| 2008 Dissents and Concurrences In the Houston Courts of Appeals |
| FREQUENCY OF DISSENTING AND CONCURRING OPINIONS. In Fiscal Year 2008, which ended August 31, 2008, the justices of the First Court of Appeals delivered 24 separate opinions, 15 of which where dissents and 9 of which were concurrences. Justice Evelyn Keyes led the court in the number of dissenting opinions with 8 such opinions, followed by Justice Terry Jennings with three. Several members of the court did not issue dissenting opinions at all. Justices Terry Jennings and Jane Bland wrote 3 concurring opinions each. Justice Tim Taft wrote 2, and Chief Justice Sherry Radack one. Dissents and Concurrences are rare on the First Court of Appeals. They represent only approximately 2% of all opinions issued by the court, and 3.5% of the signed opinions. On the Fourteenth Court of Appeals, which also has a membership of nine and a comparable annual case load, dissenting and concurring opinions are more common. In FY 2008 there were 25 concurrences and 22 dissents, for a total of 47, which is 4.4% of all opinions for that time period, or 8.2% of signed opinions on the merits. Justice Kem Frost turned in the largest number of concurring opinions (9) and, with Justice Edelman, led the court in dissents (5 each). Justices Frost and Edelman were responsible for more than half of the separate opinions on the Fourteenth Court of Appeals in FY 2008, although Edelman had already retired and had a much reduced caseload. Justice Charles Seymore wrote four dissents. Justice John Anderson three. The Texas Judiciary does not report statistics by calendar years. Source: Annual Statistical Report for the Texas Judiciary Fiscal Year 2008 2008 Dissents and Concurrences from the Houston Courts of Appeals Also see --> 2009 cases with concurring or dissenting opinions, or both In re Memorial Hermann Healthcare System (Tex.App.- Houston [14th Dist.] Oct. 9, 2008)(Hedges) (discovery mandamus denied, privilege, anti-trust litigation) MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Frost 14-08-00204-CV In Re Memorial Hermann Healthcare System and Memorial Hermann Hospital System Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan Concurring Opinion by Justice Frost In Re Hicks (Tex.App. - Houston [14th Dist.] Sep. 25, 2008)(Dissent on motion for rehearing en banc by Frost) (discovery disputes, privilege) Before Chief Justice Hedges, Justices Brock Yates, Anderson, Guzman, Brown and Boyce 14-07-00590-CV In Re: Michael Hicks and Jerry Fazio Appeal from 155th District Court of Austin County Trial Court Judge: Judge Daniel R. Beck Dissenting Opinion by Justice Frost Thompson v. Peak (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Fowler) (homestead, liens, sanctions appeal mooted by compliance with sanctions order) DISMISSED AS MOOT: Opinion by Justice Fowler Before Justices Fowler, Frost and Seymore 14-07-00333-CV Jack W. Thompson v. David Ricardo and Kara K. Peak Appeal from 164th District Court of Harris County Trial court judge: Hon. Martha Hill Jamison Dissenting Opinion by Justice Frost Authorlee v. Tuboscope Vetco International, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2008)(Nuchia) (challenge to agreed judgment, fraud claim, aggregate settlement claim, public policy) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia Before Justices Nuchia, Keyes and Higley 01-06-00719-CV Anthony Authorlee, Dexter Burnett, Robert Derousselle, John Henry Young, Jerome Stubblefield and Floyd Moran v. Tuboscope Vetco International, Inc.; AMF Incorporated; and Minstar, Inc. Appeal from 295th District Court of Harris County Trial Court Judge: Hon. Tracy Christopher Dissenting Opinion by Justice Keyes (would set aside settlement aside as against public policy) Hernandez v. Hernandez (Tex.App.- Houston [1st Dist.] Aug 28, 2008)(Higley) (OAG child support enforcement suit, NPT nunc pro tunc order void) VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Higley Before Chief Justice Radack, Justices Keyes and Higley 01-06-00901-CV George Hernandez v. Maria Guadalupe Hernandez Appeal from 311th District Court of Harris County Trial Court Judge: Hon. Doug Warne Dissenting Opinion by Justice Keyes Mayo v. Suemaur Exploration & Production LLC (Tex.App.- Houston [1st Dist.] Aug 26, 2008)(Anderson) (animal liability law, auto collision with cattle, summary judgment affirmed, evidence not authenticated, pro se litigants) AFFIRMED AS MODIFIED: Opinion by Justice Anderson Before Justices Brock Yates, Anderson and Brown) 14-07-00491-CV Samuel Mayo v. Suemaur Exploration & Production LLC, and Wilfred L. Peltier Appeal from County Court at Law # 4 and Probate Court of Brazoria County Trial Court Judge: Lori Rickert Concurring Opinion by Justice Brown In Re Kenefick (Tex.App.- Houston [14th Dist.] Aug. 19, 2008)(Seymore) (mandamus in family court case, motion for clarification void, motion to compel) GRANTED IN PART AND DENIED IN PART: Opinion by Justice Charles Seymore Before Justices Fowler, Frost and Seymore 14-08-00203-CV In Re Brian Kenefick Appeal from 308th District Court of Harris County We conditionally grant the petition for a writ of mandamus with respect to the clarification order and direct the trial court to vacate its February 14, 2008 clarification order. We deny the petition for writ of mandamus, without prejudice, with respect to the order granting the motion to compel. Trial Court Judge: Judge Georgia Dempster Concurring Opinion by Justice Frost in In Re Kenefick (re: clarification order) Fired fire department employees were not entitled to civil service review, panel majority says; one justice dissents Jackson v. City of Texas City (Tex.App.- Houston [1st Dist.] July 24, 2008)(Keyes) (public employment, fire department, dismissal, failure to obtain EMT treated as not disciplinary, civil service protections inapplicable, civil service commission) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Taft, Keyes and Alcala 01-07-00026-CV Anthony Jackson and James Nunez v. City of Texas City and Debbie Lesco, Texas City Civil Service Director Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss Dissenting Opinion by Justice Alcala Green v. Alford (Tex.App.- Houston [14th Dist.] July 15, 2008)(Opinion on en banc rehearing by Guzman) (PI, fire truck collision, official immunity defense rejected) AFFIRMED: Opinion by Justice Guzman Before Chief Justice Hedges, Justices Brock Yates, Anderson, Hudson, Fowler, Frost, Seymore, Guzman, Brown and Boyce 14-05-00407-CV Christopher Green v. Dwainia Alford, Individually and as Next Friend of Aaron Alford and Ronald Alford Appeal from 152nd District Court of Harris County Trial Court Judge: Kenneth Price Wise Concurring Opinion by Justice Frost Dissenting Opinion by Justice Hudson Hofstatter v. General Interior Construction, Inc. (Tex.App.- Houston [14th Dist.] July 3, 2008)(Hedges) (special appearance denied) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Anderson and Frost 14-07-00270-CV Dan Kelly and Laura Hofstatter v. General Interior Construction, Inc. Appeal from 125th District Court of Harris County Trial Court Judge: John A. Coselli Dissenting Opinion by Justice Frost Court of Appeals throws out judgment against state university in whistleblower suit and remands case; one justice dissents. Univ. of Houston v. Barth (Tex.App. - Houston [1st Dist.] July 3, 2008) (jury award in tenured professor's Whistleblower suit reversed; case remanded to the trial court) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Justices Nuchia, Alcala and Higley 01-06-00490-CV The University of Houston v. Stephen Barth Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Dissenting Opinion by Justice Alcala Goldberg v. Commission for Lawyer Discipline (Tex.App.- Houston [1st Dist.] July 3, 2008)(Taft) (disciplinary matter, jurisdiction re: disbarment where criminal conviction was set aside) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Jennings and Bland 01-07-01104-CV Daniel Goldberg v. Commission for Lawyer Discipline, and State Bar of Texas Appeal from 295th District Court of Harris County Trial Court Judge: Hon. Tracy Christopher Concurring Opinion by Justice Jennings Dissenting Opinion by Keyes in In re Walker (Tex.App.- Houston 2008) (termination of parental rights, jurisdiction, dismissal) OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Keyes Before Justices Taft, Jennings and Bland 01-08-00348-CV In re Kristal Timish Walker a/k/a Kristal Timisha Walker Appeal from 314th District Court of Harris County Trial Court Judge: Hon. John Phillips Trousdale v. Henry (Tex.App.- Houston [14th Dist.] June 24, 2008)(Fowler) (legal malpractice, claim splitting, fractioning, applicable statute of limitations for negligence and breach of fiduciary duty, tolling, discovery rule) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Brock Yates, Fowler and Guzman 14-06-00848-CV Lenieta Wylene Trousdale v. Annette M. Henry, R. Christopher Bell and Bell & Henry, L.L.P. Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman Concurring and Dissenting Opinion by Justice Guzman (legal malpractice claims should not be splintered into different causes of action). Ahmed v. Ahmed (Tex.App.- Houston [14th Dist.] June 17, 2008)(Yates) (divorce, Islamic marriage, enforceability of prenup) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Brown 14-07-00008-CV Amir Ahmed v. Afreen S. Ahmed Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster Concurring and Dissenting Opinion by Justice Guzman McInnis v. Mallia (Tex.App.- Houston [14th Dist.] June 17, 2008)(Corrected majority opinion by Frost) (malpractice suit, no-evidence motion for summary judgment, no adequate opportunity to conduct discovery) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Fowler, Frost and Seymore 14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., The Mallia Law Firm, P.C., Tommy Hastings, J.D. Appeal from 281st District Court of Harris County Trial Court Judge: David J. Bernal Dissenting Opinion by Justice Seymore (adequate discovery) McInnis, D.V.M. v. Michael Mallia, J.D., (Tex.App.- Houston [14th Dist.] June 10, 2008)(Frost) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Fowler, Frost and Seymore 14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., The Mallia Law Firm, P.C., Tommy Hastings, J.D. Appeal from 281st District Court of Harris County Trial Court Judge: David J. Bernal DISSENTING: Dissenting Opinion by Justice Seymore CRIMINAL CASE: Wood v. State of Texas (Tex.App.- Houston [1st Dist.] June 5, 2008)(Nuchia) (DWI, ineffective assistance of counsel) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchia Before Justices Nuchia, Keyes and Higley 01-06-00321-CR Peter R. Wood v. The State of Texas Appeal from County Court at Law of Washington County Dissenting Opinion by Justice Keyes CRIMINAL CASE: Resendez v. State of Texas (Tex.App.- Houston [14th Dist.] May 29, 2008)(Anderson) REVERSED AND REMANDED: Opinion by Justice Anderson Before Justices Anderson, Edelman and Frost 14-05-00098-CR Resendez, Angel v. The State of Texas Appeal from 182nd District Court of Harris County Dissenting Opinion by Justice Frost CRIMINAL CASE: Yglesias v. State of Texas (Tex.App.- Houston [14th Dist.] Apr. 24, 2008)(Frost) AFFIRMED: Opinion by Justice Kem Frost Before Chief Justice Hedges, Justice Frost, Senior Justice Murphy 14-06-00144-CR Raul Enrique Yglesias v. The State of Texas Appeal from 178th District Court of Harris County Dissenting Opinion by Chief Justice Hedges in Raul Enrique Yglesias v. The State of Texas (The majority concludes that although Judge Harmon abused his discretion, appellant suffered no harm. Because I believe Judge Harmon's shackling appellant caused harm, I respectfully dissent.) Environmental Procedures, Inc. v. Guidry (Tex.App.- Houston [14th Dist.] Apr. 17, 2008)(Frost) (insurance law, broker, nondisclosure order void) AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Frost Before Justices Frost, Seymore and 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 Guzman Klein, MD and BCM v. Hernandez (Tex.App.- Houston [1st Dist.] Apr. 17, 2008)(Jenning)(HCLC) DISMISS APPEAL: Opinion by Justice Jennings Before Justices Taft, Jennings and Alcala 01-06-00569-CV Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N.H., A Minor Appeal from 152nd District Court of Harris County Trial Court Judge: Hon. Kenneth P. Wise Concurring Opinion by Justice Taft in Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N.H., A Minor Rakowski v. Committee to Protect Creek Village Homeowner's Rights (Tex.App. - Houston [14th Dist.] Apr. 3, 2008) (Subst. plurality op. by Edelman) (real estate law, home owner law, subdivision restrictive covenant dispute, deed restrictions, HOA litigation) AFFIRMED: Opinion by Justice Edelman 14-05-01143-CV Robert A. Rakowski and Clear Creek Civic Association, Inc. v. Committee to Proctect Clear Creek Village Homeowners' Rights and Preserve our Park Appeal from 405th District Court of Galveston County Concurring and Dissenting Opinion by Justice Frost in Robert A. Rakowski and Clear Creek Civic Association, Inc. v. Committee to Proctect Clear Creek Village Homeowners' Rights and Preserve our Park Trial Court Judge: Wayne J. Mallia Stamper v. Knox (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Keyes) (family law, presumption of paternity, nonpaternity, DNA testing, equitable estoppel) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes 01-06-00875-CV Michelle Stamper f/k/a Michelle Knox v. Stanley Keith Knox Appeal from 306th District Court of Galveston County Trial Court Judge: Hon. Janis L. Yarbrough OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Concurring Opinion by Justice Jennings in Stamper v. Knox Trial Court Judge: Hon. Janis L. Yarbrough City of Houston v. Clark (Tex.App.- Houston [14th Dist.] Mar. 18, 2008)(Majority Opinion by Frost) (firefighter litigation, Houston of Houston litigation, public employment, immunity plea, claim, lack of jurisdiction over dispute, hearing examiner) AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Kem Frost 14-03-00399-CV The City of Houston v. Donald Clark Appeal from 333rd District Court of Harris County Trial Court Judge: Hon. Joseph J. Halbach Concurring Opinion by Justice Edelman In City of Houston v. Clark (2008) Scott Bader, Inc. v. Sandstone Products, Inc. (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Higley) (products liability, imposition of sanctions by trial court) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Justices Nuchia, Keyes and Higley 01-05-00940-CV Scott Bader, Inc., Amy C. Wright, Kern & Wooley, L.L.P., and National Pigments & Chemicals, Inc. v. Sandstone Products, Inc. Appeal from 127th District Court of Harris County (Judge Sharolyn Wood) Dissenting Opinion by Justice Keyes in Scott Bader, Inc. v. Sandstone Products, Inc. (sanctions) Enviropower LLC v. Bear, Stearns & Co., Inc. (Tex. App.- Houston [1st Dist.] Feb. 21, 2008)(Hanks) (domestication and enforcement of foreign judgments, exception, death penalty sanctions leading to default judgment) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Keyes and Hanks 01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc. Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison) Environpwer LLC v. Bear, Sterns & Con. Inc. (Tex.App. Houston [1st Dist.] Feb. 21, 2008) (Opinion by en banc order by Justice Evelyn Keyes)(net worth) GRANT MOTION: Before Justices Taft, Keyes and Hanks 01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc. Appeal from 164th District Court of Harris County (Judge Martha Hill Jamison) Justice Bland wrote concurrence on en banc review in Environpower LLC v. Bear, Stern & Co. Inc. (Tex.App.- Houston [1st Dist.] Feb. 21, 2008)(Concurrence by Bland)(net worth) OPINION CONCURRING WITH THIS COURT'S JUDGMENT: Before Justices Taft, Keyes and Hanks 01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc. Appeal from 164th District Court of Harris County (Honorable Martha Hill Jamison) Hanks wrote a dissenting opinion on en banc review in Environpower LLC v. Bear, Stern & Co. Inc. (Tex.App.- Houston [1st Dist.] Feb. 21, 2008)(Dissent by Hanks)(net worth, supersedeas bond) OPINION DISSENTING TO THIS COURT'S JUDGMENT: Before Justices Taft, Keyes and Hanks 01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc. Appeal from 164th District Court of Harris County (District Court Judge Martha Hill Jamison) General Star Indemnity Co. v. Gulf Coast Marine Ass'n (Tex. App. - Houston [14th Dist.] Feb. 14, 2008)(Guzman) (insurance law, duty to defend, indemnify) AFFIRMED: Opinion by Justice Guzman Before Justices Brock Yates, Fowler and Guzman 14-06-00662-CV General Star Indemnity Co. v. Gulf Coast Marine Associates, Inc. Appeal from 152nd District Court of Harris County (Judge Kenneth Price Wise) Dissenting Opinion by Justice Brock Yates Escalante v. Rowan (Tex.App.- Houston [14th Dist.] Jan. 22, 2008)(Mirabal) (HCLC, medical malpractice, health care liability, claim, motion to dismiss by defendants) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Senior Justice Mirabal Before Justices Anderson, Frost and Mirabal 14-05-00828-CV Dr. Carmelita Escalante, Dr. Edmund Kim, Dr. Edgardo Rivera and Dr. Franklin Wong v. Donita Rowan and James Niese Appeal from 164th District Court of Harris County Judge Martha Hill Jamison DISSENTING: Dissenting Opinion by Justice Anderson CONSOLIDATED WITH: Rowan v. Escalante (Tex.App. - Houston [14th Dist.] Jan. 22, 2008)(Opinion by Senior Justice Margaret Garner Mirabal sitting by assignment) (HCLC, summary judgment for defendants reversed) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Margaret Mirabal, retired and sitting by assignment Before Justices Anderson, Frost and Mirabal 14-06-00197-CV Donita Rowan and James Niese v. Carmelita P. Escalante, M.D., E. Edmund Kim, M.D., Edgardo Rivera, M.D., and Franklin C. Wong, M.D.Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison) DISSENTING: Dissenting Opinion by Justice Anderson Cantu v. Grossman (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Seymore)(venue rules, foreign judgment, MTV) REVERSED AND REMANDED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-06-00078-CV Mark A. Cantu v. Howard S. Grossman, P.A. Appeal from 215th District Court of Harris County (Honorable Levi James Benton) Dissenting Opinion by Justice Frost Also see --> 2007 CASES WITH DISSENTING / CONCURRING OPINIONS Also see --> 2009 CASES WITH DISSENTING / CONCURRING OPINIONS |
cript src="http://www.google-analytics.com/urchin.js" type="text/javascript">