August 2006 Opinions From the First Court of Appeals (Houston, Texas)

August 31, 2006

Civil Causes Decided:

De Leon v. Hernandez (Tex.App.- Houston [1st. Dist.] Aug 31, 2006, pet denied 4/20/07)(Higley)(workplace death)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Nuchia, Jennings and Higley
01-03-00806-CV        Tomas De Leon as Administrator, et al v. Francisco Hernandez, et al
Appeal from Probate Court No 2 of Harris County

DISMISS APPEAL: Per Curiam
(Before Chief Justice Radack, Justices Taft and Keyes)
01-04-00823-CV        Lawrence R. Evans v. Robert Schverak, Independent Executor of the Estate of Judith A.
Davault--Appeal from Probate Court No 1 of Harris County

Goudeau v. Rodriguez and U.S. Fidelity & Guarantee Co (Tex.App.- Houston [1st Dist.] Aug. 31, 2006)(Taft)(auto
PI, insurance law, UIM coverage)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Taft
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-04-01168-CV        Louis Goudeau and Tasha Goudeau v. Alex Rodriguez and United States Fidelity &
Guaranty Company--Appeal from 280th District Court of Harris County

Approx. $8,250.00 v. State of Texas (Tex.App.-Houston [1st Dist.] Aug. 31, 2006)(Hanks)(forfeiture)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Jennings, Hanks and Higley)
01-04-01221-CV        Approximately $8,250.00 (Eric Moncevaiz Vasquez) v. The State of Texas
Appeal from 165th District Court of Harris County

City of Pasadena v. Thomas (Tex.App.- Houston [1st Dist.] Aur. 31, 2006)(Radack)(TTCA, immunity)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-00333-CV        City of Pasadena v. James Thomas
Appeal from 334th District Court of Harris County

Kubosh v. State of Texas (Tex.App.- Houston [1st Dist.] Aug. 31, 2006)(Hanks)(surety, bail bond, forfeiture,
default judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Jennings, Hanks and Higley)
01-05-00401-CV        Surety Felix Michael Kubosh v. The State of Texas
Appeal from 174th District Court of Harris County

Kubosh v. State of Texas (Tex.App.- Houston [1st Dist.] Aug. 31, 2006)(Hanks)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Jennings, Hanks and Higley)
01-05-00402-CV        Surety Felix Michael Kubosh v. The State of Texas
Appeal from 174th District Court of Harris County

Alpert v. Gerstner (Tex.App.- Houston [1st Dist.] Aug. 31, 2006, pet. denied 6/1/2007)(Jennings)(breach of
fiduciary duty, judicial immunity)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Jennings
(Before Judge Price, Justices Jennings and Alcala)
01-05-00418-CV        Roman Merker Alpert and Renne Picazo, n/f/o Daniel Alpert v. Karen S. Gerstner, Ind., and
as Receiver for the Roman Merker Alpert Trust, The Daniel James Alpert Trust and The Robert Alpert 1996
Children's Trust, and Davis, Ridout, Jones and Gerstner, L.L.P.
Appeal from Probate Court No 2 of Harris County

Internconex Inc. v Ugaro (Tex.App. [1st Dist.] May 3, 2007)((Jennings) (opinion on rehearing)
Interconex Inc. v. Ugaro. No. 01-05-00524-CV (Tex.App.- Houston [1st Dist.] Aug. 31, 2006)(superseded)
[breach of contract, negligence, defamation, default judgment law, failure to answer, conscious indifference,
conclusory evidence]
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
(Before Chief Justice Radack, Justices Jennings and Alcala)
01-05-00524-CV        Interconex, Inc., d/b/a Interdeaninterconex v. Nick Ugarov
Appeal from 280th District Court of Harris County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-05-00545-CV        In re Country Village Homes, Inc., M.B. Schauer, Schauer Family Trust, M.B. Schauer
Homes, Inc., and B&A Realty, Inc.
Appeal from 55th District Court of Harris County

DISMISS APPEAL: Opinion by Justice Hanks
(Before Justices Nuchia, Keyes and Hanks)
01-05-00664-CV        In The Interest of S.T., A Minor Child
Appeal from 310th District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Taft, Keyes and Bland)
01-06-00289-CV        C-Port, L.L.C., C-Port 2, L.L.C. and Dino Chouest v. The Board of Trustees of the Galveston
Wharves--Appeal from 10th District Court of Galveston County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-06-00406-CV        In re GEICO General Insurance Company
Appeal from 405th District Court of Galveston County

DISMISS APPEAL: Per Curiam
(Before Justices Taft, Keyes and Bland)
01-06-00628-CV        Gary Chouest v. The Board of Trustees of the Galveston Wharves
Appeal from 10th District Court of Galveston County

DISMISS APPEAL: Per Curiam
(Before Justices Nuchia, Jennings and Higley)
01-06-00723-CV        Deep Marine Technology Incorportated v. Tetra Technologies, Inc.
Appeal from 280th District Court of Harris County

August 29, 2006

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Justices Nuchia, Keyes and Hanks)
01-06-00279-CV In re Charles Hadnot--Appeal from 257th District Court of Harris County

August 28, 2006

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00731-CV In re Douglas A. Terry, D.D.S., Douglas A. Terry, D.D.S., Inc., and Douglas A. Terry Enterprises,
Inc.--Appeal from 234th District Court of Harris County

August 24, 2006

Houston Pipeline Co. v. Bank of America (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Alcala)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Hanks
01-03-01263-CV Houston Pipeline Company, LP v. Bank of America, N.A., As Administrative Agent, and as
Representative of the Wilmington Trust Company, Trustee of the Bammel Gas Trust
Appeal from 280th District Court of Harris County (Judge Tony Lindsay)

Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Taft)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Keyes and Hanks
01-04-00427-CV Brenda Joyce Gainous v. Thomas Earl Gainous
Appeal from 246th District Court of Harris County (Judge Jim York)
Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(concurring opinion by Hanks)
Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(dissenting opinion by Keyes)

Love v. Love (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Radack)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice
Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00564-CV Albert Love v. Sophia Bailey-Love
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)

Richardson-Eagle v. Mercer Inc. (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Radack)
[tortious interference with prospective business relations, DTPA, consumer status, insurance code violations]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Alcala
01-04-01000-CV Richardson-Eagle, Inc. v. William M. Mercer Incorporated, William M. Mercer of Texas, Inc., and
Rupa Mathur
Appeal from 129th District Court of Harris County (Judge Grant Dorfman)

In re Metro (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Radack)
[rule of civil procedure, jurisdiction, void judgment, nullity, plenary jurisdiction]
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01128-CV In re Metropolitan Transit Authority
Appeal from 234th District Court of Harris County (Judge Reece Rondon)
In Re Metro (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(concurring opinion by Jennings)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01128-CV In re Metropolitan Transit Authority
Appeal from 234th District Court of Harris County (Hon. Reece Rondon)

Metro v. Jackson (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Jennings)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01157-CV Metropolitan Transit Authority v. Edward Jackson
Appeal from 234th District Court of Harris County The Honorable Bruce Oakley

Holloway-Houston v. Gulf Coast Bank (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Keyes)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Bland
01-05-00086-CV Holloway-Houston, Inc. v. Gulf Coast Bank & Trust Company
Appeal from Co Civil Ct at Law No 1 of Harris County (Judge Jack Cagle)

Cruz v. State (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Radack)(criminal case)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice
Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00243-CR Angel Luis Cruz v. The State of Texas
Appeal from 228th District Court of Harris County (Judge Marc C. Carter)

August 17, 2006

Lewis v. Pearland Plaza (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)(Alcala)
[real estate law, landlord tenant, breach of lease case, sj reversed]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-00419-CV Carolyn Bowen Lewis and Carolyn Bowen Lewis Inc. v. Pearland Plaza Partners
Appeal from Co Ct at Law No 1 & Probate Ct of Brazoria County (Hon. Jerri Lee Mills)
Having held that a fact issue regarding Lewis and the Corporations’s affirmative defense of breach of the implied
warranty of suitability precludes summary judgment, we need not address their other issues. We reverse the
judgment of the trial court and remand this cause for proceedings not inconsistent with this opinion.

Bowles v. State (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)(Radack)
[constitutional law, release of liens, constitutional challenge to criminal law rejected on standing grounds]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00801-CV Harry L. Bowles v. The State of Texas
Appeal from 61st District Court of Harris County (Hon. John Donovan)

Lazare v. Murillo (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)(Bland)
[civil procedure law, motion for continuance, no notice of reset sj hearing, judgment reversed]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-05-00688-CV Joseph Wilton Lazare v. Xiomara Murillo
Appeal from 334th District Court of Harris County (Hon. Reece Rondon)
(“We conclude that Lazare did not receive notice of the rescheduled summary judgment hearing. We therefore
reverse and remand for further proceedings.”)

TWU v. Methodist Hospital (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)
[law suit over flood damage]
Before Justices Jennings, Hanks and Higley
01-05-01078-CV Texas Woman's University v. The Methodist Hospital, The Methodist Hospital Foundation and
The Methodist Hospital Healthcare System
Appeal from 151st District Court of Harris County (Hon. Caroline E. Baker)

August 10, 2006

Cartmell v. Rainbow Healthcare Serv’s (Tex.App.– Houston [1st Dist.] Aug. 10, 2006)(Bland)
[breach of oral contract, surety, billing services, DTPA, no-evidence motion for summary judgment, NE-MSJ]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-04-01189-CV Betty M. Cartmell, Ph.D. v. Rainbow Healthcare Services
Appeal from 55th District Court of Harris County (Hon. Tracy Christopher)

Triumph Trucking v. Southern Corp. Ins. Mgr’s (Tex.App.– Houston [1st Dist.] Aug. 10, 2006)(Nuchia)
[pretrial turnover of interpleaded funds, breach of contract, breach of fiduciary duty, violation of the insurance
code and the deceptive trades practices act, DTPA, fraud, collateral source rule, exception to single satisfaction
rule, dual recovery, judge may not testify, exclusion of evidence]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00529-CV Triumph Trucking, Inc. v. Southern Corporate Insurance Managers, Inc., d/b/a Transportation
Insurance Managers
Appeal from 157th District Court of Harris County (Honorable Randall Wilson)

In Re Hood & Assoc. (Tex.App.– Houston [1st Dist.] Aug. 10, 2006)(per curiam)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
[mandamus denied; adequate remedy by appeal because trial judge severed relator’s claims against real party in
interest and rendered a final, appealable judgment]
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00695-CV In re Billy Hood & Associates, Inc.
Appeal from 152nd District Court of Harris County (Ken Wise)

Aug 3, 2006 - First Court of Appeals Applies Supreme Court's Recent Immunity Holding in
Tooke v. City of Mexia, overrules contractor’s argument that statutory “sue and be sued”
language waived school district's immunity; and rejects waiver-by -conduct theory as an
alternative

Channelview I.S.D. v. A. R. C. I. Ltd (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[breach of contract BoC, sovereign immunity, sue and be sued provision in Tex. Educ. Code Ann. § 11.151(a)
(Vernon 2006), waiver by conduct, new statutory waiver enacted by legislature]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Higley and Bland
01-04-00556-CV Channelview Independent School District v. A.R.C.I., Ltd.
Appeal from Co Civil Ct at Law No 2 of Harris County
(“Following the Texas Supreme Court’s holding in Tooke v. City of Mexia—and the court’s application of it to
section 11.151(a) in a companion case—we hold that the “sue and be sued” language in the statute does not
waive Channelview’s immunity from suit. Tooke v. City of Mexia, 49 Tex. Sup. Ct. J. 819, 2006 WL 1792223 (Tex.
June 30, 2006); Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 49 Tex. Sup. Ct. J. 861, 2006 WL
1793473 (Tex. June 30, 2006) (per curiam). We therefore reverse the trial court’s denial of Channelview’s plea to
the jurisdiction and remand the cause for further proceedings.”)

August 4, 2006 - Mandamus Issued to Protect Corporate Executive From Deposition

In Re BP Products (Tex.App.– Houston [1st Dist.] August 4, 2006)(Alcala)
[discovery, apex deposition, objection, motion to strike, sufficiency of affidavit]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-06-00613-CV In re BP Products North America, Inc.
Appeal from 212th District Court of Galveston County (Hon. Susan Elizabeth Criss)

In ordering or preventing an apex deposition, a trial court must apply the guidelines set out in Crown Central
Petroleum Corporation v. Garcia, 904 S.W.2d 125 (Tex. 1995). In re Daisy Mfg. Co., 17 S.W.3d 654, 656 (Tex.
2000). Under Crown Central, a corporation may shield a high-level corporate official from a deposition by filing a
motion for a protective order with an affidavit by the official “denying any knowledge of relevant facts.” Crown
Central, 904 S.W.2d at 128. Pursuant to the Texas Rules of Civil Procedure, “[a] person has knowledge of
relevant facts when that person has or may have knowledge of any discoverable matter. The person need not
have admissible information or personal knowledge of the facts.” Tex. R. Civ. P. 192.3(c).
(“We conclude that Manzoni sufficiently denied any knowledge of relevant facts and that BP provided the trial court
with a sufficient affidavit under Crown Central. See id. at 175; Burlington, 99 S.W.3d at 326.Conclusion
We hold that the trial court abused its discretion in striking BP’s affidavit. We therefore conditionally grant BP’s
petition for writ of mandamus, direct the trial court to vacate its June 21, 2006 order striking BP’s affidavit, and
direct the trial court to reinstate BP’s motion for protection.“)

August 3, 2006 - Substantial Attorney Fees Award in Vigorously Contested Eviction Case
Affirmed - Note: This opinion was withdrawn and a substitute opinion was issued Dec. 14, 2006

Millwork, Inc. v. West Houston Airport Corp. (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Alcala)(op. withdrawn)
[eviction, forcible entry and detainer FE&D, commercial lease, assigned, no appellate jurisdiction, DWOJ;
jurisdiction of JP court, appeal to county court, amount of recoverable damages and attorney’s fees in excess of
$5,000; award of $28,623.10 as reasonably necessary fees affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-03-01214-CV Volume Millwork, Inc v. West Houston Airport Corporation
Appeal from Co Civil Ct at Law No 1 of Harris County (Hon. Jack Cagle)
(“We have no jurisdiction to review either the county court’s determination on the issue of landlord’s possession of
the [commercial premises] or any finding by the trial court that is essential to the issue of possession of the
hangar. Tex. Prop. Code Ann. § 24.007; fee award affirmed")

Heritage Housing Development, Inc. v. Carr (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[nursing home care, neglect, vicarious liability issue]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00096-CV Heritage Housing Development, Inc., f/k/a Heritage Geriatric Housing Development, Inc.; Heritage
Geriatric Housing Development VIII, Inc. v. Velma Carr, as Heir at Law and Representative of the Estate of
Raymond Carr, Deceased
Appeal from 152nd District Court of Harris County (Hon. Kenneth P. Wise)
("Applying St. Joseph Hospital, we hold the evidence is legally insufficient to support the jury’s verdict against HHD
based on a theory of vicarious liability, but hold the evidence is legally sufficient to support the jury’s verdict as to
Houston Gardens under that theory. 94 S.W.3d at 543. We therefore reverse the judgment against HHD and
render judgment in its favor. The jury apportioned liability among HHD and Houston Gardens, and awarded
damages against each defendant. We cannot be reasonably certain that the inclusion of HHD in the charge did not
affect the jury’s findings as to damages and the apportionment of liability with respect to Houston Gardens. We
therefore remand the case for a new trial as to Houston Gardens.")

Aug 3, 2006 - Following Tooke v. City of Mexia Justice Bland rejects contractor’s immunity-
waiver theory based on “sue and be sued” language; also rejects waiver-by-conduct argument

Channelview I.S.D. v. A. R. C. I. Ltd (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[breach of contract BoC, sovereign immunity, sue and be sued provision in Tex. Educ. Code Ann. § 11.151(a)
(Vernon 2006), waiver by conduct, new statutory waiver enacted by legislature]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Higley and Bland
01-04-00556-CV Channelview Independent School District v. A.R.C.I., Ltd.
Appeal from Co Civil Ct at Law No 2 of Harris County
(“Following the Texas Supreme Court’s holding in Tooke v. City of Mexia—and the court’s application of it to
section 11.151(a) in a companion case—we hold that the “sue and be sued” language in the statute does not
waive Channelview’s immunity from suit. Tooke v. City of Mexia, 49 Tex. Sup. Ct. J. 819, 2006 WL 1792223 (Tex.
June 30, 2006); Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 49 Tex. Sup. Ct. J. 861, 2006 WL
1793473 (Tex. June 30, 2006) (per curiam). We therefore reverse the trial court’s denial of Channelview’s plea to
the jurisdiction and remand the cause for further proceedings.”)
(“Following the Texas Supreme Court’s decision in Tooke, we hold that the “sue and be sued” language in section
11.151(a) of the Texas Education Code does not waive Channelview’s immunity from suit. See Tooke, 49 Tex.
Sup. Ct. J. at 830, 2006 WL 1792223, at *11.”)

Trust Investment Group Mortgage Division v. First Capital (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Radack)
[procedural law, tax foreclosure suit, right to redemption, trespass to try title; sj affirmed, not all bases for sj
challenged, must address all bases, complain about grant of grant summary judgment generally]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00762-CV Trust Investment Group Mortgage Division, Inc. v. First Capital Interest, L.L.C., Trust Investment
Group, S.A., and Angeles Gonzalez
Appeal from 295th District Court of Harris County

Churchill v. Mayo (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Alcala)
[abandonment of homestead, admission exclusion of summary judgment evidence, challenges to summary
judgment affidavit overrule, based on personal knowledge]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Bland
01-04-00787-CV Evelyn Churchill v. Donna Kathleen Mayo, as Administratrix of the Estate of Kenneth David
Churchill, Deceased
Appeal from County Court at Law No 2 of Fort Bend County
(“Given the tax statements and Evelyn’s affidavit, we conclude that Evelyn presented more than a scintilla of
evidence that she had not abandoned homestead rights in the property in response to Mayo’s motion for summary
judgment. ... Because Evelyn’s proof raises a genuine issue of material fact, the trial court erred by rendering the
summary judgment against her.”)

Di Portanova v. Monroe (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Radack)
[incapacitated person, trust, trustee’s discretion, no justiciable controversy in part, declaratory judgment]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Nuchia
01-04-00992-CV Paul Piero Di Portanova; Antonella Apuzzo Di Portanova; and Max Butler, Robert Hux, and Robert
A. Higley, as Co-Trustees of the H.R. Cullen and Lillie C. Cullen New Louisiana Trust for the Benefit of Ugo Di
Portanova v. Richard E. Monroe, Jr. Successor to Jack T. Trotter, Guardian of the Estate of Ugo Di Portanova, an
Incapicitated Person
Appeal from Probate Court No 2 of Harris County (Hon. Mike Wood)

Aug 3, 2006 - Error in Award of Disability Benefits in Divorce Uncorrectable

Baker v. Baker (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Hanks)(on motion for rehearing)
[divorce, division or property, retirement benefits, VA disability pay, motion for enforcement and clarification,
motion to modify]
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-05-00178-CV Michael Allen Baker v. Karen Ruth Baker
Appeal from 246th District Court of Harris County (Hon. Russell Lloyd)
Asking the court to consider Baker’s VA disability pay through a motion for enforcement and clarification and not a
motion to modify the divorce decree would have required the trial court to alter or change the substantive division
of property and, thus, was a request beyond the power of the trial court. See Tex. Fam. Code Ann. § 9.007(b).
Such relief can only be considered upon the timely filing of a motion to modify the divorce decree. See, e.g.,
Bloomer v. Bloomer, 927 S.W.2d 118, 119 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (providing proper
method to challenge characterization of military retirement benefits in final divorce decree).

In a divorce, a trial court shall divide the parties’ marital estate in a manner that the court determines is just and
right, having regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001
(Vernon 2003). However, once the marital estate is divided, a court may not amend, modify, alter, or change the
division of property made or approved in the decree of divorce or annulment. Tex. Fam. Code Ann. § 9.007 (b)
(Vernon 2003). An order to enforce the division is limited to an order to assist in the implementation of or to clarify
the prior order and may not alter or change the substantive division of property. Tex. Fam. Code Ann. § 9.007 (a)
(Vernon 2003). An order that amends, modifies, alters, or changes the division of property made or approved in a
final decree of divorce is beyond the trial court’s power and is unenforceable. Tex. Fam. Code Ann. § 9.007 (b).

If the trial court finds that the original form of the division of property is not specific enough to be enforceable by
contempt, it may render a clarifying order setting forth specific terms to enforce compliance with the original
division of property awarded by the divorce decree. See Tex. Fam. Code Ann. § 9.008 (Vernon 2003). Clarifying
orders may more precisely specify the manner of carrying out the property division previously ordered so long as
the substantive division of the property is not altered. McPherren v. McPherren, 967 S.W.2d 485, 490 (Tex. App.—
El Paso 1998, no pet.).

Opinion Concurring with this Court's Judgment: Opinion by Justice Keyes
(“Donovan’s 50% interest in Baker’s military retirement benefits became a vested right in the final divorce decree
that issued in 1987. Even though the trial court improperly awarded Donovan benefits that, by statute, were Baker’
s separate property, Baker did not timely complain. Under Berry and its progeny, the division of property in the
divorce decree is res judicata, and the property may not now be reapportioned. See Berry, 786 S.W.2d at 673;
Trahan, 894 S.W.2d at 119; Jones v. Jones, 900 S.W.2d 786, 787–88 (Tex. App.—San Antonio 1995, writ denied)
(holding that res judicata barred former husband’s collateral attack on final unappealed divorce decree entitling
former wife to portion of military retirement pay when husband argued that disability benefits he accepted in lieu of
retirement benefits were not subject to division). I, therefore, concur with the majority that the judgment of the trial
court should be affirmed.”)

Johnson v. Ragin (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Nuchia)
[pro se prisoner suit, IFP]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00184-CV John H. Johnson v. J. Ragin, J. Ackley, D. Sutton, M. Duke, R. Jenkins Jr. , S. Hughes , M.
Biscamp , B. Hutchison , A. McComb , E. Guiterrez, S. Rich , and W. Jones
Appeal from 12th District Court of Walker County (Hon. Kenneth Keeling)

Boondoggles Corp. v. Yancey (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Radack)
[BoC, employment contract, restaurant manager, modification of contract, contract construction, ambiguous
contract, bonus pay, 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.”)

Cervantes-Peterson v. Department of Family and Protective Services (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)
(Jennings)(en banc)
[termination of parental rights, drug baby]
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland
01-05-00307-CV Kovey Amanette Cervantes-Peterson a/k/a Kovey Peterson Cervantes a/k/a Kovey Turner
Cervantes v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County (Hon. John Phillips)

Roberson v. Collins (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Keyes)
[auto PI, damages, failure to preserve error, admission of evidence of damage to vehicle, photos]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Bland
01-05-00471-CV Dennis Roberson v. Benjamin Collins
Appeal from 55th District Court of Harris County (The Honorable Jeffrey Vince)

Ruiz v. Dept. of Family and Protective Serv’s (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jennings)
[termination of parental rights reversed, neglect]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Higley
01-05-00556-CV Monica Ruiz v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County (Hon. John Phillips)

Bowen v. Robinson (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Taft)
[breach of contract, quantum meruit in the alternative, implied partnership agreement, breach,
measure of damages, lost profits, owner non expert testimony on property value, pleadings as judicial admissions,
fair notice pleading, pleading in the alternative]
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Higley and Bland
01-05-00605-CV Max Bowen, Individually and d/b/a Max Bowen Enterprises v. Roy B. Robinson
Appeal from 122nd District Court of Galveston County (Hon. John Ellisor)

Price v. Divita (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Radack)
[HCLC, medical malpractice, ADD medication, negligence, proximate cause, expert testimony, admission exclusion
of evidence, former attorney with gambling problem, theft of client funds]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00799-CV Gordon Allen Price v. Eugene C. Divita, M.D. d/b/a Gene DiVita, M.D., P.A.
Appeal from 269th District Court of Harris County (Hon. John Thomas Wooldridge)

Ahmed v. Ahmed (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[family business dissolution, breach of settlement agreement, ILA, Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)
(1) (Vernon Supp. 2005) (authorizing interlocutory appeal from order appointing receiver), appointment of receiver
to liquidate, Texas Business Corporation Act. Tex. Bus. Corp. Act Ann. art. 7.05]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-05-00848-CV Ijaz Ahmed v. Maleeha Ahmed
Appeal from 9th District Court of Waller County (Hon. Frederick Edwards)
We conclude that the trial court failed to comply with Rule 695a when it appointed a receiver without requiring
Maleeha to file a bond with the clerk of the court payable to Ijaz. We therefore reverse the trial court’s order
appointing the receiver, and order the receivership dissolved.

Nash v. Nash (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[ILA dismissed, finality, no final appealable order, judgment]
DISMISS APPEAL: Per Curiam
Before Justices Jennings, Hanks and Higley
01-06-00086-CV Brent Stephen Nash v. Rebecca Lynn Moore
Appeal from 308th District Court of Harris County
We dismiss the appeal for want of jurisdiction because there is no appealable order in the record. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“The general rule, with a few mostly statutory exceptions, is that
an appeal may be taken only from a final judgment.”); Tex. R. App. P. 42.3(a). There are no statutory exceptions
applicable here. It is unnecessary to give 10 days notice of this dismissal because the parties have filed a joint
motion to dismiss the appeal, representing to the Court that they have settled and compromised their differences
and wish to have the appeal dismissed.

Brown v. State I   (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
[offense of impersonating a police officer]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-05-00074-CR Robert Anthony Brown v. The State of Texas
Appeal from 228th District Court of Harris County
(“We affirm the impersonation judgment and reverse and remand the aggravated robbery judgment for further
proceedings.”)

Brown v. State II (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Bland)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-05-00075-CR Robert Anthony Brown v. The State of Texas
Appeal from 228th District Court of Harris County
(“We affirm the impersonation judgment and reverse and remand the aggravated robbery judgment for further
proceedings.”)