| Decisions of the Fourteenth Court of Appeals in Houston December 2009 |
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Opinion Release Dates: December 1, 3, 8, 10, 15, 17, 22, 29, 30, 31, 2009 DECEMBER 2009 DECISIONS WITH LINKS TO APPELLATE OPINIONS IN CIVIL CASES DETAILS FOR CASES DECIDED BY THE FOURTEENTH COURT OF APPEALS IN DEC '09 December 31, 2009 Civil Causes Decided: DISMISSED: Per Curiam (dismissal after voluntary bankruptcy case closed) Before Justices Frost, Boyce and Sullivan) 14-05-00477-CV Jose Santiago and Amelia Santiago v. Walmart Stores Inc., Walmart Supercenter, Store #849, The Chemins Company, Inc. and Metabolife International, Inc. Appeal from 280th District Court of Harris County Trial Court Judge: Tony Lindsay American Golf Corporation v. Sugar Creek Country Club (Tex.App.- Houston [14th Dist.] Dec. 31, 2009) (per curiam) (joint motion to reverse the judgment and remand the cause to the trial court in accordance with a settlement agreement granted) REVERSED AND REMANDED: Per Curiam Before Justices Anderson, Frost and Boyce) 14-08-00180-CV American Golf Corporation v. Sugar Creek Country Club Appeal from 434th Judicial District Court of Fort Bend County Trial Court Judge: The Honorable James H Shoemake Jedkins v. Varghese (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam) (dismissal with prejudice of pro se inmate suit affirmed) Appellant, Larry Wayne Jedkins, a prison inmate, appeals pro se and as a pauper from an order dismissing his suit with prejudice. Appellant filed suit alleging prison employees and/or agents violated his constitutional rights, engaged in a conspiracy, and committed assault and battery. Appellant challenges both the dismissal for failure to state a cause of action and the dismissal of the cause with prejudice. We affirm. The failure to file a lawsuit by the statutory deadline cannot be remedied by amended pleadings. McCullough v. Texas Dep’t of Criminal Justice—ID, No. 02-07-072-CV, 2008 WL 704419 (Tex. App.—Fort Worth 2008, no pet,) (mem. op.). Dismissal with prejudice is proper when a suit is not timely filed pursuant to section 14.005(b. Moreland v. Johnson, 95 S. W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The trial court did not abuse its discretion is dismissing appellant’s suit with prejudice. We overrule appellant’s second issue. AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-08-00895-CV Larry Wayne Jedkins v. Mariamma Varghese, Et Al Appeal from 412th District Court of Brazoria County Trial Court Judge: W. Edwin Denman Hughes v. Bay Area Montessori Houston, Inc. (Tex.App. - Houston [14th Dist.] Dec. 31, 2009)(Frost) (interlocutory appeal, professional malpractice suit) This interlocutory appeal arises out of an architecture-malpractice case. An architect and architectural firm sought dismissal of a school’s claims against them on the basis that the school claimant failed to comply with the certificate-of- merit statute. The trial court denied their motion to dismiss without stating the basis for the denial. In a single issue, the architect and architectural firm assert that the trial court incorrectly applied section 150.002 of the Texas Civil Practice and Remedies Code because the affidavit filed by the school allegedly did not contain a mandatory element. Because the school’s cause of action accrued before the legislature amended the certificate-of-merit statute to permit an interlocutory appeal from the denial of a motion to dismiss, this court lacks jurisdiction to consider this appeal. DISMISSED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc. Appeal from 295th District Court of Harris County Trial Court Judge: Tracy Kee Christopher DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00486-CV Charles Robert Jones v. Jennifer Leigh Jones Appeal from 310th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00649-CV Elbar Investments, Inc. v. Sonseria Binder Appeal from Co Civil Ct at Law No 4 of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00719-CV Paul Hamilton and Money Man Mortgage, Inc. v. Alice Childs Appeal from 333rd District Court of Harris County In re Strebel (pdf) (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(Yates) (mandamus re order for deposit of $250,000 into registry denied) MOTION OR WRIT DENIED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown) 14-09-00819-CV In Re Douglas W. Strebel Appeal from 10th District Court of Galveston County Trial Court Judge: Honorable David Garner Ex parte Strebel (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam) MOTION OR WRIT DENIED: Opinion by Justice Leslie Brock Yates Before Justices Brock Yates, Frost and Brown) 14-09-00820-CV Ex Parte Douglas W. Strebel Appeal from 10th District Court of Galveston County Trial Court Judge: Hon. David Garner DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00929-CV Francisco Gonzalez Lopez v. Gil Ramirez Sr. Appeal from 80th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00957-CV Jessica Rae Lynn Whitmarsh v. Richard Eugene Whitmarsh Appeal from 300th District Court of Brazoria County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-92-00320-CV Charles L. Sowell, Jack C. Ogg and James W. Rush v. Resolution Trust Corporation, Receiver of University Savings Association Appeal from 234th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-94-01031-CV Dixie Evelyn Dickerson v. Carl Debarbieris, Individually and D/B/A C & N Property Management, Palm Gardens Homeowners Association, Inc., and Nancy Groves Appeal from 133rd District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-97-00161-CV Scott, Harold L. v. Delgado, Frank Appeal from Co Civil Ct at Law No 2 of Harris County Criminal Causes Decided: AFFIRMED: Opinion by Justice Frost Before Justices Frost, Boyce and Sullivan 14-09-00015-CR Jesse Charles Aught v. The State of Texas Appeal from 179th District Court of Harris County ABATED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00427-CR Robert Espinosa Garza v. The State of Texas Appeal from 174th District Court of Harris County MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00922-CR In Re Charles L. Grable MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00981-CR Ex Parte John Whitson Appeal from 263rd District Court of Harris County MOTION OR WRIT DENIED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-09-00988-CR In Re Michael Wayne McVicker Appeal from 230th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-01012-CR Ezequiel Avila v. The State of Texas Appeal from 232nd District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-01013-CR Affincie Lee Brinson v. The State of Texas Appeal from 180th District Court of Harris County MOTION OR WRIT DENIED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Brown 14-09-01025-CR In Re Dondie Fant Appeal from 184th District Court of Harris County MOTION OR WRIT DENIED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Brown 14-09-01052-CR In Re Dondie Fant Appeal from 184th District Court of Harris County MOTION OR WRIT DENIED: Opinion by Justice Frost Before Justices Frost, Boyce and Sullivan 14-09-01054-CR In Re Marshall Washington Appeal from 248th District Court of Harris County December 30, 2009 Civil Causes Decided: In re John Doe (Tex.App. - Houston [14th Dist.] Dec. 30, 2009)(Minimalist opinion Sullivan) (mandamus regarding motion for stay denied) MOTION OR WRIT DENIED: Opinion by Justice Sullivan Before Justices Frost, Boyce and Sullivan 14-09-01050-CV In Re John Doe and Jane Doe, Individually and a/n/f James Doe, a minor Appeal from 80th District Court of Harris County Trial Court Judge: Larry Weiman Criminal Causes Decided: December 29, 2009 Civil Causes Decided: In re Vossdale Townhouse Ass'n (Tex.App.- Houston [14th Dist.] Dec. 29, 2009)(Seymore) (sanctions for discovery abuse, attorney disqualification not authorized as sanction, fundamental right to their counsel of choice)(mandamus granted) In the petition, relators ask this Court to compel the Honorable Mike Engelhart, presiding judge of the 151st District Court of Harris County, to set aside his February 4, 2009 order removing relators’ attorney from representation of them in the underlying case. We conditionally grant the petition, in part, and deny it, in part. An order directing that counsel may no longer represent his clients in the subject litigation is not among those sanctions enumerated in Rule 215.2(b). GRANTED IN PART AND DENIED IN PART: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00723-CV In Re Vossdale Townhouse Association, Inc.; John B. Baird, as President of the Vossdale Townhouse Association, Inc., and Individually; and Pauletta Gwen Holley Gilbert, as Secretary of the Vossdale Townhouse Association, Inc., and Individually Appeal from 151st District Court of Harris County Trial Court Judge: Mike Engelhart Criminal Causes Decided: AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Boyce and Sullivan 14-09-00033-CR Casper Lee Moore v. The State of Texas Appeal from 411th District Court of Polk County December 22, 2009 Civil Causes Decided: Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Sullivan)(oil and gas law, commercial contract dispute, direct vs. consequential damages) This commercial dispute arises from a natural-gas seller’s failure to deliver an agreed quantity of gas to the purchaser, appellant Cherokee County Cogeneration Partners, L.P. (“Cherokee”). The seller, appellee Dynegy Marketing and Trade, [1] successfully moved for summary judgment by arguing Cherokee seeks only consequential “lost profits” damages disclaimed by the parties’ contract. We hold Cherokee has alleged compensable direct damages under the contract. Therefore, we reverse and remand. ... because the damages Cherokee seeks under Section 5.2 represent direct, not consequential damages, they are not disallowed by Section 5.4. Accordingly, Cherokee has pleaded compensable damages in its suit against Dynegy, and the trial court’s summary judgment therefore must be reversed. REVERSED AND REMANDED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Hudson and Sullivan 14-08-00086-CV Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., DMT Holdings, LP, DMT G.P., LLC and Chevron U.S.A. Inc. Appeal from 55th District Court of Harris County Trial Court Judge: Jeff Brown Skylane West Ltd. v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009) (Seymore) (plea to the jurisdiction, lack of standing, not property owner, thus no standing to litigate) (trial court properly concluded it lacked subject-matter jurisdiction over the claims of all appellants) AFFIRMED: Opinion by Justice Charles Seymore Before Justices Seymore, Brown and Sullivan 14-08-00507-CV Skylane West Ltd., Houston Skylane One LLC a/k/a Skylane West Ltd., an Skylane West Apartments, as the Property Owners and the Property Owners v. Harris County Appraisal District Appeal from 113th District Court of Harris County Trial Court Judge: Patricia Ann Hancock DL Louetta Village Square LP v. HCAD (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Seymore) (dismissal for lack of standing affirmed)(before use of a common name is adequate to justify substitution under Rule 28, a party must show it was in fact doing business under that common name, dba) AFFIRMED: Opinion by Justice Seymore Before Justices Seymore, Brown and Sullivan 14-08-00549-CV DL Louetta Village Square LP and JL Louetta Village Square LP a/k/a Nomura Credit Capital Inc as the Property Owners and the Property Owners v. Harris County Appraisal District Appeal from 280th District Court of Harris County Trial Court Judge: Tony Lindsay Nguyen v. Chapa (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Hedges) (real estate transaction, deeds, actual notice, constructive notice, bona fide purchaser, bona fide mortgagee) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00634-CV Hue Nguyen & Southwestern National Bank v. Alonso Chapa Appeal from 269th District Court of Harris County Trial Court Judge: John T. Wooldridge In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam denial of mandamus) (multiple procedural deficiencies in seeking mandamus relief in the court of appeals) MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00942-CV In Re Ted Lawrence Robertson Appeal from 312th District Court of Harris County Trial Court Judge: Hon. Robert Hinojosa In re Robertson (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(per curiam) (defective petition for mandamus, inadequate record) AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-01053-CV In Re Ted Lawrence Robertson Appeal from 247th District Court of Harris County Trial Court Judge: Judge Bonnie Crane Hellums Criminal Causes Decided: AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan) 14-08-00238-CR Kenneth Ray Roberson v. The State of Texas Appeal from 262nd District Court of Harris County AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown) 14-08-00807-CR Kesha Michele Mitchell v. The State of Texas Appeal from County Court at Law No 2 of Fort Bend County December 17, 2009 Civil Causes Decided: Azad v. Aaron Rents Inc. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 17, 2009)(Seymore) (commercial lease case, attorney's fees) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-01087-CV Hardam S. Azad and Manohar S. Mann v. Aaron Rents Inc. d/b/a Aaron Rents, Inc d/b/a Texas Aaron Rents, Inc Appeal from 333rd District Court of Harris County Trial Court Judge: Joseph J. Halbach DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00715-CV Texas General Land Office v. Bell Bottom Foundation Co. and Fast-Trak Construction, Inc. Appeal from 122nd District Court of Galveston County Trial Court Judge: John A. Ellisor JR. DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00736-CV Leonard Dwayne Jones v. Sherry Elaine Jones Appeal from 257th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00770-CV Salvador Salinas v. Joe Tamborella Appeal from Co Civil Ct at Law No 4 of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00835-CV John Freeman v. Patrick Freeman Appeal from 164th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00848-CV Petrospect Inspection Services, Ltd. v. PMI Specialist, Inc. Appeal from Co Civil Ct at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd Criminal Causes Decided: AFFIRMED: Opinion by Justice Brown Before Justices Seymore, Brown and Sullivan 14-08-00657-CR Sonny Ray Dempsey v. The State of Texas Appeal from 185th District Court of Harris County AFFIRMED AND REFORMED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00770-CR George Oliver McKnight v. The State of Texas Appeal from 177th District Court of Harris County AFFIRMED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00323-CR Danny Eubank v. The State of Texas Appeal from 19th District Court of McLennan County AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00496-CR Pedro Santibanez v. The State of Texas Appeal from 262nd District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00998-CR Gery T. Kobos v. The State of Texas Appeal from Co Crim Ct at Law No 5 of Harris County December 15, 2009 Civil Causes Decided: LJ Charter, LLC v. Air America Jet Charter, Inc. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Anderson)(one satisfaction rule double recovery for a single injury, application of settlement credits) (unjust enrichment) We affirm the trial court’s judgment in favor of Air America on Air America’s breach of contract cause of action based on the Agreement. Having sustained part of appellants’ first issue on appeal and Air America’s second and third cross- points on appeal, we modify the judgment as follows: (1) Air America’s recovery for breach of joint venture fiduciary duty is deleted as a violation of the One Satisfaction Rule; (2) Air America shall recover $5,980.00 from Charles N. “Trey” Schwarz, III for breach of the oral agreement to pay for air charter services; and (3) LJ Charter, L.L.C., Charles N. “Buzzy” Schwarz, Jr., and Charles N. “Trey” Schwarz, III, shall be jointly and severally liable for Air America’s common law fraud damages. Having modified the judgment, we affirm the judgment as modified. AFFIRMED AS MODIFIED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00534-CV LJ Charter, LLC C.N. Schwarz, III, R & S Aircraft Investments, LLC, CNS Ventures, LLC, and Starflite Management Group, Inc. v. Air America Jet Charter, Inc. Appeal from 165th District Court of Harris County Trial Court Judge: Elizabeth Ray Santex Builders, LLC v. Guefen Construction, LLC (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009) (Boyce)(default judgment set aside, defective service of citation) Santex Builders, LLC (“Santex”) and Curtis R. Medlin appeal the trial court’s final default judgment in favor of Guefen Construction, LLC (“Guefen”) and the trial court’s order denying their motion to set aside default judgment and alternative motion for new trial. Because we conclude service of process was defective, we reverse and remand. REVERSED AND REMANDED: Opinion by Justice Boyce Before Justices Anderson, Seymore and Boyce 14-08-00840-CV Santex Builders, LLC and Curtis R. Medlin v. Guefen Construction, LLC Appeal from 165th District Court of Harris County Trial Court Judge: Hon. Elizabeth Ray UTMB at Galveston v. Simmons (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Boyce) (HCLC, denial of motion to dismiss affirmed in interlocutory appeal) In this interlocutory appeal,[1] appellant University of Texas Medical Branch at Galveston, Texas (“UTMB”) challenges the trial court’s order denying its motion to dismiss the health care liability claim[2] of appellee Marvin Simmons. In its sole issue, UTMB contends that the trial court abused its discretion by denying its motion to dismiss because Simmons failed to attach his expert’s curriculum vitae to the expert report pursuant to Texas Civil Practice and Remedies Code section 74.351. We affirm. The trial court acted within its discretion in concluding that the expert report contained sufficient information to determine whether the expert was qualified and, thus, satisfied the curriculum vitae requirement. See Johnson, 286 S.W.3d at 564; Garret, 232 S.W.3d at 177-78. Accordingly, the trial court did not abuse its discretion by denying UTMB’s motion to dismiss Simmons’s suit for failure to serve a separate curriculum vitae. AFFIRMED: Opinion by Justice Bill Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00246-CV University of Texas Medical Branch at Galveston, Texas v. Marvin Simmons Appeal from 122nd District Court of Galveston County Trial Court Judge: John A. Ellisor JR. Frank v. Brittany Square Apartments (pdf)(Tex.App.- Houston [14th Dist.] Dec. 15, 2009)(Hedges) (eviction suit appeal, error in bringing appeal, incomplete appellate record, DWOJ on appeal) In this forcible detainer suit, the tenant appealed the judgment of the justice court to the county court at law. She asserts that the county court upheld the justice court’s judgment and granted possession of the premises to the landlord, but she identifies no appealable order in the record. We therefore dismiss this appeal for want of jurisdiction. DISMISSED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00288-CV Linda Frank v. Brittany Square Apartments Appeal from County Court at Law #4 of Fort Bend County Trial Court Judge: Sandy Bielstein Criminal Causes Decided: AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Sullivan 14-08-00269-CR McKinley Dale Thomas v. The State of Texas Appeal from 185th District Court of Harris County AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Mirabal and Boyce 14-08-00294-CR Celbin Alexis Galo-Martinez v. The State of Texas Appeal from 351st District Court of Harris County AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-00460-CR Dante Benard Knight v. The State of Texas Appeal from 262nd District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-01089-CR Richard Vashawn Redd v. The State of Texas Appeal from 338th District Court of Harris County December 10, 2009 Civil Causes Decided: EZ Postal Plus v. Capital One, N.A. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 10, 2009)(per curiam dismissal) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00889-CV EZ Postal Plus and Bilal Farahshah v. Capital One, N.A. Appeal from County Civil Court at Law No 3 of Harris County McCarroll v. My Sentinel, LLC (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Hedges) (personal liability imposed on officers and directors based on forfeiture of corporate charter, res judicata not applicable) My Sentinel, L.L.C. sued Steven and Robbie McCarroll, among other directors and officers of 4M Security Systems, Inc., to collect on a judgment previously obtained against that corporation. My Sentinel alleged that 4M’s corporate charter had been forfeited, and on that basis, My Sentinel sought to impose liability for the corporation’s debt against its directors and officers pursuant to Texas Tax Code section 171.255. At the conclusion of the plaintiff’s case-in-chief, the McCarrolls moved for directed verdict on the grounds that (1) application of the doctrine of res judicata barred My Sentinel’s claim, and (2) the debt in question was not created or incurred in Texas as required for the imposition of liability against a director or officer of a corporation under section 171.255. The trial court denied the motion, and at the conclusion of trial awarded My Sentinel $58,406.89 jointly and severally against the McCarrolls.[1] In their two issues on appeal, the McCarrolls contend that the trial court erred in denying each of their grounds for directed verdict. We affirm. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-01171-CV Steven and Robbie McCarroll v. My Sentinel, LLC., Appeal from 405th District Court of Galveston County Trial Court Judge: Wayne J. Mallia In Interest of CW (pdf) (Tex.App. - Houston [14th Dist.] Dec. 10, 2009)(Boyce) Appellant appeals a final order terminating her parental rights to her child D.G. After a bench trial, the trial court (1) appointed the Texas Department of Family and Protective Services (“DFPS”) as sole managing conservator of appellant’s four children, C.W. Jr., I.S., E.R., and D.G.; and (2) involuntarily terminated the parent-child relationship between appellant and D.G. In four issues, appellant argues that (1) she received ineffective assistance of counsel; (2) the trial court’s judgment exceeded the scope of the pleadings; (3) the evidence was legally and factually insufficient to prove that appellant knowingly placed or knowingly allowed D.G. to remain in conditions or surroundings which endangered her physical or emotional well-being; and (4) the evidence was legally and factually insufficient to prove that termination of the parent-child relationship between appellant and D.G. was in the best interest of D.G.We affirm. AFFIRMED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00306-CV In the Intererst of C.W., Jr., I.S., E.R., & D.G Appeal from 306th District Court of Galveston County Trial Court Judge: Janis Louise Yarbrough DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00375-CV Grason Communities, Ltd. v. Townes G. Presser, as Trustee for the Townes Family Trust Appeal from 281st District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-09-00508-CV James Whittaker v. ManPower Appeal from 151st District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00872-CV Katsy Cluck v. John W. Mecom, Jr., Appeal from County Civil Court at Law No 4 of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00898-CV Joe Watson and CCB Home Investors III, L.L.C. v. Richard Tomlinson Vivan Mouton Tomlinson Appeal from 113th District Court of Harris County Criminal Causes Decided: DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00951-CR Kaffery Ray Jackson v. The State of Texas Appeal from 262nd District Court of Harris County December 8, 2009 Civil Causes Decided: Shanley v. First Horizon Home Loan Corp. (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan) (misrepresentation, reliance element) Because the Shanleys failed to present evidence raising a genuine issue of material fact as to the element of reliance, we conclude that the trial court properly granted summary judgment to Digital Draw on their negligent misrepresentation claim. Issue one as to Digital Draw is overruled. AFFIRMED: Opinion by Justice Sullivan Before Justices Seymore, Brown and Sullivan 14-07-01023-CV Michael E. Shanley and Veronica R. Shanley v. First Horizon Home Loan Corp Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Shanley v. Digital Draw Network (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Sullivan) (Motion for Leave to Amend, Expert Witness Affidavit, Motion for Continuance) AFFIRMED: Opinion by Justice Sullivan Before Justices Seymore, Brown and Sullivan 14-08-00060-CV Michael E. Shanley and Veronica R. Shanley v. Digital Draw Network Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Ex Parte S.C. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Seymore)(expunction appeal) Appellant, Texas State Securities Board appeals from an expunction order concerning files and records relating to appellee, S.C. In its sole issue, the Board contends the order is broader than authorized by the statute governing expunction. Because we agree, we modify the order and affirm as modified. AFFIRMED AS MODIFIED: Opinion by Justice Charles Seymore Before Justices Seymore, Brown and Boyce 14-08-00381-CV Ex Parte S.C Appeal from 189th District Court of Harris County Trial Court Judge: Bill Burke City of Alvin v. Zindle (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (oil and gas law, mineral estate, tax lien foreclosure) AFFIRMED AS MODIFIED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00458-CV City of Alvin v. Sallie Zindle Appeal from 239th District Court of Brazoria County Trial Court Judge: Hon. Patrick Edward Sebesta McKinney & Moore, Inc. v. City of Longview, Tx (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009) (Hedges)(plea to the jurisdiction governmental immunity) AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00628-CV McKinney & Moore, Inc. v. City of Longview, Texas Appeal from 188th District Court of Gregg County Trial Court Judge: Judge David Scott Brabham In Interest of JJJ (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Hedges)(SAPCR dispute) Kelli Lane Lowery appeals from the trial court’s dismissal for want of jurisdiction of Lowery’s action seeking joint managing conservatorship of J.J.J., a child. J.J.J. had been adopted in a prior action in a different court by appellee, Roderick L. Jones. In her first issue on appeal, Lowery challenges the trial court’s dismissal of her claims on jurisdictional grounds. In her second issue, she argues that the trial court should have permitted her to (1) present evidence in support of her standing to bring the lawsuit, and (2) amend her pleadings. Finding that the trial court erred in dismissing for want of jurisdiction, we reverse and remand for further proceedings below. REVERSED AND REMANDED: Opinion by Chief Justice Adele Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-01015-CV In the Interest of J.J.J., a Child Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne Citrin Holdings, LLC v. Minnis (pdf) (Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Boyce) (denial of special appearance affirmed in interlocutory appeal) Appellants Jacob Citrin, Citrin Holdings LLC, Cargo Investors LLC, and Cargo Investors II LLC challenge the trial court’s order denying their special appearances. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon 2008). We affirm. AFFIRMED: Opinion by Justice Boyce Before Justices Anderson, Guzman and Boyce 14-09-00186-CV Citrin Holdings, LLC, Jacob Citrin, Cargo Investors LLC, and Cargo Investors II LLC v. Matthew Minnis and Cullen 130, LLC Appeal from 133rd District Court of Harris County Trial Court Judge: Jaclanel McFarland Criminal Causes Decided: AFFIRMED: Opinion by Justice Boyce Before Justices Anderson, Boyce and Sullivan 14-08-00831-CR Curtis Green Jr. v. The State of Texas Appeal from 177th District Court of Harris County AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce 14-09-00003-CR Jason Anthony Hill v. The State of Texas Appeal from 268th District Court of Fort Bend County December 3, 2009 Civil Causes Decided: Sharma v. Routh (pdf) (Tex.App.- Houston [14th Dist.] Dec. 3,2009)(Concurrence by Hedges) (divorce appeal, characterization of property) Because the trial court mischaracterized a portion of the marital property, namely the trust income from Alice's testamentary trusts, the majority correctly reverses and remands this case. Although I agree with the majority's disposition, I would reverse and remand for different reasons. I therefore concur in the judgment only and write separately to explain my reasons. Concurring Opinion by Chief Justice Adele Hedges 14-06-00717-CV Timothy L. Sharma v. Lisa C. Routh Appeal from 246th District Court of Harris County Trial Court Judge: Jim York Walker v. Rangel (pdf) (Tex.App.- Houston [14th Dist.] Dec. 3, 2009)(Seymore)(harm analysis re admission/exclusion of evidence) A jury found Rangel’s negligence did not proximately cause the accident. Walker now appeals, contending the trial court erred in admitting opinion testimony of Senior Police Officer Daryl Woods of the Houston Police Department and Rangel’s accident reconstruction expert, Dale King. After a thorough review of the appellate record, we conclude the trial court erroneously admitted testimony REVERSED AND REMANDED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00643-CV Juanita Walker v. April Rangel Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00886-CV Benson Bailess and Alnet Bailess v. Kelly Moore Paint Company, Inc. Appeal from 133rd District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-08-00959-CV Bethany James v. Westgate Apartments Appeal from Co Civil Ct at Law No 4 of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Anderson and Boyce 14-08-00981-CV In the Interest of J.T.H. Appeal from 313th District Court of Harris County DISMISSED: Per Curiam Before Justices Anderson, Seymore and Boyce 14-09-00183-CV Jesse Bernard Jackson v. Sandra Day Jackson Appeal from 312th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00687-CV In Re Texoma Ford, Inc. Appeal from 152nd District Court of Harris County MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00692-CV In Re David Smotherman Appeal from 434th Judicial District Court of Fort Bend County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00724-CV In the Interest of C.J., a Child Appeal from 25th District Court of Colorado County VACATED AND REMANDED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00791-CV Newport Development Joint Venture, Rampart Properties, L.P., Newport Fund, L.L.C, Saga Land, Inc. v. HOBA Lake Houston GP, L.L.C., and Ron Holley Appeal from 151st District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00800-CV J.A. "Jay" Asafi as Independent Administrator of the Estate of Alosia Smith Rauscher, Deceased and Todd Reagan Smith v. Martin J. Rauscher Appeal from Probate Court No 2 of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00827-CV In the Interest of R.S., a child Appeal from 310th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore 14-09-00949-CV Gordon A. Stamper v. MOSH Holdings LP Appeal from 334th District Court of Harris County Criminal Causes Decided: AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Anderson and Boyce 14-08-00330-CR Mario Antonio Bellard v. The State of Texas Appeal from 252nd District Court of Jefferson County AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown 14-08-00374-CR Rivis Byrd v. The State of Texas Appeal from 339th District Court of Harris County AFFIRMED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00521-CR Sean Thomas Saunders v. The State of Texas Appeal from 209th District Court of Harris County AFFIRMED: Per Curiam Before Justices Seymore, Brown and Sullivan 14-08-00576-CR Cornelius Davis v. The State of Texas Appeal from 179th District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before Justices Anderson, Mirabal and Boyce 14-08-00780-CR Donnell Duane Kemp v. The State of Texas Appeal from 262nd District Court of Harris County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00820-CR Lamonn Eugene Blunt v. The State of Texas Appeal from 185th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-08-00824-CR Kenneth Wayne Moss v. The State of Texas Appeal from 176th District Court of Harris County AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-00828-CR Clifton Randall Bryan v. The State of Texas Appeal from 178th District Court of Harris County AFFIRMED: Opinion by Justice Mirabal Before Justices Anderson, Mirabal and Boyce 14-08-00906-CR Elizabeth A. Rodriguez v. The State of Texas Appeal from 232nd District Court of Harris County DISMISSED: Per Curiam Before Justices Anderson, Brown and Boyce 14-09-00939-CR L J Quitile Kuyendall v. The State of Texas Appeal from 178th District Court of Harris County December 1, 2009 Civil Causes Decided: None Criminal Causes Decided: MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00947-CR In Re Billy Homes Appeal from 178th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00967-CR Chantilly Annette Hamm v. The State of Texas Appeal from 230th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00971-CR Juan Rodriguez v. The State of Texas Appeal from County Criminal Court at Law No 8 of Harris County . |
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