164th District Court Bench: Alexandra Smoots-Hogan vs. Martha Hill Jamison

Recent Appeals from cases in Judge Hill Jamison's Court

Ashworth v. Brzoska (Tex.App.- Houston [14th dist.] Nov. 4, 2008)(Brown)
(post-answer default judgment, denial of new trial reversed)
REVERSED AND REMANDED: Opinion by Justice Brown
Before Justices Brock Yates, Guzman and Brown
14-07-00239-CV        Douglas Ashworth v. Richard Brzoska
Appeal from 164th District Court of Harris County
Trial Court Judge: Martha Hill Jamison

Lakota Resources, Inc v. Pathex Petroleum, Inc. (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes)
(post judgment garnishment proceeding, no interlocutory appeal permitted, DWOJ)
DISMISS APPEAL: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Alcala
01-07-00537-CV Lakota Resources, Inc. v. Pathex Petroleum, Inc., Oneok Energy Services Company, LP Appeal
from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison

Kahng v. Verity (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings)
(auto PI, death, negligence, man running into freeway, no time to swerve, NE-SJ properly granted, failure to
preserve error)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Taft, Jennings and Bland
01-07-00695-CV        Clara Kahng, Individually and on behalf of Wony Kahng, Gredo Kahng, Howard Kahng and
Sarah Roh v. John Richard Verity
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison

Chapa v. Traciers & Assoc., Inc. (Tex.App.- Houston [14th Dist.] July 31, 2008)(Guzman)
(repossessed car, kids inside, parents' claim rejected)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Brown
14-07-00056-CV        Carlos Chapa and Maria Chapa, Individually and as Next Friend of Carlos Chapa, Jr. and Alex
Chapa, Minors v. Traciers & Associates, Incorporated; Traciers & Associates; Traciers; Paul Chambers; and Ford
Motor Credit Corp.
Appeal from 164th District Court of Harris County
Trial Court Judge: Martha Hill Jamison

Wang v. Tang (Tex.App.- Houston [1st Dist.] June 5, 2008)(Higley)
(interlocutory appeal, defamation, libel, media defendant, no malice shown)
See post on Media Law Prof Blog: Texas Court of Appeals Rules Paper Entitled To Summary Judgment in Defamation Case
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Keyes and Higley
01-08-00009-CV Jianguang Wang and Yellow Emperor Communications, Inc., d/b/a Houston Chinese Press v.
David Y. Tang
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison

Strouse v. City of Houston (Tex.App.- Houston [14th Dist.] May 29, 2008)(Frost) (public employment, police
discipline, indefinite suspension, grievance, judicial review, appeal from hearing examiner's ruling)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Fowler, Frost and Seymore
14-06-00618-CV Darrell H. Strouse v. City of Houston and Harold L. Hurtt, in His Official Capacity as Chief of Police
of the Houston Police Department
Appeal from 164th District Court of Harris County
Trial Court Judge: Martha Hill Jamison

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: M artha Hill Jamison
Concurring and Dissenting Opinion by Justice Guzman

Beauty Elite Group, Inc. v. Palchick (Tex.App.- Houston [14th Dist.] Mar. 18, 2008)(Opinion by Justice Boyce)
(employment law, oral contract, breach of contract, unfair competition, attorney's fees)
AFFIRMED: Opinion by Justice Boyce
14-07-00058-CV Beauty Elite Group, Inc., PetSilk, Inc., and Basim Shami v. Irwin Palchick
Appeal from 164th District Court of Harris County
Trial court judge: Martha Hill Jamison

Enviropower LLC v. Bear, Stearns & Co., Inc. (Tex. App.- Houston [1st Dist.] Feb. 21, 2008)(Hanks)
(domestication and enforcement of foreign judgement, default judgment, exception, death penalty sanctions)
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)

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 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

Rowan v. Escalante (Tex.App. - Hosuton [14th Dist.] Jan. 22, 2008)(Mirabal)
(HCLC, summary judgment for defendants reversed)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Mirabal
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

Garcia v. Packaged Ice, Inc. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Taft) (PI slip and fall case)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Hanks and Higley
01-06-00379-CV Elsa Garcia v. Packaged Ice, Inc., a/k/a Reddy Ice and Curtis Dean Bell, Individually and d/b/a
Curtiss Dean Bell Distributing Company
Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison)

Prairie View A&M Univ. v. Dickens (Tex.App.- Houston [14th Dist.] Oct. 30, 2007)(Frost)(jurisdiction, individual
capacity claims, official capacity claims, sovereign immunity, plea to the jurisdiction, government entities)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost
Before Justices Anderson, Fowler and Frost
14-06-00966-CV Prairie View A&M University, Doris Price, Individually and as Vice President of Prairie View A&M
and George Wright, Individually and as President of Prairie View A&M University v. Brian Dickens
Appeal from 164th District Court of Harris County (Honorable Martha Hill Jamison)

Kim v. Farmers Ins. Exchange (Tex.App.- Houston [1st Dist.] Oct. 25, 2007)(Hanks)(insurance claim, failure to notify,
prejudice, no actual notice)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-05-01112-CV John Kim, as Receiver for Dale McPherson d/b/a Jamac Services, Inc., (Judgment Debtor to
Sharon Berryman) v. Farmers Insurance Exchange
Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison)

Tabor v. Medical Legal Evaluations, Inc. (Tex.App.- Houston [1st Dist.] Aug. 30, 2007)(Hanks)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Bland
01-06-01010-CV Tabor, Chhabra & Gibbs, P.A. and Darryl Gibbs v. Medical Legal Evaluations, Inc. and Bruce L.
Halbridge, M.D.
Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison)

Nitsche v. Teams of Texas (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Anderson) (bill of review denied, water
damage mold claim, no third party beneficiary claim, no valid basis for appeal)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Hudson and Guzman
14-05-00876-CV Cynthia Nitzsche and Stephen Nitzsche v. Teams of Texas
Appeal from 164th District Court of Harris County (Martha Hill Jamison)

City of Houston v. Vargas, (Tex.App.- Houston [1st Dist.] March 16, 2006)(Keyes)
[interlocutory appeal, TTCA City not entitled to immunity dismissal in police shooting case; trial court properly
denied plea to the jurisdiction]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Hanks)
01-04-01173-CV
The City of Houston v. Jose Vargas and Marcia Victoria Vargas Individually and as Heirs of
Jose Vargas, Jr.
Appeal from 164th District Court of Harris County

OPINION BY JUSTICE KEYES

Appellant, the City of Houston, brings an interlocutory appeal challenging the trial court’s order that denied the City’s plea to the
jurisdiction. In one issue on appeal, the City argues that the trial court erred by denying its plea to the jurisdiction because appellees,
Jose Vargas and Maria Vargas, individually and as heirs of Jose Vargas, Jr. (plaintiffs), did not plead specific facts that alleged a
cause of action against the City.

We affirm.

Background

On October 31, 2003, while Officer R.K. Butler of the Houston Police Department was working off-duty-security at the AMC Theater
Studio 30 in Houston, Jose Vargas, Jr. drove his vehicle into the parking lot of the theater. When Vargas later exited the theater parking
lot and stopped at the intersection of Dunvale and Westheimer, Officer Butler approached Vargas’s car with his service firearm drawn.
After Officer Butler put his firearm through the window of Vargas’s vehicle, the gun discharged, killing Vargas.

The parents of Vargas sued the theater and the Houston Police Department. Plaintiffs later nonsuited the police department and
added the City of Houston as a defendant. The City filed a plea to the jurisdiction that the trial court denied. The City appeals from this
order.
The City asserts that “[b]ecause plaintiffs failed to cure the defects after being giventhe opportunity to amend, dismissal with prejudice
was proper.” The City isapparently arguing that the trial court should have dismissed the plaintiffs’ suitbecause it did not comply with
the City’s special exceptions. The record reflects that the trial court previously granted the City’s special exceptions and allowed the
plaintiffs an opportunity to amend their pleadings. Whether the trial court shouldhave dismissed the suit on special exception grounds
is not before us because, amongother reasons, pursuant to our statutory authority, we have interlocutory jurisdictionto address only
whether the trial court properly denied the City’s plea to thejurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon
Supp.2005).

Standard of Review

Subject-matter jurisdiction is essential for a court to have the authority to resolve a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443 (Tex. 1993). The plaintiff has the burden to plead facts affirmatively showing that the trial court has subject-matter
jurisdiction. Id. at 446. A party may challenge a court’s subject-matter jurisdiction by filing a plea to the jurisdiction. See Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999). We review the trial court’s ruling on such a plea de novo, as a question of law.
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In conducting this de novo review, we do not examine the merits of the
plaintiff’s case, but consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dept. of Transp. v.
Ramirez, 74 S.W.3d 864, 867 (Tex. 2002).

Sovereign Immunity

The terms sovereign immunity and governmental immunity are often usedsynonymously and interchangeably without distinction.
However, the supreme courthas noted that sovereign immunity refers to the State’s immunity from suit andliability and protects the
State and its divisions, while governmental immunityprotects political subdivisions of the State, including counties, cities, and
schooldistricts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

Sovereign immunity protects the State, its agencies and officials, and political subdivisions of the

State from suit arising from their performance of their governmental functions, unless immunity from suit has been waived. Fed. Sign
v. Tex. Southern Univ., 951 S.W.2d 401, 405 (Tex. 1997); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex. 1996). A
city is a political subdivision of the State. Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 2005); McKinney, 936 S.W.2d at
283.

The sovereign immunity of the State inures to the benefit of a municipality insofar as the municipality engages in the exercise of
governmental functions, except when that immunity has been waived. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997).
Governmental functions are “‘public acts which the municipality performs as the agent of the State in furtherance of general law for the
interest of the public at large.’” Truong v. City of Houston, 99 S.W.3d 204, 209 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (quoting
Bailey v. City of Austin, 972 S.W.2d 180, 192 (Tex. App.—Austin 1998, pet. denied)); Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)
(Vernon 2005) (stating that governmental functions “are those functions that are enjoined on a municipality by law and are given it by
the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public”). “[I]t is the
Legislature’s sole province to waive or abrogate sovereign immunity.” Tex. Nat. Resources Conservation Commn. v. IT-Davy, 74 S.W.
3d 849, 853 (Tex. 2002) (quoting Fed. Sign, 951 S.W.2d at 409). A political subdivision’s immunity from suit arising from the
performance of a governmental function can be waived only by legislative consent or constitutional amendment. Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003); Fed. Sign, 951 S.W.2d at 405. Such a waiver must be expressed “by clear and
unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon 2005); Fed. Sign, 951 S.W.2d at 405 (quoting Univ. of Tex. Med.
Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)).

Under the Texas Tort Claims Act (TTCA), the City of Houston is liable for personal injuries “caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005); see id. § 101.025 (Vernon 2005) (waiving governmental immunity from suit
“to the extent of liability created by this chapter”). The Supreme Court of Texas has held that “the Tort Claims Act does not create a
cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist.” City of Tyler v. Likes, 962 S.W.2d
489, 494 (Tex. 1997).

In their fourth amended petition, the plaintiffs predicated the City’s waiver of governmental immunity on section 101.021(2) of the TTCA.
Section 101.021 provides that a governmental unit in the state is liable for:

(1)     property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an
employee acting within his scope of employment i

(A)    the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven
equipment; and

(B)    the employee would be personally liable to the claimant according to Texas law; and

(2)     personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A)(B), (2).

The City argues that plaintiffs have not sufficiently pled a cause of action against the City because plaintiffs have not pled that Officer
Butler was acting in the scope of his employment with the City. The City contends that plaintiffs are “attempting to avoid the
consequences of a new statute Tex. Civ. Prac. & Rem. Code Ann. § 101.106 [(Vernon 2005)] which does not allow for maintenance of
a lawsuit against the governmental unit and its employee pursuant to the Texas Tort Claims Act.”
Section 101.106 provides “If a suit is filed under this chapter against both agovernmental unit and any of its employees, the
employees shall immediately bedismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. &Rem. Code Ann. §
101.106(e) (Vernon 2005).

The plaintiffs respond that they adequately pled a cause of action against the City. In their fourth amended petition, plaintiffs state the
following:

Plaintiffs allege that at all times relevant to this cause of action, R.K. Butler was acting in furtherance of his duties as a security guard
for AMC Theaters Studio 30. Nevertheless, Plaintiffs are also aware that the law may recognize that at the time of this occurrence, R.K.
Butler was acting as a Police Officer for the City of Houston. In the unlikely event that R.K. Butler is determined to have been acting as a
Houston Police Officer at the time of this incident, suit against the City of Houston is brought pursuant to Texas Civil Practice and
Remedies Code § 101.021(2), the Texas Tort Claims Act because the death of Jose Vargas occurred as a result of the misuse of
tangible personal property, a handgun, by Richard K. Butler. Plaintiffs will show that Richard Butler was negligent in the manner in
which he handled his weapon, a handgun, which resulted in an accidental discharge. Plaintiffs will further show that this defendant is
not entitled to official immunity because no reasonable peace officer would have believed that the actions of Richard Butler were
justified.

The Rules of Civil Procedure allow a party to plead in the alternative. Tex. R. Civ. P. 48; see also Waite Hill Servs., Inc. v. World Class
Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998). After reviewing plaintiffs’ fourth amended petition and construing it liberally, we
conclude that plaintiffs pled facts sufficient to show a cause of action against the City. Specifically, the plaintiffs pled in the alternative,
that if Officer Butler is determined to be acting as a police officer for the City at the time of the incident, suit is against the City pursuant
to section 101.021(2).

We overrule the City’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

    Evelyn V. Keyes

       Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.

THE INCUMBENT IN HER OWN WORDS	THE CHALLENGER IN HER OWN WORDS
Martha Hill Jamison, Republican Incumbent Judge, 164th Judicial District Court, since 1999. Board Certified, Civil Trial Law. Member, Harris County Juvenile Board. Civil Administrative Judge. Founding Fellow, International Academy of Mediators. Board, American Judicature Society. Graduate, University of Texas School of Law. Active member, St. Luke’s Methodist Church. American Leadership Forum, Class XXV.	Alexandra Smoots-Hogan, Democrat After graduating with honors from The University of St. Thomas, I joined South Texas College of Law’s nationally ranked advocacy team. With three national moot court titles, I was inducted in the Order of the Barristers. I have spent my career in the Courtroom, representing varied clients in varied cases.
WHEN SHOULD A JUDGE RECUSE?	WHEN SHOULD A JUDGE RECUSE?
A judge should recuse when statutorily required. A judge may offer to recuse in cases where a litigant may feel uncomfortable going forward (for example, if my brother’s law firm is representing a party); however, this should be a rare occurrence. A judge should not recuse when the request is made solely because of a ruling made in the case.	A judge should recuse themselves whenever there is an air of impropriety in their remaining on the case. This air may be the result of an obvious financial interest or from a less overt acquaintance between the counsel or judge.
Source: LWV Voters Guide: Question to candidate	Source: L eague of Women Voters Guide: Candidate Q&A
More on the incumbent from the Harris County GOP judicial re-election campaign web site: Keep our Judges dot com	More on this candidate form the Harris County Democratice Party judicial elections campaign web site: Judges for All dot com