Recent Appeals from cases in the 55th District (Judge Jeff Brown)
Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., (pdf) (Tex.App.- Houston [14th Dist.] Dec. 22, 2009)(Sullivan)(oil and gas law, commercial contract dispute, direct vs. consequential damages) This commercial dispute arises from a natural-gas seller’s failure to deliver an agreed quantity of gas to the purchaser, appellant Cherokee County Cogeneration Partners, L.P. (“Cherokee”). The seller, appellee Dynegy Marketing and Trade,[1] successfully moved for summary judgment by arguing Cherokee seeks only consequential “lost profits” damages disclaimed by the parties’ contract. We hold Cherokee has alleged compensable direct damages under the contract. Therefore, we reverse and remand. ... because the damages Cherokee seeks under Section 5.2 represent direct, not consequential damages, they are not disallowed by Section 5.4. Accordingly, Cherokee has pleaded compensable damages in its suit against Dynegy, and the trial court’s summary judgment therefore must be reversed. REVERSED AND REMANDED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Hudson and Sullivan) 14-08-00086-CV Cherokee County Cogeneration Partners, LP v. Dynegy Marketing and Trade, Dynegy GP, Inc., DMT Holdings, LP, DMT G.P., LLC and Chevron U.S.A. Inc. Appeal from 55th District Court of Harris County Trial Court Judge: Jeff Brown
Basey v. DaVita, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Seymore) (employment dispute, disability discrimination, retaliation, sj for defendant affirmed) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Hudson and Seymore 14-07-00925-CV Latoya Basey v. Davita Inc., d/b/a Total Renal Care, Nelda Boatwright and Fresenius Medical Care Holding Inc., d/b/a Fresenius Medical Care North America d/b/a Northwest Houston Dialysis, and Biomedical Applications of Texas, Inc. Appeal from 55th District Court of Harris County Trial Court Judge: Justice Jeffrey V. Brown
Chau v. Riddle, MD (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Hanks) (opinion on remand) (HCLC, botched intubation of newborn) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Justices Nuchia, Keyes and Hanks 01-04-00551-CV Thao Chau and Ha Dien Do, Individually and as next friend of their minor child, Steven Dien Do v. Jefferson Riddle, M.D., and Greater Houston Anesthesiology, P.A. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey Brown
GP II Energy, Inc. v. Chamberlain, Hrdlicka, White, Williams & Martin (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Frost)(fraud, breach of fiduciary duty, escrow agent, non-disclosure) AFFIRMED: Opinion by Justice Frost Before Justices Fowler, Frost and Seymore 14-07-00237-CV GP II Energy, Inc., George Mitchell, II and Brian M. Sirgo v. Chamberlain, Hrdlicka, White, Williams & Martin, and Brian L. Gennity Appeal from 55th District Court of Harris County Trial Court Judge: Justice Jeff Brown
Capital Finance & Commerce AG v. First International Oil (Tex.App.- Houston [1st Dist.] May 22, 2008)(Radack) (foreign defendant, personal jurisdiction, interlocutory appeal of special appearance) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Hanks and Higley 01-06-00822-CV Capital Finance & Commerce AG v. First International Oil Corporation n/k/a First International Oil Co., Ltd; FIOC Holder Representative, L.L.C.; Daniel Idzal; Bill D. Holland; Dennis B. Tower; and Sinopec Overseas Oil & Gas, Ltd.--Appeal from 55th District Court of Harris County Trial Court Judge: The Honorable Jeffrey Vince Brown Attorneys: Attorney John E. O'Neill, Reagan D. Pratt, Maria Wyckoff Boyce , Rebeca Aizpuru Huddle, Rosemarie Donnelly, Sylvia A. Matthews, Joe C. Holzer, Kendall M. Gray Joe C. Holzer
Astolfo v. Hobby Lobby Stores, Inc. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (premises liability, store, falling objects) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Keyes and Alcala) 01-06-00486-CV Patricia Astolfo and Harry Astolfo v. Hobby Lobby Stores, Inc. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey Brown Attorneys: Nuru Lateef Witherspoon, David L. Pacione
DISMISSED: Per Curiam (joint motion to dismiss; settlement) (Mar. 6, 2008) Before Justices Brock Yates, Fowler and Guzman 14-07-00668-CV Gregory A. Buford, Gulf Coast Demolition Services, L.P., and Buford & Connell Construction Services, Inc. v. Partners Bank of Texas Appeal from 55th District Court of Harris County (Judge [now Justice] Jeff Brown)
Ebrahim v. Middlebury Properties, II (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Nuchia) (lease law, Property Code, preservation of error, trial court record) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia 01-06-01175-CV Lisha Ebrahim v. Middlebury Properties, II, L.P. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey Brown In re Reese (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(per curiam denial) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam (order complained of not attached to petition) Before Chief Justice Radack, Justices Alcala and Bland) 01-07-00807-CV In re Roderick L. Reese Appeal from 55th District Court of Harris County (Hon. Jeffrey Brown)
Anaheim Industries, Inc. v. GM Corp (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Bland) (commercial law, UCC, BoC, extracontractual claims, estoppel, misrepresentation) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Alcala and Bland 01-06-00440-CV Anaheim Industries, Inc., Frank Gilchrist, Inc., d/b/a Texas Stagecoach of Houston v. General Motors Corporation Appeal from 55th District Court of Harris County (Judge Jeff Brown)
FInley v. U-Haul Co. (Tex.App.- Houston [14th Dist.] Nov. 20, 2007)(Edelman)(negligence, forseeability) AFFIRMED: Opinion by Justice Edelman Before Justices Fowler, Edelman and Frost 14-05-01161-CV Allene Finley, Administratrix of the Estate of John Finley, Deceased v. U-Haul Co. of Arizona and U-Haul Co. of Texas Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Casarez v. Alltec Construction Co., Inc. (Tex.App.- Houston [14th Dist.] Nov. 6, 2007)(Anderson) (construction law, BoC, prior breach by plaintiff, excuse, DTPA) REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00068-CV Rueben and Nicole Casarez v. Alltec Construction Co., Inc. Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Morris Hartis, Jr. v. Century Furniture Industries Inc. (Tex.App.- Houston [14th Dist.] Jun. 28, 2007) (Guzman)(payment dispute) AFFIRMED: Opinion by Justice Guzman Before Chief Justice Hedges, Justices Hudson and Guzman 14-05-01099-CV Eugene Morris Hartis, Jr. v. Century Furniture Industries Inc. Appeal from 55th District Court of Harris County (Judge: Jeff Brown)
Hunt v. State Office of Risk Management (Tex.App.- Houston [14th Dist.] May 15, 2007)(Guzman) [employment , worker comp, workplace law, jury, workers comp, workplace injury, psychological injury] AFFIRMED: Opinion by Justice Guzman Before Justices Frost, Seymore and Guzman 14-05-00819-CV Norma Hunt v. State Office of Risk Management Appeal from 55th District Court of Harris County (Judge Jeff Brown)
Montgomery v. Jacob Varon, M.D (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Frost)(HCLC) [health care liability claim] AFFIRMED: Opinion by Justice Frost (Before Chief Justice Hedges, Justices Frost and Seymore) 14-05-01059-CV Yolanda Montgomery, Individually and as Next Friend and Natural Parent of L'Jaunet Shantelle Montgomery and Donovan Leon Montgomery v. Jacob Varon, M.D. Appeal from 55th District Court of Harris County (Judge Jeff Brown)
Rogers v. Texas Sterling Construction, LP (Tex.App.- Houston [14th Dist.] Mar. 29, 2007) (Yates) (wrongful death, summary judgment for defendant, duty, premises liability, control) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Anderson and Hudson 14-05-01061-CV David Rogers, Individually and as Representative of the Estate of Leroy Brown v. Texas Sterling Construction, L.P. a/k/a Texas Sterling Construction Inc. a/k/a Texas Sterling, L.P. Appeal from 55th District Court of Harris County (Judge Jeff Brown)
Tan v. Lee (Te (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Hedges)(arbitration, motion to confirm arbitration award, securities fraud) AFFIRMED: Opinion by Chief Justice Hedges (Before Chief Justice Hedges, Justices Fowler and Edelman) 14-06-00319-CV Ying Chun Tan v. Hung Pin Lee Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Sydow v. Verner, Liipfert, Bernhard, McPerson and Hand, No. 14-05-00877-CV (Tex.App.- Houston [14th Dist.] Jan. 25, 2007)(Hedges)(arbitration law, confirmation of arbitration award) AFFIRMED: Opinion by Chief Justice Hedges (Before Chief Justice Hedges, Justices Seymore and Mirabal) 14-05-00877-CV Michael D. Sydow v. Verner, Liipfert, Bernhard, McPherson and Hand, Chartered--Appeal from 55th District Court of Harris County (Judge Jeff Brown)
HCAD v. CCH Parkhearterwood LTD (Tex.App.- Housotn [14th Dist.] Jan. 25, 2007)(per curiam) (tax appraisal contest appeal, voluntary dismissal) DISMISSED: Per Curiam Before Justices Frost, Seymore and Guzman 14-05-01266-CV Harris County Appraisal District and the Appraisal review Board of Harris County Appraisal District v. CCH Parkhearterwood Ltd., as The Property Owners and the Property Owners Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Selected 2006 Appeals Court Cases Originating in the 55th District Court
Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4, 2006) (majority opinion by Fowler)(asbestos claim, constitutional challenge as retroactive law denied) AFFIRMED: Plurality Opinion by Justice Fowler Before Chief Justice Hedges, Justices Fowler and Frost 14-04-00658-CV Barbara Robinson, Individually and as Representative of the Estate of John Robinson, Deceased v. Crown Cork & Seal Company, Inc. Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Dissent in Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4, 2006)(dissent by Frost)(“In deciding whether the legislation at issue violates the prohibition against retroactive laws in the Texas Bill of Rights, the court concludes that if the Texas Legislature reasonably exercises its police power to enact a statute, then that statute does not violate the Texas Constitution, even though the statute is retroactive and destroys the vested rights of some individuals. The people of the State of Texas, in emphatic and compelling language set forth in section 29 of the Texas Bill of Rights, have expressly withheld from the Legislature the authority to enact retroactive laws in violation of section 16 of the Texas Bill of Rights. Because the Legislature has no police power to enact retroactive laws in violation of section 16, this court should not use a police-power analysis to determine whether the statute is unconstitutionally retroactive. Furthermore, the weight of precedent from the Texas Supreme Court and this court requires the use of the vested-rights analysis. Under this analysis, the statute in question destroys the vested rights of the appellant in this case and therefore violates section 16 of the Texas Bill of Rights, as applied. Because the court, using a police-power analysis, reaches the opposite conclusion, I respectfully dissent.”)
Ledig v. Duke Energy, No. 01-04-00922-CV, (Tex.App.- Houston [1st Dist.] March 23,2006) (Jennings) (employment dispute, bonus, defamation, and other causes of action, rescission, offset) AFFIRM TC JUDGMENT: Opinion by Justice Jennings (Before Justices Nuchia, Jennings and Higley) 01-04-00922-CV Peter J. Ledig v. Duke Energy Corporation and Duke Energy Trading and Marketing, L.L.C. Appeal from 55th District Court of Harris County (Judge Jeffrey Brown)
HCAD v. CCH Parkhearterwood LTD (Tex.App.- Housotn [14th Dist.] Jan. 25, 2007)(per curiam) (tax appraisal contest appeal, voluntary dismissal) DISMISSED: Per Curiam Before Justices Frost, Seymore and Guzman 14-05-01266-CV Harris County Appraisal District and the Appraisal review Board of Harris County Appraisal District v. CCH Parkhearterwood Ltd., as The Property Owners and the Property Owners Appeal from 55th District Court of Harris County (Hon. Jeff Brown)