TEXAS SUPREME COURT
PETITIONS FOR REVIEW DENIED
RECENT TEXAS SUPREME COURT
DECISIONS ON THE WEB - DISPOSITIONS
PFR's DENIED DECEMBER 2008
Petitions for Review denied by Tex. Sup. Ct. in January 2009 | 2008
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Petitions for Review denied by the Texas Supreme Court August 2008
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Petitions for Review denied by the Texas Supreme Court in December 2008
Most recent Petitions for Review denied by the Texas Supreme Court
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED DECEMBER 2008:
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
08-0824 THE DANESHJOU COMPANY, INC. v. JOE GOERGEN; from Travis County; 3rd district
(03-04-00730-CV, ___ SW3d ___, 08-08-08)(construction law)
This appeal involves claims by a general contractor against its subcontractors. The Daneshjou Company, Inc.
("DCI") was retained to build a house for Sandra Bullock. DCI hired several subcontractors for the project, including
appellees Joe Goergen, CNA Construction, Inc., Modern Design and Construction, Inc., Loredo Truss Company,
Inc., Loma Excavation, Inc., G. P. Equipment Company, and W. Lee Brown & Sons, Inc. DCI and Bullock (together
with John Bullock) filed suits against each other, and DCI filed third-party claims against its subcontractors to recover
direct damages and for contribution and indemnity in the event it had to pay damages to the Bullocks. The appellee
subcontractors filed motions for summary judgment and/or to dismiss. The trial court granted the motions in part or
in whole, eventually disposing of all claims between DCI and these subcontractors. The trial court then severed the
claims involving these subcontractors from the other claims in the case, and proceeded to trial on the remaining
claims ("the Bullock trial"). DCI appeals the decisions in the cases involving these subcontractors.
DCI argues (1) that genuine issues of material fact exist, precluding summary judgment; (2) that severing the claims
against the subcontractors while admitting evidence of their allegedly deficient work prejudiced DCI at the Bullock
trial; and (3) that DCI should have been allowed to pursue its claims for contribution and indemnity against the
subcontractors after the Bullock trial.
We find no reversible error in the trial court rulings challenged by DCI on appeal.
08-0962 DARYL L. BONNIN v. WICHITA COUNTY AND WICHITA COUNTY COMMISSIONERS COURT; from Wichita
County; 2nd district (02-07-00156-CV, 268 SW3d 811, 10-02-08)
Upon consideration of appellee Daryl Lee Bonnin’s motion for rehearing, we deny the motion; however, we withdraw
our opinion and judgment of June 19, 2008, and substitute the following to make nondispositive clarifications.
This is a suit by a Wichita County jailer seeking to enforce all the terms of a petition related to the sheriff’s
department employees’ salaries after voters approved a ballot that included only portions of the items in the
petition. Appellants Wichita County and the Wichita County Commissioners Court appeal the trial court’s grant of
appellee’s motion for summary judgment and denial of appellants’ motion for summary judgment in appellee’s
declaratory judgment suit. In five issues, appellants argue that the trial court erred (1) by failing to make a predicate
finding that appellants abused their discretion before granting appellee relief, (2) by deciding that the entire petition,
including portions not included on the ballot, should be implemented, (3) by construing section 152.072 of the local
government code as authorizing a referendum on issues other than a one-year minimum salary for each position in
the department, (4) by imposing obligations on appellants that would violate constitutional prohibitions, and (5) by
awarding attorney’s fees to appellee. We reverse the trial court’s summary judgment in favor of appellee and render
summary judgment in favor of appellants; however, we remand the case to the trial court for a determination on
08-0963 IN THE ESTATE OF BOBBY WAYNE DILLARD, DECEASED; from Rusk County; 6th district
(06-08-00015-CV, ___ SW3d ___, 09-30-08) as amended (will contest, holographic will)
08-0978 PACIWEST, INC. v. WARNER ALAN PROPERTIES, LLC AND WARNER ALAN/WESTCLIFF, LTD.; from
Tarrant County; 2nd district
(02-07-00443-CV, 266 SW3d 559, 09-11-08)
This case involves competing motions for summary judgment in a suit over a failed real estate transaction. The trial
court granted summary judgment for the purchaser, appellee Warner Alan/Westcliff, Ltd. (Westcliff), and appellee
Warner Alan Properties, LLC (Warner Alan), Westcliff’s predecessor-in-interest in the purchase and sale contract. It
also ordered that Westcliff was entitled to specific performance of the contract as a remedy for the seller's default.
The seller, appellant Paciwest, Inc., brings three issues on appeal in which it contends that the trial court erred by
sustaining appellees' objections to Paciwest's summary judgment proof, by denying Paciwest's motion for summary
judgment and granting appellees', and by granting appellees' request for specific performance. In a single issue in a
cross-appeal, appellees contend that the trial court erred by determining that they were precluded from recovering
damages in addition to specific performance because of the election of remedies doctrine. We affirm in part and
reverse and remand in part.
08-0981 KIRK WAYNE MCBRIDE, SR. v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL
INSTITUTIONS DIVISION, ET AL.; from Bee County; 13th district (13‑07‑00130‑CV&13‑07‑00305‑CV, ___ SW3d
___, 08-28-08)(pro se IFP prisoner civil rights suit, immunity, official immunity, sovereign immunity, plea to the
Kirk Wayne McBride, Sr. an inmate confined in the Texas Department of Criminal Justice-Institutional Division
("TDCJ"), appeals from the dismissal of his pro se, in forma pauperis lawsuit against TDCJ, the University of Texas
Medical Branch ("UTMB"), and several members of the medical staff at the McConnell Unit of the TDCJ. The trial
court granted a summary judgment with regard to McBride's claims against the McConnell Unit medical staff, and a
plea to the jurisdiction in favor of TDCJ and UTMB. In two issues, McBride contends that the medical staff was not
entitled to summary judgment as a matter of law, and that the trial court erred in granting TDCJ's and UTMB's pleas
to the jurisdiction. We affirm.
08-1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district (08‑07‑00067‑CV,
___ SW3d ___, 10‑23‑08)(expunction, capital murder conviction overturned)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.App.--El Paso 2006,
no pet.). The statute gives people the opportunity to have all records of an arrest expunged provided certain
requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01 (Vernon 2006). All provisions in a statutory cause of
action are mandatory and exclusive and all conditions must be met before a person is entitled to expunction. In re C.
V., 214 S.W.3d at 44. A statutory expunction proceeding is civil rather than criminal in nature, and the petitioner
bears the burden of proving compliance with the statute. Id. Article 55.01 provides, in pertinent part
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to the arrest expunged if:
. . .
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the
person for an offense arising out of the transaction for which the person was arrested or, if an indictment or
information charging the person with commission of a felony was presented, the indictment or information has been
dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been
made because of mistake, false information, or other similar reason indicating absence of probable cause at the time
of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer
pending and there was no court ordered community supervision under Article 42.12 for any offense other than a
Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
PETITIONS FOR REVIEW DENIED DECEMBER 19, 2008
ROY SEGER, ET AL. v. YORKSHIRE INSURANCE CO., LTD. AND OCEAN MARINE INSURANCE CO., LTD.; from
Hutchinson County; 7th district (07‑05‑00188‑CV, ___ SW3d ___, 06‑20‑07)
2 petitions, motion to consolidate dismissed as moot (insurance coverage dispute, Stower’s doctrine, recusal,
Recusal of Judge
Insurers contend that the denial of their motion to recuse Judge LaGrone was an abuse of discretion because, as
the judge that presided over the underlying trial, Judge LaGrone was a vital material witness in the Stowers suit and
had personal knowledge of disputed material facts. The denial of a motion to recuse is reviewed for abuse of
discretion. Brosseau v. Ranzau, 81 S.W.3d 381, 399 (Tex.App.-Beaumont 2002, pet. denied). Insurers contend that
the Segers' citation to Judge LaGrone's statement in the underlying trial transcript that "The Court will call for trial in
Cause No. 30,110, . . ." made Judge LaGrone a vital material witness in the Stowers action. However, the complete
transcript of the underlying proceeding, which includes the statement Insurers complain of, was admitted into
evidence in the Stowers action. Further, Judge LaGrone's calling the underlying proceeding for trial did not
constitute his participation "as . . . material witness in the matter in controversy." Tex. R. Civ. P. 18b(2)(d). Certainly,
as addressed above, Insurers may refute Judge LaGrone's characterization of the underlying proceeding as a "trial,"
but we do not conclude that the trial court abused its discretion in denying Insurers' motion for recusal on this basis.
Additionally, Insurers contend that Judge LaGrone must have knowledge of disputed evidentiary facts regarding
whether the underlying proceeding was, in fact, a fully adversarial trial. However, Insurers fail to identify any specific
knowledge of disputed evidentiary facts purportedly held by Judge LaGrone. We will not find recusal appropriate
solely on the basis of speculation regarding facts that may or may not be known by the presiding judge.
We overrule Insurers' challenge to the denial of their motion to recuse.
Disqualification of Counsel
Finally, Insurers contend that two attorneys in the Segers' counsel, Brian Heinrich and Joe Hayes, were disqualified
from representing the Segers in their Stowers action because each (1) were witnesses in the Stowers action, see
Tex. Disc. R. Prof. Cond. 3.08, and (2) were to be paid on a contingent basis, see Tex. Disc. R. Prof. Cond. 3.04.
The denial of a motion for disqualification is reviewed for abuse of discretion. See Metro. Life Ins. Co. v. Syntek Fin.
Corp., 881 S.W.2d 319, 321 (Tex. 1994). As both parties to the present dispute acknowledge, the disqualification of
counsel is a severe remedy, which is not to be invoked lightly. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.
2002). Even if challenged counsel has committed a disqualifying act, the party requesting disqualification must
demonstrate that counsel's conduct caused actual prejudice. Id.
Assuming, without deciding, that Heinrich and/or Hayes were lawyer-witnesses such that they would be disqualified
from representing the Segers in the Stowers action, Insurers have failed to present any evidence that they were
harmed. Insurers cite a deposition of Professor Bob Schuwerk, which is not a part of the record, as concluding that
Heinrich and Hayes violated Rules 3.04 and 3.08 of the Texas Disciplinary Rules of Professional Conduct. However,
proof that an attorney violated a Rule of Professional Conduct, without a further showing of harm, is insufficient to
justify disqualification. Id. Nothing in Insurers' discussion of Schuwerk's deposition identifies how they were harmed
by any alleged violation of the Rules by either Heinrich or Hayes.
Insurers contend that the trial court took certain unrelated actions to avoid having to rule that Heinrich and Hayes
were disqualified to represent the Segers in the Stowers action, however, this contention is wholly unsupported by
evidence and is purely speculative. See Miller v. Hood, 536 S.W.2d 278, 285 (Tex.Civ.App.-Corpus Christi 1976, writ
ref'd n.r.e.) (presumption of regularity and validity of trial court rulings unless facially invalid or invalidity shown in the
record). Additionally, while Insurers contend that Hayes and Heinrich were disqualified because they were witnesses
whose payment was contingent upon the outcome of the case, Insurers fail to identify any evidence establishing that
Hayes or Heinrich were being paid on a contingent basis.
We overrule Insurers' issue regarding the denial of their motion to disqualify Hayes and Heinrich.
DIATOM DRILLING CO., ET AL. v. YORKSHIRE INSURANCE CO., LTD., ET AL.; from Hutchinson County; 7th district
(07-05-00386-CV, ___ SW3d ___, 08‑17‑07)(coverage, declaratory judgment, attorney’s fees)
Appellants, Yorkshire Insurance Co., Ltd., and Ocean Marine Insurance Co., Ltd. (collectively, "Insurers"), appeal a
summary judgment granted in favor of appellees, Diatom Drilling Co. (Diatom) and Employer's Contractor Services,
Inc. (ECS), in Insurers' action for declaratory relief or reformation and the award of attorney's fees to Diatom and
ECS. We reverse and render judgment in favor of Insurers. We reverse and remand the award of attorney's fees
CHARLES BARNES, ET AL. v. CITY OF ARLINGTON, TEXAS; from Tarrant County; 2nd district (02-07-00249-CV,
___ SW3d ___, 03-27-08) as redrafted (TTCA, immunity, emergency vehicles)
Appellant City of Arlington, Texas, brings this interlocutory appeal from the trial court’s judgment denying its plea to
the jurisdiction and motions for summary judgment. In its sole issue, appellant argues that appellees failed to
establish a waiver of governmental immunity. We reverse and render. Background Facts Officer Dace Warren of
the Arlington Police Department was driving northbound on Fielder Road in an emergency situation with the lights
and sirens activated in his police car as he approached the intersection of Fielder Road and Randol Mill Road.
Appellee Charles Barnes, who was driving southbound on Fielder Road and was stopped at the red light at the
intersection of Fielder Road and Randol Mill Road, saw Officer Warren’s lights and heard the sirens. Appellee Ryan
Matthew Robinson was driving westbound on Randol Mill Road when he came to the intersection of Randol Mill Road
and Fielder Road. Robinson did not hear Officer Warren’s siren or see his lights but continued through the
intersection at the same speed, which was about forty miles per hour, as the light turned from green to yellow.
INTEGRATED APPLICATIONS ENGINEERING, INC. AND DAVID HOWE v. MAGGIE FENG HONG, BO HONG, IAE,
SUPPLY, INC. AND IAE ENERGY & SUPPLIES, INC.; from Fort Bend County; 14th district (14-06-00579-CV, ___
SW3d ___, 03-11-08 (judgment reversed, conclusory and insufficient expert testimony to support )
IN THE INTEREST OF S.L.M.; from Bexar County; 4th district (04‑07‑00566‑CV, ___ SW3d ___, 06‑18‑08) as
redrafted (nonparent standing, sibling visitation)
MARGARET PLEASANT AND MARK BOWLES D/B/A PRUDENTIAL SYNERGY REALTORS v. JASON BRADFORD
AND ASHLEY BRADFORD; from Bell County; 3rd district (03-07-00167-CV, 260 SW3d 546, 06-26-08) (real estate
transaction, fraud, negligent misrepresentation, reliance on the misrepresentation, waiver)
This appeal involves a realtor's representation with respect to the square footage of improvements to a piece of
residential real estate. The purchasers Jason and Ashley Bradford were awarded damages at trial on their fraud,
negligent misrepresentation, and Deceptive Trade Practices Act claims based on an alleged overstatement by the
realtor representing the sellers of the square footage of the home. On appeal, the sellers' realtor complains of (1)
the jury finding that the Bradfords acted in reliance on the realtor's representation rather than on their own
independent investigation; (2) the trial court's failure to submit a jury question on waiver of claims; and (3) the
insufficiency of the evidence presented at trial to support the amount awarded by the jury under the benefit-of-the-
bargain measure of damages. We affirm the judgment of the district court.
Jury Question Regarding Waiver
Appellants' next point on appeal is that the trial court erred by failing to submit an issue on waiver to the jury based
on the disclaimer form. Texas rules of civil procedure require a trial court to submit to the jury questions raised by
the written pleadings and the evidence. Tex. R. Civ. P. 278. Appellants raised the affirmative defense of waiver in
their pleadings and presented a written question on waiver during the charge conference, which was refused by the
trial court. (5) "So long as matters are timely raised and properly requested as part of a trial court's charge, a
judgment cannot be permitted to stand when a party is denied proper submission of a . . . vital defensive issue
raised by the pleadings and evidence." Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992). A trial court may
refuse to submit an issue only if no evidence exists to warrant its submission. Elbaor v. Smith, 845 S.W.2d 240, 243
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.
Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). A waivable right may spring from law or from
contract. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
Appellants argue that the form signed by the Bradfords, which disclaimed reliance on any statements by "the
REALTOR," was a written waiver of reliance. However, none of the cases cited by appellants stands for the
proposition that reliance is a known right, springing from law or from contract, that may be waived. See In re General
Elec. Capital Corp., 203 S.W.3d 314 (Tex. 2006) (waiver of contractual right to non-jury trial); Jernigan v. Langley,
111 S.W.3d 153 (Tex. 2003) (waiver of statutory right to seek dismissal of lawsuit); Sun Exploration, 728 S.W.2d at
37 (waiver of condition precedent to contract). A written waiver of a party's causes of action can support an
affirmative defense of waiver against a fraud claim. See Roberts v. Whitfill, 191 S.W.3d 348, 358-59 (Tex. App.--
Waco 2006, no pet.) (trial court erred in refusing to submit jury question on defendant's affirmative defense of waiver
where a settlement agreement provision waived all causes of action). A DTPA claim may also be waived, although
there are specific statutory requirements for the waiver to be valid and enforceable. See Tex. Bus. & Com. Code
Ann. § 17.42 (West 2002). However, we find no evidence in the record that the Bradfords waived their right to sue
appellants or their right to assert a fraud, misrepresentation, or DTPA claim. To the extent the Bradfords disclaimed
reliance on any statements by appellants, they did not relinquish any right to assert their causes of action. Rather,
the disclaimer of reliance, if effective against appellants, could "conclusively negate the element of reliance" in the
Bradfords' causes of action. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179-81 (Tex. 1997) (emphasis
added); see Ortiz, 203 S.W.3d at 421 (reliance is element of fraud and negligent misrepresentation claims); Tex.
Bus. & Com. Code Ann. § 17.50(a)(1) (West Supp. 2007) (reliance is element of the Bradfords' DTPA claim). Such a
form does not act as a waiver of reliance.
NEW WAVE TECHNOLOGIES, INC. v. LEGACY BANK OF TEXAS; from Collin County; 8th district
(08-07-00046-CV, ___ SW3d ___, 06-26-08) (no conversion of checks, Tex.Bus.&Com.Code Ann. § 3.420(a).
Having found the checks to be payable to either Maxim or New Wave, Maxim was entitled to enforce the instruments.
Legacy did not take the instruments from a person not entitled to enforce the instrument, nor did Legacy make
payment on an instrument for a person not entitled to enforce the instrument or receive payment. Legacy did not
convert the checks under Section 3.420 of the Texas Business and Commerce Code. Issue Three is overruled.
Having overruled all of Appellant's issues, we affirm the trial court's ruling.
ATP OIL & GAS CORPORATION AND ATP OIL & GAS (UK) LTD. v. FIRST OIL, PLC; from Harris County; 1st district
(01‑07‑00703‑CV, 264 SW3d 767, 05‑22‑08)
BAIR CHASE PROPERTY COMPANY, LLC, KENNETH A. BARFIELD AND WESTERN PROPERTY DEVELOPMENT
COMPANY, LLC v. S&K DEVELOPMENT COMPANY, INC.; from Travis County; 3rd district (03‑07‑00461‑CV, 260
SW3d 133, 06‑05‑08)(suit on promissory note, usury)
Appellants Bair Chase Property Company ("BCPC"), Kenneth A. Barfield, and Western Property Development
Company ("Western Property") (collectively, "Bair Chase"), appeal from a summary judgment granted in favor of
S&K Development Company ("S&K"), as well as an award of attorney's fees to S&K. S&K initially brought suit against
Bair Chase to recover on a promissory note and guaranty agreement. In response, Bair Chase brought a
counterclaim for usury, leading S&K to take corrective action under the Texas Finance Code. S&K then filed a
traditional motion for summary judgment on the note and a no-evidence motion for summary judgment on the usury
counterclaim. The trial court granted both motions and awarded S&K attorney's fees and costs. Because we have
determined that the trial court did not err in granting summary judgment, we affirm the trial court's order in that
respect. However, because S&K failed to segregate its attorney's fees, the award of attorney's fees is reversed and
remanded for a redetermination after fees incurred by S&K in correcting alleged usury violations are segregated
from fees incurred in pursuing S&K's recovery on the note.
DONALD RAY MCCRAY v. DOUGLAS D. MULDER; from Dallas County; 5th district (05‑08‑00420‑CV, ___ SW3d
___, 07‑02‑08)(appellate deadlines, untimely notice of appeal)
THE UNKNOWN STOCKHOLDERS OF THE K.M. VAN ZANDT LAND COMPANY AND THE UNKNOWN HEIRS,
SUCCESSORS, AND ASSIGNS OF THE UNKNOWN STOCKHOLDERS OF THE K.M. VAN ZANDT LAND COMPANY
AND EDMUND P. CRANZ AND NEIL L. VAN ZANDT v. WHITEHEAD EQUITIES, JV., JAGEE REAL PROPERTIES, L.P.,
GARVIEW PARTNERS, L.P., SPOKANE VENTURES, LTD., INC., NONA, INC. WILL ED WADLEY AND FPA
FOUNDATION; from Tarrant County; 2nd district (02-06-00294-CV, ___ SW3d ___, 06-19-08)
2 petitions (deed restrictions, restrictive covenants, class certification)
FITZHUGH 25 PARTNERS, L.P. v. KILN SYNDICATE KLN 501, CHAUCER SYNDICATE RAS 1096, BRIT SYNDICATE
BRT 2987; from Dallas County; 5th district (05-07-01334-CV, 261 SW3d 861, 08-20-08)
did not breach their contract of insurance coverage when they refused to pay Fitzhugh's claim for replacement
costs. We conclude the trial court correctly granted summary judgment in favor of the Underwriters on Fitzhugh's
claims for declaratory judgment and breach of contract. We affirm the trial court's judgment.
IN THE INTEREST OF A.S., D.S. AND L.A.S.; from Harris County; 14th district (14-07-00140-CV, 261 SW3d 76, 03-
04-08)(termination of parental rights)
PETITIONS FOR REVIEW DENIED DEC. 12, 2008
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED DEC 5, 2008:
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS v. STATE BAR OF TEXAS; from Travis County; 3rd district
(03‑06‑00592‑CV, 241 SW3d 604, 08‑31‑07)
(Justice Willett not sitting)
We conclude that public access to an attorney's home address, home telephone number, date of birth, and internal
database identifier number maintained by the State Bar is not governed by the Public Information Act pursuant to the
provisions of section 552.0035. Rather, access to such information is governed by rules adopted by the Supreme
Court of Texas or by other applicable laws and rules. Accordingly, we reverse the judgment of the district court and
remand this cause for further proceedings consistent with this opinion.
GULF INSURANCE CO. v. CHAD HENNINGS; from Denton County; 10th district (10‑06‑00192‑CV, ___ SW3d ___,
01‑30‑08) (Recusal by Justice Gray)
This is a workers’ compensation case of first impression involving a professional athlete as defined in the Texas
Labor Code. Finding no error, we will affirm the trial court’s judgment awarding workers’ compensation benefits.
RUBYE MANGUM, AS EXECUTRIX OF THE ESTATE OF LAVADA OAKES AND AS BENEFICIARY OF THE WILL OF
LAVADA OAKES v. TRENT TURNER AND DONNY TURNER; from Freestone County; 10th district (10‑07‑00004‑CV,
255 SW3d 223, 02‑27‑08)(will, deed, statute of fraud, Rule 11 agreement, settlement, release)
executrix of the estate of LaVada Oakes and as beneficiary of her will, sued Trent and Donny Turner to rescind
three deeds from Oakes and her deceased husband to the Turners. The settlement agreement that the trial court
found and that the judgment enforces is not the written release agreement that Mangum did not agree to. Instead,
as we stated above, the settlement agreement found by the trial court was the original agreement between the
parties’ attorneys, which the evidence is factually sufficient to support, as we held above.
PAULA MATHEWS v. PORT ARTHUR INDEPENDENT SCHOOL DISTRICT; from Jefferson County; 9th district
(09‑07‑00162‑CV, ___ SW3d ___, 01‑31‑08)
In this appeal from the denial of a plea to the jurisdiction, Port Arthur Independent School District ("PAISD") contends
Paula Mathews failed to exhaust her administrative remedies before filing suit for breach of an Equal Employment
Opportunity Commission ("EEOC") settlement agreement and for retaliation under the Texas Commission on Human
Rights Act. See 42 U.S.C. § 2000e et seq.; Tex. Lab. Code Ann. § 21.001 et seq. (Vernon 2006). (1) Mathews
contends she did not have to exhaust her administrative remedies before filing suit because her claims grew out of
an earlier charge of discrimination. ... No administrative complaint has been filed with respect to the dispute before
the trial court. We hold the trial court erred when it denied the school district's plea to the jurisdiction. Accordingly,
we reverse the trial court's order and dismiss the cause.
AUGUST MEDUNA, JR. AND GARY MEDUNA, SR. v. RUTH HOLDER; from Bastrop County; 3rd district
(03‑06‑00484‑CV, ___ SW3d ___, 04‑30‑08)
ANDERSON MARTIN WHITEHEAD v. CEDYCO CORPORATION; from Jasper County; 9th district (09‑07‑00090‑CV,
253 SW3d 877, 05‑01‑08) (deemed admissions)(pleadings not evidence)
Cedyco contends that the trial court "abused its discretion in refusing to grant the motion to undeem the requests for
admissions." From the substance of Cedyco's first issue, we understand it as complaining of Whitehead's failure to
support his summary judgment motion with proper summary-judgment evidence. We agree and reverse the summary
BRUCE WAYNE HOUSER v. KENNY K. ALLEN, ET AL.; from Jefferson County; 9th district (09‑07‑00106‑CV, ___
SW3d ___, 05‑15‑08)denial of access to courts claim for which he suffered no actual injury.
ALLAN A. CROCKETT AND GULF COAST CONTRACTORS, INC. v. TEXAS DEPARTMENT OF TRANSPORTATION;
from Cameron County; 13th district (13‑07‑00640‑CV, 257 SW3d 412, 06‑05‑08, pet denied Dec 2008)
By a plea to the jurisdiction, TxDOT urged that the counterclaim should be dismissed for lack of jurisdiction,
asserting that it retained its sovereign immunity because Crockett's counterclaim was not germane to, connected
with and properly defensive to TxDOT's conversion suit. TxDOT also urged that Crockett had not exhausted its
administrative remedy to pursue the alleged underpayments through section 201.112 of the Texas Transportation
Code. See Tex. Transp. Code Ann. § 201.112 (Vernon Supp. 2007). Reata progeny, sovereign immunity,
FRANK SEMBERA v. PETROFAC TYLER, INC. AND PETROFAC LIMITED; from Smith County; 12th district
(12‑06‑00373‑CV, 253 SW3d 815, 03‑26‑08)
Frank O. Sembera appeals the trial court’s judgment denying him the recovery of stock he once owned in his former
employer, Petrofac Tyler, Inc. (“PT”), and the recovery of stock from a related company, Petrofac Limited (“PL”).
Instead, the trial court awarded Sembera $105,269.40 for five thousand shares of stock he owned in PT until
December 31, 2001. We affirm Sembera’s judgment against PT. We reverse Sembera’s judgment against PL and
render a take nothing judgment in its place.
PATRICK REINHARDT v. JOE WALKER; from Brazoria County; 14th district (14‑07‑00304‑CV, ___ SW3d ___,
06‑12‑08)(Proof of Agreement, limitations, damages, reasonable cost of repairs.)
BRENDA MITCHELL v. BETTY DOMINGO; from Lubbock County; 7th district (07‑07‑00038‑CV, 257 SW3d 34,
05‑21‑08, pet denied Dec 2008)(contract formation)(we conclude she presented more than a scintilla of evidence to
raise a genuine issue of material fact on whether the parties entered into a valid oral contract and whether Mitchell
breached the contract, thereby defeating Mitchell’s no-evidence summary judgment. Simultaneously, accepting as
true the evidence favorable to Domingo and indulging every reasonable inference in her favor, we conclude the
summary judgment evidence raised a genuine issue of material fact defeating Mitchell’s entitlement to summary
judgment as a matter of law. We hold that the summary judgment in favor of Mitchell based on Domingo’s breach of
contract claim was improvidently granted. Resultantly, we sustain issues one and two.
Accordingly, the trial court’s judgment is reversed and the cause is remanded to the trial court for further
LEWIS TURNER v. LINDA TURNER; from Montgomery County; 9th district (09‑06‑00570‑CV, ___ SW3d ___,
06‑26‑08) We sustain issue one to the extent it challenges the trial court's award of rescission and reform the
judgment to delete paragraph six. We sustain issue two in part as it relates to the trial court's award to Lewis for
intentional infliction of emotional distress and render judgment that Lewis take nothing on his claim of intentional
infliction of emotional distress. We overrule issue two to the extent it complains of the legal and factual sufficiency of
the evidence to support the bodily injury award in the amount of $150,000. We also overrule issue three. As
reformed, we affirm the trial court's judgment.
CAROLYN REININGER v. TEXAS BUILDING AND PROCUREMENT COMMISSION; from Travis County; 3rd district
(03‑06‑00363‑CV, 259 SW3d 364, 07‑03‑08, pet denied Dec 2008)(whistlblower act, who to complaint to,
appropriate law enforcement agency)
RUTH PRESTWOOD, KATE WILSON AND THE ESTATE OF CLYDE L. PRESTWOOD v. STEPHEN SETTLE, M.D.;
from Travis County; 3rd district (03‑07‑00111‑CV, ___ SW3d ___, 02‑28‑08)
Appellants Ruth Prestwood and Kate Wilson, individually and on behalf of the estate of Clyde L. Prestwood
(collectively, "Prestwoods"), appeal the trial court's order dismissing their health care liability suit against Dr. Stephen
Settle, M.D., and awarding Dr. Settle attorney's fees. The trial court found that the Prestwoods failed to serve an
expert report and curriculum vitae within the prescribed 120-day period under chapter 74 of the civil practice and
remedies code, mandating dismissal of their suit and the award of reasonable attorney's fees to the affected health
care provider. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b) (West Supp. 2007). Because we conclude
that dismissal was required and that the attorney's fee award was reasonable, we affirm the judgment of the trial
ANN D. WALRATH v. VICTORIA GARDENS OF FRISCO; from Collin County; 5th district (05‑07‑00578‑CV, 257
SW3d 284, 04‑24‑08)
FRANK F. STARR v. HENRY DART; from Harris County; 14th district (14‑07‑00673‑CV, ___ SW3d ___, 07‑24‑08)
(breach of settlement agreement, penalty, usury)
JEFF MOORE D/B/A T&M PRODUCTION v. JET STREAM INVESTMENTS, LTD., SARA P. RUDD, EXECUTRIX OF
THE ESTATE OF J.B. RUDD AND YOUNGBLOOD PROPERTIES, L.P.; from Harrison County; 6th district
(06‑07‑00106‑CV, 261 SW3d 412, 08‑08‑08)(opinion not available online)
EULA MCGREGOR, TOMMIE JAMES, CHARLES JAMES AND ERMA RUTH ERVIN, AS HEIRS OF THE ESTATE OF
LOUIS D. JAMES, DECEASED, AND LACHUNDA JAMES v. SALIH YILMAZ, M.D.; from Grimes County; 1st district
(01‑07‑01116‑CV, 265 SW3d 631, 07‑17‑08)interlocutory appeal from the trial court’s denial of his motion to dismiss
a medical malpractice lawsuit
S & J INVESTMENTS v. AMERICAN STAR ENERGY AND MINERALS CORPORATION; from Hutchinson County; 7th
district (07‑07‑00357‑CV, ___ SW3d ___, 07‑08‑08)law of the case , oil and gas lease
CHIU MOON CHAN AND ELLA Y. CHAN v. MONTEBELLO DEVELOPMENT COMPANY, LP AND STEWART TITLE
COMPANY; from Harris County; 14th district (14‑06‑00936‑CV, ___ SW3d ___, 07‑31‑08)
In this case, the buyers of a residential high-rise condominium signed a purchase contract with the seller and
deposited their earnest money with a title company. However, the buyers did not close on the property as provided
in the purchase contract, and, at the seller=s instruction, the title company transferred the buyers= earnest money to
the seller. The buyers, Chiu Moon Chan and Ella Y. Chan, later sued the seller, Montebello Development Company,
L.P. (AMontebello@) and the title company, Stewart Title Company (AStewart Title@), for the return of their earnest
money. The trial court granted summary judgment in favor of Montebello and Stewart Title, and declared that the
purchase contract was terminated and Montebello was entitled to keep the earnest money as liquidated damages
under the purchase contract.
EMERALD COAST EXCHANGE AND ABELARDO JASSO v. STATE OF TEXAS; from Harris County; 14th district
(14‑06‑01092‑CV, 261 SW3d 439, 08‑19‑08)
ANGELA MARIE ARNETT v. MARY ARNETT; from Lampasas County; 3rd district (03‑05‑00056‑CV, ___ SW3d ___,
HARTFORD ACCIDENT AND INDEMNITY COMPANY, HARTFORD CASUALTY INSURANCE COMPANY, AND WHITE-
SPUNNER CONSTRUCTION, INC. v. MUSTANG TRACTOR & EQUIPMENT COMPANY, AND MUSTANG RENTAL
SERVICES, INC.; from Travis County; 3rd district (03‑07‑00468‑CV, 263 SW3d 437, 07‑02‑08)
BEVERLY A. TEMPLE AND RODLAROC TEMPLE v. MILITARY COMMUNICATIONS CENTERS, INC.; from Bell
County; 3rd district (03‑07‑00377‑CV, ___ SW3d ___, 08‑20‑08)
GRACE MEMORIAL BAPTIST CHURCH A/K/A GRACE BAPTIST CHURCH N/K/A CHURCH OF THE LORD JESUS
CHRIST v. HARRIS COUNTY, ET AL.; from Harris County; 14th district (14‑07‑00447‑CV, ___ SW3d ___, 08‑28‑08)
RDERS ON PETITIONS FOR REVIEW