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Nov. 10, 2009 News: Ralph Biancanala v. Tilman Fertitta Shareholder Derivative Suit File to Thwart Landry's Buyout

No Liability for Employer in Murder of Employee on Duty at Restaurant
Barton v. Whataburger, Inc. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Bland)
workplace safety, murder not forseeable, no employer liability)
Justice Bland  
Before Chief Justice Radack, Justices Alcala and Bland
01-06-01121-CV        Rose Barton, Individually and as Personal Representative of the Estate of
Christopher Martin Dean v. Whataburger, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge:
Hon. Ronald [Randall] L. Wilson
This negligence case arises from the aggravated robbery of a Whataburger restaurant and the resulting
murder of one of its employees on duty during the robbery.  Rose Barton, individually and on behalf of the
estate of her son, Christopher Dean, the Whataburger employee who was murdered, appeals the trial
court’s summary judgment entered in favor of Whataburger, Inc.  Barton contends that the trial court
erred in granting summary judgment on her claim that Whataburger was negligent in (1) hiring Gregory
Love to manage its restaurant, as he conspired to commit the robbery that led to the murder; (2) failing to
provide a safe workplace for Dean; and (3) failing to exercise reasonable care to prevent the robbery.  
We conclude that the trial court properly granted summary judgment because the aggravated robbery
leading to murder was not foreseeable as a matter of law.  

Shooting in front of restaurant not foreseeable
Pouncy Pittman v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] July 31, 2008)(Hanks)
shooting in front of restaurant, not forseeable, no liability, motion for continuance MFC, admission of
Justice Hanks
Before Justices Nuchia, Alcala and Hanks
01-07-00575-CV  Leah Pouncy Pittman, Individually and on behalf of the heirs at law of the Estate of
Delearette Montrail Pittman v. Pappas Restaurants, Inc., d/b/a Pappadeaux Seafood Kitchen
Appeal from 190th District Court of Harris County
Trial Court
Judge: Hon. Jennifer Walker Elrod
Appellant, Leah Pouncy-Pittman, individually and on behalf of the heirs of the estate of Delearette
Montrail Pittman, (“Pouncy-Pittman”) appeals the trial court’s entry of final summary judgment against her,
dismissing her wrongful death action against Pappadeaux Seafood Kitchen (“Pappadeaux”). Pouncy-
Pittman alleges the trial court erred because (1) genuine issues of material fact precluded summary
judgment; (2) the trial court failed to grant her motion to continue the summary judgment hearing; and (3)
the trial court failed to sustain her objections to an affidavit by Pappadeaux’s expert witness. We affirm.
On October 3, 2004, Delearette Montrail Pittman (“Pittman”) visited a Pappadeaux Restaurant in Houston,
Texas. At some point, Pittman stepped outside to use his cell phone. While outside, Pittman was seen to
be arguing with an unknown person and witnesses then heard a gunshot. An off-duty Houston Police
Department Officer working as a security guard for Pappadeaux found Pittman, shot in the chest, outside
the restaurant. Pittman died that evening at a local hospital. * * *
Dr. Moore’s opinion that the murder of Pittman was not foreseeable to Pappadeaux—as supported by the
facts he recited from the unchallenged police reports, news reports and crime statistics—was
uncontroverted. We recognize that, because the question of duty is a question of law for the court, an
expert cannot properly opine regarding the existence of a duty. See, e.g., Drennan v. Cmty. Health Inv.
Corp., 905 S.W.2d 811, 824 (Tex. App.—Amarillo 1995, writ denied). Further, in premises liability cases,
expert testimony alone is insufficient to raise a fact issue on foreseeability. Allright San Antonio Parking
Inc. v. Kendrick, 981 S.W.2d 250, 255 (Tex. App.—San Antonio 1998, no pet.). However, even when
faced with a no-evidence summary judgment motion against her, Pouncy-Pittman failed to produce more
than a scintilla of evidence showing that Pappadeaux had a duty under Timberwalk to Pittman and that it
breached that duty. Pappadeaux, on the other hand, produced an affidavit that contained unchallenged
factual assertions supporting a conclusion that it did not owe a duty to Pittman. Accordingly, the trial court
properly entered final summary judgment in Pappadeaux’s favor. We overrule Pouncy-Pittman’s first point
of error.

Evans v. MIPTT, LLC dba East Coast Buffet (Tex.App.- Houston [1st Dist.] Jun 14, 2007)
food poisoning claim)

Loredana Enterprises, Inc. v. Rewards Network Services, Inc. (Tex.App.- Houston [14th Dist.] Dec. 18,
2007)(Seymore) (biz litigation, BoC,
personal guaranty, joint and several liability, admission of evidence,
business records)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00118-CV Loredana Enterprise, Inc., d/b/a Babbo Bruno and Stefano Bertolotti v. Rewards Network
Services, Inc., f/k/a Idine Restaurant Group, Inc.
Appeal from 280th District Court of Harris County (
Hon. Tony Lindsay)
Appellee, Rewards Network Services, Inc. ("Rewards") sued appellants, Loredana Enterprise, Inc.
("Loredana") and Stefano Bertolotti, alleging breach of contract. Following a bench trial, the court found
for Rewards and entered judgment for $29,520.24 plus pre-judgment interest, post-judgment interest,
attorney's fees, and costs. In three issues, appellants challenge the legal and factual sufficiency of the
evidence to support the trial court's judgment. Court of appeals affirms.

Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)
construction dispute, commercial, BoC, breach of contract, sworn account)
FURTHER PROCEEDINGS: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Bland
01-05-01077-CV  Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen
Appeal from County Civil Court at Law No 2 of Harris County (
Hon. Gary Michael Block)

Boondoggles Corp. v. Yancey  (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(by Radack)
employment law, employment contract, breach of contract, BoC, restaurant manager, modification of
contract construction, ambiguous contract, bonus pay dispute, calculation of damages,
remittitur, res judicata, no identity of claims, parties, different capacities, attorney fees, disclosure of
witnesses, discovery not filed, CoD)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00185-CV Boondoggles Corporation v. Johnathan Yancey
Appeal from 234th District Court of Harris County (
Hon. Reece Rondon)
(“Having concluded that the trial court properly found that Boondoggles never paid Yancey the bonus
required by his contract of employment and that Yancey demanded payment before filing this action, the
trial court correctly ruled, in conclusion of law seven, that Yancey’’s right to collect was due.”)

Eubanks v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)(substitute opinion
on rehearing)[
premises liability, slip and fall, parking lot]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Keyes
01-05-00833-CV        Leonard Eubanks v. Pappas Restaurants, Inc., and Pappas Partners, L.P.
Appeal from
151st District Court of Harris County
Appellant, Leonard Eubanks, filed a premises-liability suit against appellees, Pappas Restaurants, Inc. and Pappas
Partners, L.P., after he slipped and fell in a restaurant parking lot owned by them. The trial court granted appellees' first
amended motion for summary judgment, (1) and appellant appeals, contending that appellees failed to establish as a
matter of law that the condition resulting in appellant's injury did not pose an unreasonable risk of harm. We affirm.
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