Opinions by other Justices
of the
First Court of Appeals,  
sitting in Houston, Texas
Chief Justice Sherry Radack
Justice Tim Taft (resigned 4/09)
Justice Massengale (appt'd 2009)
Justice Jim Sharp (2009-)
Justice Sam Nuchia (former)
Justice Terry Jennings
Justice Evelyn Keyes
Justice Elsa Alcala  
Justice George C. Hanks, Jr.
Justice Laura Carter Higley
Justice Jane Bland

JUDGE PROFILE:
MICHAEL MASSENGALE
Appointed Justice of the First Court of Appeals
Republican Incumbent Place 8 (unexpired term)
Former incumbent in this position:  
Hon. Timothy Taft

2010 Judicial candidates for Place 8 (unexpired term)
GOP Primary: Incumbent Michael Massenale vs. Gael Harrison
Democratic opponent: Robert May


Find more judge and court information at the Houston-Opinions Home Page
Recent Opinions by Appointed Houston Appeals Court Justice
Michael C. Massengale

Governor Rick Perry has appointed Michael C. Massengale to fill the unexpired term of Justice Tim Taft,
who retired on June 1, 2009. Not to be confused with
Mike Massengale, fine artist.  

OPINIONS WRITTEN BY JUSTICE MASSENGALE IN CIVIL APPEALS

In re Baker (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Massengale) (petition dismissed for want of
jurisdiction,
contributor to other candidate had no standing to bring election contest)
Baker filed this original proceeding, seeking to have the name of a Republican candidate for judicial office
removed from the primary election ballot.  We dismissed the petition for writ of mandamus for want of
jurisdiction.  We now substitute this opinion for our prior memorandum opinion, explaining our conclusion
that Baker has failed to demonstrate his standing to bring this original proceeding.  
DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Massengale     
Before Justices Jennings, Keyes and Massengale   
01-10-00022-CV  In re James A. Baker    
Election contest re:
308th District Court of Harris County

Elbar Investments, Inc. v. Johnston (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Massengale)
(dispute over attorney's fees awarded in connection with filing and cancellation of
lis pendens, complaint not
preserved for appellate review)  
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Massengale     
Before Justices Keyes, Sharp and Massengale    
01-09-00757-CV  Elbar Investments, Inc. v. Cheryle R. Johnston    
Appeal from 309th District Court of Harris County
Trial Court Judge:
Hon. Frank B. Rynd  

Brejon v. Johnson-Brejon (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(
motion to modify child support, material and substantial change in circumstances, attorney's fees order void)
W
e hold that there was probative and substantive evidence to support the trial court’s order for increased child support.
AFFIRM TC JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00642-CV  Phillipe J. Brejon v. Lia M. Johnson-Brejon   
Appeal from 310th District Court of Harris County
Trial Court Judge:
The Honorable Lisa Millard

Rodrigues v. Press (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Massengale)(legal malpractice suit)
Appellant, Enrique Rodriguez, and his wife, Anabel Reyna Rodriguez, sued appellant’s former lawyer, Dionne S. Press, for
alleged negligence, breach of contract, violations of the Deceptive Trade Practices-Consumer Protection Act, and other
theories.  See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp. 2009) (DTPA).  The trial court rendered a take-
nothing summary judgment based on appellee Press’s motion for summary judgment.  Appellant brings three points of error,
alleging the trial court erred in (1) hearing the motion for summary judgment outside the time periods set out in the court’s
docket control order, (2) relying on the doctrine set forth in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995),[1] to grant
Press’s motion for summary judgment, and (3) denying appellant’s motion for summary judgment based on what appellant
claims is false and misleading summary-judgment evidence filed by Press.  We affirm.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00326-CV        Enrique Rodriguez v. Dionne S. Press   
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Jennifer Walker Elrod

Vu v. Solanic (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Massengale)(health care liability claim, expert
report sufficiency)
The issue in this interlocutory appeal is whether the trial court abused its discretion by denying a motion to dismiss health-
care-liability claims. Appellants moved to dismiss appellee Cicely Solanic’s medical-malpractice claims on the ground that
Solanic filed a deficient expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l) (Vernon Supp. 2009). The trial
court denied the motion to dismiss. We affirm the order in part and reverse in part. ...     We hold the trial court did not err by
denying Dr. Vu’s motion to dismiss on the basis of Solanic’s liposuction-and-tummy-tuck claim. We therefore affirm that
portion of the trial court’s order. We hold the trial court erred by denying Dr. Vu’s motion to dismiss on the basis of Solanic’s
informed-consent and diastasis-recti-correction claims. We therefore reverse that portion of the trial court’s order.
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER
JUDGMENT:
Opinion by
Justice Massengale     
Before Chief Justice Radack, Justices Bland and Massengale  
01-09-00551-CV Tuan A. Vu, Individually and d/b/a Southwest Cosmetic Surgery and Skin Care Center and
Tuan A. Vu, M.D., P.A. v. Cicely Solanic   Appeal from 400th District Court of Ft. Bend County
Trial Court Judge: Hon Clifford J. Vacek   

City of Houston v. HS Tejas, Ltd. (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley)
(
inverse condemnation, regulatory takings claim, plea to the jurisdiction proper, ripeness issue,
opportunity to amend)("Because HS Tejas has failed to allege a concrete injury as is necessary to establish
subject-matter jurisdiction in this case, we reverse the trial court’s order denying the plea to the jurisdiction,
and remand the cause for further proceedings")
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by
Justice Massengale    
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00393-CV   City of Houston v. HS Tejas, Ltd   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Hon. Jacqueline Lucci Smith

Houchins v. Devon Energy Production Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Massengale)
("In this appeal, we must
determine whether the language of a deed is ambiguous and whether the deed
reserved
mineral rights to the grantor. The district court held the deed unambiguously reserved to the
grantor all the minerals. We affirm")(
interpretation of deed language)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00273-CV  Cynthia A. Houchins and Darrell E. Houchins v. Devon Energy Production Co., L.P.    
Appeal from 18th District Court of Johnson County
Trial Court Judge: Hon. John Edward Neill

National Fire Insurance Co. v. State and County Mutual Fire Ins. Co.  (Tex.App.- Houston [1st Dist.] Oct. 8,
2009)(Massengale)(
insurance litigation)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00845-CV  National Fire Insurance Company of Hartford, as Assignee of Kelvin Ray Gatlin
v. State and County Mutual Fire Insurance Company   
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn Wood

Aguilar v. Dojo Enterprises, Inc. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale)
(take-nothing judgment in personal injury suit affirmed) (
statute of limitations and due diligence in serving
defendant, deemed admissions, waiver of arguments on appeal on account in inadequate briefing)   
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00903-CV Estelita Aguilar v. Dojo Enterprises, Inc. d/b/a Party City   
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn Wood

Med-Mal Suit under TTCA Dismissed on Appeal
UT Med. Branch Galveston v. Brisco (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Massengale)
(
Texas Tort Claims Act TTCA case, claim dismissed, sufficiency of notice of claim letter, immunity not waived)
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00064-CV  The University of Texas Medical Branch Galveston and The University of Texas System v.
Dawn Nico Brisco   Appeal from 56th District Court of Galveston County
Trial Court Judge: Hon Lonnie Cox

Appellate Opinion Debut in Pro-Se Appeal: Discouraging tax suit foreclosure defendants from
waiving the valuable right to be represented by attorney and proceeding without:
Gilbert v. HISD (Tex.App.- Houston [1st Dist.] Sep. 24, 2009)(Massengale) (pro se appeal, suing or
defending suit as next friend of incompetent person, standing to bring appeal, tax lien foreclosure)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Massengale  
Before Chief Justice Radack, Justices Bland and Massengale   
01-06-00159-CV  Matt Gilbert v. Houston Independent School District   
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble

TEXT OF PRESS RELEASE FROM THE GOVERNOR'S OFFICE:

Gov. Perry Names Massengale Justice of the 1st Court of Appeals

June 15, 2009

AUSTIN – Gov. Rick Perry has appointed Michael C. Massengale of Houston justice of the 1st Court of
Appeals for a term to expire at the next general election. The court presides over 10 counties surrounding
the Houston area.

Massengale is a partner at Baker Botts L.L.P. He is a member of the State Bar of Texas and American and
Houston Bar associations. He is also president of the Houston chapter of the Federalist Society, a volunteer
with the Houston Volunteer Lawyers Program, and a member of Annunciation Catholic Church. Massengale
received a bachelor’s degree from Dartmouth College and a law degree from the University of Texas at
Austin. He replaces Tim Taft of Houston.

NEWS AND BLOG ITEMS ON MASSENGALE APPOINTMENT

Lawyer, 37, named 1st Court of Appeals justice (Tex Parte Blog) (quoting Massengale, who has a general
commercial and securities practice at Baker Botts, as saying he probably will not report for duty at the 1st
Court until Aug. 1 to give him time to finish projects in the works at his firm.)

Class of 2010, so far  One more judicial race (Charles Kuffner on Kuff' World) ("If form holds from 2008,
Massengale will have a primary challenger as well as a Democratic opponent. He was appointed to Place 8,
which as of my
Class of 2010 So Far post wasn't listed as a bench that was up for election. I presume that
will be rectified shortly. As you know, I think the appeals court races will be a good opportunity for Dems next
year, so I certainly hope new Justice Massengale gets a challenger soon.")

BIOGRAPHICAL INFO / PROFILE

Link to --> Michael C. Massengale SBOT Profile | Statutory Profile Last Certified On: 02/10/2006 (accessed 6/18/09)
Texas Licensed: Dec. 11, 1997
Practice Information
Firm: No information reported by attorney  
Firm Size: Over 200
Occupation: Private Law Practice
Primary Practice Areas: Litigation: Commercial  
Courts of Admittance:
Federal Courts of Admittance:
Fifth Circuit Court of Appeals
Colorado District Court
Texas Northern District Court
Texas Southern District/Bankruptcy Court
Education and Certification History
Law Schools: University of Texas (UT)
Law School Graduation: June 1997 - Doctor of Jurisprudence (JD)  -->
Massengale class of 1996-97 group pic  (Tex LR)
Texas Board of Legal Specialization Certifications:
No profile data on file for Texas Board of Legal Specialization Certification

MICHAEL C. MASSENGALE - INFO FROM PROFESSIONAL PROFILE ON FIRM WEBSITE

Practice Areas:
Securities Litigation | Antitrust and Competition Law
Concentration: Commercial litigation, securities litigation and arbitration
Summary: Michael Massengale primarily represents clients in business trial matters. He has taken part in a
number of trials and injunction hearings in Texas and Delaware courts.
Mr. Massengale's active trial practice includes arbitrations. Since 2002 he has represented clients in nine
trials in Texas courts, seven of them jury trials, and three arbitrations before the National Association of
Securities Dealers. The clients he advises include regulated utilities, energy concerns, oil and gas
companies, and financial advisors.
Following graduation from law school, Mr. Massengale served as a law clerk to Judge Harold R. DeMoss Jr.
of the United States Court of Appeals for the Fifth Circuit.
Representative Engagements
CenterPoint Energy, Inc. – multiple lawsuits involving commercial and tort claims, including six cases tried to jury verdicts in
Texas state courts
ASARCO LLC – fraudulent transfer and breach of fiduciary duty litigation  
Pennzoil-Quaker State Company – multiple lawsuits, including second-chair representation of board of directors during three-
week trial of shareholder suit challenging the Shell/Pennzoil merger (favorable jury verdict, no breach of fiduciary duties), and
an antitrust suit against subsidiary MEDO Industries
Texas Genco – multiple lawsuits involving commercial and personal injury claims, including shareholder litigation arising
from the sale of the company
Reliant Energy, Inc. – multiple lawsuits involving commercial claims
Conoco Inc. – private arbitration and litigation before the Delaware Court of Chancery, Superior Court, and Supreme Court
Landry's Restaurants, Inc. – contract dispute litigated before the Delaware Court of Chancery
Special committee litigation – representation of the special committees of Plains Resources, Pure Resources, and
Chaparral Resources in separate disputes before the Delaware Court of Chancery arising from tender offers to acquire the
outstanding publicly traded shares of the companies at issue
NASD arbitrations – representation of various banks and financial advisors in disputes involving enforcement of an arbitration
agreement, an investor's allegations that he received oral promises of positive returns, and contract dispute over an alleged
oral compensation agreement
Pro bono matters – preparation of briefing to the United States Supreme Court on behalf of a prisoner (petition for writ of
certiorari) and amici curiae prosecutors' associations (briefs in support of successful petition for writ of certiorari and on
merits in support of successful petitioner); representation of children in various matters, including the handling of a student's
First Amendment complaint against a public school; representation of a church and a nonprofit corporation with respect to
threatened tax foreclosures
Publications, Speeches, and Presentations
Panelist, Decisions From the 2003-2004 United States Supreme Court Term, the Federalist Society, Houston, July 2004
"Riotous Uncertainty: A Quarrel With the 'Commentators' Rule' Against Section 1441(c) Removal for Counterclaim, Cross-
Claim, and Third-Party Defendants," Texas Law Review, 1997

MIKE MASSENGALE - PERENNIAL RISING STAR:
ATTORNEY PROFILE ON www.superlawyers.com

Michael C. Massengale
Michael Massengale
Baker Botts L.L.P.
One Shell Plaza, 910 Louisiana Street
Houston, TX 77002 US
Practice areas: Business Litigation (50%), Securities Litigation (30%), Civil Litigation Defense (20%)
Law School: The University of Texas School of Law
--------------------------------------------------------------------------------
Selected to:
Texas Rising Stars 2009
Texas Rising Stars 2008
Texas Rising Stars 2007
Texas Rising Stars 2006
Texas Rising Stars 2005
Texas Rising Stars 2004
--------------------------------------------------------------------------------
Michael C. Massengale:

DIRECTORY LISTINGS
Justia Legal Services & Lawyer listing


SOCIAL MEDIA: LinkedIN Profile
http://www.linkedin.com/pub/michael-massengale/10/726/259

POLITICAL CAMPAIGN CONTRIBUTIONS
Michael Massengale Contribution List in 2008
Name & Location Employer/Occupation MASSENGALE, MICHAEL C
HOUSTON, TX 77008 BAKER BOTTS, LLP/ATTORNEY
Dollar Amount: $1,000 Date 3/21/2008
Contributed to: TEXANS FOR SENATOR JOHN CORNYN INC. - Republican
Source: http://www.campaignmoney.com/political/contributions/michael-massengale.asp?cycle=08


Also see Appellate Record of Predecessor: --> 2009 Tim Taft Opinions |
2008 Opinions by Justice Timothy Taft in Civil Appeals
HOUSTON JUSTICES
1st and 14th Court of Appeals

Justice Alcala, Elsa
Justice Anderson, John
Justice Bland, Jane
Justice Brown, Jeff
Justice Boyce, William (Bill)  
Justice Edelman, Richard (former)
Justice Fowler, Wanda (former)
Justice Frost, Kem Thompson
Justice Guzman, Eva
Justice Hanks, George C., Jr.
Chief Justice Hedges, Adele
Justice Higley, Laura Carter
Justice Hudson, Harvey J. (former)
Justice Jennings, Terry
Justice Keyes, Evelyn
Justice Massengale, Michael C.
Justice Nuchia, Sam (former)
Chief Justice Radack, Sherry
Justice Seymore, Charles
Justice Sharp, Jim (elected 2008)
Justice Sullivan, Kent
Justice Taft, Timothy (Tim)(ret.)
Justice Yates, Leslie Brock

Also see --> General Information on
Houston Courts of Appeals, Appellate
Judges, and 2008 Judicial Elections   

Houston Courts & Cases Blog  
Future Seat of the Houston Court of Appeals Old Harris County Civil Courthouse