2009 OPINIONS BY JUSTICE KEM FROST IN CIVIL APPEALS Also see --> 2010 Civil Case Opinions by Justice Frost | 2008 Frost Opinions Hughes v. Bay Area Montessori Houston, Inc. (Tex.App. - Houston [14th Dist.] Dec. 31, 2009)(Frost) (interlocutory appeal, professional malpractice suit) This interlocutory appeal arises out of an architecture-malpractice case. An architect and architectural firm sought dismissal of a school’s claims against them on the basis that the school claimant failed to comply with the certificate-of-merit statute. The trial court denied their motion to dismiss without stating the basis for the denial. In a single issue, the architect and architectural firm assert that the trial court incorrectly applied section 150.002 of the Texas Civil Practice and Remedies Code because the affidavit filed by the school allegedly did not contain a mandatory element. Because the school’s cause of action accrued before the legislature amended the certificate-of-merit statute to permit an interlocutory appeal from the denial of a motion to dismiss, this court lacks jurisdiction to consider this appeal. DISMISSED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc. Appeal from 295th District Court of Harris County Trial Court Judge: Tracy Kee Christopher Christopher Columbus Street Market LLC v. The Zoning Board of Adjustment of The City of Galveston, Texas (Tex.App.- Houston [14th Dist.] Nov. 13, 2009)(Frost) (zoning board appeal, severance) Property owners appeal the district court’s order affirming the decision of a municipal zoning board to uphold a decision by a city administrative agency to deny the property owners’ application for a city permit to demolish property in a historical area of the city. The property owners also challenge the district court’s severance of their constitutional claims against the city and zoning board from the appeal of the zoning board’s decision. We affirm. AFFIRMED: Opinion by Justice Kem T. Frost Before Justices Brock Yates, Frost and Brown 14-07-00980-CV Christopher Columbus Street Market LLC; Alfio Fischera; and Ed Eubanks v. The Zoning Board of Adjustment of The City of Galveston, Texas Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Mattox v. County Commissioner's Court-Grimes Cty. (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Hedges) (mandamus against public official, commissioner's court) (cancellation of a roadway dedication, interpretation of section 232.008 of the Texas Local Government Code, which governs cancellation of all or part of a subdivision located outside of any municipality)(both parties' motions for summary judgment denied) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00193-CV Gregory R. Mattox and Barbara Wilkerson v. County Commissioners' Court-Grimes County, Betty Shiflett-Grimes County Judge, John Bertling-County Commissioner Pct 1., and Pam Finke-County Commissioner Pct 4 Appeal from 506th Judicial District Court of County Trial Court Judge: Albert M McCaig Jr. Dissenting Opinion by Justice Frost in Mattox v. County Commissioners' Court of Grimes County Sharma v. Routh (Tex.App.- Houston [14th Dist.] Oct. 8, 2009)(Frost) (community vs separate property, marital, family trust income) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before Chief Justice Hedges, Justices Frost and Guzman 14-06-00717-CV Timothy L. Sharma v. Lisa C. Routh Appeal from 246th District Court of Harris County Trial Court Judge: Jim York Smith v. Harford Underwriters Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Frost) (workers compensation appeal by both sides, compensable injury) AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00133-CV Janice Smith v. Hartford Underwriters Insurance Company Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon Rodarte v. Investeco Group, LLC (Tex.App. - Houston [14th Dist.] Sep. 29, 2009)(Brown) (property-foreclosure case, standing issue) AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-08-00093-CV Victor Rodarte v. Investeco Group, LLC.; Morad Mekhail, Individually and as Trustee of Certain Real Property and Vincent Rodriguez Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Concurring Opinion by Justice Frost in Victor Rodarte v. Investeco Group, LLC.; Morad Mekhail, Individually and as Trustee of Certain Real Property and Vincent Rodriguez Britt v. Jones (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Frost) (animal law, liability for roaming cattle) AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00331-CV Anthony Britt v. James B. Jones and James B Jones, III Family Limited Partnership Appeal from 163rd District Court of Orange County Trial Court Judge: Judge Dennis Powell Neely v. Commission for Lawyer Discipline (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Frost) (commingling of funds, use of IOLTA trust account for personal and business expenses) (admission of bank records issue, improper subpoena) AFFIRMED: Opinion by Justice Frost Before Justice Frost 14-08-00526-CV George R. Neely v. Commission for Lawyer Discipline Appeal from 164th District Court of Harris County Trial Court Judge: Jack Hollis Robison Durrett Development, Inc. v. Gulf Coast Concrete, LLC (Tex.App.- Houston [14th Dist.] Aug. 27, 2009) (Frost) (real estate transaction, lease law, lease with purchase option, purchase option contract, right of first refusal, declaratory judgment) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-07-01062-CV Durrett Development, Inc. v. Gulf Coast Concrete, LLC Appeal from 23rd District Court of Brazoria County Trial Court Judge: BEN HARDIN Ross v. Union Carbide Corp. (Tex.App.- Houston [14th Dist.] Aug. 25, 2009) (en banc opinion by Guzman) (survivors' asbestos claims for exemplary damages and loss of consortium barred by release signed by worker prior to his death) AFFIRMED: Opinion by Justice Eva Guzman Before Price, Chief Justice Hedges, Justices Brock Yates, Anderson, Frost, Seymore, Guzman, Brown and Sullivan 14-07-00860-CV Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross and Robert R. Ross v. Union Carbide Corporation Appeal from 133rd District Court of Harris County Trial Court Judge: Lamar McCorkle Concurring Opinion by Justice Frost in Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross and Robert R. Ross v. Union Carbide Corporation (no point in en banc review) Concurring Opinion by Senior Justice Price in Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross and Robert R. Ross v. Union Carbide Corporation (disagreeing with supreme court precedent and reluctantly concurring) Langston v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost) (bill of review denied, tax suit, failure to avail oneself of available remedies, i.e. direct appeal precludes bill-of- review relief, claim of fundamental error rejected) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Seymore and Boyce 14-08-00063-CV C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena Independent School District and San Jacinto Community College Appeal from 55th District Court of Harris County Trial Court Judge: Jeff Brown Martinez v. Donisi (Tex.App.- Houston [14th Dist.] July 30, 2009)(Frost)(inheritance dispute, probate law, dispute re money alleged to have been held in trust for grandchild, claims of alleged violations of the Texas Theft Liability Act, conversion of money, breach of fiduciary duty, and fraud) (summary judgment based on limitations reversed, accrual date not proven)(multiple appeals)(summary judgment based on limitations reversed, movant did not prove accrual date) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00166-CV Jaime Martinez v. Philip Donisi, Independent Executor of the Estate of Jackie Marie Gammil Appeal from Probate Court No 2 of Harris County Trial Court Judge: Michael James Wood BACM 2002 PBs Westpart Dr LP v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Frost) (prior owner did not have standing to bring ad valorem tax protests appeal, judicial review suit, assumed name theory as basis for substitution of correct party rejected, no standing - no subject matter jurisdiction). AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00493-CV BACM 2002 PB2 Westpark Dr LP, Houston Parkwest Place Ltd, as the Property Owners and the Property Owners v. Harris County Appraisal District and the Appraisal Review Board of Harris County Appraisal District Appeal from 11th District Court of Harris County Trial Court Judge: Mark Davidson FIA Card Services, NA f/k/a MBNA America Bank, NA v. Horn (Tex.App.- Houston [14th Dist.] Jun. 23, 2009) (Frost)(suit to confirm arb award under FAA permitted in county court at law, invocation of FAA not jurisdictionally barred) Decision: TRIAL COURT REVERSED AND CASE REMANDED: Opinion by Justice Frost Panel members: Justices Frost, Brown and Boyce 14-08-00024-CV FIA Card Services, N.A. fka MBNA America Bank, N.A. v. Valicia M. Horn Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: Hon. Jack Cagle FIA Card Srv's v. Sweet (Tex.App.- Houston [14th Dist.] Jun. 23, 2009)(Frost) (card issuer may seek confirmation of arbitration award entered under FAA in state (county) court) Decision: TRIAL COURT REVERSED AND CASE REMANDED: Opinion by Justice Frost Panel members: Justices Frost, Brown and Boyce 14-08-00111-CV FIA Card Services, Et Al v. Gregory R. Sweet Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle In Interest of RCT (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Substituted Op. By Frost) (CHILD SUPPORT CASE: retroactive child support, child support lien, federal tax refund intercept) AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00642-CV In the Interest of R.C.T., L.J.T. and C.L.T. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne In the Matter of BDSD (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Frost) (juvenile delinquency adjudication, prostitution offense, stipulation) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Guzman and Sullivan 14-07-01079-CV In the Matter of B.D.S.D Appeal from 315th District Court of Harris County Trial Court Judge: Michael H. Schneider Tara Partners, Ltd. v. City of South Houston (Tex.App.- Houston [14th Dist.] Jan. 13, 2009)(Seymore) (city governmental immunity) declaratory judgment and attorney's fees, waiver of sovereign immunity) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00330-CV Tara Partners, Ltd., Granada Terrace, Ltd., David R. Wise, 1606 Savannah LLC, Windsor Gardens Ltd., and Freeport Villa Brazos Apartments, Ltd. v. City of South Houston Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Concurring Opinion by Justice Frost Gammill v. Fettner (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost) (probate court district court concurrent jurisdiction) AFFIRMED: Opinion by Justice Kem Frost Before Justices Frost, Brown and Boyce 14-07-00705-CV Cecil Gammill, Jr. and Jaime Martinez v. David A. Fettner, Trustee of The Gammill Family Trust, John Gammill, Kathleen Bungard, Laura Gammill, Janice Phillips, and Daniel Gammill Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker Gammill v. Gammill (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court had jurisdiction) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-07-01013-CV Cecil Gammill, Jr. v. John Gammill, Daniel Gammill, Kethleen Gammill Bungard, Janice Marie Gammill, Laure May Gammill, The Estate of Jackie Marie Gammill, and the Gammill Family Trust Appeal from Probate Court No 2 of Harris County Trial Court Judge: Michael James Wood Palisades Acquisition XVI,LLC v. Chatman (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost) (suit to confirm arbitration award under FAA erroneously dismissed by trial court) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00108-CV Palisades Acquisition XVI, LLC v. Howard Chatman Attorney for Appellant: Michael J. Adams Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle Texas Mutual Ins.Co. v. Morris (Tex.App.- Houston [14th Dist.] Jun. 4, 2009)(Opinion on rehearing by Frost) (bad-faith claim in worker's comp case) (loss of credit reputation requirements for proof) AFFIRMED AS MODIFIED IN PART AND REVERSED AND REMANDED IN PART: Opinion by Justice Frost Before Justices Anderson and Frost 14-06-00651-CV Texas Mutual Insurance Company v. P. Lance Morris Appeal from 11th District Court of Harris County Trial Court Judge: Mark Davidson Harden, MD v. East Texas Medical Center Health Care Associates (Tex.App.- Houston [14th Dist.] May 19, 2009) (Frost) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00627-CV Samuel Harden, M.D. v. East Texas Medical Center Health Care Associates Appeal from County Court at Law No 1 of Smith County Trial Court Judge: Judge Thomas A. Dunn Cooper v. TDCJ (Tex.App.- Houston [14th Dist.] May 12, 2009)(Frost) (prisoner inmate IFP suit dismissal with prejudice affirmed) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-07-00741-CV Steven P. Cooper v. Texas Department of Criminal Justice Et Al Appeal from 412th District Court of Brazoria County Trial Court Judge: W. Edwin Denman Gerdes v. Fogler (Tex.App. - Houston [14th Dist.] May 7, 2009)(Frost) (judgment debtor's civil lawsuit against the judgment creditor and the attorney who represented the judgment creditor for abuse of process, false imprisonment, and malicious prosecution) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-07-01020-CV Roger Gerdes v. Murray Fogler, Individually, McDade Fogler, LLP, and John Kennamer, Individually--Appeal from 333rd District Court of Harris County Trial Court Judge: Joseph J. (Tad) Halbach In Interest of RCT, LJT, CLT (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(first, superseded, opinion by Frost) (child support lien by operation of law, definition of arrearage, federal tax intercept) AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00642-CV In Interest of R.C.T., L.J.T., C.L.T. Appeal from 311th District Court of Harris County Trial Court Judge: Douglas C. Warne Richard v. Dretke (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost) (pro se litigants, IFP prisoner inmate suit dismissal, frivolous suit finding) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce) 14-08-00714-CV Anthony Joseph Richard v. Douglas Dretke, Et Al. Appeal from 349th District Court of Houston County In Interest of CAB (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Frost)(termination of parental rights) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00360-CV In the Interest of C.A.B Trial Court Judge: John Phillips Borrell v. Vital Weight Control, Inc. (Tex.App.- Houston [14th Dist.] Mar. 26, 2009)(Frost) (no quantum meruit claim where express contract covers claim) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-07-00390-CV Leo Borrell v. Vital Weight Control, Inc., d/b/a Neweigh Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman American Housing Foundation v. HCAD (Tex.App.- Houston [14th Dist.] Mar. 19, 2009)(Frost) (charitable organization property tax exemption dispute, statutory construction) AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost) 14-07-00990-CV American Housing Foundation and Brandywood Housing, LTD v. Harris County Appraisal District Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker Feng v. Sabic Americas, Inc. (Tex.App.- Houston [14th Dist.] Mar. 17, 2009)(Frost) (employment law, retaliation claim, but-for causation, pretext) AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00699-CV Yiqing Feng v. Sabic Americas, Inc. Appeal from 61st District Court of Harris County Horizon Offshore Contractors, Inc. v. Aon Risk Services of Texas, Inc. (Tex. App. – Houston [14th Dist.] Mar. 12, 2009)(Frost) (breach of fiduciary duty, election of remedies, judicial estoppel) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-07-00549-CV Horizon Offshore Contractors, Inc. and Horizon Vessels, Inc. v. Aon Risk Services of Texas, Inc., Appeal from 55th District Court of Harris County Trial Court Judge: Justice Jeffrey V. Brown Davis Investments, VI, LP v. Holtgraves (Tex.App. - Houston [14th Dist.] Feb. 26, 2009, pet. denied July 2009) (Frost) (interlocutory appeal and cross-appeal, orders sustaining special appearances) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost) 14-08-00222-CV Davis Investments, VI, LP v. Charles A. Holtgraves, Larry J. Horbach, and Phillip J. Holtgraves--Appeal from 152nd District Court of Harris County Trial Court Judge: Kenneth Price Wise XTO Energy Inc. v. Smith Production, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Frost) (contract interpretation, expert witness affidavit struck) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-07-00069-CV XTO Energy Inc. v. Smith Production Inc. Appeal from 281st District Court of Harris County Trial Court Judge: David J. Bernal Dissenting Opinion by Justice Guzman (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(contract construction) Moneyhon v. Moneyhon 278 S.W.3d 874 (Tex.App.- Houston -14th Dist.] Feb. 12, 2009, no pet.)(Frost) (judgment not supported by the pleadings, TRCP 301 judgment to conform to the pleadings, breach of fiduciary duty claim not tried by consent, pleading deficiency, constructive trust improperly imposed) REVERSED AND RENDERED: Opinion by Justice Frost Before Justices Anderson, Frost and Guzman 14-06-00873-CV Brian D. Moneyhon and Cheryl Parrish-Moneyhon v. Patricia Moneyhon Appeal from 412th District Court of Brazoria County Trial Court Judge: W. Edwin Denman Bottenstein v. UTMB (Tex.App.- Houston [14th Dist.] Feb. 10, 2009)(Frost) (public employment, gender discrimination, retaliation, discovery dispute, motion for continuance) AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Hudson and Frost 14-07-00747-CV Jan Bottenstein, PH. D., Individually and on behalf of Similarly Situated Female Professional Employees v. University of Texas Medical Branch at Galveston Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Speedy Stop Food Stores, Ltd v. Reid Road Municipal Utility District No. 2 (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(Frost)(condemnation case, testimony as to value of easement) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-07-00225-CV Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Utility District No. 2 Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd Dissenting Opinion by Justice Seymore Environmental Procedures, Inc. v. Guidry (Tex.App.- Houston [14th Dist.] Feb. 3, 2009)(subst. op. by Guzman) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Guzman 14-05-01090-CV Environmental Procedures, Inc. and Advanced Wirecloth, Inc. v. George E. Guidry, Dwight W. Andrus, III, Dwight W. Andrus Insurance, Inc., and Lexington Insurance Co. Appeal from 164th District Court of Harris County Trial Court Judge: Martha Hill Jamison Concurring and Dissenting Opinion by Justice Frost Tara Partners, Ltd. v. City of South Houston (Tex.App.- Houston [14th Dist.] Jan. 13, 2009)(Seymore) (city governmental immunity, declaratory judgment and attorney's fees waiver of sovereign immunity) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00330-CV Tara Partners, Ltd., Granada Terrace, Ltd., David R. Wise, 1606 Savannah LLC, Windsor Gardens Ltd., and Freeport Villa Brazos Apartments, Ltd. v. City of South Houston Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Concurring Opinion by Justice Frost Also see --> 2010 OPINIONS BY JUSTICE KEM THOMPSON FROST How does Justice Kem Thompson Frost compare with other justices on her court? In Fiscal Year 2008-2009, Justice Frost delivered a total of 158 opinions in civil and criminal appeals, the highest number of opinions by any member of the 14th Court of Appeals. Of these, 70 were unsigned per curiam opinions, 66 were signed opinions on the merits, and 22 were other opinions. Justice Frost is the most prolific dissenter on the Fourteenth Court of Appeals, accounting for 8 of 11 dissenting opinions delivered that year, and for 12 of a total of 25 concurring opinions. Also see --> 2008 OPINIONS BY JUSTICE KEM FROST IN CIVIL APPEALS Also see --> 2007 CIVIL APPELLATE OPINIONS BY JUSTICE FROST |
| Appellate Opinions by Justice Kem Thompson Frost (Tex.App.- Houston [14th Dist.] 2009) Houston Opinions |