July 2006 Decisions From the First Court of Appeals (Tex.App.- Houston)

July 31, 2006 - Summary Judgment Reversed in Suit in Challenging Jail Rules Violating Free
Exercise of Religion Clause

Balawajder v. TDCJ-ID (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Alcala)
[first amendment law, free exercise of religion in prison, administrative policy challenged, sj reversed b/c fact
questions remain]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Alcala
Before Justices Keyes, Alcala and Bland
01-04-00820-CV Jeffrey Balawajder v. Texas Department of Criminal Justice Institutional Division
Appeal from 12th District Court of Grimes County (Hon. William McAdams )

July 27, 2006

City of Houston v. Levingston (Tex.App- Houston [1st Dist.] Jul. 27, 2006)(Jennings)(Whistleblower Act)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Taft, Jennings and Bland
01-03-00678-CV City of Houston v. Sam Levingston, DVM
Appeal from 125th District Court of Harris County (Judge John Coselli)

Calhoun v. Ying (Tex.App.- Houston [1st Dist.] Jul 27, 2006)(Jennings)(conversion, theft liability, discovery
protection)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Higley
01-05-00489-CV Randy G. Calhoun v. Steven Ying
Appeal from 157th District Court of Harris County (Judge Randall Wilson)

Highland Capital Management LP v. Ryder Scott Co (Tex.App.- Houston [1st Dist.] Jul. 27, 2006)(Jennings)
[biz law, fraud, negligent misrepresentation, venue]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Higley
01-05-00665-CV Highland Capital Management, L.P., CBO IV (Cayman) Ltd., Pamco Cayman, Ltd., Pam Capital
Funding, L.P., Famco Value Income Partnets, L.P., and Famco Offshore Ltd. v. Ryder Scott Company and Robert
A Hefner, III--Appeal from 151st District Court of Harris County (Judge Caroline E. Baker)

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Taft, Higley and Bland
01-06-00622-CV In re Mark A. Metzger, Jr.
Appeal from 247th District Court of Harris County (Judge Bonnie Crane Hellums)

DENY PETITION FOR WRIT OF PROHIBITION: Per Curiam
Before Justices Taft, Higley and Bland
01-06-00651-CV In re Mark A. Metzger, Jr.
Appeal from 247th District Court of Harris County (Hon. Bonnie Crane Hellums)

July 24, 2007

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Taft, Keyes and Alcala
01-06-00164-CV In re NexitraOne, L.L.C.
Appeal from 281st District Court of Harris County

July 20, 2006 - Justices at odds over propriety of sanctions in parents' feud over kids'
vacation trip abroad - restraining order dissolved on finding of baseless allegations

Keith v. Keith (Tex.App.–Houston [1st Dist.] July 20, 2006)(majority opinion by Taft)
AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft
Before Justices Taft, Keyes and Hanks
01-04-01214-CV Sharon Kay Keith v. Randall Dean Keith
Appeal from 312th District Court of Harris County (Family District Court Judge James Squier)
Keith v. Keith (Tex.App.–Houston [1st Dist.] July 20, 2006)(Keyes, dissenting)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Taft, Keyes and Hanks
01-04-01214-CV Sharon Kay Keith v. Randall Dean Keith
Appeal from 312th District Court of Harris County (Judge James D. Squier)

Evans v. Adamo (Tex.App.–Houston [1st Dist.] July 20, 2006)(by Alcala)
[legal malpractice, standard of care, expert testimony required, forged checks, forgery, witness tampering,
criminal charge; grant of no evidence motion for summary judgment affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Bland)
01-04-00872-CV Yogi Evans and Jim Evans v. Samuel D. Adamo
Appeal from 113th District Court of Harris County
(Trial court properly granted Adamo’s no-evidence motion for summary judgment because Yogi and Jim failed to
produce any evidence regarding whether Adamo breached the standard of care owed by Adamo. Affirmed.)

Kisty v. South Shore Harbour Comm. Assn. (Tex.App.–Houston [1st Dist.] July 20, 2006)(by Alcala)
[home owner-home owner association dispute, suit to confirm arbitration award, grounds for setting aside or
modifying arbitration award, arbitration act, breach of settlement agreement, arbitration clause, no attorneys fees
awarded by arbitrator, can attorney’s fees be added by trial court upon confirmation of arbitration award,
statutory bases for setting aside arbitrator’s award]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-00698-CV John Kisty and Elaine Kosty v. South Shore Harbour Community Association, Inc.
Appeal from 405th District Court of Galveston County

Green v. Lowe’s Home Centers, Inc. (Tex.App.–Houston [1st Dist.] July 20, 2006)(by Bland)(pet. denied
10/13/2006)
[Worker’s comp retaliation claim fails for lack of evidence on causality; plaintiff dismissed for alleged violation of
company sexual harassment policy, burden shifting, temporal proximity of protected activity and adverse
employment action as evidence, legitimate nondiscriminatory, non retaliatory explanation of employer action, no
bad faith show, no exemplary damages, summary judgment for employer affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Before Justices Keyes, Alcala and Bland)
01-05-00937-CV Robert Green v. Lowe's Home Centers, Inc.
Appeal from 127th District Court of Harris County

Lannie v. Emmons and Jackson, P.C. (Tex.App.- Houston [1st Dist.] July 20, 2006) (pet denied 1/12/2007)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Alcala
(Before Chief Justice Radack, Justices Jennings and Alcala)
01-04-00797-CV Marine Transport Corporation v. The Methodist Hospital, The Institute for Preventive
Medicine/Methodist Healthcare Systems, The Methodist Hospital/Institute for preventive Medicine Management,
Inc. and Rashid Khan, M.D.--Appeal from 61st District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Alcala
(Before Justices Keyes, Alcala and Bland)
01-04-00872-CV Yogi Evans and Jim Evans v. Samuel D. Adamo--Appeal from 113th District Court of Harris
County

AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Hanks)
01-04-00993-CV Hunter Carruth v. Sci Texas Funeral Services, Inc.--Appeal from Co Civil Ct at Law No 4 of
Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Taft
(Before Justices Taft, Higley and Bland)
01-05-00548-CV Sabrina Andrews, Individually and on Behalf of the Estate of Bernard Deamon Nickerson,
Deceased v. Marvin F. Poer & Co. d/b/a, The Mint Apartments and/or Rodeo Square Apartments, L.P.--Appeal
from 333rd District Court of Harris County
\
AFFIRM TC JUDGMENT: Opinion by Justice Bland
(Before Justices Keyes, Alcala and Bland)
01-05-00744-CV Latoi Adams v. Allstate County Mutual Insurance Company--Appeal from Co Civil Ct at Law No 2
of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Bland
(Before Justices Keyes, Alcala and Bland)
01-05-00937-CV Robert Green v. Lowe's Home Centers, Inc.--Appeal from 127th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-05-00965-CV Thomas Delfino and Karen Delfino v. Perry Homes, A Joint Venture--Appeal from 269th District
Court of Harris County

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Higley
(Before Justices Jennings, Hanks and Higley)
01-05-01071-CV Clarendon National Insurance Company v. Dennis Ross Thompson--Appeal from 281st District
Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-05-01159-CV Southern Rehab and Pain Management Group of Houston, LLC and Pleshette Johnson, D.C.
Ind. and as Members, Managers, Officers, and Agent (s) of the LLC v. William Kowaskli, D.C.--Appeal from Co
Civil Ct at Law No 4 of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Jennings
(Before Justices Jennings, Hanks and Higley)
01-05-01170-CV Andrew J. Lannie v. Emmons & Jackson, P.C.; Donald Harvey; and Steve Hebert--Appeal from
113th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Higley
(Before Justices Jennings, Hanks and Higley)
01-06-00049-CV Clarendon National Insurance Company v. Dennis Ross Thompson--Appeal from 281st District
Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00095-CV Steven Gregory Ellis v. Southwest Suburban Development Company, Inc.--Appeal from County
Court at Law No 3 of Fort Bend County

DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Higley
(Before Justices Jennings, Hanks and Higley)
01-06-00450-CV In re Clarendon National Insurance Company--Appeal from 281st District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Jennings, Hanks and Higley)
01-06-00564-CV In re Astermit, Inc. d/b/a Quality Lube Center--Appeal from 80th District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Jennings, Hanks and Bland)
01-06-00615-CV MHI Partnership, LTD d/b/a Pioneer Homes and McGuyer Homebuilders, Inc. v. Vanesta Y.
Adesina, et al.--Appeal from 268th District Court of Fort Bend County

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-06-00654-CV In re Kevin Crook--Appeal from 246th District Court of Harris County

July 17, 2006

Civil Causes Decided:

DISMISS APPEAL: Per Curiam
(Before Justices Jennings, Hanks and Higley)
01-05-01073-CV James Berry v. Humphrey Company, Ltd., Humphrey Company, Inc., Humphrey Company, Inc.,
Humphrey Plumbing Company & Hensel Phelps Construction Company--Appeal from 269th District Court of
Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00190-CV Samuel Lefridge Washington, Jr. v. Sagemont Park Townhouse Association--Appeal from 333rd
District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Jennings, Hanks and Higley)
01-06-00332-CV International Fidelity Insurance Company Agent Judy Grandmaison-Warren v. The State of
Texas--Appeal from 180th District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-06-00512-CV Jester Venture, Ltd., Jester Venture I, Inc., Gregory Baxter and GMB Development, Inc. v.
Robert Nash and Marshall McAlpine--Appeal from 269th District Court of Harris County

July 14, 2006

Civil Causes Decided:

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00555-CV In re Holley Kings Lake, Inc., Ronald R. Holley, and Kings Lake Estates, Ltd.--Appeal from 127th
District Court of Harris County

July 13, 2006

Civil Causes Decided:

AFFIRM TC JUDGMENT: Opinion by Justice Jennings
(Before Justices Nuchia, Jennings and Higley)
01-04-00892-CV Lynda Pearl Boaz v. Gene Davis Boaz and Ralph Boaz--Appeal from 300th District Court of
Brazoria County

REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
(Before Justices Keyes, Alcala and Bland)
01-05-00195-CV Sterling Bank v. Willard M, LLC, William F. Young and Willard E. Shuman--Appeal from 127th
District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Keyes, Alcala and Bland)
01-05-00334-CV Braynon Johnson and Catherine Johnson v. Department of Family and Protective Services--
Appeal from 306th District Court of Galveston County

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief
Justice Radack
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-05-00553-CV Harry Williams v. William H. Nealon, M.D., and Eric M. Walser, M.D.--Appeal from 56th District
Court of Galveston County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-05-00663-CV Reliant Oil & Gas Corporation and John R. Stanley v. Prolithic Resources Corporation, Western
Atlas International--Appeal from 157th District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-05-01164-CV Douglas James Birdsell Individually and DJ Birdsell, Inc., d/b/a Factory Direct Homes v. Michael
T. Rogillio--Appeal from 10th District Court of Galveston County

DISMISS APPEAL: Per Curiam
(Before Justices Jennings, Hanks and Higley)
01-05-01189-CV Peter Stanfield, M.D. v. Jennifer Oyervidez--Appeal from 151st District Court of Harris County

DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Chief Justice Radack, Justices Jennings and Alcala)
01-06-00027-CV In re Ralph O. Douglas--Appeal from 129th District Court of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Higley)
01-06-00259-CV Lawrence Iacono v. Citibank (South Dakota), N.A.--Appeal from County Court at Law No 3 of
Galveston County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00439-CV Clarissa Frand and Darrell W. Frand v. Commerce Square Associates Inc. and C.B. Richard
Ellis, Inc.--Appeal from Co Civil Ct at Law No 3 of Harris County

DISMISS APPEAL: Per Curiam
(Before Justices Keyes, Alcala and Bland)
01-06-00550-CV Compass Bank v. Sarasota CCM, Inc.--Appeal from 240th District Court of Fort Bend County

July 6, 2006 - Panel Declines to Free Mother Jailed for Nonpayment of Child Support

In Re D’Juana Parr (Tex.App.-Houston [1st Dist.] July 6, 2006)(orig. proc.)(Higley)
[contempt, jurisdiction, venue, transfer to court in which divorce is pending, common law marriage]
DENY PETITION FOR WRIT OF HABEAS CORPUS: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Hanks and Higley
01-05-01162-CV IN RE D'JUANA PARR
Appeal from 247th District Court of Harris County (Hon. Bonnie Hellums)
(“We remand D’Juana to the custody of the Sheriff of Harris County to serve the balance of her punitive contempt
confinement ordered by the trial court.”)