November 2008 Cases Decided by the 1st Court of Appeals - Houston, TX
(Tex. App.- Houston [1st Dist.] 2008)
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November 2008 Decision and Opinion Release Dates:  

Nov. 6, 7, 13, 14, 18, 20, 25, 26, 2008      

NOVEMBER 2008 CIVIL CASE TABLE

November 26, 2008

Civil Causes Decided:

SIMULIS LLC v. G.E. Electric Corp (Tex.App.- Houston [1st Dist.] Nov. 26, 2006)(Taft)
(
garnishment of payroll funds approved)
AFFIRM TC JUDGMENT: Opinion by
JusticeTim Taft
Before Justices Taft, Keyes and Alcala
01-06-01041-CV  SIMULIS, L.L.C. v. General Electric Corporation and Amegy Bank of Texas
Appeal from 270th District Court of Harris County
Trial Court
Judge:  Hon. Brent Gamble

Nabelek v. City of Houston (Tex.App.-Houston [1st Dist.] Nov. 26, 2008)(Taft)

AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-06-01097-CV   Ivo Nabelek v. City of Houston, et al
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock

Nabelek v. City of Houston (Tex.App.- Houston [1st Dist.] Nov. 26, 3008)(Taft)

AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-06-01097-CV Ivo Nabelek v. City of Houston, et al
Appeal from County Civil Ct at Law No 3 of Harris County

French v. Gilbert (Tex.App.- Houston [1st Dist.] Nov. 26, 2008)(Taft) (malpractice, abatement vs. dismissal)
AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-07-00186-CV  Kenneth Leon French, Nancy Jane French, and Karen Lyn French v. Tracy A. Gilbert, Joe M.
Enis, C. Scott Wonderly, and Gilbert, Enis & Wonderly, P.C.
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Kenneth P. Wise

Liu v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 26, 2008)(Wilson)

AFFIRM TC JUDGMENT: Opinion by Judge Wilson  
Before Judge Wilson, Justices Keyes and Higley
01-07-00899-CV   Sally Liu v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County

Criminal Causes Decided:

November 25, 2008

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Nuchia, Keyes and Higley) Non
01-08-00951-CV        In re Mark McSchaffry-
Appeal from Co Civil Ct at Law No 3 of Harris County

Criminal Causes Decided:  None

November 20, 2008

Civil Causes Decided:

Mooseviadeen v. Toote Tigard, (Tex.App.- Houston [1st Dist.]  Nov. 20, 2008)(Nuchia)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Nuchia  
Before Justices Nuchia, Jennings and Bland
01-06-00002-CV        Seyed Hassan Moosaviadeen v. Lillian Marian Foote Tigard, et al.
Appeal from 151st District Court of Harris County

City of Houston v. Southern Electrical Services (Tex.App.- Houston [1st Dist.] Nov. 20, 2008)(Bland)
AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-00808-CV        The City of Houston v. Southern Electrical Services, Inc., as Assignee of The Morganti
Group, Inc. and The Morganti Group, Inc.--Appeal from 157th District Court of Harris County

DISMISS APPEAL: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-00975-CV        Fahren Fallon Favien (aka Marcus Dewayne Jones) v. The Office of the Attorney
General--Appeal from 245th District Court of Harris County

In Re Rein Henderson, Deceased (Tex.App.- Houston [1st Dist.] Nov. 20, 2008)(Radack)

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-01008-CV        In the Estate of Rein Henderson, Deceased
Appeal from County Court at Law No 4 of Fort Bend County

Carter v. City of Galveston (Tex.App.- Houston [1st Dist.] Nov. 20, 2008)(Bland)

AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-01010-CV        Charlene Carter v. City of Galveston
Appeal from 56th District Court of Galveston County

Garcia v. Harding (Tex.App.- Houston [1st Dist.] Nov. 20, 2008)(Jennings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Judge Wilson, Justices Jennings and Bland
01-07-01049-CV        Ann Mercadel Garcia v. Robert E. Harding
Appeal from 300th District Court of Brazoria County

SET ASIDE TC JUDGMENT AND REMAND CASE TO TC FOR RENDITION OF JUDGMENT IN ACCORDANCE
WITH PARTIES' AGREEMENT: Opinion by Justice Jennings  
Before Justices Jennings, Hanks and Bland
01-08-00043-CV        Henry H. Taylor and Carolyn M. Taylor v. Resurgence Financial, L.L.C.
Appeal from County Court at Law No 2 of Fort Bend County

REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia  
Before Chief Justice Radack, Justices Taft and Nuchia
01-08-00070-CV        Dennie Bruns v. Top Design Incorporated
Appeal from 56th District Court of Galveston County

Donaho v. Bennet (Tex.App.- Houston [1st Dist.] Nov. 20, 2008)(Alcala)(temporary injunction appeal, TI not void
(breach of fiduciary duty, fraud, tortious interference with current and prospective business relations, and
conversion)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by
Justice Alcala  
Before Justices Taft, Keyes and Alcala
01-08-00492-CV        Mark Donaho v. King Wade Bennett
Appeal from 165th District Court of Harris County
Trial Court Judge:   
Hon. Elizabeth Ray

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley)
01-08-00799-CV        In re Dennie Bruns
Appeal from 56th District Court of Galveston County

DISMISS PETITION FOR WRIT OF PROHIBITION: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00800-CV        In re Dennie Bruns
Appeal from 56th District Court of Galveston County

DISMISS PETITION FOR WRIT OF INJUNCTION: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00801-CV        In re Dennie Bruns
Appeal from 56th District Court of Galveston County

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00708-CR        Nicholas Wilford Diedrick v. The State of Texas
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Justices Taft, Keyes and Alcala
01-06-01136-CR        Jacob Eguia v. The State of Texas
Appeal from 228th District Court of Harris County

DISMISS APPEAL: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-06-01171-CR        Matthew Thomas Garrett v. The State of Texas
Appeal from 239th District Court of Brazoria County

DISMISS APPEAL: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-06-01172-CR        Matthew Thomas Garrett v. The State of Texas
Appeal from 239th District Court of Brazoria County

DISMISS APPEAL: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-06-01173-CR        Matthew Thomas Garrett v. The State of Texas
Appeal from 239th District Court of Brazoria County

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Alcala  
Before Justices Taft, Keyes and Alcala
01-07-00069-CR        Ashton Joel Carmen v. The State of Texas
Appeal from 300th District Court of Brazoria County

OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-07-00069-CR        Ashton Joel Carmen v. The State of Texas
Appeal from 300th District Court of Brazoria County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00254-CR        Kenneth Maurice Bustos v. The State of Texas
Appeal from 230th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Taft, Keyes and Alcala
01-07-00474-CR        Leah D. Monroe v. The State of Texas
Appeal from 228th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Justices Taft, Keyes and Alcala
01-07-00860-CR        Joseph Denver Smith v. The State of Texas
Appeal from Co Crim Ct at Law No 4 of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-00922-CR        Faruq Kwame Jabari v. The State of Texas
Appeal from 262nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-07-00985-CR        Jason Edward McMaster v. The State of Texas
Appeal from 185th District Court of Harris County

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Hanks and Bland
01-08-00389-CR        Jose Zuniga v. The State of Texas
Appeal from 56th District Court of Galveston County

DISMISS APPEAL: Per Curiam
Before Justices Taft, Keyes and Alcala
01-08-00568-CR        John Joseph Harrington v. The State of Texas
Appeal from 252nd District Court of  Jefferson County

November 18, 2008

Civil Causes Decided:

DENY PETITION FOR WRIT OF HABEAS CORPUS: Per Curiam  
Before Justices Taft, Higley and Bland
01-08-00928-CV        In re Clifford Alan Casey
Appeal from County Court at Law of Washington County

Criminal Causes Decided:

November 14, 2008

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Taft, Keyes and Alcala
01-08-00782-CV        In re Ruben S. Martin III
Appeal from 215th District Court of Harris County

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00913-CV        In re Kadar Hamilton--Appeal from 257th District Court of Harris County

Criminal Causes Decided:

November 13, 2008

Civil Causes Decided:

Bio Landscape & Maintenance, Inc. v. Morse (Tex.App.- Houston [1st Dist.] Nov. 13, 2008)(Jennings)
(appeal, partial record)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00410-CV        Bio Landscape & Maintenance, Inc. v. Sallie Morse and Sid A. Morse, Jr.
Appeal from 11th District Court of Harris County
Trial Court Judge:        Hon. Mark Davidson

Delahoussaye v. Kana (T3x.App. - Houston [1st Dist.] Nov 13, 2008)(Alcala) (suit for return of real property,
rescission of deed, gift)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala  
Before Justices Taft, Keyes and Alcala
01-07-00579-CV        Marie Delahoussaye v. Lisa Kana
Appeal from 344th District Court of Chambers County
Trial Court Judge:        Hon. Carroll E. Wilborn, Jr

A/K Service LLC v. HCAD (Tex.App.- Houston [1st Dist.] Nov. 13, 2008)(Hanks) (exclusion of evidence, no harm)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks  
Before Justices Jennings, Hanks and Bland
01-08-00169-CV        A/K Service, LLC v. Harris County Appraisal District
Appeal from 280th District Court of Harris County
Trial Court Judge:        Hon. Tony Lindsay

Lara-Robledo v. Salmons (Tex.App.- Houston [1st Dist.] Nov. 13, 2008)(Hanks) (naming defendant properly,
dba, partnership, default judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks  
Before Justices Jennings, Hanks and Bland
01-08-00230-CV        Juan Jose Lara-Robledo v. Robert Salmons d/b/a Saga City Development Co.
Appeal from 333rd District Court of Harris County
Trial Court Judge:        Hon. Joseph Halbach

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Jennings, Hanks and Bland
01-08-00802-CV        In re Ronald R. Pate
Appeal from 310th District Court of Harris County

Criminal Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala
01-08-00263-CR        Victor Cantu v. The State of Texas
Appeal from 52nd District Court of Coryell County

DISMISS APPEAL: Per Curiam  
Before Justices Taft, Keyes and Alcala
01-08-00737-CR        Misty Renee Reddicks v. The State of Texas
Appeal from 337th District Court of Harris County

November 7, 2008

Civil Causes Decided:

Criminal Causes Decided:

Safety National Casualty Corp. v. State of Texas (Tex.App.-Houston [1st Dist.] Nov. 7, 2008)(Nuchia)
(forfeiture, supplemental opinion)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Nuchia  
Before Justices Nuchia, Hanks and Higley
01-07-00122-CR  Safety National Casualty Corporation v. State of Texas
01-07-00123-CR  Safety National Casualty Corporation, Michael W. Cox v. State of Texas
Appeal from 180th District Court of Harris County

November 6, 2008

Civil Causes Decided:

Chau v. Riddle, MD (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Hanks) (opinion on remand)
(
HCLC, botched intubation of newborn)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-04-00551-CV Thao Chau and Ha Dien Do, Individually and as next friend of their minor child, Steven Dien
Do v. Jefferson Riddle, M.D., and Greater Houston Anesthesiology, P.A.
Appeal from 55th District Court of Harris County
Trial Court
Judge: Hon. Jeffrey Brown

Hilburn v. Providian Holdings, Inc. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Taft)
(interpretation of
easement agreement, untimely designation of expert witness) (UDJA, interpretation of
easement agreement, untimely designation of expert witness, attorney's fees expert)
AFFIRM TC JUDGMENT: Opinion by
Justice Taft  
Before Chief Justice Radack, Justices Taft and Alcala
01-06-00961-CV Barbara Hilburn v. Providian Holdings, Inc.
Appeal from 189th District Court of Harris County
Trial Court
Judge: Hon. William R. Burke. Jr.

Stoker v. Stoker (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Keyes)
(
divorce, property division, economic contribution claim)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes  
Before Justices Taft, Keyes and Alcala
01-07-00056-CV Ronnie H. Stoker v. Diane Fischer Stoker
Appeal from 310th District Court of Harris County
Trial Court
Judge: Hon. Lisa Millard

Hahn v. Love (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Higley)
(
real estate law , judgment lien, cloud on title, constructive trust counterclaim, intervention, satisfaction of
judgment)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes  
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00096-CV  Allon R. Hahn, Individually and d/b/a Hahn's Gulf Service v. Bertrand Love
Appeal from 157th District Court of Harris County
Trial Court
Judge: Hon. Ronald L. Wilson

Williams v. Jackson (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(opinion on rehearing by Radack)
(
attorney fee litigation, breach not excused, duress defense unsuccessful, justification defense fails)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00850-CV  Charlie C. Williams v. Freddie N. Jackson
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court
Judge: Hon. Roberta A. Lloyd

In Interest of BHG (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(per curiam) (termination appeal)
DISMISS APPEAL: Per Curiam  
Before Justices Taft, Keyes and Alcala
01-07-01001-CV  In The Interest of B.H.G., A Child
Appeal from 308th District Court of Harris County
Trial Court
Judge: Hon. Georgia Dempster

DISMISS APPEAL: Per Curiam (failure of appellant to file brief).
Before Justices Taft, Keyes and Alcala
01-08-00006-CV Stephanie A. Lewis v. Resurgence Financial, L.L.C.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court
Judge: Hon. Roberta A. Lloyd

Ross v. Nicon Construction, Inc. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)
(
interlocutory appeal, special appearance)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Radack  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00228-CV  Thomas A. Ross d/b/a RHI Claims Specialist v. Nicon Construction, Inc.
Appeal from 151st District Court of Harris County
Trial Court
Judge: Hon. Caroline E. Baker

Cramer v. State Farm Mutual Auto Ins. Co. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Jennings)
(
denial of motion to transfer venue re determined de novo by county court on appeal)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Jennings  
Before Justices Jennings, Hanks and Bland)
01-08-00270-CV  Daniel Cramer and Saejin Cramer v. State Farm Mutual Automobile Insurance Company
Appeal from County Court at Law No 1 of McLennan County
Trial Court Judge: Hon. Mike Freeman

DISMISS APPEAL: Per Curiam  (joint motion to dismiss)
Before Justices Jennings, Hanks and Bland
01-08-00325-CV  Longhorn Partners Pipeline, L.P. v. BJ Process and Pipeline Services Company
Appeal from 295th District Court of Harris County
Trial Court
Judge: Hon. Tracy Christopher

DISMISS APPEAL: Per Curiam  (failure to pay fees)
Before Justices Taft, Keyes and Alcala
01-08-00438-CV        Veronica Joyce Ford v. Kirk Carter, Jr.
Appeal from 245th District Court of Harris County
Trial Court
Judge: Hon. Annette Kuntz

Roxar Flow Management AS v. FLowsys (USA) Inc (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(per
curiam)(DWOP, nonpayment of fees)
DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Hanks and Bland
01-08-00590-CV   Roxar Flow Management AS v. Flowsys (USA) Inc., Flow Metering Systems, Inc., and Tor
Wideroe--Appeal from 190th District Court of Harris County
Trial Court
Judge: Hon. Patricia J. Kerrigan

DISMISS APPEAL: Per Curiam (unopposed motion to dismiss)
Before Justices Taft, Keyes and Alcala
01-08-00845-CV  City of Houston v. Donald M. Dolan
Appeal from 280th District Court of Harris County
Trial Court
Judge: Hon. Tony Lindsay

Criminal Causes Decided:

DISMISS APPEAL: Per Curiam  
Before Justices Jennings, Hanks and Bland
01-06-00902-CR        Floyd Pleasant Tarvin, IV v. The State of Texas
Appeal from Co Crim Ct at Law No 8 of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-07-00156-CR        Eric Dewayne Kirksey v. The State of Texas
Appeal from 400th District Court of Ft. Bend County

AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00176-CR        Martin Lee Garza v. The State of Texas
Appeal from 10th District Court of Galveston County

AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-07-00408-CR        Mark Anthony Medrano v. The State of Texas
Appeal from 174th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-07-00665-CR        Morell Biggers, III v. The State of Texas
Appeal from 400th District Court of Ft. Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-00667-CR        Morell Biggers, III v. The State of Texas
Appeal from 400th District Court of Ft. Bend County

AFFIRM TC JUDGMENT: Opinion by Justice Nuchia  
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00825-CR        Jose Elias Morales v. The State of Texas
Appeal from 262nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland
01-07-00963-CR        Edgar Ruiz v. The State of Texas
Appeal from 262nd District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Justices Jennings, Hanks and Bland
01-07-01040-CR        Mario Padia v. The State of Texas
Appeal from 23rd District Court of Brazoria County

DISMISS APPEAL: Per Curiam
Before Justices Taft, Keyes and Alcala
01-08-00815-CR        Ashley Nichole Williams v. The State of Texas
Appeal from 21st District Court of Washington County