TEXAS SUPREME COURT
PETITIONS FOR REVIEW DENIED
MARCH 2008
PETITIONS FOR REVIEW DENIED
MARCH 2008
RECENT 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
MARCH 2008 PFR DENIALS
Petitions for Review Denied
by the Texas Supreme Court March 28, 2008
05-0130 UNAUTHORIZED PRACTICE OF LAW COMMITTEE v. NATIONWIDE MUTUAL INSURANCE COMPANY
AND SEAN P. MARTINEZ; from Bexar County; 4th district (04-04-00184-CV, 155 SW3d 590, 12-08-04, pet.
denied March 2008) (Justice Green not sitting) (unauthorized practice of law)
In this appeal, we are asked to determine whether Nationwide Mutual Insurance Company's use of company
staff attorneys to defend insureds under liability policies is the unauthorized practice of law by the insurer. After
the trial court resolved this issue in favor of Nationwide, the Unauthorized Practice of Law Committee filed this
appeal, claiming the trial court erred by: (1) denying its plea to the jurisdiction; (2) denying its motion to transfer
venue; and (3) determining the insurance company's use of company staff attorneys to defend insureds under
liability policies is not the unauthorized practice of law by the insurer. We affirm.
05-0688 WILLIAM O'ROURKE, INDIVIDUALLY; LAURA O'ROURKE, INDIVIDUALLY; AND LAURA O'ROURKE,
AS NEXT FRIEND OF BROCK O'ROURKE v. ANTONIO J. VILLASAN, M.D.; from Jefferson County; 9th district
(09-04-00409-CV, 166 SW3d 752, 05-26-05, pet. denied March 2008) (dismissal of employee, election of
remedies, defendant to sue)(UTMB cases)(governmental entity as defendant, lawsuits against universities)
This is a case of first impression and requires that we interpret the amended provisions of section 101.106(e)
of the Texas Civil Practice and Remedies Code enacted as a part of the Legislature's tort reform efforts in
2003. See Tex. Civ. Prac. & Rem. Code Ann. §101.106(e) (Vernon Supp. 2005). Section 101.106(e) provides
in suits where both the governmental unit and its employee are sued, the suit against the employee
immediately be dismissed on motion of the governmental unit. The ultimate issue is whether the trial court erred
in denying Dr. Antonio Villasan's motions requesting his dismissal from a suit filed by William O'Rourke and
other family members against Dr. Villasan and the University of Texas Medical Branch, Galveston ("UTMB").
Subsidiary to that issue are questions of whether the trial judge had a mandatory duty to dismiss Dr. Villasan
pursuant to section 101.106(e) based on the government's filing of a motion to do so, and whether the
amendments to section 101.106 apply despite a federal court suit filed by the O'Rourkes prior to the effective
date of the amended provisions. Answering the two subsidiary questions in the affirmative leads us to conclude
the trial court erred in failing to grant Dr. Villasan's motion to dismiss the claim against him, and accordingly, we
reverse and dismiss.
06-0011 WAXAHACHIE INDEPENDENT SCHOOL DISTRICT v. TIM JOHNSON AND ED WHITE; from Ellis
County; 10th district (10-04-00367-CV, 181 SW3d 781, 09-07-05, pet. denied March 2008)(ISD cases,
dismissal of employee, governmental entities as defendants)
Waxahachie Independent School District (WISD) files this appeal arguing that the trial court erred in denying its
plea to the jurisdiction under newly-enacted section 101.106(b) because the plaintiffs, Tim Johnson and Ed
White, filed the underlying lawsuit against both WISD and its employees regarding the same subject matter.
Because we find that the cause of action against WISD does not involve the same subject matter as the cause
of action against WISD’s employees, we affirm.
06-0798 ULANDA MCGRUDER, INDIVIDUALLY AND AS NEXT FRIEND OF LACASHA LUCAS, A MINOR v. IN
RE PILL RAJA, M.D.; from Ector County; 11th district (11-06-00137-CV, 216 SW3d 404, 07-27-06, pet. denied
March 2008) petitioner's motion to accelerate appeal denied (mandamus granted by CoA)(presuit discovery)
This is an original mandamus proceeding seeking to set aside the trial court's order allowing Ulanda McGruder,
individually and as next friend of Lacasha Lucas, a minor, to take the oral deposition of Pill Raja, M.D in Trial
Court Cause No. A-12,654 pending in the 70th District Court. We conditionally grant the petition for writ of
mandamus. .... McGruder filed a request to take the deposition of Dr. Raja under Tex. R. Civ. P. 202 to
investigate a potential health care liability claim. Dr. Raja filed a motion to quash the deposition.
07-0016 WARRANTECH CORPORATION AND WARRANTECH CONSUMER PRODUCT SERVICES, INC. v.
STEADFAST INSURANCE COMPANY; from Tarrant County; 2nd district (02-05-00351-CV, 210 SW3d 760, 11-
30-06, pet. denied March 2008) (insurance law, duty to defend, duty to indemnify)
This is an insurance dispute involving a claims-made professional liability policy issued by Appellee Steadfast
Insurance Company to Appellants Warrantech Corporation and Warrantech Consumer Product Services, Inc.
Warrantech sued Steadfast for breach of contract and insurance code violations when Steadfast refused to
defend Warrantech in another lawsuit
07-0148 AIRCRAFT NETWORK, LLC v. ASSOCIATED AVIATION UNDERWRITERS, INC. AND CESSNA
AIRCRAFT COMPANY; from Dallas County; 5th district (05-04-01056-CV, 213 SW3d 455, 11-29-06, pet.
denied March 2008) (breach of bailment agreement, no standing)
2 petitions as amendedWe sustain AAU's first point of error, reverse the trial court's judgment with respect to
AAU, and render judgment that Aircraft Network take nothing on its claims against AAU. We sustain Cessna's
first point of error to the extent it complains about the submission of the damages question and reform the
judgment to delete a portion of the damages awarded for breach of bailment contract. We sustain Cessna's
second, third, and fourth points of error, reverse the trial court's judgment on the claims for breach of
reimbursement contract, negligent misrepresentation, and breach of implied warranty, and render judgment
that Aircraft Network take nothing on those claims. We sustain Aircraft Network's cross-point and reinstate the
jury award for promissory estoppel. We reverse the awards of attorney's fees and costs and remand those
issues to the trial court for proceedings consistent with this opinion. In all other respects, the trial court's
judgment is affirmed.
07-0405 STEPHEN FARMER AND SUSAN FARMER v. MATT SLOAN, M.D. AND PAIN NET PHYSICIANS
GROUP, P.A.; from Dallas County; 5th district (05-06-00247-CV, ___ SW3d ___, 03-22-07, pet. denied March
2008) as amended (HCLC, dismissal proper failure to comply with expert report requirement)
In a single issue, appellants Matt Sloan, M.D. and Pain Net Physicians Group, P.A. challenge the trial court's
order denying their motion to dismiss on the ground that Stephen and Susan Farmer failed to comply with the
expert report requirements of section 74.351(b) of the civil practice and remedies code. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b) (Vernon 2005). Because we conclude that the Farmers' claims are “health care
liability claims” subject to the requirements of section 74.351(b), we resolve appellants' issue in their favor. We
reverse the judgment of the trial court, render judgment dismissing the Farmers' claims with prejudice, and
remand the case solely for a determination of reasonable attorney's fees and costs of court incurred by Sloan
and Pain Net.
07-0566 WASHINGTON MUTUAL BANK v. VIRIGIL A. PIERCE; (with dissent) from Van Zandt County; 12th
district (12-06-00396-CV, 226 SW3d 711, 05-23-07, pet. denied March 2008)(real estate law, lien law, cloud
on title)
Virgil A. Pierce sued Washington Mutual Bank (the “Bank”) to remove a cloud on the title of his current home,
claiming that home as his homestead. The Bank moved for traditional summary judgment, which was granted.
In one issue, Pierce argues that a genuine issue of material fact existed in the case and, therefore, the trial
court improperly granted summary judgment. We reverse and remand for further proceedings.
07-0605 AMY YOUNG, M.D. AND BAYLOR COLLEGE OF MEDICINE v. SILVIA VILLEGAS AND ARMANDO
VILLEGAS, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF M.A.V., A MINOR; from Harris County;
14th district (14-06-00072-CV, 231 SW3d 1, 04-03-07, pet. denied March 2008)(Health care liability claim,
immunity claim, interlocutory appeal) (HCLC, suit against medical school, interlocutory appeal, BCM cases)
This is an interlocutory appeal in which the parents of a minor child allegedly injured by negligent medical
treatment at a public hospital asserted healthcare-liability claims against a doctor and a supported medical
school. Both the doctor and the medical school filed a motion to dismiss for lack of subject-matter jurisdiction
as well as a motion for summary judgment asserting immunity under section 312.006 of the Texas Health and
Safety Code. The medical school asserted no claims for affirmative relief against any party, and the parents
nonsuited all of their claims against the medical school before the trial court ruled on the pending motions. The
trial court later signed an order denying the doctor's motion to dismiss and motion for summary judgment. The
medical school seeks to assert an interlocutory appeal from this order, claiming that, despite the nonsuit, it is
still a party in this case and it still may appeal from the trial court's interlocutory order. We conclude the
medical school's arguments lack merit and dismiss its appeal for lack of appellate jurisdiction. Because the
doctor is not a governmental unit, this court lacks appellate jurisdiction over her appeal from the denial of her
jurisdictional motion, and we dismiss this appeal as well. Finally, we conclude that, although we have appellate
jurisdiction over the doctor's appeal from the denial of her motion for summary judgment, the trial court did not
err in denying the motion. Accordingly, we affirm the trial court's denial of this motion.
07-0689 LORI DAWN COLEMAN v. MILBURN LEE COLEMAN; from Jefferson County; 9th district
(09-06-00171-CV, ___ SW3d ___, 06-21-07, pet. denied March 2008) (family law, divorce property division)
Appellant Lori Dawn Coleman appeals the division of property in this divorce case, the trial court's denial of her
motion for new trial, and the provision in the divorce decree holding her responsible for her own attorney's
fees. We affirm.
07-0709 ENES KANLIC, M.D. v. SHIRLEY MEYER; from El Paso County; 8th district
(08-06-00292-CV, 230 SW3d 889, 07-26-07, pet. denied March 2008) (HCLC, Section 101.106 dismissal,
universities as defendants)
Appellant Enes Kanlic, M.D. ("Dr. Kanlic") appeals the trial court's denial of his motion to dismiss pursuant to
Texas Civil Practice and Remedies Code sections 101.106(a) and (f). Finding no error, we affirm. ... Appellee
Shirley Meyer ("Meyer") filed this medical malpractice action against Dr. Kanlic and Texas Tech University
System in July of 2006, citing portions of chapter 74 of the Civil Practice and Remedies Code. Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.001-.507 (entitled "Medical Liability").
07-0717 BRETT GALLIFORD D/B/A GREEN ELECTRONICS v. PEPI CORPORATION; from Harris County; 1st
district (01-05-00788-CV, ___ SW3d ___, 02-08-07, pet. denied March 2008) as redrafted
(subcontractor, quantum meruit)
07-0722 MCALESTER FUEL COMPANY v. SMITH INTERNATIONAL, INC.; from Harris County; 1st district
(01-05-00468-CV, ___ SW3d ___, 07-26-07, pet. denied March 2008) (commercial dispute, BoC, DTPA,
release, jury instruction)
In sum, McAlester has not shown that the declaratory judgment portion of the final judgment should be
reversed. Thus, it may be considered in determining harm from the trial court’s grant of the partial summary
judgment. See Progressive County Mut. Ins., 177 S.W.3d at 921. Based on this consideration, we conclude
that there is no remaining issue of material fact because the declaratory judgment decided the same issue that
was in dispute in the motion for summary judgment proceedings. That is, the declaratory judgment determined
that McAlester had agreed to release Smith from the claims asserted in this case. For this reason, we hold
that, even if the trial court improperly granted the motion for summary judgment, the error was harmless. See
Tex. R. App. P. 44.1.
07-0756 DAVID W. SMITH, D.D.S. AND WIFE, CATHY C. SMITH v. WILLIAM DEAN, M.D. AND
CARDIOVASCULAR AND THORACIC SURGICAL GROUP OF WICHITA FALLS, P.A., D/B/A CARDIOVASCULAR
AND THORACIC SURGICAL GROUP OF WICHITA FALLS; from Wichita County; 2nd district (02-06-00042-CV,
232 SW3d 181, 05-10-07, pet. denied March 2008) (HCLC, jury selection challenged, bias, jury verdict
affirmed)
In this medical malpractice case, appellants Dr. David and Mrs. Cathy Smith appeal the jury's verdict and trial
court's judgment for appellees Dr. William Dean and the Cardiovascular and Thoracic Surgical Group of
Wichita Falls, P.A., d/b/a Cardiovascular and Thoracic Surgical Group of Wichita Falls. In three related issues,
appellants argue that several venire members were biased as a matter of law, that those venire members were
not rehabilitated, and that the trial court abused its discretion in denying appellants' challenges for cause to
those individuals. We affirm.
07-0816 CAMERON LIFE INSURANCE COMPANY v. PACTIV CORPORATION; from Cameron County; 13th
district (13-05-00760-CV, ___ SW3d ___, 08-23-07, pet. denied March 2008) (lien law, UDJA)
This is a lien priority case. Appellant, Cameron Life Insurance Company, filed a declaratory judgment action
against appellee, Pactiv Corporation, seeking a declaration that a lien it acquired from Aaron Joiner took
priority over Pactiv's lien. Cameron Life urged protection under section 51.006 of the Texas Property Code. (1)
See Tex. Prop. Code Ann. § 51.006(a) (Vernon 2007). It also claimed subrogation rights. Pactiv filed a motion
for summary judgment arguing that its lien is superior to Cameron Life's interest and that Cameron Life's
subrogation claim fails. Cameron Life filed a cross-motion for summary judgment asserting that section 51.006
maintains Cameron Life's lien priority over Pactiv's lien and that it is entitled to subrogation. The trial court
granted summary judgment in favor of Pactiv and ordered that Pactiv's lien on the property made the basis of
the lawsuit is superior to any lien asserted by Cameron Life and that Pactiv is entitled to foreclose on its lien
against the property. By four issues, Cameron Life contends the trial court erred in granting Pactiv's motion for
summary judgment because (1) Cameron Life did not have personal knowledge of Pactiv's judgment lien filed
against the property, (2) it had rights of subrogation to the first priority lien, (3) it was entitled to priority for ad
valorem taxes it paid on the property, and (4) Pactiv's abstract of judgment was defective. We affirm.
07-0826 MARY LOU WILCOX AND MICHAEL ROSCOM v. JOHN T. MARRIOTT AND REBECCA MARRIOTT;
from Montgomery County; 9th district (09-05-00469-CV, 230 SW3d 266, 07-12-07, pet. denied March 2008)
(real estate law, lien law, homestead protection)
Mary Lou Wilcox and Michael L. Roscom appeal the judgment entered after a jury trial in a suit filed by John T.
Marriott and Rebecca A. Marriott to enjoin execution on a judgment Wilcox and Roscom obtained against
Daniel Roscom. (1) Wilcox filed the abstract of judgment in Montgomery County on August 4, 1999. Substantial
changes to the homestead laws of the State of Texas became effective January 1, 2000. See Tex. Const. art.
XVI, § 51; Tex. Prop. Code Ann. §§ 41.002, 41.005 (Vernon 2000). Roscom sold the approximately 1½ acre
property on which he and his wife lived to Marriott after the effective date of the amendments. The jury found
that Roscom intended to claim the property as his homestead when he sold it to the Marriotts. The trial court
ruled the entire parcel is included in the homestead exemption from forced sale, and that the judgment lien did
not attach to the property. Wilcox raises five issues on appeal. We reverse and remand for entry of a new
declaratory judgment.
07-0827 BAYLOR MEDICAL CENTER AT GARLAND v. PATRICIA KETTLE, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF RAYMOND KETTLE, DECEASED, LINDA HILL, DIANNE FRANKHAUSER,
MARGARET SULLIVAN, THOMAS KETTLE, AND SANDY ROACH; from Dallas County; 5th district
(05-05-01260-CV, 232 SW3d 832, 08-27-07, pet. denied March 2008)(HCLC dismissal reversed in part)
After Raymond Kettle (Kettle) died, his survivors (the Kettles) brought this wrongful death and survival action
alleging medical negligence by Baylor Medical Center at Garland (Baylor), Cardiology Consultants of North
Dallas, P.A. (Cardiology), Abdul Kader Ezeldin, M.D. (Ezeldin), Kanti Lal Agrawal, M.D. (Agrawal), and Michael
Motta, D.O. (Motta). The trial court dismissed the Kettles' claims with prejudice under the Medical Liability and
Insurance Improvement Act of Texas (MLIIA) (former Tex. Rev. Civ. Stat. art. 4590i, § 13.01) for failure of the
Kettles' pre-trial expert reports to satisfy its requirements. In two groups of eight issues addressing each
defendant, the Kettles argue the court abused its discretion in (i) dismissing the claims and (ii) refusing to grant
an extension under MLIIA § 13.01(g) to file amended reports meeting the statutory requirements. We affirm in
part and reverse in part and remand.
07-0833 BRUCE WAYNE HOUSER v. PAULA S. FOY, ET AL.; from Jefferson County; 9th district
(09-06-00257-CV, ___ SW3d ___, 05-24-07, pet. denied March 2008) (pro se litigants, prisoner suits)
Bruce Wayne Houser, a pro se inmate proceeding in forma pauperis, appeals an order dismissing his lawsuit
for failure to comply with Chapter 14 of theTexas Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). Asserting claims of denial of access to the courts,
interference with his mail, and violations of the Texas Department of Criminal Justice's mail policy, Houser sued
sixteen defendants. (1) Appellees filed a motion to dismiss asserting that Houser's suit was not in compliance
with the requirements of Chapter 14. We review dismissal of Chapter 14 suits under an abuse of discretion
standard. Moore v. Zeller, 153 S.W.3d 262, 263 (Tex. App.--Beaumont 2004, pet. denied).
07-0846 TH HEALTHCARE, LTD. v. JORGE A. PATIÑO, M.D.; from Cameron County; 13th district
(13-06-00602-CV, ___ SW3d ___, 07-26-07, pet. denied March 2008) (summary judgment)
This is an appeal from a summary judgment granted in favor of appellee, Jorge A. Patino, M.D. (Patino) and
against appellant TH Healthcare Ltd., formerly known as Tenet Healthcare, Ltd., formerly d/b/a Brownsville
Medical Center (Tenet). By a single issue, Tenet complains that the trial court erred in granting summary
judgment on the issue of limitations. We affirm.
07-0872 SE RANCH HOLDINGS, LTD. v. CITY OF DEL RIO, TEXAS; from Val Verde County; 4th district
(04-06-00640-CV, ___ SW3d ___, 08-29-07, pet. denied March 2008) (governmental immunity, waiver)
Because SE Ranch has failed to affirmatively show a clear and unambiguous waiver of the City's immunity from
suit, they have also failed to establish the trial court's subject matter jurisdiction to hear the case. Accordingly,
we conclude the trial court did not err in sustaining the City's plea to the jurisdiction and dismissing SE Ranch's
breach of contract claim for want of subject matter jurisdiction; therefore, we affirm the judgment of the trial
court.
07-0890 METHODIST HOSPITALS OF DALLAS v. AMERIGROUP TEXAS, INC. F/K/A AMERICAID TEXAS, INC.;
from Dallas County; 5th district (05-05-01579-CV, 231 SW3d 483, 08-09-07, pet. denied March 2008)
(Medicaid HMO contract dispute)
In this case, we are asked to construe the terms of two contracts executed under the state Medicaid managed
care program to determine whether appellee, a Medicaid HMO, was contractually obligated to pay for
healthcare services provided by Methodist Hospitals of Dallas (Methodist). In nine issues, Methodist contends
that the trial court erred when it denied Methodist's motion for summary judgment and granted summary
judgment for Amerigroup Texas, Inc. (Amerigroup). Methodist insists that Amerigroup was liable for payment
under the terms of both its provider contract with Methodist and its contract with the Texas Health and Human
Services Commission.
07-0897 CARY WILSON & AMERICAN ENVIRONMENTAL SPECIALTIES, INC. v. JERROLD ANDREWS &
INTERCON ENVIRONMENTAL, INC.; from Tarrant County; 2nd district (02-06-00429-CV, ___ SW3d ___, 08-31-
07, pet. denied March 2008) (NE-SJ, breach of contract, quantum meruit, conversion)
Appellants Cary Wilson and American Environmental Specialties, Inc. ("American") appeal the no-evidence
summary judgment granted in favor of Appellees Jerrold Andrews and Intercon Environmental, Inc.
("Intercon"). In five issues, Appellants argue that the trial court erred by (1) granting Appellees' no-evidence
motion on Appellants' breach of contract claim; (2) granting Appellees' no-evidence motion on Appellants'
quantum meruit claim; (3) granting Appellees' no-evidence motion on Appellants' conversion claim; (4) granting
Appellees' no-evidence motion on Appellants' claim for attorney's fees; and (5) disposing of Appellants' unjust
enrichment claim in the summary judgment. We affirm in part and reverse and remand in part. Because we
hold that Appellants did not assign error to all of Appellees summary judgment grounds on the breach of
contract and quantum meruit claims and that the trial court did not err by granting summary judgment on the
conversion claim or by ruling against Appellants on their claim for attorney's fees, we affirm the summary
judgment as to those claims. Because we hold that the trial court erred by granting summary judgment on the
unjust enrichment claim against both Appellees, we reverse the summary judgment on that claim and remand
the claim to the trial court.
07-0904 MARY M. BABIN KENNEDY v. CITY OF HOUSTON, ET AL.; from Harris County; 1st district
(01-07-00097-CV, ___ SW3d ___, 08-02-07, pet. denied March 2008) (ILA, governmental immunity, TTCA)
Appellant, the City of Houston, ("the City") appeals an order denying its plea to the jurisdiction on grounds of
governmental immunity from suit in a wrongful death action brought by appellee, Mary M. Babin Kennedy
("Kennedy"), individually and as the representative of the estate of Joseph Kennedy ("Joseph"), deceased. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006). The City appeals the trial court's order
denying its plea to the jurisdiction, and Kennedy appeals the trial court's orders (1) granting the City's motion
for partial summary judgment on all of her intentional torts claims and (2) granting the City's motion to dismiss
her claims against the individual city employees. We affirm the trial court's orders granting the motions for
partial summary judgment and to dismiss, and we vacate the order denying the plea to the jurisdiction.
07-0938 HERVY HINER, M.D., H.H. HINER, P.C., SOUTHEAST TEXAS NEPHROLOGY ASSOCIATES, P.A.,
AND MARISA TURNER JOHNSON, M.D. v. LEE "PETE" BURNELL GASPARD; from Jefferson County; 9th
district (09-07-00240-CV, ___ SW3d ___, 09-06-07, pet. denied March 2008) (med-mal suit, expert report)
In this medical malpractice lawsuit brought by appellee Lee "Pete" Burnell Gaspard, appellants Hervy Hiner, M.
D., Marisa Turner Johnson, M.D., H.H. Hiner, P.C., and Southeast Texas Nephrology Associates, P.A. ("STNA")
appeal the denial of their motion challenging Gaspard's expert report. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(l) (Vernon Supp. 2006). Appellants present three issues for our review. We affirm the trial court's
judgment.
07-0978 SHEILA MIGUEZ v. SHIRLEY BROWN, PERSONAL REPRESENTATIVE OF THE ESTATE OF
GENEVIEVE CIONEK, DECEASED; from Hardin County; 9th district (09-06-00256-CV, ___ SW3d ___, 10-04-
07, pet. denied March 2008)(premises defect judgment reversed, slippery ramp)
07-0981 DEBORAH KAY PARKER v. ST. ANNE CONFERENCE OF THE SOCIETY OF ST. VINCENT DE PAUL;
from Midland County; 11th district (11-06-00162-CV, ___ SW3d ___, 09-27-07, pet. denied March 2008)
(limitations) Deborah Kaye Parker filed suit against several defendants seeking personal injury damages
arising out of an automobile accident. Three defendants B who are not parties to this appeal B filed a motion
for summary judgment contending that Parker=s suit was barred by limitations because it was filed more than
two years after the accident. Parker responded that Tex. Civ. Prac. & Rem. Code Ann. ' 16.064 (Vernon 1997)
tolled limitations because she timely filed suit against these same defendants in bankruptcy court, timely re-
filed suit in federal district court when her adversary proceeding was dismissed, and then timely re-filed suit in
state court when her federal action was dismissed.
Because bankruptcy judges are not Article III judges, the bankruptcy court had no jurisdiction over Parker=s
personal injury suit. Moreover, because Parker=s own complaint established the bankruptcy court=s lack of
jurisdiction, Section 16.064=s tolling provision does not apply. The trial court, therefore, correctly held that
Parker=s claim was barred by limitations.
07-0989 FRANK CORNISH IV AND ROBIN CORNISH v. WASHINGTON MUTUAL BANK F.A. AND WELLS
FARGO BANK, TEXAS; from Tarrant County; 2nd district (02-06-00400-CV, ___ SW3d ___, 08-09-07, pet.
denied March 2008)
07-0993 OAIC COMMERICAL ASSETS, LLC v. STONEGATE VILLAGE, LP AND CAWC FINANCIAL, INC.; from
Dallas County; 5th district (05-05-01471-CV, 234 SW3d 726, 08-16-07, pet. denied March 2008) (partnership
dispute, standing)
07-0997 JESUS IBARRA v. PEGGY NICHOLES, LESA NICHOLES AND SALON N.V. AND DAY SPA, INC.; from
Harris County; 1st district (01-06-00762-CV, ___ SW3d ___, 08-02-07, pet. denied March 2008)(construction
subcontractor)
07-1005 M. JAMES CLARK, D.D.S. AND NORTHWEST ORAL & MAXILLOFACIAL SURGERY P.C. v. BILL
COMSTOCK AND LANA COMSTOCK, INDIVIDUALLY AND AS NEXT FRIENDS OF MEGAN RAE COMSTOCK;
from Montgomery County; 9th district (09-07-00300-CV, ___ SW3d ___, 10-25-07, pet. denied March 2008)
07-1009 D.R. BEELER AND BEVERLY ANN BEELER v. WILLIAM CRUSE FUQUA; from Hardin County; 9th
district (09-07-00358-CV, ___ SW3d ___, 10-11-07, pet. denied March 2008)
07-1022 JOSEPHINE S. ALOBAIDI v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON;
from Harris County; 14th district (14-06-00303-CV, ___SW3d ___, 10-30-07, pet. denied March 2008)
(public employment disputes, retaliatory discharge, suits against universities)
07-1035 BEATRICE LINK AND HELEN HUEY, IN THEIR INDIVIDUAL CAPACITIES v. ASPENWOOD
APARTMENT CORPORATION AND JACK YETIV; from Harris County; 1st district (01-05-00555-CV, ___ SW3d
___, 09-27-07, pet. denied March 2008) 2 petitions (special exceptions, tortious interference, malicious
prosecution, abuse of process, section 1983 claim)
07-1049 H & H SAND AND GRAVEL, INC. v. THE CITY OF CORPUS CHRISTI; from Nueces County; 13th
district (13-06-00677-CV, ___ SW3d ___, 11-08-07, pet. denied March 2008)(governmental immunity not
wiaved)
We do not see how H&H Sand's allegation of unilateral modification establishes a waiver of governmental
immunity under the statute's requirement that a contract be "properly executed on behalf of the local
governmental entity." See Tex. Loc. Gov't Code Ann. § 271.152. H&H Sand did not pleaded that the City
entered into a contract allowing for unilateral modification by third-parties or that the City properly executed the
purported assignment. Because H&H Sand has not plead sufficient facts to invoke Section 271.152's waiver of
the City's government immunity, its sole issue is overruled.
07-1055 THE CITY OF HOUSTON, TEXAS v. ALLCO., INC.; from Harris County; 1st district
(01-02-00812-CV, 238 SW3d 849, 10-18-07, pet. denied March 2008)(post-remand from
Texas Supreme Court, see City of Houston v. Allco, Inc., 206 S.W.3d 113, 114 (Tex. 2006)(waiver of
immunity to breach of contract claim)
07-1076 OLIVIA OLIVEREZ RODRIGUEZ AND GABRIEL RODRIGUEZ v. FRANCISCA RODRIGUEZ GARZA,
THE ESTATE OF LILIA R. GUERRA, DECEASED, EUSEBIA R. CORONA, PETRA R. RODRIGUEZ, AND
APOLINAR RODRIGUEZ; from Starr County; 4th district (04-06-00139-CV, ___ SW3d ___, 07-25-07, pet.
denied March 2008)
08-0005 SASKIA MADISON, AS NEXT FRIEND OF M.M., A MINOR v. WARREN REID WILLIAMSON AND JANE
SMITH; from Harris County; 1st district (01-05-00678-CV, 241 SW3d 145, 07-27-07, pet. denied March 2008)
(sexual assault liability, negligence, damages cap)
08-0008 KAREN GRANGER v. HELEN GRANGER, ET AL.; from Angelina County; 12th district
(12-06-00147-CV, 236 SW3d 852, 09-26-07, pet. denied March 2008)(divorce property division, community
and separate property, life insurance)
Appellant Karen Granger appeals the trial court’s judgment denying her claim to one-half of a life insurance
policy purchased by her deceased husband. In three issues, Karen argues that the beneficiaries of her
husband’s life insurance policy failed to prove by clear and convincing evidence that the policy was his
separate property and that, if the policy was community property, the gift of the proceeds was a fraud on the
community estate, entitling her to an appropriate remedy.
08-0022 YIGAL BOSCH v. PROVIDENT AMERICAN LIFE AND HEALTH INSURANCE COMPANY; from Harris
County; 14th district (14-06-00694-CV, ___ SW3d ___, 10-25-07, pet. denied March 2008)
(op. on rehearing by Justice Hedges)(Insurance cancellation, coverage denial, no findings of fact)
08-0037 ROX COVERT, DUKE COVERT AND DANAY COVERT v. WILLIAMSON CENTRAL APPRAISAL
DISTRICT; from Williamson County; 3rd district (03-06-00218-CV, 241 SW3d 655, 11-30-07, pet. denied March
2008)
08-0041 MERCEDES WILSON-EVERETT v. CHRISTUS ST. JOSEPH HOSPITAL, JEFF WEBSTER, EDITH
IRBY JONES, LAKISHA HOSE, MARIAMME KURIAN, LAURA FORTIN, SOPHIE MEYERS, NEDRA THOMAS, AND
LAURA FLINT; [concurring opinion by Justice Frost] from Harris County; 14th district (14-05-00999-CV, 242
SW3d 799, 11-29-07, pet. denied March 2008) (HCLC, expert report, constitutional challenge)
08-0044 LEROY HAYES JR. v. WELLS FARGO BANK, N.A.; from Harris County; 1st district
(01-06-00720-CV, ___ SW3d ___, 10-18-07, pet. denied March 2008) (Justice Johnson not sitting)
(business law, debt, promissory note, balloon payment)
08-0063 ROBERT S. MITCHELL AND LETA M. MITCHELL v. ARTURO GARZA; from Harris County; 1st district
(01-06-00959-CV, ___ SW3d ___, 12-06-07, pet. denied March 2008) (real estate law, easement by estoppel)
08-0064 AMANDA BURNS SMITH v. HENDRICK MEDICAL CENTER; from Taylor County; 11th district
(11-06-00145-CV, ___ SW3d ___, 11-08-07, pet denied March 2008)
08-0070 MARK KUPSTIS v. FIELD OFFICER DAVIS, ET AL.; from Jones County; 11th district
(11-07-00313-CV, ___ SW3d ___, 11-01-07, pet. denied March 2008)
08-0101 RONALD GLENN HARRIS v. TEXAS DEPARTMENT OF PUBLIC SAFETY; from Somervell County; 6th
district (06-07-00085-CV, ___ SW3d ___, 12-18-07, pet. denied March 2008)
we find there is sufficient evidence to uphold the decision of the ALJ that Neal had probable cause to believe
that Harris was operating a motor vehicle in a public place while intoxicated.
As previously noted, courts must affirm administrative findings in contested cases if there is more than a
scintilla of evidence to support them. In fact, an administrative decision may be sustained even if the evidence
preponderates against it. Hesskew v. Tex. Dep't of Pub. Safety, 144 S.W.3d 189, 191 (Tex. App.--Tyler 2004,
no pet.). Based on the standard of review required, we find that the district court erred by reversing the
determination of the ALJ.
We reverse the judgment of the district court and reinstate the judgment of the ALJ.
08-0103 RISCHON DEVELOPMENT CORPORATION v. CITY OF KELLER, TEXAS; from Tarrant County; 2nd
district (02-06-00103-CV, 242 SW3d 161, 11-29-07, pet. denied March 2008)(takings case)
This is a takings case. Appellant Rischon Development Corp. complains that the City of Keller committed an
unlawful taking under the Texas constitution by imposing certain requirements on a residential development
planned by Rischon. The City contends that Rischon consented to all of the requirements. After a bench trial,
the trial court rendered a take-nothing judgment on Rischon=s claims against the City. We affirm.
08-0109 ANAHEIM INDUSTRIES, INC., ET AL v. GENERAL MOTORS CORPORATION; from Harris County; 1st
district (01-06-00440-CV, ___ SW3d ___, 12-20-07, pet. denied March 2008)(commercial law, UCC, BoC,
extracontractual claims, estoppel, misrepresentation)
Petitions for Review Denied March 20, 2008
---
Orders Pronounced March 14, 2008
---
Petitions for Review Denied March 7, 2008
06-0925 GENERAL MOTORS CORPORATION v. CHRIS BURRY, STACEY BURRY, AND CHRIS BURRY, AS
NEXT FRIEND FOR RACHEL BURRY, SARAH BURRY, AND MEGHAN BURRY, MINORS; from Wise County;
2nd district (02-05-00216-CV, 203 SW3d 514, 09-21-06, pet. denied March 2008)
petitioner's motion to strike respondents' "sur-reply" dismissed as moot
07-1004 GARY BOLEN, INDIVIDUALLY, AND PHARAOH OIL & GAS, INC. v. IMPERIAL PETROLEUM, INC.;
from Midland County; 11th district (11-06-00018-CV, ___ SW3d ___, 07-12-07, pet. denied March 2008)
08-0013 LUCY TELLEZ v. ALLSTATE TEXAS LLOYDS; from Harris County; 14th district
(14-06-00305-CV, ___ SW3d ___, 10-30-07, pet. denied March 2008)
08-0053 SAMEENA AHMED v. SHAHID RASHID; from Hidalgo County; 13th district
(13-05-00493-CV, ___ SW3d ___, 11-01-07, pet. denied March 2008)
08-0065 CHARLES WARD, III v. CHARLES AND DIANA MALONE; from Nueces County; 13th district
(13-06-00108-CV, ___ SW3d ___, 12-06-07, pet. denied March 2008)
08-0068 JEFFREY GARRETT CROSS v. USAA FEDERAL SAVINGS BANK, JENNIFER MAY, ET AL.; from
Travis County; 7th district (07-07-00308-CV, ___ SW3d ___, 10-17-07, pet. denied March 2008)
08-0075 CONTRACTOR'S SERVICE COMPANY v. REECE ALBERT, INC.; from Harris County; 1st district
(01-06-00700-CV, ___ SW3d ___, 12-13-07, pet. denied March 2008)
08-0086 PUBLICACIONES PASO DEL NORTE, S.A. DE C.V. v. BELO CORP., THE DALLAS MORNING NEWS,
L.P., BELO INTERACTIVE, INC., THE DALLAS MORNING NEWS OF TEXAS, INC., ALFREDO CORCHADO,
AND LAURENCE ILIFF; from El Paso County; 8th district (08-06-00113-CV, 243 SW3d 152, 09-20-07, pet
denied March 2008) (Justice Hecht not sitting)
|