August 2006 Opinions from the Fourteenth Court of Appeals in Houston, Texas (14thCoA)

August 31, 2006

Mansell v. Ins. Co. of West (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Yates)
[civil procedure, restricted appeal, set aside default judgment, substitute service, defective citation, incorrect filing
date on citation, strict compliance required]
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Guzman)
14-05-00844-CV Mark Conner Mansell v. Insurance Company of the West as Subrogee of Lyle Tiedemann
Appeal from 405th District Court of Galveston County (Judge Wayne J. Mallia)
(“Because the citation was fatally defective and thus there is error on the face of the record, we sustain Mansell’s
first issue. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with
this opinion.”)
Mansell v. Insurance Co. of the West, No. 14-05-00844-CV (Tex.App.-Houston [1st Dist.] Aug. 31, 2006)(strict
compliance with citation rules required to sustain default judgment)
[citation stated filing year incorrectly, restricted appeal, defendant prevails]

Hill v. Consolidated Concepts (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Fowler)
[workplace safety, fall from roof, negligence, gross negligence, admission of evidence, collateral source doctrine,
improper jury argument]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Frost
14-05-00345-CV John Earnest Hill Jr.; John Anthony Hill, Matthew David Hill, and Gracie Love Hill, Minor Children
by and through next friend John Earnest Hill. Jr.; and Christina Hill, Wife of John Earnest Hill, Jr., v. Consolidated
Concepts Inc.
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
Alt cit: Mansell v. Insurance Co. of the West, No. 14-05-00844-CV (Tex.App.-Houston [1st Dist.] Aug. 31, 2006)
(strict compliance with citation rules required to sustain default judgment)
[citation stated filing year incorrectly, restricted appeal, defendant prevails]

Gantt v. Gantt (Tex.App.- Houston [14th Dist.] Aug. 31, 2006, pet. denied 6/1/2007)(Edelman)(subst. opinion)
[family law, appellate law, divorce, appellate procedure, bankruptcy stay, plenary jurisdiction, void order, untimely
notice of appeal, DWOJ, law of the case]
DISMISSED: Opinion by Justice Edelman
Before Chief Justice Hedges, Justices Edelman and Seymore)
14-03-00969-CV Jerry Gantt and Lisa Foster Gantt v. Carol B. Gantt
Appeal from 309th District Court of Harris County (Judge Frank Barlow Rynd)
(“We overrule appellee’s motion for rehearing, withdraw our opinion issued in this case on April 13, 2006, and
issue this substitute opinion in its place. In this divorce case, the parties appeal and cross-appeal a 2003 divorce
decree and final judgment (the “2003 judgment”) on numerous grounds. We dismiss for lack of subject matter
jurisdiction.“)

Halim v. Ramchandani, (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Frost)
[medical malpractice, negligence, causation, expert testimony, jury verdict in favor of defendants affirmed]
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Mirabal)
14-04-00914-CV Fahim S. Halim v. Mahesh Ramchandani, M.D.; Texas Surgical Associates, P.A., Texas Surgical
Associates; and The Methodist Hospital
Appeal from 189th District Court of Harris County (Judge James Bradley Smith)

Madeksho v. Watkins (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Edelman)
[attorney’ fee dispute, jurisdiction, plenary power, severance]
AFFIRMED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Guzman)
14-04-01062-CV Lawrence Madeksho v. Abraham Watkins, Nichols & Friend (A Partnership) and The Law Offices
of Robert E. Ballard, P.C
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)

2616 South Loop v. Heath Source Home Care (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Guzman)
[real estate law, commercial lease dispute, eviction, counterclaims, declaratory judgment, enforceability of lease,
subsequent owner, holdover tenant, quantum meruit]
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Fowler, Edelman and Guzman)
14-04-01089-CV 2616 South Loop, L.L.CL., and 2616 South Loop Building, LP v. Health Source Home Care, Inc.
and Arunee Pinwatana
Appeal from Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block)

Kennedy v. Andover Place Apartments (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Yates)
[lease law, residential, FE&D, notice requirements, tenant prevails in eviction case, landlord did not comply with
statute]
REVERSED AND RENDERED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Guzman)
14-05-01051-CV Kimberly Kennedy v. Andover Place Apartments
Appeal from Co Civil Ct at Law No 4 of Harris County (Judge Roberta Anne Lloyd)
(“Because Andover’s attempted termination of Kennedy’s tenancy did not comply with section 24.005, Andover was
not entitled to prevail in its forcible detainer action. We sustain Kennedy’s second issue, reverse the trial court’s
judgment, and render judgment in favor of Kennedy.”)

In Re Margaret Williams (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(per curiam)
[mandamus sought re: lifting of lis pendens]
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Edelman and Frost)
14-06-00186-CV In Re Margaret Williams and Margott Williams. Next Friend of Matthew Williams
Appeal from 152nd District Court of Harris County (Judge Ken Wise)

Santacruz v. State (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Edelman)(criminal case)
REVERSED AND REMANDED: Opinion by Justice Edelman
Before Justices Anderson, Edelman and Frost)
14-05-00227-CR Alejandro V. Santacruz v. The State of Texas
Appeal from 208th District Court of Harris County
(“In this case, the complainant’s statements on the 911 tape provided the only direct evidence of the aggravating
element of the offense, i.e., that appellant assaulted her with a deadly weapon.
Because we are thus unable to conclude, beyond a reasonable doubt, that this error did not contribute to appellant’
s conviction, we sustain his second issue, reverse his conviction, and remand the case to the trial court.”)

August 29, 2006

Walker v. Thomasson Lumber Co (Tex.App. - Houston [14th Dist.] Aug. 29, 2006)(Anderson)
[product liability, utility poles, fall from pole, NE-SJ for defendant affirmed; spoliation presumption]]
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost
14-04-01217-CV Michael Alan Walker v. Thomasson Lumber Company and Cahaba Pressure Treated Forest
Products, Inc.--Appeal from 270th District Court of Harris County (Judge Brent Gamble)

City of Houston v. Soriano (Tex.App. - Houston [14th Dist.] Aug. 29, 2006)(Anderson)
[governmental entity law, workers comp, self-insurance, subrogation, third-party tortfeasor]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson
Before Justices Anderson, Hudson and Edelman
14-05-00161-CV City of Houston v. Dahlia Soriano, Willie O. Thomas, Nicole Pelrean, and Carl Noon
Appeal from 151st District Court of Harris County (Judge Caroline Elizabeth Baker)

Miles v. Caraway (Tex.App. - Houston [14th Dist.] Aug. 29, 2006)(Guzman)
[HCLC, medical malpractice, jury verdict in favor of defendants affirmed]
AFFIRMED: Opinion by Justice Guzman
Before Judge Murphy, Justices Brock Yates and Guzman
14-06-00010-CV Christopher M. Miles, Individually and as Successor Independent Executor of the Estate of
Jacquelyn Patten Miles, Deceased, Et Al v. Michael D. Caraway, MD and Memorial Southwest Emergency
Physicians, LLP - Appeal from Probate Court No 2 of Harris County (Judge Michael James Wood )

In Re Grover (Tex.App. - Houston [14th Dist.] Aug. 29, 2006)(Anderson)
MOTION OR WRIT DENIED: Opinion by Justice Frost
Before Justices Fowler, Edelman and Frost
14-06-00726-CV In Re: Bernard Grover
Appeal from 246th District Court of Harris County (Judge Bonnie Crane Hellums)

August 27, 2006

In Re Amoco Oil Co. (Tex.App.- Housotn [14th Dist.] Aug. 27, 2006)(per curiam)
[mandamus sought re: trial court ruling on plea to the jurisdiction, underlying suit settled]
DISMISSED: Per Curiam
Before Justices Hudson, Fowler and Seymore
14-06-00600-CV In Re Amoco Oil Company, Amoco Chemical Company and BP Corporation North America Inc.
Appeal from 11th District Court of Harris County (Judge Mark Davidson)

August 24, 2006 - Employer Prevails in Suit for Infliction of Emotional Distress Brought by
Employee - As Usual

Pinson v. First Fin. Cap. Corp. (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Frost)
[employment law, intentional infliction of emotional distress, IIED, SJ for employer affirmed]
AFFIRMED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00353-CV Laura M. Pinson v. First Financial Capital Corp.
Appeal from 280th District Court of Harris County (Judge Tony Lindsey)

Lathrop v. Momentum Motor Cars (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Fowler)
[civil procedure, no-evidence motion for summary judgment SJ, negligent entrustment]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler
Before Justices Fowler, Edelman and Guzman
14-04-01176-CV Cynthia J. Lathrop v. Momentum Motor Cars, Ltd. d/b/a Momentum BMW
Appeal from 113th District Court of Harris County (Judge Patricia Ann Hancock)

Apache Corp. v. Dynegy (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Anderson)
[commercial law, breach of contract BoC, natural gas, stipulated attorneys fees, declaratory judgment]
AFFIRMED AS MODIFIED IN PART AND REVERSED AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Judge Murphy, Justice Anderson
14-05-00010-CV Apache Corporation v. Dynegy Midstream Services Limited Partnership and Versado Gas
Processors, LLC
Appeal from 234th District Court of Harris County (Judge Bruce D. Oakley)

Rivera v. South Green Lim Partnership (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Frost)
[tort law, premises liability, assault on employee at work]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00128-CV Michelle Rivera and Jeff Rivera v. South Green Limited Partnership and Kastle Systems of Texas,
L.L.C.--Appeal from 270th District Court of Harris County (Judge Brent Gamble)
(“This is a premises-liability case in which an employee was assaulted in the workplace. Appellants, the employee
and her husband, challenge the trial court’s summary judgment in favor of the building owner and its security
company. We conclude the trial court erred in granting summary judgment in favor of the building owner, but that it
ruled correctly as to the security company. Therefore, we affirm the trial court’s judgment in favor of the security
company, but reverse the trial court’s judgment as to the negligence/premises liability claim against the building
owner and remand that claim to the trial court further proceedings consistent with this opinion.”)

Rasback v. Phillips (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Fowler)
[family law, child support past 18, disabled adult child, standing to sue, capacity, no standing, no jurisdiction, no
denial of access to courts because representative may sue to vindicate adult child’s rights]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00576-CV Roger Duane Rasbach, Jr. v. Jane Phillips, as Surviving Parent and Bank of America, N.A., as
Trustee for the Winne Arnett Phillips Trust, the Herbert Houghton Phillips Trust, and/or any other trust and/ or
substrusts having Jane Phillips as Beneficiary and/or other Financial Interest
Appeal from 257th District Court of Harris County (Judge Linda Motheral, former family district court judge)

Charles v. USA Savoy Leasco (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Hudson)
[le ase law, eviction, breach of contract, attorneys fees, res judicata]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00747-CV Krystal Charles v. USA Savoy Leasco d/b/a The Savoy Apartments
Appeal from Co Civil Ct at Law No 4 of Harris County (Judge Roberta Anne Lloyd)

Hawk v. Estate of Hawk (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Guzman)
[estate dispute, breach of fiduciary duty alleged, BoFD]
AFFIRMED: Opinion by Justice Guzman
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-01057-CV Bryce Grafton Hawk v. Estate of Thelma Hawk (Deceased), William F. Hawk, Individually and as
Independent Executor of the Estate of Thelma Hawk (Deceased)
Appeal from 239th District Court of Brazoria County (Judge Patrick Edward Sebesta)

Seidner v. Citibank (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Hedges)
[debt, sufficiency of the affidavit to prove the debt, business records affidavit, failure to preserve objection for
appellate review] [opinion not available on-line]
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-01096-CV Joel Seidner v. Citibank (South Dakota) N.A.
Appeal from Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block)

In Re Dhghani (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(per curiam)
[request for DNA testing, mandamus sought to compel hearing]
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Edelman and Frost
14-06-00499-CV In Re Mohammed Dehghani
Appeal from 183rd District Court of Harris County (Joan Huffman, former presiding judge, name of judge not shown
on docket sheet)
(“Judge Huffman is no longer on the bench. We recognize that, under Texas Rule of Appellate Procedure 7.2(b),
when one named in her official capacity as a party to an original proceeding no longer holds the office, abatement
is required to allow that party’s successor to “reconsider the original party’s decision.” However, in this case, there
was no decision rendered by Judge Huffman, and the record provided by relator does not show the trial court was
required to render a decision; therefore, abatement under these circumstances would be an exercise of futility.”)

In Re Bishop II (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(per curiam)
[civil procedure, alleged failure to rule on motion, mandamus denied]
MOTION OR WRIT DENIED: Per Curiam
Before Justices Hudson, Fowler and Seymore
14-06-00636-CV In Re: Charles W. Bishop II
Appeal from 80th District Court of Harris County
(Judge Kent Sullivan, former presiding judge who has since resigned)

In Re Whitworth (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(per curiam)
[discovery dispute, mandamus denied]
MOTION OR WRIT DENIED: Per Curiam
Before Justices Fowler, Edelman and Frost
14-06-00672-CV In Re: Terri Whitworth
Appeal from 129th District Court of Harris County (Judge Grant Dorfman; name not shown on docket sheet)

Aug. 22, 2006 - Court grants mandamus to reverse ruling of motion to disqualify attorney

In Re Bennet (Tex.App. - Houston [14th Dist.] August 22, 2006)(per curiam)(mandamus granted)
[professional ethics, attorney disqualification, conflict of interest, family relationships, representation of both
spouses prior to divorce]
MOTION OR WRIT GRANTED: Per Curiam
Before Justices Hudson, Fowler and Seymore
14-06-00537-CV In Re: Carrie Beth Bennett
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)
(“Because Jeremy did not show that Allen’s testimony was necessary to establish an essential element in the
divorce action and the trial court found there was no attorney-client relationship regarding the lease on Jeremy’s
separate property, recognizing the severity of disqualification, we conditionally grant relator’s petition for writ of
mandamus directing the trial court to vacate its order disqualifying Allen as counsel for relator. The writ will issue
only if the trial court fails to vacate its order.”)

Gardner v. Cummings (Tex.App. - Houston [14th Dist.] August 22, 2006, pet. denied 3/30/07)(Seymore)
[lease law, BoC, debt, statute of limitations, counter-defenses to limitations fail, estoppel, oral agreement to extend
deadline, due date, forbearance; grant of motion for new trial normally not appealable]
AFFIRMED: Opinion by Justice Seymore
Before Justices Hudson, Fowler and Seymore
14-04-01074-CV Bruce E. Gardner v. Claude Cummings Jr. & Ruth Cummings
Appeal from 234th District Court of Harris County (Judge Bruce D. Oakley)

Bhakta v. 2B2E, Inc. (Tex.App. - Houston [14th Dist.] August 22, 2006)(Seymore)
[suit on sworn account, building supplies, evidentiary objection, admission of evidence]
AFFIRMED: Opinion by Justice Seymore
Before Justices Hudson, Fowler and Seymore
14-04-01152-CV Mike Bhakta and Greenway Plaza Hospitality Inc. v. 2B2E, Inc., DBA Hughes Lumber-Plus
Appeal from Co Civil Ct at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull)

Arocha v. State Farm Mut. Auto. Ins. (Tex.App. - Houston [14th Dist.] August 22, 2006)(Edelman)
[PI, auto bicycle, civil procedure, jury trial, jury instruction issue, improper jury argument]
AFFIRMED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Guzman
14-05-00012-CV Bernard Arocha and Mary Arocha v. State Farm Mutual Automobile Insurance Company and
Chubb Lloyd's Insurance Company of Texas
Appeal from 333rd District Court of Harris County (Judge Joseph J. Halbach)

August 15, 2006 - Panel Hands down Decision in Minute Maid Park Construction
Dispute First Court of Appeals Affirms Trial Court in Contractors’ Dispute over
Minute Maid Park Retractable Roof

Hirschfeld Steel Co. v. Kellogg, Brown & Root, Inc., No. 14-04-00504-CV (Tex.App. - Houston [14th Dist.] Aug. 15,
2006 [warranty issue ripe for litigation even though no warranty claim made, void warrant, real controversy]
Hirschfeld Steel Co. v. KBR (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Frost)
[construction law, dispute between subcontractor and general contractor, breach of contract, warranty, retainage,
counterclaim, declaratory judgment]
AFFIRMED: Opinion by Justice Frost
Before Justices Fowler, Frost and Guzman
14-04-00504-CV Hirschfeld Steel Company, Inc. v. Kellogg Brown & Root, Inc., and Harris County-Houston Sports
Authority--Appeal from 270th District Court of Harris County
This case arises out of the construction of what is now known as Minute Maid Park and involves disputes among
the owner of the ball park, the general contractor, and one of its subcontractors. The subcontractor sued the
general contractor asserting contract claims for retainage and contract damages as well as seeking a declaratory
judgment against both the owner and the general contractor that the subcontractior’s ten-year warranty on the park’
s retractable roof was void. The general contractor asserted a counterclaim for breach of contract and declaratory
relief. The trial court granted summary judgment denying the subcontractor’s claims for declaratory relief against
the general contractor and the owner. After a jury trial, the trial court rendered judgment that both the
subcontractor and the general contractor take nothing on their claims against each other. On appeal, the
subcontractor (1) challenges the legal and factual sufficiency of the jury’s finding that it did not substantially
perform its duties under the subcontract, (2) asserts the trial court abused its discretion in admitting evidence
regarding the warranty, (3) claims the trial court erred in not rendering judgment in its favor on an allegedly
separate and independent contract claim for maintenance work on the roof, and (4) argues the trial court erred in
rendering summary judgment dismissing its declaratory-judgment claims. In its cross-appeal, the general contractor
asserts the trial court erred in denying it attorney’s fees under provisions of the subcontract allowing the prevailing
party in litigation between the subcontractor and the general contractor to recover attorney’s fees. We affirm the
trial court’s judgment.

August 15, 2006 - Thanks to sovereign immunity student may not sue state university for failure
to protect her from sexual assault

Dimas v. The Texas State University System (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Hedges)
[governmental entities law, TTCA, sexual assault, civil case, sovereign immunity, plea to the jurisdiction affirmed]
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00664-CV Marisa Dimas v. The Texas State University System, Et Al
Appeal from of County

Aug 15, 2006 - Suit by Children of Mother Killed in Collision Caused by Teen Driver Fails Thanks
to Sovereign Immunity

Townsend a/n/f of Patterson Children v. City of Alvin (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Hudson)
[governmental entity law, TTCA, sovereign immunity, auto fatality, police officer’s failure to take unauthorized drive
off the road, driver caused deadly collision, suit dismissed for lack of jurisdiction on the pleadings, no waiver]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00915-CV James Randel and Nancy Patterson , as Next Friends of Haley Patterson and Garrett Patterson v.
City of Alvin--Appeal from 239th District Court of Brazoria County
Raleigh Patterson, as next friend of Haley and Garrett Patterson, sued the City of Alvin (the “City”) for negligence
arising out of a fatal automobile accident. The trial court granted the City’s plea to the jurisdiction. On appeal,
James Randel and Nancy E. Townsend, appellants, substituted for Raleigh Patterson. The sole issue on appeal is
whether an Alvin police officer used or operated a vehicle in such a manner as to waive governmental immunity
under the Texas Tort Claims Act (TTCA). We affirm.
("The trial court heard no evidence on this jurisdictional issue, and the facts before us are taken from the pleadings
at trial. The plaintiffs’ petition alleged Scott Elliott, an Alvin, Texas police officer, conducted a traffic stop for a
speeding violation and learned the seventeen-year-old driver, Michael Leroux, was unlicensed, untrained, had no
insurance for the vehicle, and could provide no form of identification. Despite this knowledge, Officer Elliott
“exercised control” over Leroux’s vehicle and “exhibited bad faith when he commanded Leroux to drive straight
home.” Only minutes later, Leroux ran a red light and broadsided another car, killing its driver, Kimberly Patterson.
Raleigh Patterson, Kimberly Patterson’s husband, was a passenger in the vehicle. Raleigh and Kimberly had two
children at the time of the accident, eight-year-old Haley and three-year-old Garrett.
Raleigh Patterson, as next friend of Haley and Garrett (the “Pattersons”), sued the City, the Alvin Police
Department, and Officer Scott Elliott for negligence under the TTCA. The trial court granted the City’s plea to the
jurisdiction, and the Townsends bring this appeal.")
Holding: The Pattersons’ pleadings affirmatively negate the existence of jurisdiction, and we find the trial court did
not err by granting the City’s plea to the jurisdiction.

Stephen v. State (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Seymore)(criminal case)
[reversed for procedural error by prosecution]
REVERSED AND REMANDED: Opinion by Justice Seymore
Before Justices Hudson, Fowler and Seymore
14-04-00798-CR Fleck, Marcus Stephen v. The State of Texas
Appeal from 176th District Court of Harris County

August 10, 2006 - Termination of Parental Rights in Spanking Case Reversed

In Re JAJ (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Hudson)(op. on rehr’g)
[does corporal punishment constitute physical abuse supporting termination?]
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Hudson
Before Justices Brock Yates, Hudson and Mirabal
14-04-01031-CV In the Interest of J.A.J
Appeal from 314th District Court of Harris County (Hon. John Phillips)
Concurring/Dissenting Opinion by Justice Mirabal (opinion on rehearing)
[would reverse and remand; parental rights of unknown father, served by substitute service, should not have been
terminated]

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). In order to terminate parental rights, the State bears the burden to prove
both: (1) the parent engaged in one of the grounds for termination listed in section 161.001(1) of the Texas Family
Code; and (2) termination is in the child’s best interest. Tex. Fam. Code Ann. §161.001; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005).

Due to the severity and permanency of the termination of parental rights, the burden of proof at trial is heightened
to the clear and convincing evidence standard. Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re J.F.C., 96 S.
W.3d 256, 265-66 (Tex. 2002). This standard requires more proof than the preponderance of the evidence
standard in civil cases, but less than the reasonable doubt standard in criminal cases. In re J.F.C., 96 S.W.3d at
265-66. “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code Ann. § 101.007 (Vernon 2002).

Thomson v. Comm. for Lawyer Discipline (Tex.App.- Houston [14th Dist.] Aug. 10, 2006, pet. denied 4/20/07)(per
curiam) [DWOP, failure to timley file brief]
DISMISSED: Per Curiam
Before Justices Hudson, Fowler and Seymore
14-04-01155-CV B. Joe Thomson v. Commission for Lawyer Discipline
Appeal from 127th District Court of Harris County [judge’s name not shown]

Syleasing v. Tejas Avco (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Hudson)
[arbitration in the absence of agreement, equitable estoppel exception, motion to compel arbitration denied,
contract, quantum meruit]
AFFIRMED: Opinion by Justice Seymore
Before Justices Hudson, Frost and Seymore
14-05-00212-CV Skyleasing, LLC v. Tejas Avco Inc., D/B/A Houston Southwest Airport
Appeal from 240th District Court of Fort Bend County
(“A party’s right to litigate a dispute that the party has not agreed to arbitrate is at least as worthy of protection as a
bargained for right to arbitration.” Yazdani Beioky v. Bhandara, No. 14 00 01509 CV, 2001 WL 1429414, at *3,
(Tex. App.-Hous. [14 Dist.] Nov. 15, 2001, no pet.) (not designated for publication) (citing Freis, 877 S.W.2d at
284); see Jenkens & Gilchrist, 87 S.W.3d at 201. Because the “limited” circumstances warranting application of the
equitable estoppel doctrine are not clearly satisfied here, we hold the trial court did not abuse its discretion by
finding the Airport should not lose its right to litigate its dispute with Skyleasing - a complete stranger to the lease.
Accordingly, we overrule Skyleasing’s sole issue and affirm the trial court’s order denying Skyleasing’s motion to
compel arbitration.”)

Thomas v. Allstate Ins. Co. (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Frost)
[insurance code violation, second appeal, no evidence, proof of damages]
AFFIRMED: Opinion by Justice Frost
Before Justices Hudson, Frost and Seymore
14-05-00293-CV Glenn Thomas v. Allstate Insurance Company
Appeal from 152nd District Court of Harris County (Judge Kenneth Price Wise)

UT System v. Lucadou (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(per curiam)
DISMISSED: Per Curiam
Before Justices Anderson, Hudson and Guzman
14-06-00617-CV The University of Texas System v. Judith Lucadou
Appeal from 157th District Court of Harris County

August 10, 2006 - Recusal Fiasco - Judge Strikes Back - Court of Appeals Panel Divided

In Re Easton (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Hudson)
[writ of habeas corpus sought, contempt of court, ex parte communication with judge per email, multiple recusal
motions, did judge have authority to issue order with recusal motion pending?]
MOTION OR WRIT DENIED: Opinion by Justice Hudson
Before Justices Hudson, Frost and Seymore
14-06-00674-CV In Re: Michael Easton
Appeal from [Judge Wood]
Dissenting Opinion by Justice Seymore
(“I withdraw my dissenting opinion of August 10, 2006 and issue this corrected opinion. Consistent with our original
and supplemental opinions in In re Whatley, 2006 WL 1490161 (Tex. App.-Houston [14th Dist.] 2006, orig.
proceeding), Judge Wood was required to recuse himself or request assignment of another judge in the case prior
to taking any “further action in the case.” See Tex. R. Civ. P. 18a(d). The order which is the subject of Judge
Wood’s show cause proceeding was entered on February 7, 2006, during the pendency of the September 9, 2005,
motion to recuse. The majority has drawn a fine line by implicitly concluding that Judge Wood was not taking
“further action in the case” when he signed the February 7, 2006 order. I agree with the majority that Judge Wood
has the power, inherent in his office, to deal with persons who disobey lawful orders. However, upon issuance of
our original and supplemental opinions, the order sought to be enforced was rendered void. Accordingly, I
respectfully dissent.”)

August 8, 2006 - Denial of Uninsured Motorist Coverage Reversed

Jankowiak v. Allstate (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Hudson)
[consumer law, insurance law, auto, denial of claim for uninsured motorist coverage, contract construction, public
policy, SJ reversed]
REVERSED AND REMANDED: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00072-CV Harry Jankowiak and Pam Jankowiak Individually and as Next Friend of Laci Jankowiak v. Allstate
Property and Casualty Insurance Company
Appeal from 127th District Court of Harris County

Racciato v. Davies (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Frost)
[civil procedure law, preservation of evidentiary objections, evidence, exclusion of witness testimony]
AFFIRMED: Opinion by Justice Frost
Before Justices Hudson, Fowler and Frost
14-05-00354-CV Steven Racciato v. Al Davies
Appeal from 11th District Court of Harris County (Judge Mark Davidson)

Lee v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 8, 2006, pet denied 12/1/06)(Fowler)
[real estate law, municipal ordinance, repair to property, due process, suits involving City of Houston]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00366-CV Susan C. Lee v. City of Houston
Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

In Re J .B .H . (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Yates)
[SAPCR. family law, judicial immunity, lack of jurisdiction]
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00745-CV In the Interest of J.B.H., a Minor Child
Appeal from 306th District Court of Galveston County

In re Whatley (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Seymore)
[recuse, multiple recusal motions, tertiary motion]
MOTION OR WRIT DENIED: Opinion by Justice Seymore
Before Justices Hudson, Frost and Seymore
14-05-01222-CV In Re: Dawn Johnson Whatley
Appeal from Probate Court No 2 of Harris County

Lewis v. State (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Hudson)(criminal case)
[criminal law, evading arrest, escape, conviction reversed]
REVERSED AND ACQUITTAL: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00369-CR Warner, Grady Lewis v. The State of Texas
Appeal from 21st District Court of Burleson County

Mount v. State (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(Frost)(criminal case)
AFFIRMED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00842-CR Mike Seymour Mount v. The State of Texas
Appeal from Co Crim Ct at Law No 11 of Harris County
Concurring opinion by Justice Edelman

Aug. 3, 2006 - Late Notice of Appeal Proves Fatal - Time and Again

Cartmill v. Cartmill (Tex.App.– Houston [14th Dist.] August 3, 2006)(per curiam)
[untimely notice of appeal, appellate deadlines, DWOJ]
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-06-00583-CV Robert A. Cartmill v. Michelle M. Cartmill
Appeal from 247th District Court of Harris County Judge Bonnie Crane Hellums (family court)
(“Once the fifteen-day extension period for filing a notice of appeal has passed without filing a notice of appeal, a
party can no longer invoke the appellate court’s jurisdiction. Verburgt, 959 S.W.2d at 617; In re Estate of Padilla,
103 S.W.3d 563, 567 (Tex. App.-San Antonio 2003, no pet.). A timely notice of appeal is essential to invoke our
appellate jurisdiction. In re A.L.B., 56 S.W.3d 651, 652 (Tex. App.-Waco 2003, no pet.). If the notice is untimely,
then the court of appeals can take no action other than to dismiss the proceeding. Id. Because the notice of
appeal in this case was filed beyond the fifteen-day extension period, we have no choice but to dismiss the appeal.
Accordingly, we deny appellant’s motion for extension of time to file his notice of appeal. The appeal is ordered
dismissed for want of jurisdiction.”)

Aug. 3, 2006 - Award of net assets to one spouse and net liabilities to the other affirmed

Combe-Obadia v. Combe Ovadia (Tex.App.– Houston [14th Dist.] August 3, 2006)(Hudson)
[appeal of property division, award of more liabilities than assets, waste of community assets as a factor, under-
reporting of income, economic contribution disputed]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Frost and Seymore
14-04-01028-CV Patrick J. Combe-Ovadia v. Amarit Gonzalez Combe-Ovadia
Appeal from 245th District Court of Harris County (Judge G. Annette Galik now known was Kuntz)(family court)

Aug. 3, 2006 - Order dismissing prisoner's suit changed to dismissal without prejudice

Aranda v. Goodrum (Tex.App.– Houston [14th Dist.] August 3, 2006)(Frost)
[prisoner IFP pro se suit dismissal with prejudice without prejudice, failure to comply with affidavit requirement,
disclosure of prior suits, judgment reformed]
AFFIRMED AS MODIFIED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00119-CV Roque Aranda # 805045 v. Ray Goodrum, Virginia Stewart, Et Al
Appeal from 278th District Court of Walker County (Judge Kenneth Keeling)
(”Appellant Roque Aranda challenges the trial court’s dismissal of his suit under Chapter 14 of the Texas Civil
Practice and Remedies Code. Finding that the trial court erred in dismissing the suit with prejudice, we modify the
judgment to delete “with prejudice” and affirm the judgment as modified”)

Aug. 3, 2006 - Edelman delivers a rare reversal of a criminal conviction

Malone v. State (Tex.App.– Houston [14th Dist.] August 3, 2006)(Edelman)(criminal case)
[drug possession, informant, NOTE: The vast majority of criminal appeals are dismissed or denied; only reversals
or cases with separate opinions are reported here]
REVERSED AND ACQUITTAL: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Guzman
14-05-00033-CR Malone, James v. The State of Texas
Appeal from 23rd District Court of Brazoria County
(“Because the corroborating evidence necessary to sustain appellant’s conviction is lacking, we sustain appellant’s
first issue and thus need not address his second issue. Accordingly, we reverse the judgment of the trial court and
render judgment of acquittal.”)

August 1, 2006 - Former Justices Help Decide Attorney Fees Disputes

Purnell Furniture Serv., Inc. v. Warehouse Rack Co. (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Mirabal)
[business dispute, breach of contract, BoC, DTPA, affirmative defenses, waiver, excuse, pass-through claims,
subcontractors, sufficiency review, attorneys fees testimony, segregation]
AFFIRMED: Opinion by Justice Mirabal
Before Judge Amidei, Justices Hudson and Mirabal [Senior Justices Margaret Mirabal and Maurice Amidei sitting by
assignment.]
14-04-00270-CV Purnell Furniture Services, Inc. v. Warehouse Rack Company
Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

Madeskho v. Watkins (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Edelman)
[attorney’s fee dispute, admission of evidence on reasonableness of fees, settlement agreement, attorney fee
sharing action]
AFFIRMED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Guzman
14-04-01062-CV Lawrence Madeksho v. Abraham Watkins, Nichols & Friend (A Partnership) and The Law Offices
of Robert E. Ballard, P.C
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)

August 1, 2006 - Asbestos Liability Claim Rejected on No-Duty Grounds

Exxon Mobile Corp. v. Altimore (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Anderson)(first superseded
opinion) [asbestos liability claim based on exposure through husband’s work clothes fails]
REVERSED AND RENDERED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Seymore
14-04-01133-CV Exxon Mobile Corporation v. Louise Altimore
Appeal from 405th District Court of Galveston County (Judge Wayne J. Mallia)
(“Having found Exxon did not owe appellee a duty, we reverse the judgment of the trial court and render judgment
that appellee take nothing on her claim against Exxon.”)

August 1, 2006 - Medical Malpractice Expert Report Must Be Filed Timely
Nonsuit and Refiling Not a Viable Solution

D’Arcy v. Mead (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Harvey Hudson)
[health care liability claim, untimely filing of expert report, interlocutory appeal ILA, suit barred, 120-day period
started to run when first suite filed, nonsuit and refiling not viable as a remedy]
REVERSED AND REMANDED: Opinion by Justice Hudson
Before Judge Amidei, Justices Hudson and Mirabal (Senior Justice Margaret Garner Mirabal and Former Justice
Maurice E. Amidei sitting by assignment.)
14-04-01220-CV Daniel D'Arcy, M.D v. James F. Mead, Jr. and Diane P. Mead, Individually, and As Next Friends of
James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors
Appeal from 333rd District Court of Harris County (Judge Joseph J. Halbach)

August 1, 2006 - Homeowners Can't Collect From State for Flood Damage Cause By Road Work

Ahart v. Tex. Dep’t of Transp. (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Hudson)
[inverse condemnation claim for damages, takings claim under Texas constitution, flood damages to home as a
result of construction project, plea to the jurisdiction affirmed, intent element missing, only causation shown]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Fowler and Seymore
14-05-00027-CV Delores Ahart Et Al v. Texas Department of Transportation
Appeal from Co Civil Ct at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull)

August 1, 2006 - Lousy Briefing Dooms Appeal

Roundtree v. Otto (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Fowler)
[Affirmed, inadequate appellate briefing, citation of authority and record]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00069-CV Carol Roundtree and Kelley Palmer, Individually and as next of friends of Amanda, Palmer,
Benjamin Palmer and Brain Palmer, Minors v. Steve Otto d/b/a KNS Construction Services; KNS Construction SVS
and Allstate Texas Lloyds Co.
Appeal from 133rd District Court of Harris County (Judge Lamar McCorkle)

August 1, 2006 - Mandamus Sought in Discovery Disputes

In Re Baldridge (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(per curiam)
[mandamus sought regarding trial court discovery orders]
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Hudson and Guzman)
14-06-00647-CV In Re: William E. Baldridge, Jimi Lea Conway, D. Kimberli Wallace, TMPR, Inc., CMPR, Inc., Cliff
Management Inc., Cliff Management I, Ltd. and Trimark Realty Investments Inc.
Appeal from 11th District Court of Harris County (Judge Tony Lindsey)

In Re McCloskey (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(per curiam)
[mandamus sought regarding striking of pleadings in the trial court]
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Edelman and Frost)
14-06-00631-CV In Re Christopher J. McCloskey
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)

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