Recent Opinions From the First Court of Appeals (State of Texas)

DC

Released Opinions – April 20, 2006 Civil Causes Decided:

Yazdchi v. Bennet (Tex.App.–Houston [1st Dist.] April 20, 2006)
[attorney malpractice suit dismissed, must challenge all bases for dismissal on appeal or waive error]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Sherry Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01057-CV Abbas Yazdchi, and Habibollah Yazdchi v. Robert S. Bennett
Appeal from 234th District Court of Harris County

City of Galveston v. Texas General Land Office (Tex.App.–Houston [1st Dist.] April 20, 2006)
[lease payments to State for use of submerged land under waterfront hotel, Code Construction Act]
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Before Justices Taft, Higley and Bland
01-04-01096-CV The City of Galveston, Texas and Landry's Restaurants, Inc. v. The Texas General Land Office
Appeal from 122nd District Court of Galveston County

Stewart v. Stewart (Tex.App.–Houston [1st Dist.] April 20, 2006)
[spousal maintenance limitation to 12 months affirmed despite disability]
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-01126-CV Lynne Stewart v. Darrell Lynn Stewart
Appeal from 387th District Court of Fort Bend County

April 19, 20

Holland v. Alker (Tex.App.–Houston [1st Dist.] April 20, 2006)
[turnover order, exempt and nonexempt property, personal corporation, piercing corporate veil, homestead
designation claim]
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Higley and Bland
01-05-00666-CV Robert V. Holland, Jr. Individually and d/b/a Holland & Associates, and Robert V. Holland, Jr., P.C.
v. Gustav Alker, Jr., and Robert Alker -- Appeal from 113th District Court of Harris County

April 13, 2006

New Process Steel v. Sharp Freight (Tex.App.–Houston [1st Dist.] April 13, 2006)
[Breach of contract BoC, fraudulent misrepresentation, future conduct, parol evidence rule]
AFFIRM TC JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-00764-CV New Process Steel, L.P. v. Sharp Freight Systems, Inc.
Appeal from 215th District Court of Harris County (Hon. Levi J. Benton)

Carruth v. Texas Funeral (Tex.App.–Houston [1st Dist.] April 13, 2006)
[Contract re: funeral, internment, burial, disposition of human remains, intentional infliction of emotional distress
IIED, breach of contract BoC, power of attorney, advance directive, will, attorney in fact]
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 (Hon. Cynthia Crowe)

AMX v. Bank One (Tex.App.–Houston [1st Dist.] April 13, 2006)
[conversion of checks by bank, paid without endorsement, UCC, breach of contract, tortiours interference, single
satisfaction rule, double recovery]
AFFIRM TC JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-01035-CV AMX Enterprises, Inc., n/k/a AMX Enterprises LLP v. Bank One, NA
Appeal from 157th District Court of Harris County (Judge Randy Wilson)

Fondren Construction Co. v. Briar Cliff Housing (Tex.App.–Houston [1st Dist.] April 13, 2006)
[construction case, subcontractor, breach of contract BoC, unjust enrichment, foreclosure of lien interest, fraud and
fraud in the inducement, negligent misrepresentation, right to recover on construction payment bond, construction
subcontracting work, Property Code, bond requirements, bench trial, summary judgment evidence, defense of
limitations, suit not brought within one year of recordation of surety, bond]
AFFIRM TC JUDGMENT: Opinion by Justice Jane Nenninger Bland
Before Justices Taft, Higley and Bland
01-04-01293-CV Fondren Construction Company, Inc., and Robert G. Lubkeman v. BriarCliff Housing Development
Associates, Inc., DPMC-Briarcliff, L.P., and John Deere Company
Appeal from 165th District Court of Harris County

Hendrix v. Port Terminal RR Assn. (Tex.App.–Houston [1st Dist.] April 13, 2006) [federal preemption, trial court
erred in granting Defendant’s summary judgment motion because it did not address all claims].
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Jennings; Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00217-CV Travis Hendrix v. Port Terminal Railroad Association
Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)

Truck Insurance v. Chalfant (Tex.App.–Houston [1st Dist.] April 13, 2006)
[automobile insurance coverage dispute, no auto insurance coverage for company president because insured was
the corporation and claimant was not a family member of the corporation, nor an individual designated by name as
covered]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice George Hanks
Before Justices Nuchia, Keyes and Hanks
01-05-00546-CV Truck Insurance Exchange v. Steven Chalfant
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)
(“Where only a corporation is named as an insured and no name is provided as a designated person in the UM/UIM
endorsement, the policy has a certain and definite legal meaning which did not include coverage for occupants of a
vehicle which was not owned or leased by the corporation.”)

White v. Schlumberger (Tex.App.–Houston [1st Dist.] April 13, 2006)
[age and disability discrimination under chapter 21 of the Texas Labor Code, sj, burden shifting, pretext, legitimate
nondiscriminatory explanation, fact issue, RIF, elimination of position].
AFFIRM TC JUDGMENT: Opinion by Justice Timothy Taft
Before Justices Taft, Higley and Bland
01-05-00685-CV Jerry White v. Schlumberger Limited
Appeal from 240th District Court of Fort Bend County (Hon. Thomas R. Culver, III)

McKnight v. Brown (Tex.App.–Houston [1st Dist.] April 13, 2006)
[Abuse of process, false imprisonment, Section 1983 claim, proof of damages, no evidence, insufficient, conclusory
affidavit)(prior successful habeas proceeding in 14thCoA, imprisonment for failure to pay attorneys fees,
imprisonment for debt]
AFFIRM TC JUDGMENT: Opinion by Justice Laura 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 (Hon. Lamar McCorkle)

Opinions Released April 4, 2006

Neely v. Comm'n for Lawyer Discipline
[disciplinary rules, advertising for professional employment, recruitment of clients for class action]
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00377-CV George R. Neely v. Commission for Lawyer Discipline
Appeal from 165th District Court of Harris County

Opinions Released March 30, 2006

Gee v. Mirwis
DISMISS APPEAL: Opinion by Justice Jane Bland
Before Justices Taft, Higley and Bland
01-04-00883-CV Johnny H. Gee and Abiodun Henri Lagoye v. Etan Mirwis, Terry H. Sears, Victoria Woods Condominium
Homeowner's Association, Genesis Community Management Inc., Genesis Property Management Inc., William C. Devane, and
Lloyd's of London Insurance Company
Appeal from 270th District Court of Harris County

Bank One v. Independence Bank
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jane 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

In re Sheppard
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Chief Justice Radack Justice Alcala concurring
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00375-CV In re Robert D. Sheppard, M.D. & Emcard, Inc.
Appeal from 151st District Court of Harris County
In re Sheppard - concurring opinion
OPINION CONCURRING WITH THIS COURT'S JUDGMENT
01-05-00375-CV In re Robert D. Sheppard, M.D. & Emcard, Inc.
Appeal from 151st District Court of Harris County

Pin Oak Center v. Travelers Lloyds Ins. Co.
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Taft, Higley and Bland
01-05-00530-CV Pin Oak Centre, Ltd. v. The Travelers Lloyds Insurance Company
Appeal from 11th District Court of Harris County

Johnson v. Wood
AFFIRM TC JUDGMENT: Per Curiam Opinion
Before Justices Nuchia, Keyes and Hanks
01-05-01074-CV Arthur Johnson v. Judge Mike Wood & Judge Jim Scanlan
Appeal from Probate Court No 2 of Harris County

March 24, 2006

Guilbeau v. State of Texas
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Chief Justice Radack
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-00691-CR Jon Benoit Guilbeau v. The State of Texas
Appeal from 228th District Court of Harris County

Bode v. Frank’s International, Inc.
(joint venture, breach of contract, summary judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-00545-CV Alan Grant Bode as Executor of Estate of Robert E. Bode, and S.O.T.A.T., Inc. v. Frank's International, Inc., and
Frank's Casing Crew and Rental Tools, Inc.
Appeal from 165th District Court of Harris County

Ledig v. Duke Energy
(employment dispute, bonus, defamation, and other causes of action, recission, offset)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
(Before Justices Nuchia, Jennings and Higley)
01-04-00922-CV Peter J. Ledig v. Duke Energy Corporation and Duke Energy Trading and Marketing, L.L.C.
Appeal from 55th District Court of Harris County

Bowie v. Karakat
(auto PI, negligence, negligent entrustment, no evidence summary judgment, elements)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
(Before Chief Justice Radack, Justices Jennings and Alcala)
01-04-00941-CV Reginald O'Neal Bowie, Sr. v. Lisa Jane Karakat and Gloria Broussard
Appeal from 25th District Court of Colorado County

Nelson v. Chaney
(bill of review to set aside paternity default judgment, summary judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Hanks)
01-04-01058-CV Donald Nelson v. Evangeline Chaney
Appeal from 312th District Court of Harris County (Judge Jim Squier)
Petitioner’s attorney: Ronald G. Ray
Respondent’s attorneys: Kathryn Marie Diaz, Rhonda Pressley, John B. Worley

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First Court of Appeals Denies Relief re: Andrea Yates' Retrial For Murdering Her Kids

March 17, 2006

In Re Andrea Yates
Criminal Causes Decided:
DENY PETITION FOR WRIT OF PROHIBITION: Per Curiam Opinion
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00221-CR        In Re Andrea Pia Yates
Appeal from 230th District Court of Harris County

March 16, 2006

Ex Parte Andrea Yates
AFFIRM TC JUDGMENT [trial court's denial of habeas corpus relief]: Opinion by Justice Nuchia
[alleged prosecutorial misconduct based on false testimony by expert at trial; appellant failed to show DA had reason to question
veracity of Dr. Dietz's testimony; no affirmative duty to independently investigate witness testimony before using it when State
had no reason to doubt its veracity; no prosecutorial misconduct shown]
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00222-CR   EX PARTE ANDREA PIA YATES
Appeal from 230th District Court of Harris County

Prior murder conviction reversed because of false testimony under oath by expert witness
in Yates v. State, 171 S.W.3d 215 (Tex.App.--Houston [1st Dist.] 2005, pet, ref'd)

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Othe opinons released March 16, 2006

Texas Mutual v. Ferguson
[Damages for Insurance Code violation, fees]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Timothy Taft
(Before Justices Taft, Keyes and Hanks)
01-02-00807-CV   Texas Mutual Insurance Co. f/k/a/ Texas Workers' Compensation Ins. Fund v. Ray Ferguson Interest, Inc., RFI
Brazos Paving Co., Inc. et al
Appeal from 240th District Court of Fort Bend County

City of Houston v. Vargas
[interlocutory appeal, TTCA City not entitled to immunity dismissal in police shooting case; trial court properly denied plea to the
jurisdiction]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Hanks)
01-04-01173-CV
The City of Houston v. Jose Vargas and Marcia Victoria Vargas Individually and as Heirs of Jose Vargas, Jr.
Appeal from 164th District Court of Harris County

March 14, 2006

In re Wood
[Grandparent access to children, discovery motion, scope of discovery, irrelevant questions]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Tim Taft
Before Justices Taft, Higley and Bland
01-06-00014-CV
In Re: Elizabeth Wood
Appeal from 12th District Court of Grimes County

March 10, 2006

In re Oles
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Opinion
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00892-CR In Re Melvin Oles
Appeal from 177th District Court of Harris County

In re Smith
DISMISS APPEAL: Per Curiam Opinion
Before Chief Justice Radack, Justices Jennings and Alcala
01-06-00142-CR In Re Clifford A. Smith
Appeal from 405th District Court of Galveston County

February 23, 2006 (Civil Cases)

Gary Kainer v. ABMC Corporation (Insurance coverage dispute re: defective home construction)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Taft
Before Justices Taft, Higley and Bland
01-05-00338-CV Gary Kainer v. ABMC Corporation and Union Planters Bank, N.A.
Appeal from 270th District Court of Harris County

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Released Opinions February 16, 2006 Civil Causes Decided:

AFFIRM TC JUDGMENT:
Devon v. IMC Global Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00077-CV
Devon SFS Operating , Inc., and IMC Global, Inc. v. First Seismic Corporation, a Delaware Corporation
Appeal from 80th District Court of Harris County (Houston)

AFFIRM TC JUDGMENT:
Naik v. Wu Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-01127-CV
Bharatkumar D. Naik and Janki B. Naik v. Jo-Chin Wu
Appeal from County Civil Court at Law No 4 of Harris County (Houston)

AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Hanks
01-05-00213-CV
Crystall Lee Wyatt v. Department of Family and Protective Services
Appeal from 315th Judicial District Court of Harris County

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Barry v. Barry Opinion by Justice Higley (Before Justices Taft, Higley and Bland)
01-05-00551-CV   Dan R. Barry v. Teresa Barry
Appeal from 312th Family District Court of Harris County (Family Law Center - Houston)

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Released Opinions February 9, 2006 Civil Causes Decided:

DISMISS APPEAL: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-00004-CV Nexion Humble Health Care, Inc., d/b/a Humble Healthcare Center v. Marjorie Lyman, Ind., and as Sole Surviving
Spouse of John D. Lyman, Deceased
Appeal from 133rd District Court of Harris County (interlocutory appeal, whether federal or Texas arbitration act applies, mandamus)

REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-00109-CV Herbert W. Christenberry, Executor of the Estate of Absalom T. Webber, Jr. Deceased and Association of Graduates
of the United States Military Academy v. Donna P. Webber
Appeal from Probate Court of Galveston County

Roman v. Roman ___S.W.3d___ (Tex.App.--Houston [1st Dist.] 2006)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Taft, Keyes and Hanks
01-04-00541-CV Randy M. Roman v. Augusta N. Roman
Appeal from 310th Family District Court of Harris County (Hon. Lisa Millard).
Novel issue: Is an agreement on the disposition of frozen embryos created by husband and wife enforceable upon divorce? Yes.
Accordingly, Court of Appeals reverses trial court's award of embryos to wife as contrary to the parties' contract.

AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Taft, Higley and Bland
01-05-00311-CV Lashonda Rochelle v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County

AFFIRM TC JUDGMENT: Opinion by Justice Laura Higley
Before Justices Taft, Higley and Bland
01-05-00312-CV Lashonda Rochelle v. Department of Family and Protective Services
[Formerly known as Child Protective Services (CPS)]
Appeal from 314th District Court of Harris County

GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Elsa Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00686-CV In re Talent Tree Crystal, Inc.
Appeal from 189th District Court of Harris County

GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Elsa Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00686-CV In re Talent Tree Crystal, Inc.
Appeal from 189th District Court of Harris County

DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Opinion
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-01012-CV In Re Danny R. Watkins and DRW lone Star, L.P.
Appeal from 11th District Court of Harris County