TEXAS SUPREME COURT
PETITIONS FOR REVIEW DENIED
OCTOBER 2009
PETITIONS FOR REVIEW DENIED
OCTOBER 2009
2009 TEXAS SUPREME COURT
DECISIONS:
PETITION DENIALS WITHOUT OPINION
December 2008 Petition Denials
January 2009 Petition Denials
February 2009 Petition Denials
March 2009 Petition Denials
April 2009 Petition Denials
May 2009 Petitions Denied
June 2009 Petitions Denied
July 2009 Petition Denials
August 2009 Denied Petitions for Review
September 2009 Petition for Review Denials
October 2009 Petition for Review Denials
November 2009 Orders Denying Petitions for Review
December 2009 Orders Denying Petition for Review
PFR DENIALS ANNOUNCED OCTOBER 2009
Petitions for Review Denied October 2009
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED OCT. 30, 2009
09‑0677
ROBIN BLACKMON-DUNDA v. MARY KAY, INC.; from Dallas County; 5th district
(05‑08‑00192‑CV, ___ SW3d ___, 04‑01‑09, pet. denied Oct. 2009)
09‑0729
A.J. STOLL, JR. AND CAROLYN STOLL v. TOM LEWIS AND ANITA LEWIS; from Montgomery
County; 1st district (01‑08‑00556‑CV, ___ SW3d ___, 05‑14‑09, pet. denied Oct. 2009)
09‑0756
ELIDA LOPEZ OLIVER v. LONG ISLAND OWNERS' ASSOCIATION, INC.; from Cameron
County; 13th district (13‑08‑00385‑CV, ___ SW3d ___, 06‑11‑09, pet. denied Oct. 2009)
(Justice Guzman not sitting)
09‑0758
LARRY KALINA, DIANE KALINA, AND CLINT KALINA v. CODY WILLS BURNS; from Madison
County; 14th district (14‑08‑00589‑CV, ___ SW3d ___, 07‑23‑09, pet. denied Oct. 2009)
09‑0762
JON ERIC JACKS, INDIVIDUALLY AND D/B/A JON ERIC JACKS DEVELOPMENT v. G.A. BOBO,
JR.; from Gregg County; 12th district (12‑07‑00420‑CV, ___ SW3d ___, 07‑31‑09, pet. denied
Oct. 2009)
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED OCT 23, 2009:
08‑0890
OFFSHORE SPECIALTY FABRICATORS, INC., ET AL. v. WELLINGTON UNDERWRITING
AGENCIES, LTD., ET AL.; from Harris County; 14th district (14‑07‑00970‑CV, 267 SW3d 277,
07‑17‑08, pet denied Oct. 2009) 2 petitions
08‑0946
CLEAR CHANNEL OUTDOOR, INC. F/K/A/ ELLER MEDIA COMPANY v. DALLAS COUNTY
COMMUNITY COLLEGE DISTRICT; from Dallas County; 5th district (05‑07‑00701‑CV, ___
SW3d ___, 07‑31‑08, pet denied Oct. 2009)
08‑0949
RANGE RESOURCES CORPORATION AND RANGE PRODUCTION I, L.P., STEADFAST
FINANCIAL, L.L.C., RJ SIKES, ROGER SIKES, KATHY SIKES, CHRISTY ROME, GREG
LOUVIER, PAM LOUVIER, DACOTA INVESTMENTS HOLDINGS, L.L.P., AND R. CRIST VIAL v.
BETTY LOU BRADSHAW; from Hood County; 2nd district (02‑07‑00263‑CV, 266 SW3d 490,
08‑14‑08, pet denied Oct. 2009) 3 petitions
08‑1027
DUSTY RAY PAINTER, INDIVIDUALLY AND AS NEXT FRIEND OF DEZARAY NICOLE SPEER
AND SUMMER DAWN PAINTER, MINORS, AND TINA PERKINS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF JESSE PERKINS, DECEASED v. MOMENTUM
ENERGY CORPORATION, MCGUIRE INDUSTRIES, INC. AND XACT TECHNOLOGIES, INC.;
from Upton County; 8th district (08‑07‑00112‑CV, 271 SW3d 388, 11‑20‑08, pet denied Oct.
2009)
08‑1057
ROBERT LAGUARTA AND CARPAINT, INC. v. PELICAN PARTNERS, L.P.; from Calhoun
County; 13th district (13‑07‑00751‑CV, ___ SW3d ___, 08‑28‑08, pet denied Oct. 2009)
09‑0012
LM ERICSSON TELEFON, AB AND ERICSSON INC. v. CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON SUBSCRIBING TO POLICY NO. 509/QF037603; from Collin County; 5th
district (05‑07‑01467‑CV, 272 SW3d 691, 11‑24‑08, pet denied Oct. 2009)
consolidated with
09‑0013
LM ERICSSON TELEFON, AB AND ERICSSON INC. v. AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO.; from Collin County; 5th district (05‑07‑01747‑CV, ___
SW3d ___, 12‑17‑08, pet denied Oct. 2009)
09‑0169
LANKFORD COMPANY, INCORPORATED v. PATRICK LACOUR; from Nueces County; 13th
district (13‑07‑00017‑CV, 287 SW3d 105, 01‑15‑09, pet denied Oct. 2009)
09‑0230
GEORGE E. GUIDRY, DWIGHT W. ANDRUS III AND DWIGHT W. ANDRUS INSURANCE, INC. v.
ENVIRONMENTAL PROCEDURES, INC. AND ADVANCED WIRECLOTH, INC.; from Harris
County; 14th district (14‑05‑01090‑CV, 282 SW3d 602, 02‑03‑09, pet denied Oct. 2009)
09‑0323
LEXICON GENETICS, INC. v. TERESA STEWART, SUSAN THOMPSON, PEGGY SCHULTE,
GLADYS VASQUEZ, HEATHER CARROLL, RACHAEL WOOD AND MICHELLE WOODMAN;
from Montgomery County; 9th district (09‑08‑00180‑CV, 279 SW3d 364, 02‑12‑09, pet denied
Oct. 2009)
09‑0350
NAZIR BAQDOUNES v. SELENE LARA MATEOS BAQDOUNES; from Harris County; 1st district
(01‑07‑01102‑CV, ___ SW3d ___, 01‑29‑09, pet denied Oct. 2009)
09‑0417
JOSEPH EARL WATSON v. PARKER COUNTY'S SQUAW CREEK DOWN, LP AND JAMES R.
DUNNAGAN; from Parker County; 2nd district (02‑08‑00255‑CV, ___ SW3d ___, 04‑02‑09, pet
denied Oct. 2009)
09‑0445
IN THE MATTER OF J.B.L.; from Montgomery County; 11th district (11‑07‑00221‑CV, ___
SW3d ___, 03‑05‑09, pet denied Oct. 2009)
09‑0453
IN THE INTEREST OF S.B.S., A CHILD; from Lynn County; 7th district (07‑07‑00494‑CV, 282
SW3d 711, 03‑18‑09, pet denied Oct. 2009)
09‑0463
GUILLERMO GONZALEZ v. GUILLERMO TAPIA; from Cameron County; 13th district
(13‑08‑00039‑CV, 287 SW3d 805, 04‑23‑09, pet denied Oct. 2009) as redrafted
09‑0529
AMEGY BANK, N.A. F/K/A SOUTHWEST BANK OF TEXAS, N.A. v. SOUTHERN CRUSHED
CONCRETE, INC.; from Harris County; 1st district (01‑07‑00359‑CV, ___ SW3d ___,
04‑09‑09, pet denied Oct. 2009)
09‑0537
ROSE M. BREWER v. SCIENTIFIC IMAGE CENTER MANAGEMENT, INC. D/B/A LIFESTYLE
LIFT; from Dallas County; 5th district (05‑08‑00488‑CV, ___ SW3d ___, 03‑31‑09, pet denied
Oct. 2009)
09‑0571
KENNETH HUFFAKER v. WYLIE LP GAS, INC., INDIVIDUALLY AND AS GENERAL PARTNER
OF T&B, LTD., A TEXAS LIMITED PARTNERSHIP AND T&B, LTD., A TEXAS LIMITED
PARTNERSHIP; from Lubbock County; 7th district (07‑08‑00133‑CV, ___ SW3d ___,
05‑29‑09, pet denied Oct. 2009)
09‑0584
PERVIS J. BALLEW, JR. v. JUDE NDUDI; from Denton County; 7th district (07‑08‑00019‑CV,
___ SW3d ___, 04‑30‑09, pet denied Oct. 2009)
09‑0599
IN THE INTEREST OF J.T., A.T., AND D.T., JR. CHILDREN; from Medina County; 4th district
(04‑08‑00068‑CV, ___ SW3d ___, 06‑10‑09, pet denied Oct. 2009)
09‑0616
GAYLA DEWS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MARJORIE
LENORE BLACK DEWS, DECEASED v. PALO PINTO NURSING CENTER, ET AL.; from Palo
Pinto County; 11th district (11‑07‑00274‑CV, ___ SW3d ___, 06‑11‑09, pet denied Oct. 2009)
09‑0646
MARY FOGAL AND ROBERT FOGAL v. STATURE CONSTRUCTION, INC., JORGE
CASIMIRO, TOM THIBODEAU AND BERNIE KANE ; from Harris County; 1st district
(01‑07‑00456‑CV, ___ SW3d ___, 06‑18‑09, pet denied Oct. 2009)
09‑0667
DONNA SOLOMON-WILLIAMS v. SHETAL NICHOLAS DESAI, INDIVIDUALLY AND D/B/A FOOT
CENTERS OF AMERICA, FOOT CENTERS OF TEXAS, P.L.L.C.; from Fort Bend County; 1st
district (01‑08‑00733‑CV, ___ SW3d ___, 06‑25‑09, pet denied Oct. 2009)
09‑0686
IN THE INTEREST OF A.T.M., A CHILD; from Smith County; 12th district (12‑07‑00243‑CV,
___ SW3d ___, 05‑29‑09, pet denied Oct. 2009)
09‑0777
BURNWOOD, INC. v. RUSTY CAGLE D/B/A RED BOTTOMS A/K/A FLATLANDERS; from
Lubbock County; 7th district (07‑07‑00492‑CV, ___ SW3d ___, 06‑08‑09, pet denied Oct.
2009)
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED OCT 16, 2009:
09-0575 BOBBY FERACHI v. SHAWN CADY; from Denton County;
2nd district (02-07-00355-CV, ___ SW3d ___, 05-28-09)(contract for purchase of interest in
houseboat unsuccessfully challenged as indefinite and unenforceable, indefiniteness of
contract, meeting of the minds element, JNOV)
09-0612 NAZARETH INTERNATIONAL, INC. v. J.C. PENNEY COMPANY, INC. AND J.C.
PENNEY CORPORATION, INC.; from Collin County;
5th district (05-07-01578-CV, 287 SW3d 452, 06-12-09) as redrafted (action for the price of
goods, merchant business-to-business sales)
09-0621 BIELA'S GLASS AND ALUMINUM PRODUCTS, INC. AND ALERT LOCK AND KEY v.
SONIA VALVERDE; from Bexar County;
4th district (04-08-00587-CV & 04-08-00857-CV, ___ SW3d ___, 06-10-09, pet denied Oct
2009) (designation of responsible third party, timelines, limitations, res judicata)
09-0663 MICHAEL G. BYBOTH v. WOOD LIMITED PARTNERSHIP; AMS STAFF LEASING,
INC.; AND CHARLES D. WOOD, JR.; from Collin County;
5th district (05-08-00915-CV, ___ SW3d ___, 05-21-09)(breach of promissory note, personal
guaranty, findinds of fact and conclusions of law).
09-0674 JOHN CLYDE GUERRA v. WAL-MART STORES, INC. AND ED GARZA,
INDIVIDUALLY AND AS AGENT FOR WAL-MART; from Starr County;
4th district (04-08-00146-CV, ___ SW3d ___, 07-01-09, pet. denied Oct 2009)(employment
dispute, at will employment, no employment contract - no breach of contract, no agency,
actual or apparent authority to enter contract for life-long employment, intentional infliction of
emotional distress claim fails on appeal)
09-0680 WILLIAM D. BEARD v. COMMISSION FOR LAWYER DISCIPLINE; from Dallas
County; 5th district (05-07-00428-CV, ___ SW3d ___, 03-17-09, pet denied Oct 2009)
(disbarment affirmed, affirmative defense of limitations waived by failure to plead it,
trial amendment denied as prejudicial)
09-0682 ROY JONES v. POLK MECHANICAL COMPANY, LLC; from Bexar County;
4th district (04-08-00509-CV, ___ SW3d ___, 07-01-09, pet. denied Oct 2009)
(limitations discovery rule, standing issue as basis for summary judgment)
09-0718 R.W. ROGERS, SR. v. LAYNE HARWELL AND NELDA HARRIS; from Tarrant
County; 2nd district (02-08-00376-CV, ___ SW3d ___, 05-28-09, pet denied Oct 2009)
(prisoner's malpractice suit against criminal defense attorney properly dismissed)
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED OCT 9, 2009:
09‑0424 FREDRICK GILANI v. MOJGAN JALAILI-NAEINI; from Denton County;
2nd district (02‑09‑00015‑CV, ___ SW3d ___, 03‑19‑09, pet denied Oct 2009)
(untimely notice of appeal, jurisdictional dismissal required)
09‑0507 CARLOS A.L. VAUGHN v. NATRENIA L. HICKS, ET AL.; from Anderson County;
14th district (14‑08‑00726‑CV, ___ SW3d ___, 04‑16‑09)
Vaughn v. Hicks (Tex.App.- Houston [14th Dist.] Apr. 16, 2009, pet. denied Oct 2009)(per
curiam) (pro se prisoner suit should have been dismissed without prejudice, rather than with
prejudice)
09‑0551 CLAIRE STANARD PHILLIPS v. TROY D. PHILLIPS; from Dallas County;
8th district (08‑06‑00171‑CV, ___ SW3d ___, 03‑26‑09, pet. denied Oct 2009)
(divorce property division, characterization of property, constructive fraud, offset
reimbursement claims)
09‑0624 BOBBY LUCKY v. KITCHEN CAPTAIN HAINES ET AL.; from Taylor County;
11th district (11‑08‑00252‑CV, ___ SW3d ___, 05‑07‑09, pet. denied Oct 2009)
(inmate suit re: contaminated food, dismissal affirmed)
09‑0631 ELIJAH W. RATCLIFF v. LHR, INC.; from Polk County;
9th district (09‑07‑00566‑CV, ___ SW3d ___, 05‑28‑09, pet. denied Oct 2009)
(debt suit, breach of retail installment contract, summary judgment for plaintiff suing as
assignee affirmed, no-evidence motion for summary judgment on counterclaim granted and
affirmed, adequacy of time prior to no-evidence summary judgment)
09‑0656 GEORGE DIEHL DOLAN v. ZELIE M. DOLAN; from Harris County;
1st district (01‑07‑00694‑CV, ___ SW3d ___, 06‑18‑09, pet. denied Oct 2009)
Dolan v. Dolan (Tex.App.- Houston [1st Dist.] Jun. 18, 2009. pet. denied Oct 2009)
(probate law, trustee, breach of fiduciary duty, preservation of error)
09‑0687 BOBBIE WASHINGTON v. ANNIE MARIE GARRETT SMITH, ET AL.; from Harrison
County; 6th district (06‑08‑00121‑CV, 289 SW3d 362, 06‑30‑09, pet denied Oct 2009)
(probate litigation, removal of administratrix, dependent, independent administration of estate,
attorneys fees, appellate sanctions denied)
09‑0727 JOHN FOX v. CITY OF EL PASO, THOMAS MAGUIRE, WILLIAM STERN, MARIO
D'AGOSTINO, SAM JARVIS AND JOHN DOE(S); from El Paso County;
8th district (08‑08‑00093‑CV, ___ SW3d ___, 07‑22‑09, pet. denied Oct 2009)
(defective appellate briefing, pro se litigants held to the same standards)
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED OCT. 2, 2009
09-0589 ABDER EL HAMAD v. COMMERCIAL BOARD OF ADJUSTMENT, A DIVISION OF
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF FORT WORTH; from Tarrant
County; 2nd district (02-08-00294-CV, ___ SW3d ___, 05-14-09, pet. denied Oct 2009)
(zoning board decision appeal)
09-0615 KATHRYN ANN RACKLEY v. ADVANCED CYCLING CONCEPTS, INC. D/B/A PUMP IT
UP!; from Dallas County; 13th district (13-08-00254-CV, ___ SW3d ___, 03-19-09, pet. denied
Oct 2009) (PI affirmative defense of assumption of risk, release)
Rackley contends that the trial court erred in granting ACC's motion for summary judgment
because ACC failed to conclusively establish its affirmative defenses of release and express
assumption of risk. We affirm.
We conclude that the release form met both fair notice requirements; therefore, ACC
established its affirmative defenses as a matter of law. Further, because it was uncontroverted
that Rackley executed the release form prior to using ACC's facility and sustaining her injuries,
there are no outstanding issues of material fact. Accordingly, the trial court did not err in
granting ACC's amended motion for traditional summary judgment. See Tex. R. Civ. P. 166a
(c); Garza, 161 S.W.3d at 475 n.10; Mowbray, 76 S.W.3d at 690. Rackley's sole issue is
overruled.
09-0629 HEALTHSOUTH MEDICAL CENTER AND HEALTHSOUTH PLANO REHABILITATION
HOSPITAL v. PRICEWATERHOUSECOOPERS L.L.P. AND ROYAL & SUN ALLIANCE
INSURANCE PLC; from Dallas County; 5th district (05-06-01041-CV, ___ SW3d ___, 08-31-
07, pet. denied Oct 2009)
09-0632 APRIL AND JOSHUA RAY VAN HOOSE v. VANDERBILT MORTGAGE AND FINANCE,
INC.; from Milam County; 3rd district (03-08-00573-CV, ___ SW3d ___, 05-08-09, pet. denied
Oct 2009)(deemed admissions, failure to show good cause for withdrawal, pro se suit)
Appellants April and Joshua Van Hoose, appearing pro se, appeal from the trial court's grant
of summary judgment in favor of Vanderbilt Mortgage and Finance, Inc., on a breach of
contract claim regarding a manufactured home retail installment contract. We affirm the trial
court's judgment.
09-0689 JIMMY ZAMARRIPA v. SYLVIA ZAMARRIPA; from Fort Bend County;
14th district (14-08-00083-CV, ___ SW3d ___, 06-30-09, pet. denied Oct 2009)(divorce
marital property law, dispute over characterization and division of retirement benefits, separate
vs. community property, presumption of community property not rebutted, QDRO)
09-0712 IN THE INTEREST OF D.H., S.H. AND B.H., CHILDREN; from Taylor County; 11th
district (11-08-00294-CV, ___ SW3d ___, 07-30-09, pet. denied Oct 2009)
(termination of parental rights, incarcerated parent, bench warrant)
The undisputed evidence showed that appellant's presently scheduled release date is March
13, 2030. He admitted in his April 13, 2008 letter that he did not expect another parole
hearing for two more years. Although he raised the possibility of parole, the granting of such
parole is so speculative that the trial court would be justified in concluding that appellant's
release was not probable in the near future. Additionally, appellant's letters indicated that he
had no ability to care for the children while he was incarcerated, and he gave no indication
that he had made arrangements for anyone to care for the children while he was incarcerated.
09-0722 ANNETTE MCCARTY v. CLINTON T. MONTGOMERY, AS MANAGING TRUSTEE OF
THE TRIMONT IRREVOCABLE TRUSTS AND ELTON MONTGOMERY, THIRD-PARTY
DEFENDENT; from Palo Pinto County; 11th district (11-07-00317-CV, 290 SW3d 525, 06-11-
09, pet. denied Oct 2009)
PFRs DENIED IN 2008
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 in July 2008
Petitions for Review denied by the Texas Supreme Court in 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