Recent Opinions by Chief Justice Sherry Radack (Tex.App.

Opinions by Chief Justice Radack in Civil Appeals (mostly)

Kelley v. Tex. Workforce Comm’n (Tex.App.– Houston [1st Dist.] Dec. 28, 2006)(Radack)
[employment law, unemployment benefits denial, judicial review, untimely appeal, jurisdiction]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland)
01-05-01109-CV Lucille R. Kelley v. Texas Workforce Commission, Diane D. Rath, Chair Commissioner, Ron
Lehman, Commissioner, Ronald G. Congleton, Humble ISD, Dr Mary Widmire and Alicia Boston-Mace
Appeal from 80th District Court of Harris County
We hold that the requirements of section 212.201 of the labor code are jurisdictional prerequisites for seeking
judicial review. Because Kelley failed to file (in claim 534526) or amend (in claim 487871) her petition for judicial
review of claim within the 14-day time frame set forth in this section, the district court was without jurisdiction to
consider her cause. Accordingly, we affirm the judgment of the trial court.

In Re State of Texas (Tex.App.– Houston [1st Dist.] Dec. 28, 2006)(Radack)
[forfeiture, drug trafficking, nonparty postjudgment motion, plenary jurisdiction, void order, bill or review remedy
for nonparty with an interest in original suit]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justice Bland, The Honorable Brown)
01-06-00905-CV In re The State of Texas and $15,975.85 in U.S. Currency
Appeal from 23rd District Court of Brazoria County
In this case, Elwyn Cole did not intervene in the suit. As a nonparty, his motion for new trial could not extend the
trial court's plenary power. See id. As such, the trial court's order granting the motion, which it signed outside its
plenary power, is void. See id. ... Because the trial court's order granting Elwyn Cole's motion for new trial is
void, we conditionally grant the petition for writ of mandamus.
However, we note that Elwyn Cole is not without a remedy. The State is required to name and serve with citation
"the owner of the property" and "any interest holder in the property" as a party to a forfeiture proceeding. See
Tex. Code Crim. Proc. Ann. art. 59.04(b), (i) (Vernon Supp. 2006). To the extent that Elwyn Cole claims that he
was not properly joined and served in the forfeiture proceeding, he can file a bill of review. See Tex. R. Civ. P.
329b(f). Ordinarily, a bill of review is available only to a party to the initial action, but the remedy has also been
held to be available to one who has a then-existing interest or right that was prejudiced by the judgment. See
$27,920.00 in U.S. Currency v. The State, 37 S.W.3d 533, 536-37 (Tex. App.--Texarkana 2001, pet. denied).

Richardson v. Mercer Inc. (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Radack)
[bizlaw, tortious interference, DTPA, Texas I nsurance C ode violations, HISD contract, benefits]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
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

Hixon v. Pedigo Services (Tex.App.– Houston [1st Dist.] Oct. 31, 2006)(Radack)
[residential construction claim, home owners, DTPA, warranty, negligent undertaking, sj, more relief granted
than sought]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01109-CV        Eric C. Hixon and Beverly G. Hixon v. Pedigo Services
Appeal from 152nd District Court of Harris County (Hon. Kenneth P. Wise)
We reverse the portion of the trial court’s final judgment that dismisses with prejudice the Hixons’ DTPA warranty
and negligent undertaking claims against Pedigo and that dismisses with prejudice the Hixons’ claims against K2
and Tyco for products liability, strict tort liability, negligent product design; negligent product distribution, breach
of implied and express warranties, and misrepresentation. We affirm the judgment of the trial court in all other
respects.

Young v. First Community Bank (Tex.App. - Houston [1st Dist.] Oct. 26, 2006)(Radack)
[probate law, motion to remove executor, failure to file inventory], unauthorized interlocutory appeal dismissed]
DISMISS APPEAL: Chief Justice Radack
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-00910-CV        Barbara Gail Young v. First Community Bank, N. A.
Appeal from Probate Court No 1 of Harris County

Metro v. Jackson (Tex.App. - Houston [1st. Dist.] Oct 23, 2006)(Radack)
[civil procedure, plenary power, void judgment]
AFFIRM TC JUDGMENT: Chief Justice Radack
(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 (Hon. Reece Rondon)
(“The first judgment entered in this case—the July judgment—was a legal nullity. It was statutorily void because
there had been no compliance with section 410.258 of the Labor Code. After being made aware of this
deficiency, and after the notice required by section 410.258 of the Government Code was given to the executive
director of the Workers’ Compensation Commission, the trial court entered a second judgment—the October
judgment. Because the July judgment was a legal nullity, the trial court retained plenary power to enter the
October judgment. Accordingly, the October judgment is not void.”)

Jackson v. Jackson (Tex.App.- Houston [1st Dist.] Nov. 30, 2006)(Radack)(divorce, property division, sanctions)
AFFIRM TC JUDGMENT: Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00194-CV Theodore Jackson v. Louvenia Jackson
Appeal from 387th District Court of Fort Bend County (Hon. Robert J. Kern)

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

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)

Constitutional Challenge to Criminal Law in Civil Suit Rejected

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)

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)

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

Boondoggles Corp. v. Yancey (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(by Radack)
[employment law, employment contract, breach of contract, BoC, restaurant manager, modification of contract,
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. Mauricio "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.”)

Nealy v. Southlawn Palms Apartments (Tex.App.-Houston [1st Dist.] June 8, 2006)(Radack)
[forcible detainer, eviction]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief
Justice Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00085-CV Mary Jane Nealy v. Southlawn Palms Apartments
Appeal from Co Civil Ct at Law No 4 of Harris County

Gordon v. Jones (Tex.App.-Houston [1st Dist.] June 8, 2006)(Radack)
[venue, forum, jurisdiction, dismissal with prejudice reversed]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief
Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00656-CV Ronald X. Gordon v. Mildred Jones; James Albro
Appeal from 400th District Court of Ft. Bend County (Hon. J. Bradley Smith)

Abdelnour v. Mid National Holdings, Inc. (Tex.App.- Houston [1st Dist.] Jan. 5, 2006)(Radack)(BoC, default
judgment, alter ego, summary judgment)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-00573-CV Hany Abdelnour v. Mid National Holdings, Inc., and MDS-MID National, Ltd.
Appeal from 334th District Court of Harris County (Hon. Mauricio Rendon)

City of Houston v. U.S. FIler Wastewater Group, Inc. (Tex.App.- Houston [1st Dist.] Jen. 5, 2006)(Radack)
(sovereign immunity, plea juris properly denied, presuit discovery)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00433-CV City of Houston v. U.S. Filter Wastewater Group, Inc.
Appeal from 334th District Court of Harris County (Hon Sharon McCally)

Harvest House Publishers v. The Local Church (Tex.App.- Houston [1st Dist.] Jan. 5, 2006)(Radack)(cert.
denied)
(religion, first amendment, libel suit by church against publisher over cult labeling, interlocutory appeal, media)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Radack
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-00231-CV Harvest House Publishers, John Ankerberg, and John Weldon v. The Local Church, et al.
Appeal from 80th District Court of Harris County (Hon. Kent C. Sullivan)

Criminal Cases

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)