Opinions by Justice Jane Bland (Tex.App-Houston [1st Dist.] 2006)

March 10, 2006 - Justice Bland Writes Supreme Court Majority Opinion on Assignment

H yundai v. Vasquez No. 03-0914 (Tex. March 10, 2006)(by Justice Bland, sitting by assignment)
[Voir dire in products liability case;small child killed by airbag in low speed collision] HYUNDAI MOTOR
COMPANY AND HYUNDAI MOTOR AMERICA, INC. v. VICTOR MANUEL VASQUEZ, AND BRENDA SUAREZ
VASQUEZ, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ALYSSA AMBER VASQUEZ; from Bexar
County; 4th district (04 -01 -00554 -CV, 119 SW3d 848, 08 -29 -03). Justice Bland delivered the opinion of the
Court, joined by Justice Hecht, Justice O'Neill, Justice Brister, Justice Willett, and Justice Cayce
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered a dissenting opinion, joined by Justice Phil Johnson
Justice Medina delivered a dissenting opinion, joined by Justice Wainwright and Justice Johnson
(Chief Justice Jefferson and Justice Green not sitting)The Honorable John Cayce, Chief Justice, Second District
Court of Appeals, and the Honorable Jane Bland, Justice, First District Court of Appeals, sitting by commission of
the Honorable Rick Perry, Governor of Texas, pursuant to Tex. Gov't Code § 22.005. Chief Justice Jefferson
and Justice Green are recused.

Villarreal v. CGI Financial Inc. (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Bland)
[tax suit, governmental entities, takings claim, inverse condemnation, exclusive jurisdiction, county civil courts at
law]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00993-CV Lupe Villarreal v. CGI Financial, Inc., Harris County, Texas, H.I.S.D., City of Houston, Paul
Bettencourt, Tax-Assessor Collector for Harris County, Texas, and Linebarger Goggan Blair & Sampson, LLP
Appeal from 281st District Court of Harris County (Hon. David J. Bernal)

Bank One, N.A. v. Independence Bank, ___ S.W.3d ___ (Tex.App.-Houston [1st Dist.] Mar. 30, 2006, no pet.)
(Bland)(post-judgement garnishment)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Bland
Before Justices Taft, Higley and Bland
01-04-00905-CV        Bank One, N.A. v. Independence Bank
Appeal from 11th District Court of Harris County (Judge Mark Davidson)

Fabio v. Ertel (Tex.App.- Houston [1st Dist.] Jan. 11, 2006)(Bland)
[attorney fee litigation, interlocutory summary judgment v. trial findings, reconsideration of interlocutory sj,
inconsistent rulings, judgment, opportunity to present evidence]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Bland
Before Chief Justice Radack, Justices Alcala and Bland)
01-05-01106-CV Thea M. Fabio and Richard L. Merrill, Practicing Law Under the Firm Name of Fabio & Merrill v.
Allen E. Ertel--Appeal from Co unty Civil C our t at Law No 4 of Harris County

Should Opinion be Withdrawn Upon Dismissal of Case Pursuant to Settlement? - Justice
Bland Writes Separately to Address the Issue

McKnight v. Brown (Tex.App.- Houston [1st Dist.] Jan. 11, 2006)(per curiam)
[abuse of process claim, settlement, motion to dismiss appeal, should opinion be withdrawn?]
DISMISS APPEAL [Motion to dismiss with prejudice granted, original appellate opinion not withdrawn]: Opinion by
Justice Higley
Before Justices Taft, Higley and Bland)
01-05-00689-CV John Frank McKnight v. Marshall Davis Brown, Jr.
Appeal from 133rd District Court of Harris County
Concurring Opinion by Justice Bland

Villarreal v. CGI Financial Inc. (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Bland)
[tax suit, governmental entities, takings claim, inverse condemnation, exclusive jurisdiction, county civil courts at
law]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00993-CV Lupe Villarreal v. CGI Financial, Inc., Harris County, Texas, H.I.S.D., City of Houston, Paul
Bettencourt, Tax-Assessor Collector for Harris County, Texas, and Linebarger Goggan Blair & Sampson, LLP--
Appeal from 281st District Court of Harris County (Hon. David J. Bernal)

Morrill v. Cisek (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Bland)
[defamation per se claim against former spouse, permanent injunction to prohibit contact with employer]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00268-CV Ann C. Morrill v. Lawrence J. Cisek, Jr.
Appeal from 400th District Court of Ft. Bend County

Cytogenix v. Waldroff (Tex.App.- Houston [1st Dist.] Dec. 14, 2006, pet. denied 6/15/07)(Bland)
[bizlaw, breach of contract, licensing agreement, BoC defenses, specific performance, attorney’s fees, prevailing
defendant not entitled to statutory attorneys fees in breach of contract case]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00492-CV        Cytogenix, Inc. v. William B. Waldroff and Applied Veterinary Genomics, Inc.
Appeal from 11th District Court of Harris County
("We conclude that the trial court erred in entering a permanent injunction that requires future specific
performance of the licensing agreements and in awarding attorney’s fees to Waldroff and AVGI. We further
conclude that CytoGenix is not entitled to its attorney’s fees upon reversal of the judgment against it. We
therefore reverse the judgment of the trial court and render judgment that the parties take nothing on their
claims.")

Houtex Ready Mix Concrete v. Eagle Construction (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Bland)
[DTPA, frivolous suit, res judicata, attorney's fees, sanctions, bad faith]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00963-CV        HouTex Ready Mix Concrete & Materials v. Eagle Construction and Environmental
Services, LP--Appeal from Co Civil Ct at Law No 4 of Harris County

Baker v. Federal Express (Tex.App. - Houston [1st Dist.] Oct 26, 2006)(Bland)
[civil procedure law, discovery, spoliation instruction, sanctions, settlement and release bars appeal of sanctions
order]
AFFIRM TC JUDGMENT: Justice Bland
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-01160-CV        Adrian Baker v. Federal Express Corporation
Appeal from 164th District Court of Harris County
("We conclude that the parties’ settlement forecloses an appeal of trial court rulings relating to claims made a
part of the settlement agreement and therefore affirm the order of the trial court.")

Quality Infusion v. Health Care Service Corp. (Tex.App. - Houston [1st Dist.] Oct. 19., 2006)(Bland)
[breach of contract]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Justice Bland
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-00753-CV        Quality Infusion Care, Inc. v. Health Care Service Corporation d/b/a Blue Cross Blue
Shield of Texas, a Division of Health Care Service Corporation, and Southwest Texas HMO, Inc., d/b/a HMO Blue
Texas
Appeal from 152nd District Court of Harris County

Nugent v. State of Texas (Tex.App.- Houston [1st Dist.] Oct 12, 2006)(Bland)(criminal case)
[real estate scam, theft, restitution]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Bland
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-00775-CR Richard Lawrence Nugent v. The State of Texas
Appeal from 228th District Court of Harris County
We hold that the record supports the restitution ordered by the trial court, and that the trial court’s order does
not require Nugent to pay restitution for crimes for which he was not charged. The trial court thus did not abuse
its discretion in ordering Nugent to pay $124,310.50 in restitution as a condition of his community supervision.
In addition, the trial court abuse its discretion in ordering Nugent to cooperate with the authorities in clearing the
titles to the real properties at issue in this case, as this provision does not order restitution beyond the amount
reflected in the trial court’s order and supported by the record. We therefore affirm the judgment of the trial
court as modified.

Justice Bland Dissents in Tax Appeal

TRQ Captain's Landing, L.P. v. Galvestion Central Appraisal District (Tex.App.- Houston Oct. 5, 2006)(Keyes)
[tax appeal, exemption, equitable owner]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
(Before Justices Keyes, Alcala and Bland)
01-05-00496-CV TRQ Captain's Landing, L.P. and American Housing Foundation v. Galveston Central
Appraisal District--Appeal from 10th District Court of Galveston County
Dissenting Opinion by Bland

Aug 3, 2006 - Following the Supreme Court's Recent Immunity Holding in Tooke v. City of
Mexia, Justice Bland overrules contractor’s waiver-of-immunity argument based on statutory
“sue and be sued” language; also rejects waiver by conduct theory

Channelview I.S.D. v. A. R. C. I. Ltd (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jane 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.”)

Other Recent Opinions Authored by Justice Jane Nenninger Bland

Bison Building Materials v. Aldridge (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jane Bland)
[arbitration, employment injury, workplace safety, post-injury waiver]
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-05-00330-CV Bison Building Materials, Ltd. v. Lloyd K. Aldridge
Appeal from 334th District Court of Harris County (Judge Sharon McCally)
(“Bison Building Materials, Ltd. and Lloyd K. Aldridge appeal an interlocutory trial court order confirming in part
and vacating in part an arbitration decision that dismissed Aldridge’s claims against Bison. We conclude that we
lack statutory authority to consider this interlocutory appeal and therefore dismiss it for want of jurisdiction. ...
Strictly construing section 171.098(a), as we must, we hold that the Order at issue here is not an appealable
interlocutory order. Walker Sand, 95 S.W.3d at 516. “It is fundamental error for an appellate court to assume
jurisdiction over an interlocutory order when not expressly authorized to do so by statute.” Gathe v. Cigna
Healthplan of Tex., Inc., 879 S.W.2d 360, 363 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing New
York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990)). We do not imply a lack of jurisdiction
from the TAA provision allowing interlocutory appeals of certain arbitration orders. Rather, absent a final
judgment, or statutory authorization, we do not have state court appellate jurisdiction in the first instance. We
therefore dismiss the appeal for want of jurisdiction.”)
Opinion Dissenting to this Court's Judgment by Justice Keyes
(“This is a case of first impression for this Court with important jurisdictional implications for Texas arbitration
law. Because I believe the majority has incorrectly decided this appeal, I respectfully dissent.”)

Harris County Toll Road Authority v. SWB (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jane N. Bland)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-05-00668-CV Harris County Toll Road Authority and Harris County v. Southwestern Bell Telephone, LP d/b/a
SBC Texas
Appeal from Co unty Civil C our t at Law No 1 of Harris County (Judge Jack Cagle)
(“In this case, we decide whether a telecommunications company or the county government must bear utility
relocation costs necessitated by county road construction. The Harris County Toll Road Authority and Harris
County (collectively “Harris County”) contend the trial court erred in granting summary judgment for
Southwestern Bell Telephone, L.P. d/b/a SBC Texas (“SBC”) and in ordering Harris County to pay SBC’s
relocation costs. SBC asserts that Harris County’s appeal is untimely. We conclude that (1) the appeal is timely;
(2) though SBC is an “eligible utility facility” within the meaning of Transportation Code section 251.102, the
statute does not waive Harris County’s immunity from suit; and (3) SBC is not entitled to compensation under
article I, section 17 of the Texas Constitution. We therefore reverse and render judgment for Harris County.”)

In Re Smith (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jane Bland)
[pro se, IFP, prisoner granted mandamus relief, clerk refused to file motions and notice of appeal]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-06-00532-CV In re Rick D. Smith
Appeal from 23rd District Court of Brazoria County (Hon. Ben Hardin)

Lazare v. Murillo (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)(Jane Bland)
[civil procedure law, motion for continuance, no notice of reset summary judgment 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.”)

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)

Heritage Housing Development, Inc. v. Carr (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jane N. 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.")

Ahmed v. Ahmed (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jane 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)(Jane 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.

Justice Bland Authors Opinion in Rare Reversal of Criminal Conviction

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.”)

In the Matter of S.W. (Tex.App.- Houston [1st Dist.] Jan. 26, 2006)(Bland)
[juvenile, child sexual abuse]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Higley and Bland
01-04-01054-CV        In the Matter of S.W.
Appeal from 313th District Court of Harris County (Hon. Pat Shelton)

Benavides v. Cushman, Inc. (Tex.App.-Houston [1st Dist.] Jan. 26, 2006)(Bland)
[products liability, golf court vehicle]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00982-CV        Xavier Benavides v. Cushman, Inc., and Watson Distributing Company
Appeal from 280th District Court of Harris County (Judge: Hon. Tony Lindsay)