Dissents & Concurrences in the Houston Courts of Appeals

How often do the members of the First and Fourteenth Court of Appeals disagree even though they belong to the same party (save one Democrat as a result of the 2008 judicial elections) ? Separate Opinions are an indication thereof, and are also revealing because they set forth the reasons why individual justices do not see eye to eye on a legal issue, though it is not unheard of that a Justice dissents or concurs without writing an opinion to let the public know why.

FREQUENCY OF CONCURRING AND DISSENTING OPINIONS IN HOUSTON, TEXAS COURTS OF APPEALS

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 Richard [now Senior 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 20082008 Dissents and Concurrences from the Houston Courts of Appeals
Links for split appellate decisions in the Houston Courts of Appeals:
2007 CASES WITH DISSENTING / CONCURRING OPINIONS 2008 CASES WITH SEPARATE OPINIONS 2009 CASES WITH DISSENTING / CONCURRING OPINIONS

CASES WITH SEPARATE OPINIONS FOR 2008 (nonexhaustive list of civil and a few criminal appeals decided in calendar year that spawned at least one dissent or concurrence):

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)

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

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

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)


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