Saturday, June 27, 2009

June 2009 Houston Civil Appellate Opinions - Tex. App. [14th Dist.]


Released Opinions June 30, 2009

June 30, 2009 - Civil Causes Decided:

Lowe's Home Centers Inc. v. GSW Marketing, Inc. (Tex.App.- Houston [14th Dist.] Jun. 30, 2009 (op. by
Guzman) (
workplace safety, premises liability-store - falling merchandise, negligent activity and premises
liability, premises defect,
worker compensation subrogation) AFFIRMED: Opinion by Justice Eva
Guzman
Before Justices Brock Yates, Guzman and Sullivan
14-07-00953-CV Lowe's Home Centers Inc & Natasha Tanner v. GSW Marketing, Inc. f/k/a Salesmaker,
Inc. d/b/a CSA Services Southwest and Snow Mountain Construction, Inc
Appeal from 333rd District Court of Harris County
Trial Court
Judge: JOSEPH J. HALBACH

Credigy Receivables, Inc v. Mahinay (Tex.App.- Houston [14th Dist.] Jun. 30, 2009 (op. by Guzman)
(
county court had jurisdiction over suit to confirm arbitration award regardless of whether TAA or FAA
applied)(dismissal reversed)
REVERSED AND REMANDED: Opinion by
Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan
14-07-01091-CV Credigy Receivables, Inc v. Alexander R. Mahinay
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court
Judge: R. Jack Cagle

Zamarripa v. Zamarripa (Tex.App.- Houston [14th Dist.] Jun. 30, 2009 (op. by Boyce)
(
divorce property law, dispute over characterization and division of retirement benefits, separate vs.
community property, presumption of community property not rebutted, QDRO)
AFFIRMED: Opinion by
Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-08-00083-CV Jimmy Zamarripa v. Syliva C. Zamarripa
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: ROBERT J. KERN


New Opinions Released June 25, 2009

Civil Causes Decided:

Cunningham Lindsey Claims Management, Inc. v. Snyder (Tex.App. - Houston [14th Dist.] Jun. 25, 2009)(Guzman)Guzman)(workers compensation dispute, judicial review suits, exhaustion of administrative remedies)VACATED AND DISMISSED: Opinion by Justice Eva M. Guzman Before Justices Brock Yates, Guzman and Sullivan 14-07-00449-CV Cunningham Lindsey Claims Management, Inc., and Glenda Higgins v. Lloyd Snyder Appeal from 215th District Court of Harris CountyTrial Court Judge: LEVI JAMES BENTON

Christus Health v. Kone, Inc. (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Brown)(fraud and fraud-in-the-inducement claims relating to a contract for elevator-maintenance services, one-satisfaction rule)AFFIRMED: Opinion by Justice BrownBefore Justices Anderson, Frost and Brown14-07-00786-CV Christus Health and Christus Health Gulf Coast v. Kone, IncAppeal from 127th District Court of Harris CountyTrial Court Judge: SHAROLYN P. WOOD

In Re CMD (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Yates)(paternity, nonpaternity, adoption: constitutionality of paternity registry statute)Decision: TRIAL COURT REVERSED AND CASE AND REMANDED:Opinion by Justice Leslie Brock Yates Panel members: Before Chief Justice Hedges, Justices Brock Yates and Guzman 14-08-00113-CV In Re C.M.D. Appeal from 328th District Court of Fort Bend CountyTrial Court Judge: Ronald R. Pope

Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore)(commercial real estate transaction: financing of purchase of shopping center, suit for breach of promissory note, summary judgment procedure, sufficiency of summary judgment response, affirmative defenses not properly asserted in response to Plaintiff's motion, proof of balance due and damages in note suit),Decision: TRIAL COURT'S SUMMARY JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore Panel members: Chief Justice Hedges, Justices Anderson and Seymore 14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia Appeal from 164th District Court of Harris CountyTrial Court Judge: MARTHA HILL JAMISON

Red Rock Properties 2005, LTD v. Chase Home Finance, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Hedges)(priority of competing liens on real property, attorney’s fees under the UDJA, preservation of error re: segregation of attorney's fees) Decision: TRIAL COURT'S JUDGMENT AFFIRMEDOpinion by Chief Justice Adele O. Hedges Panel members: Chief Justice Hedges, Justices Anderson and Seymore 14-08-00352-CV Red Rock Properties 2005, LTD v. Chase Home Finance, LLC Appeal from 189th District Court of Harris CountyTrial Court Judge: William R. Burke JR.

Foundation Design, Ltd. v. Barzoukas (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Guzman)(mootness doctrine, motion to dismiss appeal) DISMISSED: Opinion by Justice Eva Guzman Panel members: Justices Anderson, Guzman and Boyce 14-08-00485-CV Foundation Design, Ltd. d/b/a Larry Smith Engineering and Larry Smith v. Nicolas Barzoukas Appeal from 269th District Court of Harris CountyTrial Court Judge: John Thomas Wooldridge

Labidi, MD v. Sydow (pdf)(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Guzman)(consolidation of an interlocutory appeal and a petition for writ of mandamus, challenge to district court's order compelling arbitration and staying proceedings in the trial court)DISMISSED: Opinion by Justice Eva Guzman Panel members: Justices Guzman, Mirabal and Boyce 14-08-00527-CV Abdel Hakim Labidi, M.D. Ph.D. v. Michael D. Sydow, Et Al Appeal from 61st District Court of Harris County

In re Labidi, MD (htm) (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Guzman)MOTION OR WRIT DENIED: Opinion by Justice Eva Guzman Panel members: Justices Guzman, Mirabal and Boyce 14-08-00757-CV In Re Abdel Hakim Labidi, M.D., PH.D. Appeal from 61st District Court of Harris CountyTrial Court Judge: Hon. John Donovan (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Justices Frost, Brown and Boyce 14-08-00759-CV Asia Chemical Corporation, Inc. v. John Chung, Joey Chung, Manshao Chung, Individually and as the Representative of the The Estate of Bitar Chung Appeal from 281st District Court of Harris County

Freeman v. Freeman (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Guzman)Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Eva Guzman Panel members: Justices Anderson, Guzman and Boyce 14-08-00800-CV John Freeman v. Patrick Freeman Appeal from 164th District Court of Harris CountyTrial Court Judge: MARTHA HILL JAMISON

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Justices Frost, Brown and Boyce 14-08-00946-CV In Re Asia Chemical Corporation, Inc. Appeal from 281st District Court of Harris CountyTrial Court Judge: David J. Bernal

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00999-CV Sinclair Contractors Incorporated v. Labor Ready Appeal from 165th District Court of Harris County

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Justices Anderson, Guzman and Boyce 14-09-00047-CV F&Z Business, Et Al v. Afisco Interests, LLC Appeal from County Civil Court at Law No 2 of Harris County(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)Decision: TRIAL COURT REVERSED AND JUDGMENT RENDERED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00073-CV Texas Department of Public Safety v. P.J.K. Appeal from 278th District Court of Walker County [judge not identified by name)

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00106-CV Jon Kahn v. Baker Nissan North, Inc. D/B/A Baker-Jackson Nissan North Appeal from 189th District Court of Harris County(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00160-CV John Kinds v. City of Houston and Police Officer William Hayden Appeal from 281st District Court of Harris CountyTrial Court Judge: TRACY KEE CHRISTOPHER (not the presiding judge of the 281st DC)(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00193-CV Helene E. Holt and Byron K. Robinson v. Willie and Ida McQueen Appeal from County Civil Court at Law No 2 of Harris CountyTrial Court Judge: Jacqueline Lucci-Smith (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)MOTION OR WRIT DENIED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00234-CV In Re John Kahn Appeal from 189th District Court of Harris CountyTrial Court Judge: William R. Burke JR. (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DENIED AS MOOT: Per Curiam Panel members: Justices Brock Yates, Guzman and Sullivan 14-09-00360-CV In Re Cunningham Lindsey Claims Management Inc., and Glends Higgins Appeal from 215th District Court of Harris County (judge not disclosed on docket)(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00361-CV Gabriel B. Darby v. Patriot EMS Service and Waller County EMS Appeal from 55th District Court of Harris CountyTrial Court Judge: Jeff Shadwick Trial Court Case #: 2008-09026A

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00382-CV Juan Moreno and Yadira Ramirez v. Hawkins Insurance, Et Al Appeal from County Civil Court at Law No 3 of Harris County

(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00385-CV Mark Edwin Burns v. Corinna Marquez Burns Appeal from 247th District Court of Harris County (name of judge omitted from appellate docket)(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justices Brock Yates and Frost 14-09-00389-CV In Re Michael Kennedy Appeal from 334th District Court of Harris County (judge not identified on docket)(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)

DISMISSED: Per Curiam Panel members: Justices Anderson, Guzman and Boyce 14-09-00422-CV Epernay Community Association, Inc. v. Saad Shaar and Jeanette Shaar Appeal from 270th District Court of Harris CountyTrial Court Judge: Brent Gamble

June 24, 2009 Released Opinion

Suit to Confirm FAA Arb Award Viable in State Court, Houston Appeals Court Rules

Houston Court of Appeals, in three separate opinions by Justice Frost, says that credit card issuer may bring action to confirm arbitration award entered under the Federal Arbitration Act (FAA) in credit card debt case against card holder in state court, - here one of the four county civil courts at law of Harris County. Appeals court panel finds that trial court's dismissal of creditor's action on jurisdictional ground was error, and sends the debt collection cases back to that court for further proceedings.

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 arbitration award under FAA permitted in county court at law, invocation of FAA in state court is not jurisdictionally barred)
Disposition: 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 by court of appeals: TRIAL COURT'S JUDGMENT OF DISMISSAL REVERSED AND CASE REMANDED: Opinion by Justice Kem Thompson 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

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 on lack-of-jurisdiction grounds; Harris County county court at law found to have jurisdiction to confirm arbitration award, state-federal concurrent jurisdiction)
OUTCOME ON APPEAL: REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Frost, Brown and Boyce 14-08-00108-CV Palisades Acquisition XVI, LLC v. Howard Chatman Appeal from County Civil Court at Law No 1 of Harris County

RELATED CONCEPTS AND LINKS: Application for / suit seeking confirmation of arbitration award, action to confirm arb award under FAA, which arbitration statute applies? FAA and TAA, applicability of the FAA, grounds for vacature of arbitration award under the Federal Arbitration Act.

Thursday, June 25, 2009

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