TEXAS SUPREME COURT
PETITIONS FOR REVIEW DENIED
JANUARY 2008
PETITIONS FOR REVIEW DENIED
JANUARY 2008
2008 TEXAS SUPREME COURT
DECISIONS - DISPOSITIONS
Petitions for Review denied by Tex. Sup. Ct. in January 2008
Petitions for Review denied by Tex. Sup. Ct. in February 2008
Petitions for Review denied by Tex. Sup. Ct. in March 2008
Petitions for Review denied by Tex. Sup. Ct. in April 2008
Petitions for Review denied by Tex. Sup. Ct. in May 2008
Petitions for Review denied by Tex. Sup. Ct. in June 2008
Petitions for Review denied by the Texas Supreme Court July 2008
Petitions for Review denied by the Texas Supreme Court August 2008
Petitions for Review denied by the Texas Supreme Court in September 2008
Petitions for Review denied by the Texas Supreme Court in October 2008
Petitions for Review denied by the Texas Supreme Court in November 2008
Petitions for Review denied by the Texas Supreme Court in December 2008
Most recent Petitions for Review denied by the Texas Supreme Court
Petitions for Review Denied by the
Texas Supreme Court in January 2008
ORDERS ON PETITIONS FOR REVIEW
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED JANUARY 25, 2008
06-0976
MARY ANN DEMARS AND ROBERT DEMARS v. NIEY-BOR HSYUNG, ET AL.; from Harris County; 14th district
(14-05-00916-CV, ___ SW3d ___, 03-23-06, pet. denied Jan 2008) (dismissal for nonpayment)
as redrafted
respondent's second supplemental motion for sanctions dismissed as moot
petitioner's motion for sanctions dismissed as moot
motion for extension of time to file response dismissed as moot
06-1015
PLAYBOY ENTERPRISES, INC. v. EDITORIAL CABALLERO, S.A. DE C.V. AND GRUPO SIETE
INTERNATIONAL, INC.; from Hidalgo County; 13th district (13-03-00048-CV, ___ SW3d ___, 05-25-06, pet.
denied Jan 2008) 2 petitions
This commercial dispute arose between plaintiff Eduardo Gongora,[1] appellant Playboy Enterprises, Inc. (PEI),
and appellees Editorial Caballero, S.A. de C.V. (EC) and Grupo Siete International, Inc. (GSI). EC and GSI
cross-claimed against PEI for fraud, breach of contract, breach of fiduciary duty, business disparagement,
tortious interference, and interference with prospective business relations. PEI cross-claimed against EC and
GSI alleging, among other things, breach of contract and fraud. Immediately before closing arguments and
over PEI's objection, the trial court realigned EC and GSI as plaintiffs. The jury found for EC and GSI and
against PEI on all claims, except interference with prospective business relations, and awarded $3,600,000 for
out-of-pocket expenses, $500,000 for liabilities incurred, and $260,000 for lost profits. The jury declined to
award punitive damages. With respect to PEI's claims, the jury found that both EC and GSI had committed
fraud and various contractual breaches, but that their actions were excused.[2] The trial court rendered a final
judgment for damages awarded by the jury in the amount of $4,360,000, plus the maximum allowable pre-
judgment interest calculated from the date suit was filed and post-judgment interest at the maximum rate
allowed by law.
07-0083
THOMAS EARL GAINOUS v. BRENDA JOYCE GAINOUS; from Harris County; 1st district
(01-04-00427-CV, 219 SW3d 97, 12-21-06, pet. denied Jan 2008)
(several separate opinions) (post-divorce actions)
OPINION ON REHEARING
Appellant, Brenda Joyce Gainous ("Brenda"), has moved for rehearing of the Court's August 24, 2006
judgment. Appellee, Thomas Earl Gainous ("Thomas"), has filed a response to Brenda's motion. After due
consideration, we grant Brenda's motion for rehearing and withdraw our opinion and judgment dated August
24, 2006. We issue this opinion and judgment in their place.
Brenda appeals from the judgment denying her motion for enforcement or, alternatively, motion for clarification
of the 1995 divorce decree between herself and her former husband, Thomas. We determine (1) whether
some of Brenda's challenges were collateral attacks, which could be raised after the trial court's plenary power
had expired, on a post-divorce qualified domestic relations order ("QDRO") and (2) whether the divorce decree
awarded Brenda half of Thomas's benefits under the Houston Firemen's Relief and Retirement Fund ("the
Fund"). (1) We reverse the judgment and remand the case.
07-0112
FORMOSA PLASTICS CORPORATION, USA v. KAJIMA INTERNATIONAL, INC.; from Calhoun County; 13th
district (13-02-00385-CV, 216 SW3d 436, 12-28-06, pet. denied Jan 2008) Following a jury trial in this suit for
fraud, the trial court rendered judgment in favor of appellee, Kajima International, Inc. (“Kajima”). Appellant,
Formosa Plastics Corporation, USA (“Formosa”), challenges the trial court’s judgment by nine issues. We
sustain appellant’s third issue and hold that the trial court erred in refusing to disqualify Kajima’s expert
witness, A. W. “Chip” Hutchison (“Hutchison”) and his firm, A. W. Hutchison & Associates, Inc., (“AWH”) on the
basis of “side-switching.” Accordingly, we reverse the trial court’s judgment and remand for a new trial.
Disqualification of Kajima’s Expert Witness
07-0212
IN THE MATTER OF M.P., A CHILD; [Dissenting opinion by Justice Vance] from Brazos County; 10th district
(10-06-00008-CV, 220 SW3d 99, 02-07-07, pet. denied Jan 2008) (juvenile delinquent conduct)
07-0320
THE STATE OF TEXAS v. ROBERT LOUIS MARTIN; from Harris County; 14th district
(14-05-00687-CV, 222 SW3d 532, 03-01-07, pet. denied Jan 2008) (civil commitment)
Commitment proceedings concerning persons who have been found "not guilty by reason of insanity" are civil
in nature.] we reverse the trial court's order renewing its prior order for inpatient extended mental health
services and render an order denying the application for renewal of the prior order for extended mental health
services
07-0505
TEXAS ROADHOUSE OF WACO, LTD. v. MARJORIE MESSER;[concurring opinion][dissenting opinion] from
McLennan County; 10th district (10-05-00340-CV, ___ SW3d ___, 05-09-07, pet. denied Jan 2008)
Marjorie Messer appeals from a no-evidence summary judgment decreeing that she take nothing in her suit for
damages sustained when she fell when stepping from an elevated booth on the premises of Texas Roadhouse
Restaurant. Messer contends that she presented some evidence in her summary-judgment response to
support each element of her claim. We will reverse and remand.
07-0576
RED ROOF INNS, INC. AND ACCOR NORTH AMERICA, INC. v. MURAT HOLDINGS, L.L.C.; from Dallas County;
5th district (05-05-00240-CV, 223 SW3d 676, 04-16-07, pet. denied Jan 2008) 3 petitions
(franchise agreement dispute, tortious interference, jury charge error)
07-0600
JACKIE TEEL v. BELDON ROOFING & REMODELING CO., D/B/A BELDON ROOFING COMPANY, AND STEVE
PHILLIPS; from Bexar County; 4th district (04-06-00231-CV, ___ SW3d ___, 04-25-07, pet. denied Jan 2008)
(arbitration) Jackie Teel appeals the trial court's order compelling arbitration; alternatively Teel challenges the
arbitrator's decision under the Federal Arbitration Act. We affirm the trial court's judgment.
07-0644
DIAMOND OFFSHORE COMPANY, DIAMOND OFFSHORE DRILLING SERVICES, INC., DIAMOND OFFSHORE
(USA) L.L.C., AND DIAMOND OFFSHORE MANAGEMENT COMPANY v. DONNIE HALL; from Tarrant County;
2nd district (02-06-00272-CV, ___ SW3d ___, 05-17-07, pet. denied Jan 2008) (Justice Medina not sitting)
Appellants Diamond Offshore Company, Diamond Offshore Management Company, Diamond Offshore (USA),
LLC, and Diamond Offshore Drilling Services, Inc., assert that the trial court had subject matter jurisdiction to
vacate an arbitration award and that, therefore, the trial court improperly dismissed this case for want of
jurisdiction. We affirm.
07-0729
JEFFREY WEISS v. JP MORGAN CHASE BANK, N.A. F/K/A MORGAN GUARANTY TRUST COMPANY OF NEW
YORK; from Dallas County; 5th district (05-06-00940-CV, ___ SW3d ___, 07-20-07, pet. denied Jan 2008)
(domestication of foreign judgment, motion for new trial overruled by operation of law, plenary power, no
hearing, diligence)
07-0738
KATIN CORP. v. BEA LOESCH; from Travis County; 3rd district (03-05-00412-CV, ___ SW3d ___, 08-10-07,
pet. denied Jan 2008) Default judgment against corporate defendant whose registered agent refused service
of citation affirmed
07-0753
THE UNIVERSITY OF TEXAS SYSTEM, THE UNIVERSITY OF TEXAS AT DALLAS, AND ROBERT LOVITT v.
GURUMURTHY KALYANARAM; from Dallas County; 5th district (05-05-01493-CV, 230 SW3d 921, 08-07-07,
pet. denied Jan 2008) (public employment, assertion of governmental immunity, dismissal of claim for breach of
settlement agreement reversed)
07-0878
SCI TEXAS FUNERAL SERVICES, INC. D/B/A CONNALLY/COMPTON FUNERAL DIRECTORS, INC. v. JANE
GILMORE, ET AL.; from McLennan County; 10th district (10-06-00209-CV, 234 SW3d 251, 08-15-07, pet.
denied Jan 2008)
2 petitions Appellants Jane Gilmore and the Pickens family bring this appeal from a take-nothing judgment
rendered in favor of a funeral home and a cemetery vault company arising from an incident at the graveside
service for Pam Pickens when a lowering device failed and the casket tipped and fell to the bottom of the vault.
Appellants contend in three issues that: (1) the court abused its discretion by denying their motion for new trial
in which they argued that the jury’s verdict is against the great weight and preponderance of the evidence on
the issues of whether: (a) the funeral home breached its contract, (b) the funeral home was negligent, and (c)
they suffered compensable mental anguish damages; (2) the court erred by failing to instruct the jury in the
charge that the funeral home was liable for the acts and omissions of the vault company under section 651.408
of the Occupations Code; and (3) the court erred by failing to submit a spoliation instruction in the charge
because the vault company discarded the lowering device. We will affirm in part and reverse and remand in
part
07-0908
SENIOR LIVING PROPERTIES, L.L.C. D/B/A JEFFREY PLACE HEALTHCARE v. ROBERT JAMES COLE; from
McLennan County; 10th district (10-06-00227-CV, ___ SW3d ___, 09-19-07) under chapter 242 of the Health
and Safety Code. The jury found in favor of Cole
07-0922
EOG RESOURCES, INC. v. KILLAM OIL CO., LTD. AND HURD ENTERPRISES, LTD.; from Webb County; 4th
district (04-06-00794-CV, 239 SW3d 293, 08-08-07) oil and gas case, the dispute centers on the interpretation
of various agreements entered into between the parties' predecessors
PETITIONS FOR REVIEW DENIED JANUARY 18, 2008
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
07-0854
EXCEL AUTO AND TRUCK LEASING, LLP v. ALIEF INDEPENDENT SCHOOL DISTRICT, ET AL.; from Harris
County; 1st district (01-04-01185-CV, ___ SW3d ___, 08-31-07, pet. denied Jan 2008)(property tax cases)
In this suit for delinquent ad valorem taxes, Excel Auto & Truck Leasing, L.L.P., appellant/taxpayer, complains
of the trial court's granting summary judgment in favor of the various taxing units, appellees. In three issues,
Excel argues that the trial court erred (1) in finding that it was the owner of the vehicles and liable for ad
valorem taxes; (2) in finding that there was no genuine issue as to any material fact as to ownership of the
vehicles; and (3) in granting summary judgment to Pasadena Independent School District ("ISD"), which filed no
Motion for Summary Judgment, rendering the judgment interlocutory. We affirm.
07-0876
PASCUAL OLIBAS v. THE HONORABLE SHERIFF ARNULFO "ANDY" GOMEZ, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS THE SHERIFF OF REEVES COUNTY, TEXAS; from Reeves County; 8th district
(08-06-00010-CV, ___ SW3d ___, 08-23-07, pet. denied 2008) lawsuit arising out of a Texas Open Records
request. Pascual Olibas appeals sanctions awarded against him in the amount of $4,800. We affirm the
judgment of the trial court.
07-0937
GEORGE HEIGEL AND PATTI CALLIS v. TANYA MCCOMAS; from Ector County; 11th district
(11-06-00134-CV, ___ SW3d ___, 09-27-07, pet. denied Jan 2008) (executory contract, annual accounting,
Heigel and Callis entered into a contract to purchase property from McComas in 1999. Heigel and Callis sued
McComas for breach of that contract, specifically for failing to provide them with an accounting statement in
accordance with Tex. Prop. Code Ann. ' 5.077 (Vernon Supp. 2006). The parties proceeded to a jury trial only
on the issue of failing to provide the accounting statements. The jury found that McComas failed to provide
Heigel and Callis with an accounting statement for the years 2001, 2002, and 2003 and that she provided the
2004 statement after the January 31 statutory deadline. The trial court entered a judgment for Heigel and
Callis awarding damages in the amount of $400. Issues on Appeal Heigel and Callis raise three issues on
appeal. First, they contend that the trial court erred in applying the amended version of Section 5.077(c).
Second, they contend that the trial court erred in not granting their motion for attorney's fees. Third, they
contend that the trial court erred in granting McComas's motions for continuance and not invoking the doctrine
of estoppel to her claim that the amendments to the code should apply. McComas raises a conditional cross-
issue on appeal. She asserts that the Section 5.077 violates the "excessive fines" clause of the Texas
Constitution.
07-0999
KENNETH D. SMARTT, JR., ELIZABETH JIMENEZ, XOTICAS-LAREDO, L.P.; XOTICAS-LAREDO, INC., K.
SMARTT INVESTMENTS, INC., D/B/A XOTICAS v. CITY OF LAREDO, TEXAS; from Webb County; 7th district
(07-06-00291-CV, ___ SW3d ___, 10-23-07, pet denied Jan 2008) (SOB regulation, permanent injunction)
This is an appeal from a permanent injunction enjoining Kenneth D. Smartt, Jr., Elizabeth Jimenez, Xoticas-
Laredo, L.P., Xoticas-Laredo, Inc., K. Smartt Investments, Inc. d/b/a Xoticas (collectively referred to as Smartt)
from operating a sexually oriented business (SOB) in the City of Laredo (Laredo), Texas. Smartt contends that
the trial court erred in granting the injunction because 1) the business does not "fit" the definition of
"establishment" as used in the ordinance, 2) the ordinance is unconstitutional and 3) Laredo had an adequate
remedy at law. We affirm.
07-1006
CANAL INSURANCE COMPANY v. MARK HOPKINS D/B/A HOPKINS TOWING & RECOVERY; from
Nacogdoches County; 12th district (12-06-00411-CV, ___ SW3d ___, 10-24-07, pet. denied Jan 2008)
Canal Insurance Company filed a motion for rehearing, which is granted. The court’s opinion of June 29, 2007
is withdrawn and the following opinion is issued in its place. Canal Insurance Company appeals the trial court’s
final judgment in a lawsuit brought by Mark Hopkins d/b/a Hopkins Towing and Recovery to recover towing
charges incurred by Paul Mullinax, Canal’s insured. Canal raises ten issues on appeal. We affirm.
PETITIONS FOR REVIEW DENIED JANUARY 11, 2008
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
05-0971
GREAT AMERICAN LLOYDS INSURANCE COMPANY AND MID-CONTINENT CASUALTY COMPANY v.
ARCHON INVESTMENTS, INC. D/B/A GEMS CUSTOM HOMES; from Harris County; 1st district
(01-03-01299-CV, 174 SW3d 334, 08-25-05, pet. denied Jan 2008)
07-0295
UNITED STATES FIDELITY AND GUARANTY COMPANY v. COASTAL REFINING & MARKETING, INC.,
COASTAL OFFSHORE INSURANCE LIMITED, AND LEXINGTON INSURANCE COMPANY; from Harris County;
14th district (14-04-00651-CV, 218 SW3d 279, 03-08-07, pet. denied Jan 2008)
07-0453
FRANCISCO JAVIER RANGEL v. BOBBY ROBINSON AND EDWARD MCDONALD; from Harris County; 1st
district (01-05-00318-CV, ___ SW3d ___, 03-01-07, pet. denied Jan 2008)
Appellant, Francisco Javier Rangel, appeals from a personal-injury judgment entered in favor of appellees,
Bobby Robinson and Edward McDonald. We determine whether (1) the trial court erred in awarding future
damages that were not discounted to present value and (2) the evidence supporting the award of punitive
damages was factually insufficient and the amount of punitive damages awarded violated substantive due
process. We affirm
On August 4, 2001, McDonald and Robinson were struck by Rangel's vehicle while they were walking in the
grass along a service road
We hold that the trial court's award of punitive damages did not violate substantive due process.
07-0494
JOSE E. RODRIGUEZ, M.D., AND GRANT R. MCKEEVER, M.D., P.A. v. LOUIS JOHN GAVREL; from Harris
County; 14th district (14-04-00637-CV, 225 SW3d 758, 05-03-07, pet. denied Jan 2008) (appellate record)
(HCLC, absence of reporter's record requires reversal and new trial) We find a significant portion of the record,
which is necessary to the appeal's resolution, has been lost through no fault of appellant. Accordingly, we
reverse the judgment of the trial court and remand for a new trial.
07-0628
BONNIE L. JOHNSON ON BEHALF OF CHELSEA ELIZABETH JOHNSON, BENEFICIARY v. CHARLES
CHESTNUTT; from Dallas County; 5th district (05-05-01341-CV, 225 SW3d 737, 04-27-07, pet. denied Jan
2008) (award of death penalty sanctions following nonsuit affirmed)
07-0638
ALEJANDRO PEREZ AND BOBBIE PEREZ v. EMBREE CONSTRUCTION GROUP, INC.; from Tom Green
County; 3rd district (03-05-00292-CV, 228 SW3d 875, 06-27-07, pet. denied Jan 2008) (workplace injury,
motion for new trial)
Alejandro Perez and his wife, Bobbie Perez, (1) brought suit against Embree Construction Group, Inc. to
recover damages for personal injuries suffered by Perez when he fell from the roof of a building located on a
construction site in San Angelo, Texas. At the time of the fall, Perez was employed by Kent Elliott Roofing, a
roofing subcontractor hired by Embree. Embree served as the general contractor on the project. Perez brought
suit against Embree on the basis of negligence. Mrs. Perez brought a loss of consortium claim.
Because we hold that Embree did not exercise sufficient control to owe a duty to stop work as a matter of law,
that striking Perez's expert witness was harmless error, and that the district court did not abuse its discretion by
striking Perez's amended pleading or denying Perez's motion for new trial, we affirm the district court's directed
verdict.
07-0704
CHARLES K. SALLIE v. JOHN DOE, ET AL.; from Wichita County; 2nd district (02-06-00370-CV, ___ SW3d
___, 08-09-07, pet. Jan 2008) motion for appointment of counsel alternatively, for renewal or reconsideration
denied (prisoner suit, medical treatment, dismissal for want of prosecution, appointment of counsel denied)
Having overruled Appellant's first, third, and fourth issues, and not reaching his second and fifth issues, we
affirm the trial court's order of dismissal for want of prosecution. We deny Appellant's Motion for
Reconsideration of Appointment of Counsel, Motion for a Temporary Restraining Order and Preliminary
Injunction, Motion for Leave to File and Amended Complaint Adding Some More Parties, Pursuant to Rules of
Civ. Pro., Motion for Leave to File a Supplemental Complaint, and Motion Requesting Appointment of Expert
Witness.
07-0794
SAN JUAN BASIN ROYALTY TRUST v. BURLINGTON RESOURCES OIL & GAS COMPANY LP; from Harris
County; 1st district (01-06-00485-CV, ___ SW3d ___, 08-16-07, pet denied Jan 2008) (arbitration)
Appellant, Burlington Resources Oil & Gas Company LP ("Burlington"), challenges the trial court's judgment
rendered in favor of appellee, San Juan Basin Royalty Trust (the "Trust"), confirming a portion of an arbitration
award in favor of the Trust and ordering that the Trust recover from Burlington damages in the amount of
$6,019,370, plus interest, for a total disputed award of $6,243,990. In its first issue, Burlington contends that
the parties did not agree, by clear and unmistakable language, to submit questions regarding the scope of
arbitrable issues to the arbitrator. In its second issue, Burlington contends that "construing the scope of the
arbitration agreement de novo," the parties' dispute is not within the scope of the arbitration agreement.
We reverse and render in part and remand in part.
07-0814
MERIDIAN PRECAST & GRANITE, INC. v. KENNETH R. MCGOWAN; from McLennan County; 10th district
(10-06-00364-CV, ___ SW3d ___, 07-18-07, pet. denied Jan 2008)(service of citation, due diligence)
The sole issue in this appeal of a summary judgment is whether the defendant conclusively proved that the
plaintiff failed to exercise due diligence in having the defendant served with process. Because the standard for
due diligence is the reasonable person standard, there was an excuse given for the delay, that being the
confusion created by another lawyer having already filed a suit on behalf of the plaintiff and new procedures in
the district clerk’s office, and because the delay in obtaining service of the citation was very brief, we hold that
the defendant did not conclusively establish that the plaintiff failed to exercise due diligence, and reverse the
trial court’s judgment and remand this appeal for further proceedings
07-0830
CHARLETTE DOWNING, AS REPRESENTATIVE OF THE ESTATE OF JUSTIN D. PRUITT v. ABILENE
DIAGNOSTIC CLINIC, P.L.L.C.; from Taylor County; 11th district (11-06-00012-CV, 233 SW3d 532, 08-23-07,
pet. denied Jan 2008) (HCLC, attorney's fees)
This is an appeal from the trial court's dismissal of a health care liability claim. Abilene Diagnostic Clinic (the
Clinic) appeals from the trial court's order granting the Clinic's motion to dismiss but denying an award for
attorney's fees. We affirm in part and reverse and remand in part on the issue of attorney's fees.
The portion of the trial court's order dismissing Charlette Downing's claim is affirmed. However, the portion of
the trial court's order denying the Clinic's request for attorney's fees and costs of court is reversed and
remanded for an entry of an award of attorney's fees and costs of court.
07-0831
RISCHON DEVELOPMENT CORPORATION AND JOHN HAWKINS v. RON WALKER AND MARLA WALKER;
from Tarrant County; 2nd district (02-05-00387-CV, 233 SW3d 380, 07-05-07, pet. denied Jan. 2008)
(recusal motion)
Rischon Development Corporation and John L. Hawkins (collectively, appellants) appeal the trial court's August
15, 2005 judgment for Ron and Marla Walker. In addition, appellants attempt to appeal a November 13, 2006
order denying their post-judgment motion to recuse the trial judge. We affirm the trial court's August 2005
judgment in part and reverse and render in part. We dismiss appellants' appeal of the order denying their
motion to recuse for want of jurisdiction
07-0837
DAVID R. HAWKINS, INDIVIDUALLY AND D/B/A DAVID HAWKINS HOMES v. RODRICK JONES AND LINDA
JONES; from Dallas County; 5th district (05-06-00139-CV, ___ SW3d ___, 07-12-07, pet. denied Jan 2008)
(rescission of a contract, DTPA, fraud, motion for continuance)
07-0840
LEZLEY FARMER, UNITY DANCE COMPANY, LLC, BILL BRATCHER, AND DONNA BRATCHER v. JENNIFER
HOLLEY; from McLennan County; 10th district (10-06-00406-CV, 237 SW3d 758, 08-29-07, pet. denied Jan
2008) (suit to enforce a covenant not to compete)
07-0841
MICHAEL OUSEY, KIRSTEN OUSEY, ROBERT F. WEST AND ELIZABETH WEST v. ROBERT L. OWENS, JR.,
AND SYLVIA LEE OWENS; from Hays County; 3rd district (03-05-00329-CV, ___ SW3d ___, 08-30-07, pet.
denied jan 2008) as corrected (real estate law, deed restrictions, appeal from a final judgment granting a
mandatory permanent injunction to enforce restrictive covenants)
07-0853
STEVEN BIERMERET v. THE UNIVERSITY OF TEXAS SYSTEM; from Tarrant County; 2nd district
(02-06-00240-CV, ___ SW3d ___, 08-09-07, pet. denied Jan 2008)
(premises liability, law suits against universities, governmental entities, TTCA)
As a result of a slip and fall in the shower area at a swimming facility owned by The University of Texas at
Arlington ("UTA"),[2] Appellant Steven Biermeret sued UTA and asserted negligent-use-of-tangible-personal-
property and premises liability claims.[3] The trial court granted UTA=s plea to the jurisdiction and combined
no-evidence and traditional summary judgment motion and refused to state the reasons for its rulings.
Biermeret raises four issues on appeal. Because the facts pleaded by Biermeret and the jurisdictional
evidence presented to the trial court do not raise a fact question concerning the trial court=s subject matter
jurisdiction over his negligent-use-of-tangible-personal-property claim, and because, according to binding
Texas Supreme Court precedent,[4] Biermeret was required toCbut did notCproduce some jurisdictional
evidence that UTA had either actual or constructive knowledge that the exact water that Biermeret slipped on
was actually on the floor when he slipped on it, we must affirm the trial court=s ruling sustaining UTA=s plea to
the jurisdiction.
07-0870
KATHERINE WEEKS v. AFFILIATED COMPUTER SERVICES, INC.; from Dallas County; 5th district
(05-06-00996-CV, ___ SW3d ___, 08-10-07, pet. denied Jan 2008) (no-answer default judgment reversed,
service through Secretary of State not proper)
07-0873
DOUGLAS A. TERRY, D.D.S., ET AL. v. JOHN CHRISTIAN SCHIRO, D.D.S., ET AL.; from Harris County; 1st
district (01-07-00060-CV, ___ SW3d ___, 07-26-07, pet. denied Jan 2008) (HCLC)
In this interlocutory appeal, appellants, Douglas A. Terry, D.D.S., Douglas A. Terry, D.D.S., Inc., and Douglas
A. Terry Enterprises, Inc. (collectively "Dr. Terry"), appeal the trial court's order that denied their second motion
to dismiss the causes of action asserted by appellees, John Christian Schiro, D.D.S. and Schiro-Kline, L.L.P. In
one issue on appeal, Dr. Terry argues that the trial court abused its discretion by not dismissing the case.
Thus, we conclude that Dr. Schiro's claims are not health care liability claims and, therefore, the expert report
requirements found in section 74.351(a)(13) do not apply. Accordingly, the trial court properly denied Dr.
Terry's second motion to dismiss.
07-0883
MICHAEL R. BENBO v. U.T.M.B, ET AL.; from Anderson County; 7th district (07-06-00287-CV, ___ SW3d ___,
07-24-07, pet. denied Jan 2008)
Appellant Michael R. Benbo, an indigent inmate at the time of the filing of this lawsuit, appeals from orders 1)
transferring venue and 2) dismissing his suit against a multitude of defendants. Through the suit, he sought
damages for medical malpractice purportedly committed on his toe and involving the treatment of a fungus. He
purportedly contracted the fungus while incarcerated. We affirm both orders.
07-0891
ROBERT TROTTER GIFT FUND FOR THOMAS U/A/D 5-3-81, A/K/A ROBERT TROTTER GIFT TRUST FOR
THOMAS U/A/D 5-3-82, AND THOMAS S. TROTTER v. TRINITY UNIVERSAL INSURANCE CO.; from Travis
County; 3rd district (03-05-00330-CV, ___ SW3d ___, 06-13-07, pet. denied Jan 2008) (insurance coverage
under a Commercial General Liability (CGL) policy, duty to defend, indemnify)
Trotter appeals, bringing five issues challenging (1) the district court's summary judgment on Trinity's
declaratory claim that the carrier had no duty to defend Trotter; and (2) the court's denial of summary judgment
on Trotter's claims that Trinity (3) breached the CGL policy contract by failing to defend him, (4) violated the
insurance code, and (5) breached the policy contract by failing to indemnify him. For the reasons explained
below, we affirm the district court's judgment.
07-0898
CHRIS MALLIOS v. STANDARD INSURANCE COMPANY, ET AL.; (separate opinion by Justice Frost)
from Galveston County; 14th district (14-06-00294-CV, 237 SW3d 778, 08-30-07, pet. denied Jan 2008) as
corrected
Appellant Chris Mallios appeals the trial court's grant of summary judgments in favor of appellees, contending
that various appellees (1) failed to establish as a matter of law the affirmative defenses of limitations, res
judicata, and collateral estoppel, (2) provided insufficient affidavits in support of no-evidence motions for
summary judgment, and (3) failed to establish official immunity. Mallios also contends the trial court erred in
denying his motion for summary judgment. We affirm.
07-0899
ERIC RED v. JOHN DOHERTY, AND DOHERTY & CATLOW; from Travis County; 3rd district
(03-06-00478-CV, ___ SW3d ___, 07-20-07, pet. denied Jan 2008)(special appearance, personal jurisdiction)
The trial court granted the special appearance of appellees John Doherty and Doherty & Catlow, A Law
Corporation, and dismissed appellant Eric Red's claims against them for lack of personal jurisdiction. In one
issue, Red contends that the trial court erred in ruling that it did not have personal jurisdiction over appellees.
We affirm.
In May 2000 in Los Angeles, California, Red drove his vehicle into a crowded bar, killing two individuals.
07-0902
ALISTA MAXWELL v. HEIDI JANE SEIFERT, M.D.; from Harris County; 14th district (14-06-00902-CV, 237
SW3d 423, 09-18-07, pet. denied Jan 2008) as redrafted (HCLC, medical malpractice, expert report)
07-0906
JOSE SANTANA v. TEXAS WORKFORCE COMMISSION & WILLIAM MCCREA; from Travis County; 3rd district
(03-05-00452-CV, ___ SW3d ___, 08-16-07, pet. denied Jan 2008) (defamation, county court jurisdiction)
Pro se appellant Jose Santana (1) appeals the denial of his plea to the jurisdiction, asserting that subsection
26.043(1) of the government code deprived the trial court of subject-matter jurisdiction in his suit for
defamation against his employer, appellee Texas Workforce Commission, and his supervisor, appellee William
McCrea. See Tex. Gov't Code Ann. § 26.043(1) (West 2004). We conclude that the civil jurisdiction of the
statutory county courts at law in Travis County is concurrent with that of the Travis County district courts, see
id. §§ 25.0001, .2292(a) (West 2004), and we affirm the trial court's order denying the plea to the jurisdiction.
07-0918
RAHUL K. NATH, M.D. v. ALLAN J. BELZBERG, M.D. AND THE JOHNS HOPKINS UNIVERSITY; from Harris
County; 14th district (14-06-01083-CV, 238 SW3d 492, 09-25-07, pet. denied Jan 2008)
(special appearance, defamation, tortious interference)
Rahul K. Nath sued Johns Hopkins University (JHU) and Allen J. Belzberg, claiming defamation and tortious
interference. Both JHU and Belzberg specially appeared. The trial court granted the special appearance of
Belzberg, dismissing him from the suit, but denied the special appearance of JHU. JHU appeals the denial of its
special appearance, and Nath appeals the granting of Belzberg's. Because the evidence is sufficient to support
the trial court's implied finding that exercising personal jurisdiction over Nath's claims against Belzberg would
violate due process, we affirm the trial court's order granting Belzberg's special appearance. Because, under
the undisputed evidence regarding JHU's contacts with Texas, JHU does not have sufficient contacts to satisfy
due process, we reverse the trial court's order denying JHU's special appearance and remand the case to the
trial court with instructions to dismiss the claims against JHU for lack of personal jurisdiction.
07-0926
EVANGELINA GARCIA v. STACY J. HAIGNEY AND PAUL C. TANG; from Hidalgo County; 13th district
(13-06-00367-CV, ___ SW3d ___, 08-02-07, pet. denied Jan 2008) [concurring opinion] (special appearance)
Appellants, Paul Tang and Stacy Haigney, appeal the trial court's denial of their special appearance. Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2006). They contend that (1) appellees, Evangelina
Garcia and Keith Livesay, failed to produce sufficient evidence to support the denial of their special
appearance; (2) the trial court erred in denying their special appearance; and (3) appellees' claims in the
underlying suit are moot because of the supreme court's decision in a related mandamus proceeding. We
reverse and render.
Because Garcia admitted that appellants were acting in their fiduciary capacity and Tang established that there
was no evidence of his purposeful availment regarding Livesay's allegations, we reverse the trial court's denial
of the special appearance and render judgment dismissing the claims against Tang and Haigney for want of
jurisdiction
07-0929
SANDRA ADAIR, ET AL. v. VERITAS DGC LAND, INC.; from Galveston County; 14th district
(14-06-00254-CV, ___ SW3d ___, 09-27-07, pet. denied Jan 2008)
We originally issued our opinion affirming the trial court's judgment on August 9, 2007. Appellants filed a
motion for rehearing on August 24, 2007. We overrule appellants' motion for rehearing, vacate our August 9,
2007, judgment, withdraw our previous opinion, and issue this substituted memorandum opinion in its place.
This case involves 232 plaintiffs who sued alleging property damage from seismic surveys conducted by
appellee, Veritas DGC Land, Inc. (Veritas). Veritas moved for summary judgment on both traditional and no-
evidence grounds. The trial court granted the summary judgment without specifying the grounds. Plaintiffs
presents three overlapping issues on appeal. We affirm the trial court's grant of summary judgment.
07-0948
DAVID W. NOELL, INDIVIDUALLY AND AS LIMITED PARTNER IN CROW-BILLINGSLEY AIR PARK LIMITED
PARTNERSHIP v. CROW-BILLINGSLEY AIR PARK LIMITED PARTNERSHIP; from Collin County; 5th district
(05-06-00889-CV, 233 SW3d 408, 07-12-07, pet. denied Jan 2008) (partnership, breach of fiduciary duty,
delivery of deed, motion for new trial)
07-0951
GRACIE GARCIA, ET AL. v. VICENTE RODRIGUEZ, M.D.; from Nueces County; 13th district
(13-05-00747-CV, ___ SW3d ___, 08-30-07, pet. denied Jan 2008) as amended (medical malpractice, faillure
to file expert report)
Appellants, "the Garcia family," (1) appeal the trial court's dismissal of their claims against Vicente Rodriguez,
M.D. The Garcia family argues that the trial court abused its discretion in dismissing the family's claims for
failure to file an adequate expert report. They contend (1) their expert report complied with article 4590i of the
Texas Revised Civil Statutes; (2) (2) Dr. Rodriguez waived any complaint about the report by failing to timely
challenge its adequacy; (3) the equitable doctrine of laches bars the trial court's dismissal of their claim; and
(4) they should have been granted a grace period to cure any insufficiencies in the report. We affirm.
It is well established that a mere "belief" that a report complies with the statutory requirements does not
establish a "sufficient excuse" necessary to support a finding that a party made a mistake of law, nor does it
negate a finding of "intentional or conscious indifference." Id. at 64-65. Thus, based on the record as provided,
we cannot conclude that the trial court abused its discretion in denying appellant's request for a thirty-day
grace period.
07-0968
PETER H. EGGERT v. LEE ROY GAITAN; from Erath County; 11th district (11-06-00117-CV, ___ SW3d ___,
09-06-07, pet. denied Jan 2008) This is an appeal from the trial court's order setting aside a default judgment
in favor of Peter H. Eggert and granting Lee Roy Gaitan's motion for new trial. We affirm.
07-0973
IN THE INTEREST OF J.F., J.J. AND J.J., CHILDREN; from Tarrant County; 2nd district
(02-07-00007-CV, ___ SW3d ___, 10-11-07, pet. denied Jan 2008)
(termination of parental rights, death penalty sanctions)
07-0990
LUBRICANTS USA, LP., LUBRICANTS MANAGEMENT GROUP, LP., APL MANAGEMENT, LLC, CHRIS HAIRE,
AND ROBERT BLAKE SHAW v. GREGORY A. BIRD AND MICHAEL G. RADLER; from Tarrant County; 2nd
district (02-06-00061-CV, ___ SW3d ___, 08-31-07, pet. denied Jan 2008) (partnership law, standing)
we hold that the trial court erred by granting appellees' plea to the jurisdiction and dismissing appellants' claims
based on lack of standing
PETITION FOR REVIEW DENIED JANUARY 4, 2008
07-0917
IN THE INTEREST OF J.D.S., A CHILD; from Dallas County; 5th district
(05-06-01512-CV, ___ SW3d ___, 09-19-07, pet. denied Jan. 2008) (joint motion for reversal and remand for
new trial granted)
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