. We therefore reverse the trial court’s order denying Henise’s special appearance and render judgment granting the special appearance) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Higley and Sharp 01-10-00013-CV Henise Tire Service, Inc. and Henise Enterprises, Inc. v. Victoria Jacobs and her Husband, John Jacobs, Individually and as Next Friend of Her Minor Daughter, V. T. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Dion Ramos Johnson v. Johnson (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) (involuntary dismissal of case, fees not paid) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00039-CV Arthur Johnson v. Joyce A. Johnson Appeal from 309th District Court of Harris County Gwen Ross and Phoenix II, Inc. v. Linebarger Goggan, Blair & Sampson, LLP, Mandy Oyugi, Damon D. Edwards and Maris A. Blair (Tex.App.- Houston [1st Dist.] November 18, 2010)(Keyes)(plea to the jurisdiction, official capacity suit, governmental immunity of tax collector) It is undisputed that the taxing entities represented by Linebarger are governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (defining governmental unit as including “a political subdivision of this state, including any city, county, [and] school district”). It is likewise clear that suits against the taxing entities for actions taken in the course of assessing and collecting taxes are barred by governmental immunity. AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-10-00082-CV Gwen Ross and Phoenix II, Inc. v. Linebarger Goggan, Blair & Sampson, LLP, Mandy Oyugi, Damon D. Edwards and Maris A. Blair Appeal from 400th District Court of Ft. Bend County Rollins v. Honorable James Jay (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00520-CV Randall Rollins v. Honorable James Jay Appeal from 11th District Court of Harris County In re American International Group, Inc., and American General Life Insurance Company (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00843-CV In re American International Group, Inc., and American General Life Insurance Company Appeal from 334th District Court of Harris County Criminal Causes Decided: Jeremiah Boyee Moore v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Higley) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-08-00282-CR Jeremiah Boyee Moore v. The State of Texas Appeal from 400th District Court of Ft. Bend County Jeremiah Boyee Moore v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Higley) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-08-00283-CR Jeremiah Boyee Moore v. The State of Texas Appeal from 400th District Court of Ft. Bend County Carl V. Young v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) AFFIRM TC JUDGMENT: Per Curiam Before Justices Keyes, Higley and Bland 01-08-00518-CR Carl V. Young v. The State of Texas Appeal from 177th District Court of Harris County Dominique Pierre Leonard v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00379-CR Dominique Pierre Leonard v. The State of Texas Appeal from 185th District Court of Harris County Charles Devol Mapps v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00565-CR Charles Devol Mapps v. The State of Texas Appeal from 351st District Court of Harris County Junior Aristy Richiez v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00597-CR Junior Aristy Richiez v. The State of Texas Appeal from 248th District Court of Harris County Michael Ray Rivera v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Radack) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Nuchia and Massengale 01-09-00687-CR Michael Ray Rivera v. The State of Texas Appeal from 262nd District Court of Harris County Andre D. Fritz v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Sharp 01-09-00688-CR Andre D. Fritz v. The State of Texas Appeal from 185th District Court of Harris County Maldonno Thompson v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) AFFIRM TC JUDGMENT: Per Curiam Before Chief Justice Radack, Justices Alcala and Massengale 01-09-01050-CR Maldonno Thompson v. The State of Texas Appeal from 178th District Court of Harris County Ray Freeman McChristian v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Radack) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Massengale 01-09-01128-CR Ray Freeman McChristian v. The State of Texas Appeal from 56th District Court of Galveston County Ray Freeman McChristian v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Radack) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Massengale 01-09-01129-CR Ray Freeman McChristian v. The State of Texas Appeal from 56th District Court of Galveston County Dwayne Michael Boyance v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Alcala) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Jennings, Alcala and Sharp 01-10-00089-CR Dwayne Michael Boyance v. The State of Texas Appeal from 338th District Court of Harris County Dorothy Yvonne Spencer v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) AFFIRM TC JUDGMENT: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00091-CR Dorothy Yvonne Spencer v. The State of Texas Appeal from 338th District Court of Harris County Dorothy Yvonne Spencer v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) AFFIRM TC JUDGMENT: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00092-CR Dorothy Yvonne Spencer v. The State of Texas Appeal from 338th District Court of Harris County James Deanda v. The State of Texas (Tex.App.- Houston [1st Dist.] November 18, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00827-CR James Deanda v. The State of Texas Appeal from 185th District Court of Harris County November 17, 2010 Civil Causes Decided: Criminal Causes Decided: In re La Fredrick Waters (Tex.App.- Houston [1st Dist.] November 17, 2010)(Curiam) DISMISS PETITION FOR WRIT OF HABEAS CORPUS: Per Curiam Before Justices Jennings, Keyes and Higley 01-10-00995-CR In re La Fredrick Waters Appeal from of County November 16, 2010 Civil Causes Decided: In re Kimberly Taylor (Tex.App.- Houston [1st Dist.] November 16, 2010)(Curiam) Relator has filed a “Petition to Remove Cloud and Quiet Title” to certain property, requesting emergency relief from a writ of possession on and notice to vacate that property. We construe Relator’s filing as a petition for writ of injunction, seeking to enjoin execution of the writ of possession on and notice to vacate the property. We deny the petition for writ of injunction. DENY PETITION FOR WRIT OF INJUNCTION: Per Curiam Before Chief Justice Radack, Justices Jennings and Keyes 01-10-00996-CV In re Kimberly Taylor Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey Criminal Causes Decided: November 12, 2010 Civil Causes Decided: In re Barbara Regina Schlein (Tex.App.- Houston [1st Dist.] November 12, 2010)(Curiam) Relator challenges the trial court’s June 8, 2010 order requiring relator to pay interim attorney’s fees and costs to her spouse. We deny the petition for writ of mandamus. DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Higley 01-10-00780-CV In re Barbara Regina Schlein Appeal from County Court at Law No 2 of Galveston County Trial Court Judge: Hon. C. G. Dibrell, III In re The United Korean Church of Houston, Inc., Dr. Charles Cho (Tex.App.- Houston [1st Dist.] November 12, 2010)(Curiam) Relators challenge the trial court’s November 4, 2010 order entitled, “Temporary Restraining Order and Order Setting Hearing for Preliminary Injunction.” We deny the petition for writ of mandamus. All outstanding motions are denied as moot. DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Alcala, Higley and Sharp 01-10-00954-CV In re The United Korean Church of Houston, Inc., Dr. Charles Cho Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Criminal Causes Decided: November 10, 2010 Civil Causes Decided: Zimmerman, M.D. v. Wendy Gonzalez Anaya, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, Individually (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland Note: SUPERSEDING MEMORANDUM OPINION ON REMAND ON REHEARING issued 3/31/11 Wendy Gonzalez Anaya, individually and as next friend of Christopher Gabriel Hernandez, deceased, and Jose Hernandez (collectively, Gonzalez Anaya) have moved for rehearing. We grant rehearing, withdraw our opinion and judgment of November 10, 2010, and issue the following in their stead.[1] Our disposition of the case remains unchanged. Geoffrey Zimmerman, M.D., challenges the trial court’s order denying his motion for summary judgment on the health care liability claims against him by Gonzalez Anaya. Following a remand from the Texas Supreme Court, we consider Zimmerman’s contention that his affirmative defense of official immunity bars Gonzalez Anaya’s negligence claims. We reverse and render. Section 101.106 of the Civil Practice and Remedies Code provides that “[t]he filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). We hold that Zimmerman met his summary judgment burden to show that section 101.106(a) bars Gonzalez Anaya’s suit against him. Conclusion. The trial court erred in denying Zimmerman’s motion for summary judgment. We therefore reverse the judgment of the trial court and render judgment dismissing Gonzalez Anaya’s claims with prejudice. Before Justices Keyes, Higley and Bland 01-07-00570-CV Geoffrey Zimmerman, M.D. v. Wendy Gonzalez Anaya, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, Individually Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Crimson Exploration Inc., f/k/a/ Gulfwest Energy Inc. v. Intermarket Management LLC, M. Scott Manolis, and Kevin McMillan (Tex.App.- Houston [1st Dist.] November 10, 2010)(Sharp)(indemnity contract, duty to defend, indemnify, declaratory judgment claim,. Appellees, Intermarket Management, LLC, M. Scott Manolis, and Kevin McMillan (collectively “appellees”), sued appellant, Crimson Exploration, Inc., formerly known as Gulfwest Energy, Inc.,[1] on a breach of indemnity contract claim. The trial court granted appellees’ summary judgment on that claim and awarded damages. The parties later agreed to the award of a certain sum of attorney’s fees to appellees in that action. Crimson filed a counterclaim for a declaratory judgment. Both sides moved for summary judgment on Crimson’s declaratory judgment counterclaim. The trial court denied Crimson’s motion for summary judgment and granted summary judgment for appellees. In three issues, Crimson appeals (1) the trial court’s grant of summary judgment in favor of appellees on the breach of indemnity contract claim, the sum of damages awarded, and the award of attorney’s fees; and (2) the trial court’s grant of summary judgment in favor of appellees on Crimson’s declaratory judgment claims, its rendering of a take-nothing judgment against Crimson, and its denial of Crimson’s summary judgment motion on those claims. We affirm the judgment of the trial court in part, reverse in part, and remand. We reverse the trial court's award of damages of attorney's fees and costs in the PCA lawsuit, and the award of attorney's fees for the breach of indemnity contract case. We remand this cause to the trial court for further proceedings in accordance with this opinion. We affirm the trial court's judgment in all other respects. AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Sharp Before Chief Justice Radack, Justices Bland and Sharp 01-08-00774-CV Crimson Exploration Inc., f/k/a/ Gulfwest Energy Inc. v. Intermarket Management LLC, M. Scott Manolis, and Kevin McMillan Appeal from 127th District Court of Harris County Trial Court Judge: Hon. Sharolyn Wood Engh v. Michael Reardon, M.D. and Panagiotis Kougias, M.D. (Tex.App.- Houston [1st Dist.] November 10, 2010)(Sharp)(HCLC, expert qualifications, report suffieciency) This appeal arises from medical malpractice claims brought by appellant, Ronald Engh, against appellees, Dr. Panagiotis Kougias and Dr. Michael Reardon. The trial court dismissed Engh’s claims against both doctors with prejudice after concluding that the expert report served by Engh did not satisfy the requirements of section 74.351 of the Texas Civil Practice and Remedies Code.[1] This appeal followed. We reverse the judgment of the trial court. Conclusion. Having determined that the trial court would have abused its discretion had it found that Dr. Verta’s report was insufficient with respect to standard of care, breach, or causation, or that Dr. Verta was unqualified to opine on the issue of causation, we conclude that the trial court abused its discretion by granting Dr. Kougias’s and Dr. Reardon’s motions to dismiss. We grant appellant’s first issue. Having determined that the trial court abused its discretion by granting Dr. Kougias’s and Dr. Reardon’s motions to dismiss, we need not address appellant’s remaining issues. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Sharp Before Chief Justice Radack, Justices Bland and Sharp 01-09-00017-CV Ronald Engh v. Michael Reardon, M.D. and Panagiotis Kougias, M.D. Appeal from 125th District Court of Harris County Trial Court Judge: Hon. John Coselli Johnson v. Lisa C. Coppel, Individually and as Independent Administrator of the Estate of Joan J. Counts (Tex. App.- Houston [1st Dist.] November 10, 2010)(Curiam) (counterclaims of Declaratory Judgment Action to Quiet Title and Action to Remove Cloud from Title)(judgment being appealed is not final because it does not dispose of Coppel’s claims against Johnson) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-09-00057-CV Mark S. Johnson v. Lisa C. Coppel, Individually and as Independent Administrator of the Estate of Joan J. Counts Appeal from Probate Court No 3 of Harris County Trial Court Judge: The Honorable Rory R. Olsen Stryker v. W. Fulton Broemer and Broemer & Associates, L.L.C. (Tex.App.- Houston [1st Dist.] November 10, 2010)(Keyes)(legal malpractice elements of cause of action, denial of motion for continuance, adequacy of time for discovery prior to no-evidence motion for summary judgment). Appellant sued W. Fulton Broemer and Broemer & Associates, L.L.C. (collectively, “Broemer”), for legal malpractice arising out of Broemer’s representation of Stryker in a debt dispute with another law firm. Broemer moved for traditional and no-evidence summary judgment, contending that Stryker could not recover mental-anguish damages and could not present evidence that Broemer had either breached any duties owed to her or caused her damages. The trial court granted Broemer’s summary- judgment motion. In two issues on appeal, Stryker contends that the trial court erred in rendering summary judgment because (1) her affidavit raised a fact issue regarding causation and (2) she did not have adequate time for discovery due to the automatic stay imposed when Broemer filed for voluntary bankruptcy. Conclusion. We hold that the trial court correctly granted Broemer’s summary-judgment motion and denied Stryker’s motion for continuance. We affirm the judgment of the trial court. AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00317-CV Stacey Stryker v. W. Fulton Broemer and Broemer & Associates, L.L.C. Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Patricia J. Kerrigan Taylor v. Washburn (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland)(civil assault claim fails) Sabrina Taylor appeals the denial of her motion for judgment notwithstanding the verdict in a civil assault case. In doing so, Taylor challenges the legal sufficiency of the jury’s verdict that Theresa Washburn-Grant did not commit an assault. Finding no error, we affirm. Taylor failed to conclusively prove that the incident caused her injuries. To prove causation, Taylor relied solely on her own testimony—she did not present any competent medical testimony or any medical records. The jury heard evidence of Taylor’s continued active participation in the day’s events. This evidence undermines Taylor’s testimony concerning the cause and extent of her injuries. Juries are free to believe all or part of conflicting witness testimony about the existence and severity of a physical injury and associated pain. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 774–75 (Tex. 2003). Finally, the spoliation instruction, which Taylor does not challenge, allowed the jury to presume that the missing videotaped material hurt Taylor’s case. We hold that the trial court properly overruled Taylor’s motion for jnov because she did not conclusively prove that Washburn-Grant caused her injury so as to disturb the jury’s verdict to the contrary. AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Keyes, Higley and Bland 01-09-00458-CV Sabrina K. Taylor v. Theresa Washburn rant--Appeal from 157th District Court of Harris County XXX Allen v. Beistel (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Keyes, Higley and Bland 01-09-00488-CV Theodore Robert Allen Jr. v. Elizabeth Beistel Appeal from 246th District Court of Harris County Yigal Bosch and Transamerica Corp of Houston v. Open Pines Condominium Owners Association, Inc. (Tex. App.- Houston [1st Dist.] November 10, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00507-CV Yigal Bosch and Transamerica Corp of Houston v. Open Pines Condominium Owners Association, Inc. Appeal from 157th District Court of Harris County Morris Industrial, Inc. v. Trident Steel Corporation (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-01094-CV Morris Industrial, Inc. v. Trident Steel Corporation Appeal from 215th District Court of Harris County Borbon v. Rodriguez (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00153-CV Giselle Borbon formerly Rodriguez v. Samuel Rodriguez and David Eckman Appeal from 247th District Court of Harris County John Cole and Twenty-Twenty Properties, Inc. v. Jana Holding, Ltd (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00155-CV John Cole and Twenty-Twenty Properties, Inc. v. Jana Holding, Ltd Appeal from 295th District Court of Harris County GSL Welcome BP 32, LLC v. Harris County Appraisal District (Tex.App.- Houston [1st Dist.] November 10, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-10-00189-CV GSL Welcome BP 32, LLC v. Harris County Appraisal District Appeal from 61st District Court of Harris County Olivares v. TDCJ (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00363-CV George Olivares v. TDCJ ID--Appeal from 412th Judicial District Court of Brazoria County In the Interest of B.H., a child (Tex.App.- Houston [1st Dist.] November 10, 2010)(Massengale) AFFIRM TC JUDGMENT: Opinion by Justice Massengale Before Chief Justice Radack, Justices Nuchia and Massengale 01-10-00415-CV In the Interest of B.H., a child Appeal from 306th District Court of Galveston County Hardesty v. Wade (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00571-CV Martha Cook Hardesty v. Darrell Wade Appeal from 410th District Court of Montgomery County Miles Marks, Trustee v. Helmut Alberts and All Other Occupants (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00742-CV Miles Marks, Trustee v. Helmut Alberts and All Other Occupants Appeal from Co Civil Ct at Law No 3 of Harris County American International Group, Inc. and American General Life Insurance Company v. Kay Dobbs, as Trustee on behalf of The Jeffrey P. Dobbs Irrevocable Trust, and Prostaff, Inc. (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00866-CV American International Group, Inc. and American General Life Insurance Company v. Kay Dobbs, as Trustee on behalf of The Jeffrey P. Dobbs Irrevocable Trust, and Prostaff, Inc. Appeal from 334th District Court of Harris County In re ExxonMobil Corporation (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00894-CV In re ExxonMobil Corporation Appeal from 11th District Court of Harris County In Re Sandeep Patel, Suleman Lalani, Aman Jafar, Bavare Holding, LP, Arusha Bavare,Harvard Financial, LTD, Nasrullah Manji, Syed Moid Zaidi, Newera Partners, LTD, St. Michael's Hospital and HealthCare Group, LLC, and Concierge Park, LP (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00957-CV In Re Sandeep Patel, Suleman Lalani, Aman Jafar, Bavare Holding, LP, Arusha Bavare, Harvard Financial, LTD, Nasrullah Manji, Syed Moid Zaidi, Newera Partners, LTD, St. Michael's Hospital and HealthCare Group, LLC, and Concierge Park, LP Appeal from 190th District Court of Harris County Criminal Causes Decided: Sandra San Miguel v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Nuchia) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia Before Chief Justice Radack, Justices Nuchia and Massengale 01-07-01083-CR Sandra San Miguel v. The State of Texas Appeal from Co Crim Ct at Law No 7 of Harris County Sean Patrick Moskey v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-09-00532-CR Sean Patrick Moskey v. The State of Texas Appeal from Co Crim Ct at Law No 9 of Harris County Vince Colangelo v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Alcala) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Jennings, Alcala and Sharp 01-09-00720-CR Vince Colangelo v. The State of Texas Appeal from Co Crim Ct at Law No 14 of Harris County Angela A. Lara v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Bland and Massengale 01-09-00763-CR Angela A. Lara v. The State of Texas Appeal from 268th District Court of Fort Bend County Rogelio Gutierrez v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Keyes, Higley and Bland 01-09-00939-CR Rogelio Gutierrez v. The State of Texas Appeal from 178th District Court of Harris County Rogelio Gutierrez v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Bland) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Keyes, Higley and Bland 01-09-00940-CR Rogelio Gutierrez v. The State of Texas Appeal from 178th District Court of Harris County Kenneth Shaye Ervin v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Alcala) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Jennings, Alcala and Higley 01-10-00054-CR Kenneth Shaye Ervin v. The State of Texas Appeal from 182nd District Court of Harris County Kenneth Shaye Ervin v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Jennings) OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Concurring Opinion by Justice Jennings Before Justices Jennings, Alcala and Higley 01-10-00054-CR Kenneth Shaye Ervin v. The State of Texas Appeal from 182nd District Court of Harris County Shawn Ryan Carville v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00198-CR Shawn Ryan Carville v. The State of Texas Appeal from 337th District Court of Harris County Donald Wayne Davis v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00207-CR Donald Wayne Davis v. The State of Texas Appeal from 228th District Court of Harris County Jason Bennett v. The State of Texas (Tex.App.- Houston [1st Dist.] November 10, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00790-CR Jason Bennett v. The State of Texas Appeal from 248th District Court of Harris County November 4, 2010 Civil Causes Decided: Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N. H., A Minor (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Alcala 01-06-00569-CV Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N.H., A Minor Appeal from 152nd District Court of Harris County Henderson v. The University of Texas M.D. Anderson Cancer Center (Tex.App.- Houston [1st Dist.] November 4, 2010)(Radack) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Bland and Massengale 01-08-00376-CV Louatrice Henderson v. The University of Texas M.D. Anderson Cancer Center Appeal from 80th District Court of Harris County Adams v. Bryan Collier and Rissie Owens (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Sharp 01-08-01024-CV Brian Calvin Adams v. Bryan Collier and Rissie Owens Appeal from Co Ct at Law No 3 & Probate Ct of Brazoria County Green Garden Packaging Co., Inc and Garden Gourmet Fresh Foods, Inc., v. Schoenmann Produce Company, Inc., (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Massengale 01-09-00924-CV Green Garden Packaging Co., Inc and Garden Gourmet Fresh Foods, Inc., v. Schoenmann Produce Company, Inc., Appeal from 190th District Court of Harris County Murphy v. John Manning, Microcheck Systems Inc. and Microcheck Solutions, Inc. (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Massengale 01-10-00007-CV Scott Murphy v. John Manning, Microcheck Systems Inc. and Microcheck Solutions, Inc. Appeal from 125th District Court of Harris County Earnest Taylor and Lecia Taylor v. Hartford Fire Insurance Company d/b/a The Hartford (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Alcala and Higley 01-10-00221-CV Earnest Taylor and Lecia Taylor v. Hartford Fire Insurance Company d/b/a The Hartford Appeal from Co Civil Ct at Law No 4 of Harris County In re Jimmy Briggs (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00892-CV In re Jimmy Briggs Appeal from 311th District Court of Harris County In re Larry Taylor (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Massengale 01-10-00893-CV In re Larry Taylor Appeal from 122nd District Court of Galveston County Criminal Causes Decided: Terrell Kuykendall v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Sharp 01-08-00523-CR Terrell Kuykendall v. The State of Texas Appeal from 339th District Court of Harris County Luis Enrique Garcia v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Higley) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Keyes, Higley and Bland 01-08-00726-CR Luis Enrique Garcia v. The State of Texas Appeal from 228th District Court of Harris County Carlos Andres Barrientos v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Keyes) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Keyes, Higley and Bland 01-08-00753-CR Carlos Andres Barrientos v. The State of Texas Appeal from 180th District Court of Harris County Brandon Gordon v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Radack) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justice Massengale, The Honorable Cox 01-08-01012-CR Brandon Gordon v. The State of Texas Appeal from 209th District Court of Harris County Kenneth Ray Frelow v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Higley 01-09-00718-CR Kenneth Ray Frelow v. The State of Texas Appeal from 176th District Court of Harris County Larry Duwayne West v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Jennings) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Alcala and Higley 01-10-00052-CR Larry Duwayne West v. The State of Texas Appeal from 179th District Court of Harris County Rayford Dwayne Coleman v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00691-CR Rayford Dwayne Coleman v. The State of Texas Appeal from 228th District Court of Harris County Rayford Dwayne Coleman v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Jennings, Alcala and Sharp 01-10-00692-CR Rayford Dwayne Coleman v. The State of Texas Appeal from 228th District Court of Harris County Landon Brook v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Keyes and Massengale 01-10-00754-CR Landon Brook v. The State of Texas Appeal from 185th District Court of Harris County Landon Brook v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Chief Justice Radack, Justices Keyes and Massengale 01-10-00755-CR Landon Brook v. The State of Texas Appeal from 185th District Court of Harris County In re Roosevelt T. Adams, Jr. v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Higley 01-10-00781-CR In re Roosevelt T. Adams, Jr. v. The State of Texas Appeal from 228th District Court of Harris County In re Roosevelt T. Adams, Jr. v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Jennings, Alcala and Higley 01-10-00782-CR In re Roosevelt T. Adams, Jr. v. The State of Texas Appeal from 228th District Court of Harris County Pilar Oscar Parras v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00825-CR Pilar Oscar Parras v. The State of Texas Appeal from 176th District Court of Harris County Pilar Oscar Parras v. The State of Texas (Tex.App.- Houston [1st Dist.] November 4, 2010)(Curiam) DISMISS APPEAL: Per Curiam Before Justices Keyes, Higley and Bland 01-10-00826-CR Pilar Oscar Parras v. The State of Texas Appeal from 176th District Court of Harris County |
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