Old Harris County Civil Courthouse
2008 Dissents and Concurrences
In the Houston Courts of Appeals
FREQUENCY OF DISSENTING AND CONCURRING OPINIONS. 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 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 2008

2008 Dissents and Concurrences from the Houston Courts of Appeals
Also see -->
2009 cases with concurring or dissenting opinions, or both

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)

Fired fire department employees were not entitled to civil service review, panel majority says; one justice dissents
Jackson v. City of Texas City (Tex.App.- Houston [1st Dist.] July 24, 2008)(Keyes)
(
public employment, fire department, dismissal, failure to obtain EMT treated as not disciplinary, civil service protections
inapplicable, civil service commission)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Taft, Keyes and Alcala
01-07-00026-CV
Anthony Jackson and James Nunez v. City of Texas City and Debbie Lesco, Texas City Civil Service Director
Appeal from 212th District Court of Galveston County
Trial Court
Judge: Hon. Susan Elizabeth Criss  
Dissenting Opinion by Justice Alcala

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     


Court of Appeals throws out judgment against state university in whistleblower suit and remands case; one justice
dissents.
Univ. of Houston v. Barth (Tex.App. - Houston [1st Dist.] July 3, 2008) (jury award in tenured professor's Whistleblower suit
reversed; case remanded to the trial court)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley  
Before Justices Nuchia, Alcala and Higley
01-06-00490-CV The University of Houston v. Stephen Barth
Appeal from 113th District Court of Harris County
Trial Court
Judge: Hon. Patricia Hancock  
Dissenting Opinion by Justice Alcala  

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

Dissenting Opinion by Keyes in In re Walker (Tex.App.- Houston 2008)
(
termination of parental rights, jurisdiction, dismissal)
OPINION
DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Keyes  
Before Justices Taft, Jennings and Bland
01-08-00348-CV In re Kristal Timish Walker a/k/a Kristal Timisha Walker
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips  

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)

General Star Indemnity Co. v. Gulf Coast Marine Ass'n (Tex. App. - Houston [14th Dist.] Feb. 14, 2008)(Guzman)
(
insurance law, duty to defend, indemnify)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Fowler and Guzman
14-06-00662-CV General Star Indemnity Co. v. Gulf Coast Marine Associates, Inc.
Appeal from 152nd District Court of Harris County (
Judge Kenneth Price Wise)
Dissenting Opinion by Justice Brock Yates

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

Cantu v. Grossman (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Seymore)(venue rules, foreign judgment, MTV)
REVERSED AND REMANDED: Opinion by
Justice Seymore
Before Justices Frost, Seymore and Guzman
14-06-00078-CV Mark A. Cantu v. Howard S. Grossman, P.A.
Appeal from 215th District Court of Harris County (Honorable Levi James Benton)
Dissenting Opinion by Justice Frost  

Also see --> 2007 CASES WITH DISSENTING / CONCURRING OPINIONS
Also see --> 2009 CASES WITH DISSENTING / CONCURRING OPINIONS
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 (2009-)
Justice Nuchia, Sam (former)
Chief Justice Radack, Sherry
Justice Seymore, Charles
Justice Sharp, Jim
Justice Sullivan, Kent
Justice Taft, Timothy (Tim)(former)
Justice Wilson, Danie (ret.)(visiting)
Justice Yates, Leslie Brock

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

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